Documentary and Electronic Evidence - Law Reform Commission

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CHAPTER 8DThe Current Climate for Electronic Signatures inIreland and the EU 281(1) The Electronic Signatures Directive1999/93/EC 281(2) The US Approach 286(3) The Canadian Approach 287(4) The English Provisions 288(5) Ireland 290(6) Ireland‘s Obligations under the E-Sign Directiveas addressed through the Electronic CommerceAct 2000 292(7) Issue of consent in the Electronic CommerceAct 2000 296(8) The Liability of Certification Authorities/Certification Service Providers under theseLegislative Schemes 297(9) Types of Certification 298(10)Trusted Third Parties- Certification Authoritiesand Certification Service Providers 298(11)Supervision and Accreditation in Ireland 300(12)Need for Further Regulation or UpdatedStandards? 304(13)Overcoming Evidential Problems 305(14)Summary on Utility of Electronic Signaturesand Regulating E-Signatures and Possibilitiesfor Reform 305(15)A Summary of the Achievements of theElectronic Signatures Directive 307(16)The Potential for Fraud and Non-Repudiation 307(17)Concluding remarks on the Area and theBenefits of Electronic Signatures? 308SUMMARY OF PROVISIONALRECOMMENDATIONS 313xvi
TABLE OF LEGISLATIONBankers' Books Evidence ACt 1879 42 & 43 Vict., c.11Boundary Survey (Ireland) Act 1854 1854, 17 & 18Vict., c. 17EngEngBritish Irish Agreement Act 1999 No. 1/1999 IrlBritish Irish Agreement Act 1999 No. 1/1999 IrlBusiness Records ActCode Title 28, S1732USCanada Evidence Act 1985 1985, c. C-5 CACentral Bank Act 1989 No. 16/1989 IrlCharities Act 2009 No. 6/2009 IrlChildren Act 1997 No. 40/1997 IrlCivil Evidence Act 1968 1968 c. 64 EngCivil Evidence Act 1995 1995 c. 33 EngCivil Law (Miscellaneous Provisions) Act 2008 No. 14/2008 IrlCivil Registration Act 2004 No. 3/2004 IrlCompanies Act 1990 No. 33/1990 IrlComputer Evidence Act 1983 No. 57 of 1983 SAConsumer Credit Act 1995 No. 24/1995 IrlCounty Boundaries Ireland Act 18721872 c. 50 (35 &36 Vict.)EngCrimes (Document Destruction) Act 2006 (Victoria) No. 6/2006 VictCrimes Act 1958 No. 6231 of 1958 VictCriminal Evidence Act 1965 1965 c.20 EngCriminal Evidence Act 1992 No. 12/1992 IrlCriminal Justice (Evidence) (Northern Ireland) Order2004No. 1501/2004NICriminal Justice Act 1988 1988 c. 33 EngCriminal Justice Act 1990 No. 16/1990 Irlxvii
Page 2 and 3: LAW REFORM COMMISSION‘S ROLEThe L
Page 4 and 5: LAW REFORM RESEARCH STAFFDirector o
Page 6 and 7: CONTACT DETAILSFurther information
Page 9 and 10: TABLE OF CONTENTSTable of Legislati
Page 11 and 12: (2) The Best Evidence Rule 72CHAPTE
Page 13 and 14: CHAPTER 6CDE(2) The Rule Against He
Page 15: (2) Authentication of Electronic Do
Page 19 and 20: Interpretation Act 1978 1978 c. 30
Page 21 and 22: TABLE OF CASESAG v Kyle [1933] IR 1
Page 23 and 24: Cooper Flynn v Radio TelefisEireann
Page 25 and 26: Lanigan v Chief Constable [1991] NI
Page 27 and 28: People (DPP) v O'Donoghue [1991] 1
Page 29 and 30: Assurance Company ofAustralia LtdSa
Page 31 and 32: INTRODUCTIONBackground to the Consu
Page 33 and 34: law of evidence and ought to be abo
Page 35: signing as a means by which to veri
Page 38 and 39: thing capable of being evidence‖.
