Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

7. Modernisation of the law on copy documents

It is proposed that legislation relating to the use of copy documents in criminal cases should be updated to maximise use of existing and potential future digital technologies, and to give courts more discretion in relation to proof of copy physical documents.

Currently, the law and court rules allow authenticated copy documents to be admitted in evidence through use of physical signed certificates. The consultation paper refers to the range of Court Rules that currently govern how copy documents should be authenticated, and by whom. It notes that these rules must accommodate the wide definition of ‘document’ (which can include media or devices on which sound or other data are recorded) and allow for necessary editing or redacting of copy documents through recertification.

The development of Digital Evidence Sharing Capability (DESC) has significantly changed the way in which digital evidence can be stored, edited, transmitted, and presented in court. DESC is currently being piloted to allow the collection of digital material from mobile devices; it is also anticipated that DESC will be used to collect footage once Body Worn Video is rolled out by Police Scotland. DESC incorporates multiple authentication and auditing measures to ensure the accuracy and integrity of digital documents, including where documents must be edited or redacted. As such, it is considered that separate certification should not be required for authentication.

Authentication of digital copy documents

Question 8: It is proposed that the transfer of digital files to any reliable digital evidence system such as DESC (which has a robust audit system) should remove the requirement of certification as outlined in the scheme under the 1995 Act. Which of the following best describes your view on this proposal?

Responses to Question 8 by respondent type are set out in Table 9.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

More than half of those answering the question (14 of 25) agreed that the transfer of digital files to any reliable digital evidence system should remove the requirement of certification. One individual respondent disagreed with the proposal, and four respondents were unsure.

If you have any comments on this proposal, please write them below.

Ten respondents provided further comment at Question 8. This included a number of shorter responses that repeated points noted earlier in relation to digital productions.

Reasons for supporting the proposal

Some of those providing comment noted that the proposal to remove the requirement of certification for files transferred to a robust digital evidence system could deliver significant efficiencies in the management of evidence. This included specific reference to potential reduction in the resources required to certify digital evidence. A legal profession respondent also suggested that a digital evidence system with a robust audit system is more secure and reliable than the scheme operating under the 1995 Act.

Points for consideration

Some respondents raised concerns around whether it is possible to agree the provenance of evidence in digital files transferred to DESC on the basis of information retained in the DESC audit system. Other respondents repeated concerns noted earlier in relation to digital productions around the potential for AI to manipulate data and images, and the negative impact that this capability has had on confidence in the integrity of digital images. It was suggested that retaining use of certification could help to prevent any challenge to the authenticity of digital productions.

Specific issues raised around assuring the provenance and integrity of digital files included current provisions for certification which require data such as locus, the person responsible for evidence, and details of the information captured. While it was acknowledged that the DESC audit system guards against any suggestion that a file has been tampered with or altered after being transferred to DESC, there was concern that this does not capture the information required to identify the provenance of the evidence and assure that files have not been altered prior to transfer to DESC.

An individual respondent suggested that an independent review of DESC is required to validate the system. A police respondent also proposed that further discussion is required between Scottish Government and criminal justice partners to “road test” proposals and consider whether existing systems could be modified to replace the current authentication scheme.

Question 9: It is proposed that any type of document uploaded to DESC should be accepted as a true copy without the need for separate certification. Which of the following best describes your view on this proposal?

Responses to Question 9 by respondent type are set out in Table 10.

6 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

Half of those answering the question (12 of 24) agreed that any type of document uploaded to DESC should be accepted as a true copy without the need for separate certification. Three respondents – a legal profession, police and individual respondent - disagreed with the proposal, and four respondents were unsure.

If you have any comments on this proposal, please write them below.

Nine respondents provided further comment at Question 9. A number of these respondents provided relatively brief comments reiterating points noted earlier at Question 8.

Reasons for supporting the proposal

Those expressing support for the proposal noted that their view was based on having confidence in the robustness of the DESC system, and its capacity to ensure the integrity of digital evidence. However, some of those expressing support also noted that this was contingent on there being sufficient provision for physical productions to be made where necessary. This included reference to comments noted earlier at Questions 6 and 7 in relation to items where physical production may be required. A legal profession respondent also suggested that the original item or document is likely to be required in certain types of case, such as fraud.

Points for consideration

Other respondents raised potential issues for proposals. Legal profession and police respondents noted challenges around agreeing whether a digital document is a true copy of the source, and in particular how to determine whether there has been any manipulation before a file was transferred to DESC. Respondents also repeated concerns noted at Question 8 around limitations in the metadata collected by DESC to authenticate the provenance of documents. The need to ensure that parties have the opportunity to question the status of documents uploaded to DESC was highlighted, with reference to comments at Question 7. An individual respondent referenced the potential negative impact of the rise of AI on confidence in the integrity of digital images.

