DOCUMENTARY AND ELECTRONIC EVIDENCE

1 I CONSULTATION PAPER DOCUMENTARY AND ELECTRONIC EVIDENCE (LRC CP 57 - 2009) COPYRIGHT Law Reform Commission FIRST PUBLISHED December 2009 ISSN 1393-3140 ii LAW REFORM COMMISSION S ROLE The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 150 documents containing proposals for law reform and these are all available at Most of these proposals have led to reforming legislation.

2 The Commission s role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform 2008-2014 was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act. Since 2006, the Commission s role includes two other areas of activity, Statute Law Restatement and the Legislation Directory. Statute Law Restatement involves the administrative consolidation of all amendments to an Act into a single text, making legislation more accessible.

3 Under the Statute Law (Restatement) Act 2002, where this text is certified by the Attorney General it can be relied on as EVIDENCE of the law in question. The Legislation Directory - previously called the Chronological Tables of the Statutes - is a searchable annotated guide to legislative changes. After the Commission took over responsibility for this important resource, it decided to change the name to Legislation Directory to indicate its function more clearly. iii MEMBERSHIP The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are: President: The Hon Mrs Justice Catherine McGuinness Former Judge of the Supreme Court Full-time Commissioner: Patricia T.

4 Rickard-Clarke, Solicitor Part-time Commissioner: Professor Finbarr McAuley Part-time Commissioner: Marian Shanley, Solicitor Part-time Commissioner: Donal O Donnell, Senior Counsel iv LAW REFORM RESEARCH STAFF Director of Research: Raymond Byrne BCL, LLM (NUI) Barrister-at-Law Legal Researchers: Chris Campbell, B Corp Law, LLB Diop Sa Gh (NUI) Siobhan Drislane BCL, LLM (NUI) Gemma N Chaoimh BCL, LLM (NUI) Br d 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 RESTATEMENT Project Manager for Restatement: Alma Clissmann, BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor Legal Researchers: John P Byrne BCL, LLM, PhD (NUI), Barrister-at-Law Catriona Moloney BCL (NUI), LLM (Public Law) LEGISLAT ION DIRECTORY Project Manager for Legislation Directory: Heather Mahon LLB (ling.)

5 Ger.), , Barrister-at-Law Legal Researchers: Margaret Devaney LLB, LLM (TCD) Rachel Kemp BCL (Law and German), LLM (NUI) v ADMINISTRATION STAFF Head of Administration and Development: Brian Glynn Executive Officers: Deirdre Bell Simon Fallon Darina Moran Peter Trainor Legal Information Manager: Conor Kennedy BA, H Dip LIS Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS Clerical Officers: Ann Browne Ann Byrne Liam Dargan Sabrina Kelly PRINCIPAL LEGAL RESEARCHER FOR THIS CONSULTATAION PAPER Gemma N Chaoimh BCL, LLM (NUI) vi CONTACT DETAILS Further information can be obtained from: Head of Administration and Development Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 Telephone: +353 1 637 7600 Fax: +353 1 637 7601 Email: Website: vii ACKNOWLEDGEMENTS The Commission would like to thank the following people who provided valuable assistance, and a number of whom attended the Commission s roundtable discussions on the projects on hearsay and DOCUMENTARY EVIDENCE on 3 and 4 March 2009.

6 Mr Jevon Alcock, Chief State Solicitors Office Mr Senan Allen, Senior Counsel Mr Patrick Brehony, Detective Chief Superintendent, Garda Bureau of Fraud Ms Rebecca Coen, Office of the Director of Public Prosecutions Mr Paul Coffey, Senior Counsel Ms Caroline Costello, Barrister-at-Law Mr Donogh Crowley, Arthur Cox Solicitors Ms Valerie Fallon, Dept of Justice, Equality and Law Reform Mr Remy Farrell, Barrister-at-Law Mr Michael Finucane, Michael Finucane Solicitors Mr Eugene Gallagher, Detective Superintendent, Garda Bureau of Fraud Ms Mary Rose Gearty, Senior Counsel Mr James Hamilton, Director of Public Prosecutions Ms ine Hynes, St John Solicitors Ms Claire Loftus, Chief Prosecution Solicitor, Office of the Director of Public Prosecutions Mr Dominic McGinn, Barrister-at-Law Mr James McMahon, St John Solicitors Commissioner Fachtna Murphy, Garda Commissioner Mr Kerida Naidoo, Barrister-at-Law Mr L an O Braon in, Senior Counsel Mr Tadgh O Leary, CMOD, Department of Finance Mr Anthony Sammon, Senior Counsel Full responsibility for this publication lies, however, with the Commission.

