R v AEB & Ors

Automatically recorded computer data does not become hearsay merely because a person selects and extracts a relevant subset, sets search parameters or presents it in readable form. It remains real evidence where no human intervention creates, alters or adds to the data. The prosecution must provide sufficient evidence to show that the process did not involve such intervention. Questions about relevance, fairness, missing underlying data or witness identification may affect exclusion or cross-examination, but do not necessarily determine threshold admissibility. If hearsay provisions apply, the relevant person under section 117(2)(b) may be the customer or shop assistant whose transaction caused automatic recording. Lack of recollection may satisfy section 117(5).

The prosecution appealed under s58 of the Criminal Justice Act 2003 against a Crown Court ruling that a spreadsheet containing Apple transaction data was inadmissible hearsay. Four defendants jointly charged with money laundering had not yet been tried. The data had been automatically recorded, then selected and extracted using an Apple internal tool. The Crown Court held that the spreadsheet was not raw data because human intervention had been involved, and that the requirements of s117 had not been proved. The central issues were whether the extraction process transformed automatic records into hearsay, whether s117 applied if it did, and how the evidence should be produced.

Disposition. The court granted leave to appeal, allowed the appeal, reversed the ruling that the spreadsheet was hearsay, and ordered under s61(4)(a) of the Criminal Justice Act 2003 that proceedings could resume in the Crown Court.

1. Character of the evidence. The raw data had been recorded automatically when transactions occurred. The prosecution had identified relevant gift-card numbers, after which Apple personnel used an internal search facility to select and extract relevant records. The extracted material remained raw data and real evidence.
2. Human intervention. A person’s decisions about search terms, filters, selection parameters or presentation format did not themselves transform the data into hearsay. The position would differ if a person had created, altered or added to the data. The court applied the principle in R v Spiby (1990) 91 Cr App R 186.
3. Proof and exclusion. The prosecution had to show that the selection and extraction process had not involved human intervention in creating or manipulating the data. The officer’s evidence and the Apple employee’s evidence were sufficient. Issues concerning other raw data, the identity of the Apple personnel, relevance or fairness could be addressed through exclusion applications or cross-examination.
4. Alternative hearsay ground. It was unnecessary to decide the s117 issue. If the provision had applied, the relevant persons would have been the customers and/or shop assistants whose transactions caused the data to be recorded. They could reasonably be supposed to have had personal knowledge, and could not reasonably be expected to recall the matters. The court would therefore have held the s117 requirements satisfied.

The court also exercised its power under s71(3) of the Criminal Justice Act 2003 to prohibit identification of the defendants, the trial location and the challenged judge pending conclusion of the Crown Court proceedings or further order.

• Court of Appeal (Criminal Division) — [2024] EWCA Crim 1320. Leave granted and prosecution appeal allowed; the spreadsheet was admissible real evidence and proceedings could resume.
• Crown Court — The judge ruled that the spreadsheet was hearsay and, at that stage, inadmissible under s117 of the Criminal Justice Act 2003.