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The procedure under the evidence rules applicable in England and Wales. I am unsure of the position in Scotland. Where a document is admissible as evidence in civil court proceedings in England and Wales, it may be proved: * by the production of that document; or * 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. It is immaterial how many removes there are between the copy and the original. (Civil Evidence Act 1995) However, you should consider preparing a written policy outlining the procedure for scanning documentation. This could then be made available to a court if proceedings arose. The unfortunate scenario is that in one court electronic evidence will be fine and in the court next door it wont be approved. This should not be deemed legal advice from Freshfields Bruckhaus Deringer. Regards _______________________________________ Robin Scally Records Manager Freshfields Bruckhaus Deringer LLP 65 Fleet Street, London, EC4Y 1HS Direct Tel: +44 20 7427 3889 Mobile: 077250 63907 Fax: +44 20 7108 3889 ________________________________ From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Bradshaw, Phillip Sent: 26 June 2008 09:51 To: [log in to unmask] Subject: Re: Admission of scanned content Lawyers are notoriously risk averse as they see their duty as protecting the organisation against all eventualities. A good question to ask them is whether they can point to any case at all of scanned evidence (of the type you are concerned with) being rejected by the courts when the original is no longer available ... Phillip Bradshaw Information Manager Clerk to the Council Room CY4B, County Hall EMail: [log in to unmask] <mailto:[log in to unmask]> Phone: 029 2087 3346 Mobile : 07890 265987 Fax: 029 2087 3349 Proactive Publishing Promotes Positive Perceptions ________________________________ From: The UK Records Management mailing list [mailto:[log in to unmask]] On Behalf Of Paul Dodgson Sent: 25 June 2008 15:54 To: [log in to unmask] Subject: Admission of scanned content Hi all, Many parts of our organisation are scanning closed case files (without my guidance) and intend to rely upon that scanned content as evidence in court. If I advised them to stop, they would run out of storage space in weeks. Another business area has, at last, sought guidance. I was delighted! I went to BIP0008 and 0009 and then marched on through the workbook only to be held by our lawyers at section 2.4 where legal issues are dealt with and section 2.4.12 where legal consultation is required. We now have a situation where our lawyers are advising that to scan content in presents too great a risk in terms of evidential weight. Our lawyers are saying (not surprisingly) that the original must be held. However, much of what is regarded as an original these days actually pre-exists the paper equivalent as an electronic record. The excellent BIP 0008 guidance and BIP 0009 workbook helps. However, the argument remains - if the courts want to see the "original" then that is (where information is created electronically) the electronic representation (I am careful not to call it the electronic copy - easy mistake to make). Audit trails do not, generally, exist for paper records often the evidence as to admissibility comes from a stamp or a signature - undoubtedly secure signs of admissibility!!(not). Electronic records at least hold some value in terms of evidential weight which is a little more difficult to alter. With EDRMS the arguments as to evidential weight is somewhat stronger. Even if the paper copy was the original, Marc Fresko's comment about best evidence should still stand. In conclusion, it is my view that it is the lawyers who are reticent to move forward, the argument to the Judge about admissibility is merely one which the lawyer wants to avoid. So why email? I am trying to gauge the extent of problem this is posing to records managers, in all business sectors, and where lawyers have accepted the principle of scan and destroy - please do share this with me. regards Paul Dodgson ___________________________________________________________________________ Support your local council workers in this year's National Council Worker of the Year Awards by clicking: Vote for Jane Dabrowska - http://www.localgovernmentchannel.com/awards/c/innovation/v/jane_dabrowska/y/2008/ Vote for Lee Fradsham - http://www.localgovernmentchannel.com/awards/c/bravery/v/lee_fradsham/y/2008/ ___________________________________________________________________________ Leicestershire County Council - rated a 'four-star' council by the Audit Commission ___________________________________________________________________________ This e-mail and any files transmitted with it are confidential. 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