Evidential Weight and Legal Admissibility of Electronic Information

Introduction

As the use of document imaging increases, corporate policy should be decided upon for the handling of originals following scanning. If originals are destroyed, then they do not have to be located with associated overheads and effort.

Admissibility

In determining the admissibility of a document, expert legal opinion has relied on the ‘best practice rule’, meaning that a court will give most credence to the best evidence available, such as original documents or oral testimony.

Evidence that is not original – for example, a printout of an electronic document or a scanned-in version of a paper original – is considered more remote and is thereby classified as ‘hearsay’.

That does not mean, however, that electronic documents cannot be used as evidence. In fact, it is understood that the Civil Evidence Act of 1995 changed the common law rule that hearsay evidence is not admissible in proving the truth of an argument. Section one of the Act provides that “evidence shall not be excluded on the ground that it is hearsay”, provided that reasonable notice of a party’s intention to rely on the hearsay evidence is given.

However, in criminal cases, hearsay evidence is likely to be scrutinised much more closely. For that reason, organisations need to think hard about keeping at least some of their documents in their original paper format.

Evidential Weight

If an electronic document is considered admissible, the next question surrounds its evidential weight – the value a court will place on the information presented to it, alongside surrounding corroborative evidence that can convince it that a document is what it purports to be.

With that in mind, an organisation needs to ensure that electronic records are captured, stored and managed in such a way as to maximise their evidential weight.

The primary benchmark for this is the British Standards Institute’s BIP0008 ‘Evidential weight and legal admissibility of information stored electronically. Code of Practice for the implementation of BS 10008’.

Compliance with the Code does not guarantee legal admissibility – it defines best practice by which a company may demonstrate at any time, in a manner acceptable to a court of law, that the contents of a specific data file created or existing within a computer system have not changed since the time of storage (i.e. when the file is ‘frozen’), and that where a data file contains a digitised image of the physical source document, the image is a true facsimile of that source document. The issue being addressed is essentially one of authentication.

There will need to be robust procedures in place for quality assuring the scanning and image committal process to ensure the legibility and completeness of scanned images.

Fundamentally this is about demonstrating at any time, in a manner acceptable to a court of law that:

  • The contents of a specific data file created or existing within a computer system have not changed since the time of storage; and
  • Where such a data file contains a digitised image of a physical source document, the digitised image is a true facsimile of that source document

The BSI provides a Compliance Workbook for their Code, BIP 0009.

Electronic images will be treated as secondary evidence in the same manner as a photocopy or a microform image. However, there is the possibility of a reduction in evidential value whenever a copy is made. For example, if a signature is disputed, then the original document, upon which the original ink is preserved, may hold more weight in a court of law, because a forensic expert may derive more evidence from the paper and ink used. Typically where the content of a document is under question, the original and copy would be treated with equal weight.

It should be stated that where the law requires a transaction to be in writing, the original should be retained.

Electronic documents can easily be thrown out of court when so-called ‘compliance points’ are found to be missing in systems from which a company sources evidence, according to experts at the British Standards Institute. These include:

  • No information policy document;
  • No retention schedule;
  • Inappropriate security controls;
  • Lack of procedural documentation;
  • Insufficient control on document input procedures;
  • Insufficient information about the technology from the system supplier;
  • Use of inappropriate facilities, such as image clean-up;
  • No thought of future migration requirements;
  • Lack of documentation on audit trail content and access procedures.

There will need to be robust procedures written and put in place for quality assuring the scanning and image committal process to ensure the legibility and completeness of scanned images.

Any systems used by the company for storage and retrieval must ensure that the integrity of electronic documents is protected.

Retention of Originals

Governance should be established for when source documents should be retained; for example if:

  • The law requires a transaction to be in writing.
  • It is a legal document with “wet ink” signatures, seals, stamps, embossments or other authorities.
  • The source document is of poor quality (in that a legible image cannot be obtained). The person submitting the document may include a request that the original is retained, or the scanning operator may make this decision.
  • The source document contains physical amendments or annotations that cannot be identified as such on the scanned image.
  • Fraud has been identified or where there is pending or threatened litigation, suit, action, subpoena, proceeding, dispute, audit or investigation, whether civil, criminal, governmental, administrative or otherwise.
  • A record is required for permanent retention because of its historic value.
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