2. What the law says
While digitisation is a relatively recent development, the reproduction of documents is not. Long before computers arrived in our offices, paperwork was copied onto microfilm and microfiche for transmission, storage, printing and reading.
The question of a reproduced document’s legal admissibility is by no means a new one. Reproductions have, in fact, been upheld by British courts since the Civil Evidence Act 1968.
Of course, legislators in the mid-1960s did not foresee the technology that we have today. The law was revised three decades later, resulting in the Civil Evidence Act 1995 – a watershed moment for scanned documents.
Below is an extract from sections 8 and 9 of the act.
8. Proof of statements contained in documents
(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved – (a) by the production of that document, or (b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are between a copy and the original.
9. Proof of records of business or public authority
(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof.
(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.
At first glance, this legislation seems to confirm that scanned documents are admissible in court, even in cases where the reproduction is several generations apart from the original. However, it is important to note that the Civil Evidence Act 1995 specifies that electronically stored information needs to be “authenticated in such manner as the court may approve.”
In layman’s terms, this means that, although the court cannot reject out of hand a document that has been scanned and digitally reproduced, if it has been handled poorly or tampered with, it might not be possible to demonstrate to the satisfaction of the court that it is an accurate copy of the original, or that it is reliable enough to support the case. This raises a whole new set of concerns. If an organisation stores electronic information adhoc, it might overlook the importance of making sure that these records cannot be manipulated. This makes it impossible to prove in court that the information has not been tampered with.
Mr Andrews reports that, in ten years of practice, he has never encountered problems with digital reproductions of documents being used by courts or tribunals. “If there were a dispute as to the authenticity of a document merely because it was only available as an electronic copy … the party challenging that document would in my view have to present a very compelling and credible reason to the court as to why it should not be accepted,” he comments.
In reality, Mr Andrews adds, challenges to documents’ authenticity would arise long before the parties arrive in court, because preparing for a trial requires an exchange in advance of all documents in their possession or control that are relevant to the case. “By far the greater problem that I find companies face is not being able to find all the relevant documents in the first place,” he comments. “This is far less likely to happen if everything is systematically stored and catalogued electronically. The actual risk of losing a case in the rare event that an electronic document is treated with less evidential weight than a materially different but apparently original document has to be weighed in the balance with the risk of losing the evidence completely.”
It is critical, of course, that the process of digitisation is handled correctly. Mr Wall argues: “If the whole paper document lifecycle – from initial ownership through to final destruction – is not managed well, implementing a scanning regime will provide little positive comfort in terms of legal admissibility. In many instances, it may actually be detrimental to the business believing they can dispose of the paper because they have an image.”
However, several benchmarks have been put forward – and widely adopted by the paperless vanguard – to outline best practices in the handling of scanned documents.