Documentary and Electronic Evidence - Law Reform Commission

developments at that time, including tape recordings. 5 While the updateddefinition in the 1972 Act may have been sufficient for its time, such atechnologically prescriptive form runs the risk of becoming quickly outmodedand overtaken by innovation. In that respect, the Commission emphasises theneed for a definition that is future proofed.1.13 The most recent legislative definition of a document is contained inthe Criminal Justice (Surveillance) Act 2009 which defines a document as―including‖:―(a) any book, record or other written or printed material in any form,and(b) any recording, including any data or information stored,maintained or preserved electronically or otherwise than in legibleform.‖1.14 The Commission notes that the overwhelming majority of legislativedefinitions of documents in Irish law have been confined to the criminal lawsphere. It may well be that, in the context of civil law proceedings, the decisionof the Supreme Court in McCarthy v Flynn indicates that the courts would nothave great difficulty in expanding the traditional concept of ―document‖ to takeaccount of technological developments. Nonetheless, it remains the case that,at least in legislative terms, the law of evidence has expressly been advancedas regards criminal law to a greater extent than the civil law.1.15 Acts such as the Criminal Evidence Act 1992 and the CriminalJustice (Surveillance) Act 2009 have clearly developed the definition of―document‖ to take account of technological innovations. The Commission‘spurpose in preparing this Consultation Paper is to recommend a uniform,technologically neutral, definition which would encompass both manual andelectronic and automated documentary evidence. From this perspective it isperhaps arguable that the use of the term ―document‖ could itself prove alimitation to the recognition of digital evidence and could conceivably causedifficulties when attempting to include electronic and automated instruments.5Section 5 of the Offences Against the State (Amendment) Act 1972 included in itsdefinition ―(c) any disc, tape, sound track or other device in which sounds or otherdata (not being visual images) are embodied so as to be capable (with or withoutthe aid of some other equipment) of being reproduced therefrom, and (d) any film,microfilm, negative, tape or ether device in which one or more visual images areembodied (whether with or without sounds or other data) so as to be capable (asaforesaid) of being reproduced therefrom and a reproduction or still reproductionof the image or images embodied therein whether enlarged or not and whetherwith or without sounds or other data.‖10