A Draft for the Digital Dilemma: The E-Evidence Convention

This blog post is by Nikolaos Trigkas, a third-year Ph.D. candidate.

  1. THE FIRST CONVENTION ON E-EVIDENCE

The legal question of how to treat probative information generated or stored in electronic form has a relatively short history, but is becoming increasingly significant. Interest in the new possibilities and challenges regarding the introduction of electronic evidence at trial is growing, awareness is spreading and dialogue is beginning to unfold. In 2016 an innovative cross-disciplinary initiative was launched by Stephen Mason, barrister and IALS associate research fellow, in the wake of concerns about the nuances of e-evidence such as intangible form and changeable nature. He initiated a Convention on Electronic Evidence, which was the first attempt to systematically treat the subject of digital evidence.

The obvious lack of standardised processes regulating the admissibility (and particularly authentication) of electronic evidence was the driving force behind the recent project. According to Mr. Mason, who has provided training to judges and lawyers in matters relating to electronic information across the globe, the need for accepted guidance is emerging. In the absence of a systematic scheme to commence development of such a convention by (inter)national organisations, a private initiative relying on scholars from various countries would be helpful. Mr. Mason reasoned as follows:

I have spoken so many times (especially in Europe) about electronic evidence, and spoken to so many people, and the same question keeps on being raised: why is there no Convention on Electronic Evidence being devised by the Council of Europe or the UN?

The ‘Draft Convention on Electronic Evidence’ workshop (supported by the Information Law and Policy Centre) took place at the Institute of Advanced Legal Studies on 20 May 2016. The workshop was designed to take forward the discussion outcomes from a previous similar conference held in Zagreb in April 2016 and aimed to provide a platform to facilitate a fuller understanding of the complex concept of electronic evidence by judges and lawyers. In essence, the event was created to urge that electronic evidence be viewed in a different way to documentary evidence and, more generally, the traditional forms of proof.

After a consultation period, the final version of the draft was published in the latest issue (2016) of the Digital Evidence and Electronic Signature Law Review. In the preamble of the draft, it is explained that the existing rules – tailored to the characteristics of paper evidence – cannot always apply to electronic information. Although this critical matter has not yet been settled at international level, it is becoming increasingly clear that e-evidence has a unique nature. Because of its complex character, some rules (e.g. the authentication rule, the best evidence rule and the hearsay rule) appear to be irrelevant or inapplicable to such evidence.

This brave initiative should be warmly welcomed by modern legal professionals as the first convention dealing with the treatment of electronic evidence in civil and criminal trials. The purpose of the initiative can be described as ambitious, but even so it is realistic, given that the contributors to it have carefully taken account of legal and technological considerations. Additionally, the final text of the Convention is based on a consensus between international scholars, as the provisions have been excluded that were not generally agreed. Time will tell, however, whether and to what extent this project will bring about a landmark change in the way legal professionals perceive e-evidence.

  1. THE IMPORTANCE OF THE CONVENTION

It should be acknowledged that this initiative has already made a significant contribution to legal scholarship in terms of innovative thinking. It is commonplace these days to say that the current procedural rules are still in force, simply for the reason that they sufficiently serve their purpose. While this is true in some cases, it is debatable whether the old legal doctrines can accommodate technologies underlying electronic records as a rule. In fact, it can be argued that existing rules give short shrift to the critical question of authorship, when it comes to complicated information in electronic form. The initiative offers a new insight into the issue, as it recognizes that the specific nature of electronic evidence poses new challenges to legal practitioners.

With regard to the treatment of electronic evidence at the admissibility phase, two totally opposite lines of thought have been supported in the international literature. These were aptly described by van der Merwe in his analysis as: a) the ‘paper’ approach; and b) the ‘protocol’ approach.

The ‘paper’ approach stipulates that all the traditional rules of evidence fulfil their purpose, on the condition that they can be applied mutatis mutandis to electronic evidence. Without any doubt, this approach prevails in the European Union and the United States, where evidentiary rules generally apply with equal force to any type of proof.

The ‘protocol’ approach acknowledges that we are now faced with forms of evidence essentially different in nature from those traditional forms, which constituted the basis of the law of documentary evidence. Therefore, we need to find alternative digital guarantees, namely internationally agreed protocols, concerning the authenticity of the electronic information that a proponent may seek to introduce at trial. This approach has so far failed to gain significant traction among legal practitioners, who have no choice but to follow the current framework governing the status of e-evidence.

  1. CONCLUSION

It is clear that the equal treatment of traditional and electronic evidence represents something of a paradox, given that the latter can be altered or fabricated with relative easiness (as the Hon. Alan Pendleton pointed out).

The Draft Convention on Electronic Evidence marks a shift to a new legal thinking, which seeks to bring traditional legal principles into line with the modern technological environment. The Convention seems to follow the ‘protocol’ approach in that it seriously takes into account not only the legal aspects, but also the technical details of the cases under consideration. In this sense, the Convention may serve as a useful starting point for legislative work, as the old rules may sometimes be inapplicable to electronic evidence. Should legal professionals’ understanding of sophisticated technology become more complete, it can be expected that the convention will inspire changes in rules in the light of technological evolution.

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