Legal admissibility of scanned documents

Unfortunately good working practices and legal requirements dictate we retain many types of documents showing correspondence, transactions and research for many years before we can finally destroy them. All this means huge areas of space are dedicated to storage and time spent on retrieval.

The obvious benefits of and the resulting efficiencies of document scanning and electronic storage has grown into a structured and controlled business. despite maturing quickly, it is still relatively young, so there areas that need to be qualified - long term storage and retrieval of the data is one area - getting scanned documents accepted as legal evidence is another.

One of the main reasons companies feel comfortable with paper is that it will normally be accepted as valid or admissible in a court of law. Indeed, microfilm has long had its own British Standard (BS 6498:2002) specifically for preparation of microfilm and other microforms that may be required as evidence.

Here, we will attempt to address the legal issues which often arise when businesses are deciding to move from paper or microfilm to digital images.

Legal Admissibility and Evidential Weight of Information Stored Electronically.

The standard relating to this has been republished over the years; it started life as BSI DISC PD0008 was re-born as PID 2008: 2004 and in 2008 was revised to PID 0008: 2008

This standard is a benchmark for any business to follow in order to achieve best practice and to achieve the best possible chance of their documents being deemed ‘legally admissible’.

For an individual company to claim full compliance with this code would mean the implementation of a very thorough and rigorous document management procedure. Alternatively these businesses can work with a specialist imaging company that has experience of this code to help identify the best system for their needs.

If the code is adhered to wherever possible this will show official bodies that a business has endeavoured to comply with the code for best practice in their document management systems. It will also minimise the risk of any document being presented to a court being rejected.

The code provides clear and concise direction for companies to implement an acceptable document management system.

The code is based upon several principles and are core to the code regardless of system or device:

Recognise and understand all types of information – implement an information policy.
Understand the legal issues and execute duty of care responsibilities.
Identify and specify business processes and procedures.
Identify enabling technologies to support business processes and procedures.
Monitor and audit business processes and procedures.

As you can see the main theme is policy and audit.

This is applicable to systems and operational processes with which staff need to comply. With the audit providing the legal requirement thus ensuring the procedures are running correctly throughout the business. With regular audits any possible problems are identified and nullified.

Of course the policy will have to cover every aspect of the procedure from document storage through scanning, indexing, document destruction to back up staff security and of course audit procedures.

Auditing is basically making sure a company is following procedures which in turn will provide the greatest chance of acceptance of the images in a civil court.

Although these procedures are not impossible to implement they need proper planning and constant monitoring. At Lightspeed we are constantly improving our procedure to make sure we offer all our customers best practice.

The Civil Evidence Act 1995
This is one of the most important acts in the UK. Here the onus is to move the question of admissibility to actual evidential weight carried by the scanned document. This is determined by the procedures followed by a company presenting any documents to the court.

So a company presenting documents that have not been altered since it's creation or has a clear audit trail that shows any and all changes since its creation holds a greater ‘weight’ than a document that cannot show these procedures.

Section 8 & 9 of the act demonstrate the legal guidelines for electronic documents as evidence:

Section 8 states:

(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:
(a) by the production of the original
(b) 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 a manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are between a copy and its original.

Section 9 states:

(1) A document that is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without any further proof.

(2) A document should be taken to form part of the records of a business or public authority if there is produced to a court a certificate to that effect signed either by an officer of the business or authority to which the records belong.

The law can be interpreted to show that an original document is not the only admissible evidence in a civil court. Electronic copies of documents are acceptable so long as their integrity can be shown.

The criminal court system which is based upon ‘beyond reasonable doubt’ involves different requirements and businesses wishing to adhere to these should consult a specialist lawyer.

The above information will lead to the question of how to show integrity and the level of standard companies are required to adhere to for their document management needs.

Acknowledgments

The Civil Evidence Act 1995.

BSI Publications - BS DISC PD0008 : 2004 Legal Admissibility
and Evidential Weight of Information Stored Electronically.

DISCLAIMER
Lightspeed Business Solutions Limited always recommend that any company wishing to pursue an electronic document management system consult a legal expert before destroying any paperwork. This information is understood to be correct at time of writing and is created for reference only. Lightspeed Business Solutions will not be held responsible for any lost information, accuracy of above information or legal action against companies who have relied on this information.

The information on this page relates only to laws currently in force within the United Kingdom.