Scanned document legal admissibility guidelines

The Guidelines for the Legal Admissibility and Authenticity of the Scanned Documents as well as Other Information held in Electronic Formats

Overview

We are often asked whether digitising paper documents and the subsequent disposal of original paperwork provides sufficient compliance with current legislation, should the documents be needed by official bodies or as part of legal proceedings.

In order to answer any questions surrounding this, the following guide is written to clarify the legal admissibility and authenticity of scanned documents. Practically in almost every instance, scanned documents whether they are in PDF, TIFF, JPEG or any other format, are usually deemed acceptable by bodies such as HM Revenue & Customs, Legal System, NHS and Financial Bodies. They are also accepted when submitted as evidence in legal trials as long as it can be shown that diligence, audit trail and due care has been taken with their creation, storage and access.

What stipulate the legal admissibility of scanned documents?

British Standards (BIP 0008:2008) and GDPR as well as the current Law Society stipulations lay out clear principles for electronic document management techniques.

The Law Society advises that when a file is transferred into an electronic format and the original documents are destroyed, written evidence of the destruction needs to be preserved.

The Civil Evidence Act 1995

With The Civil Evidence Act of 1995, the onus is to move the question of admissibility to actual evidential weight held by the scanned document itself. This is determined by the procedures followed by a company presenting any documents to the court.

Therefore, 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.

Sections 8 and 9 demonstrate the legal guidelines for digital documents as evidence:

Section 8:

• Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved:

1. by the production of the original
2. 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.

• It is immaterial for this purpose how many removes there are between a copy and its original.

Section 9:

• 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.
• A document should be taken to form part of the records of a business or public authority if there is produced 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. Digital copies of documents are acceptable so long as their integrity is portrayed.

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

The Code of Practices

BSI BIP 0008 – is a code of practice that provides guidance to ensure that electronic documents and scanned images will be accepted as evidence by the courts. The key to this guidance is that the process under which documents are managed is as important as the technology used – where a document is reproduced it should accurately reproduce the contents of the “original”.

Originally introduced in 1996 the guideline has been updated several times in order to keep the standard relevant to take into account technological developments:

• BIP 0008-1:1999 Best practice guidelines for the management of electronic documents and systems to maximise their value in a court of law.
• BIP 0008-1:2004 Covers electronic creation and storsge of documents.
• BIP 0008-2:2005 Covers documents communicated electronically (including e-mail).
• BIP 0008-3:2005 Covers the linking of identity to an electronic document.
• BIP 0008-1:2008 Covers Local Authorities implementing Freedom of Information Act.
• BIP 0008-2:2008 Covers documents communicated electronically (including SMS messaging).
• BIP 0008-3:2008 Covers the authenticity of electronic identities.

BIP 0008 key principles

Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.

Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed

Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.

At Pearl Scan we follow BIP 0008 principles in that all images produced are dated, stamped and cannot be altered. The certification process we follow ensures that our clients have an audit trail of files that are scanned and then destroyed. This audit trail is important in determining that the original paper copies are now destroyed and that as a consequence the scanned images are deemed to be the originals.

Each batch of documents we collect is given a unique reference number. When delivering the scanned images back on disc, a list of all the files on that disc (HIT LIST) and a Destruction Request Form are provided using this reference number.

We only ever destroy the original documents when receiving a signed copy of the Destruction Request Form from our customers. Once this has been done, we then issue a Destruction Confirmation Certificate that states the originals have been destroyed.

The copies of the HIT LIST, Destruction Request and Destruction Confirmation Certificates are the evidence required for the scanned images to be legally admissible.

BSI PD 0010 – The principles of good practice for information management:

• Recognise and understand all types information.
• Understand the legal issues and execute “duties of care” responsibilities.
• Identify and specify business procedures.
• Identify enabling technologies to support business processes and procedures.
• Monitor and audit business processes and procedures.

These five principles have been used as the basis for the structure and layout of all 3 parts of BIP 0008.

Law society guidance

Guidance in regards to legal admissibility of electronically stored documents has been provided by the Law Society in the publication ‘Guidance – ownership, storage and destruction of documents. The full text is available to read from the Law Society’s website. Here are some extracts:

Can I store documents photographically or electronically, and destroy the originals?

Original documents such as deeds, guarantees or certificates, which are not your own property, should not be destroyed without the express written permission of the owner. Where the work has been completed and the bill paid, other documents, including your file, may be stored, for example, on a CD ROM, computer system or microfilm and then destroyed after a reasonable time. In cases of doubt the owner’s written permission should always be sought. If it is not possible to obtain such permission you will have to form a view and evaluate the risk. When seeking owners’ permission to microfilm or store data electronically and destroy documents, you may wish to reserve the right to make a reasonable charge for preparing copies if they are later requested. See question 4(a) above for the requirements of Customs and Excise.

What is the evidential value of a photographically or electronically stored document where the original has been destroyed?