Page 40 and 41: developments at that time, includin
Page 42 and 43: at this stage, the Commission is co
Page 44 and 45: (6) An Expanded Notion of an Electr
Page 46 and 47: within a statutory framework and su
Page 48 and 49: CElectronic Terms and E-Document Ch
Page 51 and 52: 2CHAPTER 2THE EXCLUSIONARY RULES OF
Page 53 and 54: 2.09 In the vast majority of cases,
Page 55 and 56: electronically generated. Courts ar
Page 57 and 58: surrounding the creation or transmi
Page 59 and 60: to be an incontestable rule, that t
Page 61 and 62: 2.37 The issue has been addressed b
Page 63 and 64: far the most conspicuous feature of
Page 65 and 66: with this general approach. While i
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degrees of secondary evidence‖ an
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documentation, it is now acknowledg
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this ―document‖ can be admitted
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written documents in the strict sen
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2.90 In Attorney General v Kyle 60
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2.98 Such a situation often arises
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documents to be adduced by secondar
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(a)excluded, has gone by the board
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have taken advantage of raising tec
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of the document which need not be a
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question, the device or process pro
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e admitted by means of the provisio
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protection in civil cases and, with
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exceptions for specific categories
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the court retains a general residua
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authenticity of a copy of, or extra
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consideration of the application of
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of difficulty to admit a statement
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2.203 Broadly speaking electronic d
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legible form (including a printout)
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e met by simply showing that they a
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3.12 Section 188 of the English Cri
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3.21 FitzGibbon J noted that to be
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3.28 The Commission now turns to ex
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―county, barony, parish etc marke
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ankers‘ books for the purposes of
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(b)Judicial Notice of Domestic Docu
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which continue in force. 48 These s
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(4) Public Records and Reports3.76
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(1) Proof of Handwriting3.85 Where
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produce documents has been served,
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documents such as those retained by
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c. That the information is containe
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(2) Concluding Remarks Documents Pr
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4.32 The Bankers' Books Evidence Ac
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(2) Proof to which subsection (1) o
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authenticity of business records on
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4.52 For the purposes of manageabil
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documentary evidence be it traditio
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―public administration and any bu
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―Here [under s93] there is no que
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for subsequent reference‖ meaning
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in gambling. As a result of the con
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(7) The Extent of a “Record” un
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4.111 The 2005 case of Volkering an
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eason to question the reliability o
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approach and held that the ―diari
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y which to ensure the integrity and
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mechanical or electronic device and
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4.151 The issue was also addressed
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Act, the Commission considers it is
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master-software have become more co
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5.05 Part E examines the means of a
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and cogitative format. A bitmap is
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Boolean search or trawl for a key w
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DPP. 13 In that case the trial judg
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electronically and read out from a
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that a certificate be issued by a p
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attempting to adduce electronic evi
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foundation regarding the computer a
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―(a) that there are no reasonable
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the perceived fallibility of the ma
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mean that certain electronic docume
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was part of the normal course of bu
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(a) There exists a reliable assuran
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systematic and rigorous system of i
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5.127 The Commission is of the opin
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(a)(i)The Reliability of the Comput
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The prints as seen represent situat
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5.149 A manually inserted code inpu
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5.158 Section 5 of the 1992 Act is
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―in any criminal proceedings info
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5.176 Section 27 of the Criminal Ju
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5.185 In 1987 the South African Law
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allowance for secondary evidence to
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5.200 Yet the authenticity and ther
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creating it) could not be guarantee
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omnia praesumuntur rite et solemnit
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prospective applicant must pass a t
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signing the document has acted and,
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e used, and it is left to the discr
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here, as it has done previously in
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6.04 Part D briefly looks at the me
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6.14 Image distortion has, therefor
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telephone call made are automatical
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defendant had been undertaken by a
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one should consider the entirety of
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6.42 These cases illustrate that th
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State (D&D) v Groarke. 31 Although
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various circumstances including whe
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they record which is the evidence t
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machine contained a computer compon
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(5) The Authentication and Admissib
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less prone to being challenged as f
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6.93 There are also issues where a
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for Finance 77 which approved the n
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6.109 Before the court orders discl
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6.117 This style of e-disclosure al
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(8) Compelling Disclosure of Encryp
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emphasise a proactive approach to t
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may be needed as evidence in any po
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6.148 The Electronic Commerce Act 2
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(3) Admissibility of Electronic Evi
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devices and allows for any discrepa
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user‘s name, a serial number, exp
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or in requesting suspension or revo
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6.181 The Commission does not wish
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7.04 In Part D, the Commission disc
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personally signed the registration
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or her name with his or her hand on
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(2) The increasing need to provide
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not purely one of law and there rem
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as to stamping were valid, as even
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establishing a reasonable belief th
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7.64 This aids in the authenticatio
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supply the pavement for the e-comme
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or damage sustained through fraud,
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authentication 39 and the resulting
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7.101 The UECA 46 is silent on evid
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7.109 For this reason, any legislat
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7.117 As far as the Act's interacti
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(a)The US Approach7.126 The US in t
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epresents one of a series of Direct
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signatures and stamps so long as it
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However, it could in theory be reta
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its incorporation in all provinces
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7.176 The Court then examined the d
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eceived as being the same as the te
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(c)The Success of the Electronic Co
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to verify e-documents, it does not
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states that the provisions regardin
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7.219 Section 29 of the Electronic
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(ii)The NSAI’s role in certificat
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independently undertaken on an ad h
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7.246 Wilson has described electron
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7.256 Electronic signatures are a v
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lawyers argue and the courts decide
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industry representatives in connect
Page 344 and 345:
proceedings where the court is sati
Page 346:
authority with the intention of aut
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