A legal profession respondent suggested that further discussion with experts in digital imaging and cybercrime could help to refine the approach to assuring the accuracy and integrity of digital documents.

Resolving issues in the admissibility of DESC copy documents

Question 10: It is proposed that any issue in relation to the admissibility of the copy held in DESC could be raised through the pre-trial hearing system already in place. Which of the following best describes your view on this proposal?

Responses to Question 10 by respondent type are set out in Table 11.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

The majority of those answering the question (15 of 25) agreed that any issue relating to the admissibility of the copy held in DESC could be raised through the existing pre-trial hearing system. One individual disagreed with the proposal, and four respondents were unsure.

If you have any comments on this proposal, please write them below.

Seven respondents provided further comment at Question 10.

Reasons for supporting the proposal

Several judiciary and legal profession respondents expressed general support for issues around admissibility being raised through the existing pre-trial hearing process. The ongoing pilot of a summary case management model was referenced; it was noted that under this model any issues around admissibility would be dealt with at a case management hearing, as opposed to the current model of issues being dealt with at the intermediate diet.

Points for consideration

Other respondents raised potential issues relating to the nature of disputes around admissibility, and how these should be managed.

An advocacy respondent noted that an issue or defect in certification of evidence may only become clear after a procedural hearing, before or during the trial, potentially requiring the trial to be halted while the matter is resolved. Concern was expressed that resolution of such issues can involve significant time (e.g. if the document is to be re-certified) or for the copy document to be excluded from evidence (e.g. if the original is not available), with the risk that the issue can result in the failure of a case. It was suggested that the court should be given more discretion to allow a copy document to be admitted even where there is a defect in certification, if the court is satisfied that it is a true copy. Views on this issue are discussed further at Question 11.

A legal profession respondent noted that documents certified as a true copy under existing rules are rarely challenged, and that any concerns around admissibility are more likely to be related to the provenance of the original document. For example, it was suggested that a challenge is more likely to focus on what may have happened to a document before it was seized as evidence.

A legal profession respondent suggested that resolving issues around the admissibility of DESC copies could be an additional burden on defence firms, and wished to ensure that this additional resourcing requirement should be met fully by legal aid.

Discretion for courts in proof of copy documents

Question 11: It is proposed that the court therefore be given a discretion to allow a document to be led in evidence if satisfied it is a copy document despite any defect in certification. Which of the following best describes your view on this proposal?

Responses to Question 11 by respondent type are set out in Table 12.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

More than half of those answering the question (14 of 25) agreed that the court should be given discretion to allow a document to be led in evidence if satisfied that it is a copy document despite any defect in certification. One individual disagreed with the proposal, and six respondents were unsure.

If you have any comments on this proposal, please write them below.

Nine respondents provided further comment at Question 11.

Some expressed general support for the court having discretion to allow a document as a true copy despite any defect in certification. Respondents noted that any dispute around admissibility would be resolved by a judicial determination, and expressed confidence that this would ensure copy documents are not allowed into evidence inappropriately. An advocacy respondent supported proposals in the context of minimising the risk of trials being halted or cases failing as a result of dispute over copy documents.

Some of those providing comment suggested that the specific formulation of the power, and how it will be used by the court, will be important. There was interest from stakeholders in commenting on the draft text. Clarity was also sought specifically around the basis on which a court would be able to determine that it is satisfied with the authenticity of the document, including a view that there should be a compelling reason to accept a copy document where there is a defect in certification. Respondents also wished to see further detail on the practicalities of when a determination would be made during proceedings.

Question 12: It is proposed that the court should be able to hear evidence from witnesses, to allow it to be satisfied that the document can be deemed a true copy and treated for evidential purposes as if it were the document or material part of the document. Which of the following describes your view on this proposal?

Responses to Question 12 by respondent type are set out in Table 13.

5 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

The majority of those answering the question (18 of 25) agreed that the court should be able to hear evidence to allow it to be satisfied that the document can be deemed a true copy and treated as if it were the document or material part of the document. Four respondents were unsure.

If you have any comments on this proposal, please write them below.

Six respondents provided further comment at Question 12.

This included judiciary and legal profession respondents who agreed that oral evidence is an acceptable basis for the court to be satisfied that a document can be treated as a true copy, in the absence of certification. This appeared to reflect a view that the court is capable of making such a determination on the basis of the available evidence.

In terms of how the provision should be implemented, a legal profession respondent noted that existing legislation allows a witness already listed on an indictment to be called to speak to a document being a true copy. It was proposed that legislation should be amended to allow a witness not listed to be called for these purposes.

An advocacy respondent also suggested that the court should be allowed to take account of the risk that being called to provide such evidence would not cause further trauma to the witness. This included reference to potential for the court to make adjustments to better suit the witness’ needs.

A judiciary respondent suggested that the court should continue to encourage matters to be resolved by way of joint minute between the prosecution and defence.