Documentary and Electronic Evidence - Law Reform Commission

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11. Chapter 5 also addresses the difficulty of categorising electronic andautomated documentary evidence, which can be regarded as real evidence ordocumentary hearsay depending on the level of manual input and humanagency involved. Where the evidence has been inputted into an electronicdatabase and the device has essentially been used as an electronic filingcabinet with the aid of manual human intervention, the admissibility of theevidence can be determined in accordance with the rules governing hearsayand its exceptions. Difficulties arise where the electronic evidence isautomatically generated within the computer matrix of the mechanical device.This is one example where the Commission has needed to consider electronicand automated documentary evidence separately from traditional documentaryevidence.12. In Chapter 6, the Commission analyses how to authenticate specificpieces of electronic documentary evidence. Electronic records are seen asbeing more susceptible than their paper counterparts to undetectablemodification, whether consciously or as a result of an unintended oversight. TheChapter discusses different types of electronic documents which may emergefrom a single initial device. This includes video and audio recordings, and thesubtle but distinct differences between analogue and digital photographs andhow these are to be authenticated. The Chapter also discusses telephonerecords as admissible evidence, and whether they constitute real evidence ordocumentary hearsay. It discusses the admissibility of secondary documentaryevidence such as transcripts of recordings and translations, and the purpose forwhich they are received (for example to support oral expert testimony or as aprocedural tool against witness intimidation). The Commission also examinesquestions surrounding automated documentary evidence and the authenticationof computer evidence that can be altered (mutable evidence).13. This Chapter also examines the procedural aspects of the discoveryprocess with particular reference to electronic documents, in particular how toapproach discovery where a document has been erased and where it may benecessary to re-generate or create new documents if needed. The Commissionexamines briefly the costs and burdens involved in blanket disclosure ofvoluminous electronic documents and how to streamline the process, whichpermits the presentation of electronic evidence electronically.14. Chapter 7 focuses on certification for the purposes of verification ofelectronic documents and explores whether the law should adopt a uniformmeans of achieving this. The Commission discusses what constitutes atraditional signature and also an electronic signature. The Commission notesthat existing legislation, notably the Electronic Commerce Act 2000,differentiates between an electronic signature simpliciter and an advancedelectronic signature. The Commission explores the suitability of electronic4
signing as a means by which to verify and authenticate electronic documents toachieve legal certainty.15. Chapter 8 comprises a summary of the provisional recommendationsmade in the Consultation Paper.16. This Consultation Paper is intended to form a basis for discussionand therefore all the recommendations made are provisional in nature. TheCommission will make its final recommendations on the subject of documentaryand electronic evidence following further consideration of the issues andconsultation with interested parties. Submissions on the provisionalrecommendations included in this Consultation Paper are welcome. To enablethe Commission to proceed with the preparation of its final Report, those whowish to do so are requested to make their submissions in writing by post to theCommission or by email to info@lawreform.ie by 31 March 2010.5
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 and 16: (2) Authentication of Electronic Do
Page 17 and 18: TABLE OF LEGISLATIONBankers' Books
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: law of evidence and ought to be abo
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
Page 67 and 68: degrees of secondary evidence‖ an
Page 69 and 70: documentation, it is now acknowledg
Page 71 and 72: this ―document‖ can be admitted
Page 73 and 74: written documents in the strict sen
Page 75 and 76: 2.90 In Attorney General v Kyle 60
Page 77 and 78: 2.98 Such a situation often arises
Page 79 and 80: documents to be adduced by secondar
Page 81 and 82: (a)excluded, has gone by the board
Page 83 and 84: 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
Page 342 and 343:
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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