This is the critical point in this debate. Following PD0008 only makes it
more likely that the Court will accept the image because you can demonstrate
that the system which generated them has been set up to ensure authenticity.
The judge in the case remains the sole arbiter of admissibility. In
practice it's unlikely, particularly in civil cases, that images of original
documents might not be admissible, indeed the Civil Evidence Act makes it
almost impossible. In most cases the court will be unaware of the origins
of the documents and unless one or other of the lawyers involved challenges
them the question will not even be asked. Often the evidence to be presented
will have been agreed and any challenges sorted out before the parties get
to court. Admissibility, consequently, may be something of a red-herring.
The question is much more likely to be about the weight or probative value
of the record in the context of the case and this will be much more
significant in criminal trials where the burden of proof is stronger.
The debate about paper and electronic documents is sterile. As Eldin says,
it all depends. In either case, it's assumed that someone might want to
change the document on purpose whereas the problem may be that the
electronic document might simply have been changed accidentally or corrupted
during subsequent processing without leaving any evidence of the change.
Peter Emmerson
Director
Emmerson Consulting Limited
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