7 Ix TABLE OF CONTENTS Table of Legislation xvii Table of Cases xxi INTRODUCTION 1 Background to the Consultation Paper 1 Outline of the Consultation Paper 2 CHAPTER 1 DEFINING DOCUMENT AND PUBLIC DOCUMENT 7 A Defining a Document and a Record in the Law of EVIDENCE 7 (1) The Document at Common Law 7 (2) The wide scope of ELECTRONIC EVIDENCE 8 (3) Statutory definitions of document in Irish law 8 (4) Statutory definitions of documents and records in the English Criminal Justice Act 2003 12 (5) The Definition of a document in the Australian Uniform EVIDENCE Act 1995 13 (6) An Expanded Notion of an ELECTRONIC Document in New Zealand 14 (7) The definition of DOCUMENTARY EVIDENCE in the 1996 UNCITRAL Model Law on ELECTRONIC Commerce 14 (8) Reforming the Definition of a Document 15 B Defining a Public Document 16 C ELECTRONIC Terms and E-Document Characteristics Discussed in the Consultation Paper 18 CHAPTER 2 THE EXCLUSIONARY RULES OF EVIDENCE RELEVANT TO DOCUMENTARY EVIDENCE 21 A The Law of EVIDENCE and DOCUMENTARY EVIDENCE 22 (1) How Oral and DOCUMENTARY EVIDENCE is Given in Court 22 (2) The Rules of EVIDENCE 23 (3) Relevance 24 (4) Factors Affecting the Weight of the DOCUMENTARY EVIDENCE (Other than Real EVIDENCE )

8 26 B The Best EVIDENCE Rule; the Rule as to Secondary EVIDENCE of the Contents of a Document 27 x (1) The Best EVIDENCE Rule 28 (2) The Best EVIDENCE Rule and ELECTRONIC EVIDENCE 30 (3) Arguments in favour of removing the Best EVIDENCE Rule 30 (4) The Current Position of the Best EVIDENCE Rule in Ireland 31 (5) Admitting a Copy under the Best EVIDENCE Rule 36 (6) The Applicability of the Best EVIDENCE Rule to ELECTRONIC and Automated Documents in Ireland 38 (7) Discussion and Conclusions 44 C Exceptions to the Exclusionary Rules in Ireland 44 (1) Loss, Destruction and Impossibility of Production 45 D The Abolition of the Best EVIDENCE Rule in other jurisdictions 49 (1)

9 The Best EVIDENCE Rule in England 49 (2) Australia 54 (3) Authentication and the Best EVIDENCE Rule- Australia 55 (4) The US Perspective: the Exclusionary Rules of EVIDENCE in Relation to Electronically Stored or Generated Documents 57 (5) Reform 60 E The Second Exclusionary Rule of EVIDENCE - the Rule Against Hearsay 61 (1) The Best EVIDENCE Rule and its Interaction with the Hearsay Rule 62 (2) Exceptions to the Strict Application of the Exclusionary Rules in Other Jurisdictions 63 (3) Proof of the Truth of Statements Contained in Documents for the Purposes of the Exclusionary Rules 67 (4) Transcript DOCUMENTARY EVIDENCE in Criminal Proceedings 67 (5) Transcript DOCUMENTARY EVIDENCE in Civil and Non-Adversarial Proceedings 67 (6)

10 Legislative Admissibility of Hearsay DOCUMENTARY Statements in Civil Proceedings in Australia 69 (7) Concluding Observations on Hearsay 71 F Conclusions on the Problem of ELECTRONIC and Automated DOCUMENTARY EVIDENCE and the Exclusionary Rules of EVIDENCE 71 (1) Shifting the Focus of the Law of EVIDENCE 71 xi (2) The Best EVIDENCE Rule 72 CHAPTER 3 PUBLIC RECORDS AND DOCUMENTS AS EVIDENCE 77 A Public Documents Admissible as an Exception to the Exclusionary Rules of EVIDENCE 77 (1) Determining Whether a Document is a Public Document to Fall within the Exception 78 B Proof of the Contents of Public Documents 84 (1) Public Documents Admissible by Statute 84 (2) EVIDENCE of Professional Qualifications 89 (3) Judicial Notice 89 (4) Public Records and Reports 94 (5) Absence of Public Record or Entry 94 (6) Statements in Ancient Documents 95 (7) Conclusion on Public Documents 95 C Private Documents 95 (1) Proof of Handwriting 96 (2) Comparison 96 (3) Opinion 97 (4) Other presumptions attaching to private documents 97 CHAPTER 4 BUSINESS DOCUMENTS AND THE BUSINESS RECORDS EXEMPTION 99 A Business Documents Admissible as an Exception to the Exclusionary Rules of EVIDENCE 99 (1) Defining a Business Record 100 B The Retention of Documents and Records in Anticipation of Litigation 102 (1)