Philip, agreed that my statement did not do justice to the breadth of
different scenarios involved!
Of course, using scans relies upon the correct document being scanned
in the first place (taking into account human error or deliberate
alteration), and is also open to manipulation by those persons who are
particularly skilled in such matters so as to be able to eradicate any
chance of an unfavourable trail by forensic interrogation.
In essence, both means of document storage are open to manipulation,
especially where you have persons intent on succeeding, however I accept
that to manipulate electronic documents without leaving a "trail" would
not be so easy.
This does not however alter the Court's requirement for original copies
to be available! Perhaps if you could scan an original paper copy at the
point of receipt, and present to the Court both the original and the
electronic identical copy (with verification by way of audit trail that
the document has not been altered), you would have an even stronger case
that the document is a true representation of the original, and I think
on a balance of probabilities the Court would accept this!
This still depends upon the correct document being scanned at the
outset!
David Kitson
Senior Solicitor
Legal and Support Services
Scarborough Borough Council
DX 719232 SCARBOROUGH 5
Tel: 01723 384319
Fax: 0870 2384 160
E Mail: [log in to unmask]
Website: www.scarborough.gov.uk
www.discoveryorkshirecoast.com
>>> "Bradshaw, Phillip" <[log in to unmask]> 07/01/2009 11:43
>>>
David said :
"If the original copy is kept then this problem cannot occur."
As ever in this area the choice is not that simple if you are
considering risk of e.g. fraud it may well be easier, for example, to
verify in 2012 that a scan done in 2009 has been unaltered (checksum
validation + full audit trail) than that the physical copy has not
been
changed by substituting a replacement page ...
But we certainly agree that it is all down to evidential weight and
risk
assessment.
Phillip Bradshaw
Information Manager
Clerk to the Council
Room CY4B, County Hall
EMail: [log in to unmask]
Phone: 029 2087 3346
Mobile : 07890 265987
Fax: 029 2087 3349
All is flux, nothing stays still.
Heraclitus (ca. 535-475 BC)
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of David Kitson
Sent: 07 January 2009 11:17
To: [log in to unmask]
Subject: Re: [data-protection] Legal validity of electronic documents
Ciaran
Briefly, although scanned documents and print outs of the scanned
documents are admissible, the Court expects to see originals, or that
the originals are available for inspection.
If the original does not exist, the scanned copy would be a hearsay
document, and although admissible in a civil court it would carry less
weight evidentially.
You may be aware that there is a body of rules governing litigation in
the civil court arena, being the Civil Procedure Rules (CPR).
Under the practice direction to Part 32 of the CPR, it is stated at
paragraph 13.1 that:
"Photocopies instead of original documents may be exhibited [to
witness
statements] provided the originals are made available for inspection
by
the other parties before the hearing and by the judge at the hearing."
Scanned copies and print outs of these scanned copies would not
technically be original copies, and therefore the use of these may
fall
foul of the above.
The use of scanned documents also opens up the possibility that the
defendant in any claim may state that the scanned copy is not a true
representation of the original, thus casting doubt. If the original
copy
is kept then this problem cannot occur.
I agree with Simon that it is very much a case of risk assessment
taking
into account your particular circumstances, and that the originals of
any documents such as contracts or other "high risk"
documentation be retained.
Hope this is of some use.
David Kitson
Senior Solicitor
Legal and Support Services
Scarborough Borough Council
DX 719232 SCARBOROUGH 5
Tel: 01723 384319
Fax: 0870 2384 160
E Mail: [log in to unmask]
Website: www.scarborough.gov.uk
www.discoveryorkshirecoast.com
>>> Simon Macauley <[log in to unmask]> 07/01/2009 10:10 >>>
Hi Ciaran,
I guess not many responses then?
We are currently setting up a scanning system and policy. Without
going
in depth, basically, there is no definitive answer. There is not
enough
case law about to guarantee 100% an electronic copy is valid in a
court
of law. However the convention is that in 'most' cases it will
be. Most of our letters in and out will be scanned with sigs and
destroyed. However, signed contracts will be scanned but the hardcopy
will be archived. Really it's a case of risk assessment apporpriate
to
your organisation. The Scottish gov has a comprehensive policy and
procedures for its scanning but it's heavy duty. I used it as a
template but stripped out a lot.
We have an EDRMS system and the scanned docs will be part of a work
flow
that asks if you are scanning a high risk doc or not. High risk docs
are retained and sent to the records officer for storage.
Si.
Simon Macauley
Legal Compliance and Customer Services Officer Scottish Funding
Council
0131 313 6691
>>> "Ward, Ciaran" <[log in to unmask]> 18 December 2008
16:45:52 >>>
Can anyone clarify the legal validity of an electronic document in
court
proceedings? What I'm trying to get at is how does such a document
become authenticated - eg does a scanned document require a signature
in
order to be valid?
Ciaran Ward - Information Officer
Direct: 01992 709819
Lee Valley Regional Park Authority
Myddelton House, Bulls Cross, Enfield, Middlesex, EN2 9HG
Tel: 01992 717711 Fax: 01992 709922
www.leevalleypark.org.uk
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