Documentary and Electronic Evidence - Law Reform Commission

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LAW REFORM RESEARCH STAFFDirector of Research:Raymond Byrne BCL, LLM (NUI)Barrister-at-LawLegal Researchers:Chris Campbell, B Corp Law, LLB Diop Sa Gh (NUI)Siobhan Drislane BCL, LLM (NUI)Gemma Ní Chaoimh BCL, LLM (NUI)Bríd Nic Suibhne BA, LLB (NUI), LLM (TCD), Diop sa Gh (NUI)Jane O‗Grady BCL, LLB (NUI ), LPC (College of Law)Gerard Sadlier BCL (NUI)Joseph Spooner BCL (Law with French Law) (NUI), BCL (Oxon) Dip.Fr and Eur Law (Paris II)Ciara Staunton BCL, LLM (NUI), Diop sa Gh (NUI)STATUTE LAW RESTATEMENTProject Manager for Restatement:Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), SolicitorLegal Researchers:John P Byrne BCL, LLM, PhD (NUI), Barrister-at-LawCatriona Moloney BCL (NUI), LLM (Public Law)LEGISLAT ION DIRECTORYProject Manager for Legislation Directory:Heather Mahon LLB (ling. Ger.), M.Litt, Barrister-at-LawLegal Researchers:Margaret Devaney LLB, LLM (TCD)Rachel Kemp BCL (Law and German), LLM (NUI)iv
ADMINISTRATION STAFFHead of Administration and Development:Brian GlynnExecutive Officers:Deirdre BellSimon FallonDarina MoranPeter TrainorLegal Information Manager:Conor Kennedy BA, H Dip LISCataloguer:Eithne Boland BA (Hons), HDip Ed, HDip LISClerical Officers:Ann BrowneAnn ByrneLiam DarganSabrina KellyPRINCIPAL LEGAL RESEARCHER FOR THIS CONSULTATAION PAPERGemma Ní Chaoimh BCL, LLM (NUI)v
Page 2 and 3: LAW REFORM COMMISSION‘S ROLEThe L
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 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
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surrounding the creation or transmi
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to be an incontestable rule, that t
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2.37 The issue has been addressed b
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far the most conspicuous feature of
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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
Page 256 and 257:
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
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authority with the intention of aut
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