The Law Reform Commission’s Consultation Paper on Documentary and Electronic Evidence will be launched by the Attorney General, Paul Gallagher SC, at the Commission’s offices at 6 pm this evening.
The Consultation Paper forms part of the Commission’s Third Programme of Law Reform 2008-2014. The Consultation Paper makes wide-ranging provisional recommendations for reform of the law on the admissibility of manually-generated and electronic documents and records in both civil and criminal trials. The recommendations are aimed at ensuring more efficient court procedures.
The main provisional recommendations in the Consultation Paper are:
On documentary evidence generally: there should be a general presumption (subject to certain procedural safeguards) that documents and records, whether manual or electronic, should be admissible in civil and criminal cases. Currently, witnesses (including ICT specialists from private businesses and members of the Garda Siochana) are often required to turn up on the morning of a court hearing in case they are needed to authenticate documents, but their presence is often not needed if this is agreed on the day. The Commission’s proposed change would reduce the amount of time – and cost - taken up in unnecessary court appearances under the current law.
On electronic and digital signatures: the Commission recommends that detailed, smart economy, technical standards for using and verifying electronic and digital signatures (currently used in the Revenue Online Service (ROS)) should be agreed by an expert working group. These would apply to specific commercial transactions, including those involving the State. In September this year, the European Telecommunications Standards Institute (ETSI) agreed an electronic signatures standard for PDF documents (TS 102 778, based on ISO 32000, the global standard for PDFs) that could facilitate secure paperless business transactions throughout Europe in accordance with the 1999 EU Directive on Electronic Signatures, which Ireland implemented in the Electronic Commerce Act 2000.
Among the specific recommendations in the Consultation Paper are:
- the law on documentary evidence should be technology-neutral, and there should in general be no difference between the rules concerning manual or computer generated documents and records.
- all business records, whether manual or computer-generated, should in general be presumed to be admissible.
- the Bankers’ Books Evidence Act 1879, which allows banking records to be admitted as evidence in court, should be updated and extended to apply to records from all financial institutions
- the law should provide that, in general, documentary evidence can be admitted through a person who can demonstrate the integrity of the storage system used (including the storage system for electronic records) even if that person did not originally generate the documentary record
- for mechanically generated recordings, such as videos or CCTV, it should be clarified that any defects in their quality should not rule them inadmissible but should be simply a question of the weight to be given to the recording
- an expert group should be established to develop standards and guidelines for the verification of electronic and digital signatures
- the issue of whether electronic signatures based on a Public Key Infrastructure (PKI) for certain designated transactions should be considered
- the existing law which presumes that “public documents” are admissible should be updated, because much of the relevant legislation predates the foundation of the State.
Consulation Paper on Electronic and Documentary Evidence