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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 are 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

In November 2008 three BS Codes of Practices (CoP) were pulled together to form BS 10008 : 2008 Evidential weight and legal admissibility of electronic information. This does not replace the three Codes of Practice, it co-exists with them. The main purpose of BS 10008 is to ensure that any electronic information required as evidence of a business transaction is afforded the maximum evidential weight.

The process is based on the specification of requirements for planning, implementing, operating, monitoring and improving the organization’s information management systems. The publication of BS 10008 reflects the demands of the adopters of the Code of Practice (CoP) for a more formal compliance standard and covers the scope of the all three parts of the Code of Practice (BIP 0008-1, BIP 0008-2, BIP 0008-3)

By complying with BS 10008, it is anticipated that the evidential weight of electronic information transferred to and/or managed by a corporate body will be maximised, by ensuring its trustworthiness and reliability.

Compliance with BS 10008 will assist in minimising the risks involved with the long-term storage of information in an electronic form.

BS 10008 specifies the requirements for the management of the availability of the electronic information over time and addresses issues related to electronic identity verification.

This includes the use of electronic signatures and electronic copyright systems, as well as the linking of electronic identity to particular electronic documents.

The requirements specified in BS 10008 are generic and apply to any corporate body, large or small, whatever the nature of its business. The extent of application of these requirements depends on the corporate body’s operating environment and complexity.

The standard includes:

  • The management of electronic information over long periods, including through technology changes, where information integrity is vital
  • How to manage the various risks associated with electronic information
  • How to demonstrate the authenticity of electronic information
  • The management of quality issues related to document scanning processes
  • The provision of a full life history of an electronic object throughout its life
  • Electronic transfer of information from one computer system to another
  • Covers policies, security issues, procedures, technology requirements and audit-ability of electronic document management systems (EDMS)
However, it should be noted that BS 10008 does not apply to processes used to evaluate the authenticity of information prior to its being imported into the system.

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.

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 and compliance with all necessary standards.

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 10008 : 2008 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.