BS 10008:2008. Evidential Weight and Legal Admissibility of Electronic Information – Specification

Citation

Stockdale, M. and Morris, H. (2009), "BS 10008:2008. Evidential Weight and Legal Admissibility of Electronic Information – Specification", Records Management Journal, Vol. 19 No. 2. https://doi.org/10.1108/rmj.2009.28119bae.001

BS 10008:2008. Evidential Weight and Legal Admissibility of Electronic Information – Specification

Article Type: Professional resources From: Records Management Journal, Volume 19, Issue 2

BSI,BSI,London,2008

Keywords: Electronic information resources, Digital storage, Information management

It is an unusual experience for academic lawyers to review a British Standard, though, coincidentally, one of the authors of this review came across the former BSI DISC PD 0008 in the late 1990s, in the context of giving evidence to the House of Lords Select Committee on Science and Technology. The Committee, in its report Digital Images as Evidence (February 21, 1998: HL Paper 64) commented that “a factor which would clearly increase an image’s weight as evidence is compliance with relevant standards such as the BSI Standard” (at paragraph 3.2).

BSI has published the Code of Practice BIP 0008 since 1996, and the new British Standard reflects the requests of the adopters of BIP 0008 for a formal compliance standard. BIP 0008 now comprises three parts, and the scope of all of them is covered by BS 10008: BIP 0008-1, Evidential weight and legal admissibility of information stored electronically; BIP 0008-2, Evidential weight and legal admissibility of information transferred electronically; and BIP 008-3, Evidential weight and legal admissibility of linking electronic identity to documents. It is anticipated that the guidance set out in the latest edition of these three parts will assist in the successful implementation of BS 10008:2008.

The introduction to BS 10008:2008 anticipates that where an information management system conforms to the British Standard, this will maximise the evidential weight of the relevant electronic information, by ensuring its trustworthiness and reliability. It is interesting that whilst the title of BS 0008:2008 refers to both “evidential weight” and “legal admissibility”, the introduction refers only to weight, and not to admissibility. This, it is submitted, reflects the modern trend in the English Law of Evidence, particularly notable in the context of civil proceedings but also clearly identifiable in the criminal context, of admitting evidence and then trusting the tribunal of fact (jury, magistrates or judge sitting alone in a civil case) to evaluate its weight (i.e. its probative value) rather than imposing rigid exclusionary rules the effect of which is to prevent the tribunal of fact from considering the relevant evidence in the first place.

A good example of this changing approach in the context of electronic evidence is provided by the repeal of section 69 of the Police and Criminal Evidence Act 1984 (by section 60 of the Youth Justice and Criminal Evidence Act 1999). Section 69 provided that statements in documents produced by computers were not admissible in criminal proceedings unless, amongst other matters, it was shown that there were no reasonable grounds for believing that it was inaccurate in consequence of the computer’s improper use and that the computer was operating properly at the material time. The Law Commission (“Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com No. 245) recommended the repeal of this provision because they regarded it as serving no useful purpose.

The effect of the repeal of section 69 is that the common law presumption (now preserved by section 129(2) of the Criminal Justice Act 2003), that “mechanical devices” were in order at the material time now comes into play, a presumption which may be rebutted where a party adduces evidence to the contrary. It should be noted, however, that where representation of fact which is not made by a person (e.g. a computer database) depends for its accuracy upon information supplied by a person, the effect of section 129(1) of the 2003 Act is that the representation will only be admissible in criminal proceedings if it is proved that the information was accurate. There is no equivalent requirement in the context of civil proceedings and section 5 of the Civil Evidence Act 1968, which was of similar effect to section 69 of the 1984 Act, has, like section 69, been repealed (by Schedule 2 to the Civil Evidence Act 1995).

Whilst the Law of Evidence no longer imposes any specific hurdles in relation to the admissibility of representations produced by machines (other than section 129(1) of the 2003 Act), one problem that may arise in relation to the admissibility of evidence such as audio or video recordings may be that of satisfying the judge (in the context of jury trial), via evidence of the provenance and history of the recording, that a prima facie case has been made out as to its the authenticity of the recording (R v. Robson [1972] 1 WLR 651). Where such a prima facie case is made out, the weight of such evidence will be a matter for the jury. The issues which BS 10008:2008 addresses include the authenticity and integrity of information in an electronic information management system, though, as paragraph 1 of the British Standard makes clear, it does not deal with the evaluation of the authenticity of information prior to its capture in a system (i.e. the issue raised in the criminal context by section 129(1) of the 2003 Act).

The objectives of the Code of Practice BIP 0008 – 1, 2 and 3 include that of maximising the evidential weight that may be assigned to information. Annex G to BIP 0008-1 recognises, for example, that compliance with the Code enables the authenticity of data stored on a system to be demonstrated and that it may be necessary to demonstrate the authenticity of a copy or an electronic image. It is worth noting that under section 133 of the Criminal Justice Act 2003 (criminal proceedings) and under section 8 of the Civil Evidence Act 1995 (civil proceedings) a statement in a document may be proved by producing either the document itself or a copy thereof, the document or copy being authenticated in whatever way the court approves.

Clearly, factors dealt with by BS 10008 and BIP 0008 – 1, 2 and 3, such as, for example, the creation of audit trails and the retention of audit trail information are matters which are capable of increasing the weight of electronically stored information, or indeed, in some circumstances, of increasing the likelihood that such evidence will be admissible. It is suggested that, as the House of Lords Select Committee on Science and Technology recognised in relation to BSI DISC PD 0008, compliance with BS 10008 and BIP 0008 1 to 3 is likely to maximise the evidential weight that may be assigned to information. In consequence, the publication of the Standard is likely to be of use to any organisation managing electronic information, where that information is likely to be relied on in evidence, whether in a criminal or a civil court.

Conversely, it may be that non-compliance with BS 10008 and BIP 0008 1 to 3 is a matter that cross-examining counsel might well rely on when attempting to attack the weight of electronic information, or even to have it excluded (Kelman, 1998).

Michael Stockdale and , Helen MorrisSchool of Law, Northumbria University, Newcastle upon Tyne, UK