There is a dearth of judicial authority on this topic and, until the law and practice on the subject of microfilmed or electronically stored documents are clarified, it is only possible to provide general guidelines.
The Society has been advised that:

(a) A microfilm of any document in a solicitor’s file will be admissible evidence to the same extent, no more and no less, as the document itself, provided that there is admissible evidence of the destruction of the document and identification of the copy.

(b) Written evidence of the destruction of the original and of identification of the copy will enable the microfilm to be adduced in subsequent civil proceedings (under the Civil Evidence Act 1968) and in criminal proceedings (under the Police and Criminal Evidence Act 1984).

What procedures would the Society recommend where an original document is stored electronically or photographically and then the original is destroyed?

1. Written evidence of the destruction of the original and of identification of the copy must always be presented in case oral evidence is no longer available when needed (see question 7(b) above).
2. There should be a proper system for:
   1. Identifying each file or document destroyed;
   2. Recording that the complete file or document, as the case may be, has been photographed.
   3. Recording identification by the camera operator of the negatives as copies of the documents photographed; and
   4. Preserving and indexing the negatives.
3. If a microfilm, electronically or photographically stored data is required to be produced in evidence, a partner or senior of staff should be able to certify that:
   1. The document has been destroyed;
   2. The microfilm, electronically or photographically stored data is a true record of that document; and
   3. The enlargement is an enlargement of the microfilm, electronically or photographically stored data.
4. Microfilm copies of some documents (e.g. coloured plans) can be unsatisfactory, in which case the originals should be preserved.

Will I be covered by the Solicitors’ Indemnity Fund if I lose a client’s file or destroy it without the client’s consent?

If you incur liability either to a client or to a third party by the loss or destruction of documents, cover will normally be provided by the Solicitors’ Indemnity Fund.

NOTE:

With regard to point 8 (d) above – the scanned images are colour where necessary so that the evidential weight of colour plans and photographs are maintained in electronic format.

FCA guidance

The FCA Handbook: Conduct of Business: Section 3.7: Records deals provides guidance for the term of document retention and the form of the record that is kept. The Handbook states:

A record may be in any form, provided that it is readily accessible for inspection by the FCA.

A firm may arrange for records to be kept in such forms as it chooses, such as hard copy, disk or tape…A record would be readily accessible if it were available for inspection within 48 hours of the request being made.

HMRC guidance

HMRC states that records kept in an electronic format are generally required to be treated the same as hard copies.

As long as your VAT records meet HMRC’s requirements, you can keep them in both paper and electronic format. If you do keep all or part of your records on a computer or with a computer bureau, you must make sure that your records are easily accessible to you and to a VAT officer when they visit.

If you upgrade to a new computer system that is not compatible with your old one, you must make sure that the records held on your old system remain accessible for up to six years. If this is not possible, then you must make paper copies.

You can also keep your records on microfilm or microfiche, provided that copies can be easily produced and that there are adequate facilities for allowing VAT officers to view them when required. You do not have to apply in advance to keep your records in this way, but HMRC may require you to keep them in a different format if records are not easily accessible.

International codes of practice

This set of 5 International Codes of Practice cover the whole scope of the e-business revolution. They provide essential guidance on how e-commerce systems should be managed to provide the required security and integrity of business information:

1. Information Stored Electronically (DISC PD 0008:1999).
2. Electronic Communication and e-mail Policy.
3. Identity Signature and Copyright.
4. Using Certification Authorities.
5. Using Trusted Third Party Archives.

BSI PD 5000 – International Code of Practice for electronic document and e-business transactions as legally admissible evidence

This enables organisations to demonstrate the authenticity of their electronic documents and e-commerce transactions, so they can be used as legally admissible evidence.

PD 5000:1999 (mentioned previously) can help firms put management systems in place to show appropriate proof of:

1. Delivery of e-mail and attached documents.
2. Authenticity and integrity of the messages.
3. The use of encryption to ensure message privacy.

Acknowledgements

Information used in this article was gained from the following websites:

The British Standards Institution (“BSI”)
The Law Society
The Financial Conduct Authority
HMRC/

Above information is guideline only.

DISCLAIMER:

Pearl Scan Solutions Limited suggests that organisations wishing to pursue an electronic document management system consult a legal expert before the destruction of any paper documents. This information is correct at the time of writing and is created for reference only. Pearl Scan will not be held responsible for any accuracy of information, legal action against companies who have relied on this information or any information lost in the process.

The information on this page relates only to laws currently in force within the United Kingdom regarding the legal admissibility of scanned documents.

We have produced the above guide to help you get started with your scanning and digital transformation project and how we can help you to achieve your objectives, ensuring legal admissibility and authenticity of the digitally scanned files. If you need any further information or would like to discuss how Pearl Scan can help you to transform your paper files into digital format, please either fill in the Form or call us on 0800 002 9918