2 Smith, ‘The admissibility of statements by computer’ 387.
3 Although no computer works on this basis – the code is written in the main by human beings, and the code comprises the instructions to the computer, upon which basis the computer undertakes activities, and the computer undertakes actions based on the instructions written by human beings.
3.24 In R v Robson, Mitchell and Richards,1 a print-out of telephone calls made on a mobile telephone was adduced as evidence of the calls made and received in association with the number. The defence’s challenge that the evidence was documentary hearsay failed. Orde J held that ‘where a machine observes a fact and records it, that record states a fact. It is evidence of what the machine recorded and this was printed out … The record was not the fact, but evidence of the fact.’2
1 [1991] Crim LR 362.
2 [1991] Crim LR 362, 363; see also McDonald v R [2011] EWCA Crim 2933 where a print-out of telephone calls was admitted in the absence of the electronic records that no longer existed. Records of calls made by a mobile telephone were accepted as real evidence by the Court of Criminal Appeal of the Republic of Ireland in People v Colm Murphy [2005] 2 IR 125 (CCA) and in People v Brian Meehan [2006] 3 IR 468 (CCA).
3.25 In the business context, two popular uses of computers are the formation of records, and the recording of the credits and debits of an account. Where it is the latter, the records of computer payment transactions are considered real evidence, as their Lordships made clear in R v Governor of Brixton Prison, ex p Levin.1 In this appeal against extradition, it was alleged that Levin used a computer terminal in St Petersburg to gain unauthorized access to a Citibank terminal in Parsipanny, New Jersey to make 40 fraudulent transfers of funds from the accounts of clients of the bank to accounts which he or his associates controlled. Print-outs of screen displays of the historical records of computer payment transactions were adduced, and a witness gave evidence as to how the records were created. Lord Hoffmann took the opportunity to make clear the difference between a hearsay statement and evidence of a record of a transaction:
The print-outs are tendered to prove that such transfers took place. They record the transfers themselves, created by the interaction between whoever purported to request the transfers and the computer program in Parsipanny. The evidential status of the print-outs is no different from that of a photocopy of a forged cheque.2
1 [1997] AC 741, [1997] 3 All ER 289, [1997] 3 WLR 117 (HL).
2 [1997] AC 741 (HL), 746.
3.27 It is in both contexts that in evidentiary discovery (or disclosure as it is now called in England & Wales), a ‘document’ has been construed widely. While the emphasis is on the recording of the content by the application of (usually text) on to (usually) paper, early decisions such as the Court of Appeal in Lyell v Kennedy (No. 3)1 have admitted photographs of tombstones and houses as documents for the purposes of discovery. In R v Daye (Arthur John),2 Darling J suggested that the meaning of a document should not be defined in a narrow way:
But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed not on paper, but on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.3
1 (1884) 50 LT 730; for a discussion about the status of legal resources on the Internet, included case reports, see R J Matthews, ‘When is case law on the web the “official” published source? Criteria, quandaries, and implications for the US and the UK’ (2007) 2 Amicus Curiae 19, 25.
2 [1908] 2 KB 333 (KBD).
3 [1908] 2 K.B. 333 (KBD), 340; see Malek (n 2, 3.13) para 41-02 for a more detailed discussion of documents within the rule.
3.28 In Hill v R, Humphreys J held ‘that a document must be something which teaches you something … To constitute a document, the form which it takes seems to me to be immaterial; it may be anything on which the information is written or inscribed – paper, parchment, stone or metal’.1 Likewise, statutes adopt a similarly broad definition of a
‘document’. Section 13 of the Civil Evidence Act 1995 defines a ‘document’ as ‘anything in which information of any description is recorded’. The same definition is provided in s 20D(3) of the Taxes Management Act 1970.
1 [1945] 3 KB 329, 332–3.
3.29 Audio tapes were accepted by Walton J as a discoverable document in Grant v Southwestern and Country Properties Ltd,1 where a ‘document’ was defined as its quality to convey information. Television film is also considered a document,2 as is the output of facsimile transmissions,3 and a label on a bottle containing a specimen of blood provided by the accused.4
1 [1975] Ch 185, [1974] 2 All ER 465, [1974] 3 WLR 221. See also R v Senat, R v Sin (1968) 52 Cr App R 282; R v Stevenson [1971] 1 All ER 678, [1971] 1 WLR 1; R v Robson (Bernard Jack); R v Harris (Gordon Federick) [1972] 2 All ER 699, [1972] 1 WLR 651 (CCC).
2 Senior v Holdsworth Ex p Independent Television News [1976] QB 23, [1975] 2 All ER 1009, [1975]
2 WLR 987 (CA).
3 Hastie and Jenkerson v McMahon [1991] 1 All ER 255, [1990] 1 WLR 1575, (CA).
4 Khatibi v DPP [2004] EWHC 83 (Admin).
3.30 In Derby v Weldon (No. 9),1 one of the earliest modern decisions on the point, it was held that data stored on a computer in the form of an online database constitutes a document for the purposes of the obligation to discover under the provisions of Order 24 of the Rules of the Supreme Court. In analysing this point, Vinelott J referred to the Australian case of Beneficial Finance Corp Co Ltd v Conway,2 in which McInerney J held
that a tape recording was not a document because the information is not capable of being visually inspected. Vinelott J however preferred the opposing view in Grant v Southwestern and County Properties Ltd,3 in which Walton J pointed out that there is no difference between recording a conversation on a tape recorder and in shorthand.
Both are methods of recording the same conversation. Vinelott J quoted Walton J with approval as follows:
… the mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle. A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept them by means of microfilm which could [not] be read without the aid of a projector.4
1 [1991] 2 All ER 901, [1991] 1 WLR 652 (CA).
2 [1970] VR 321.
3 [1975] 1 Ch 185, [1974] 3 WLR 221, [1974] 2 All ER 465, 118 SJ 548 Ch D; Walton J criticised the reasoning of McInerney J at 196F–197A.
4 [1991] 2 All ER 901 (CA), 906B-C.
3.31 Thus the interposition of a computer to enable the retrieval of data stored in the online database did not disqualify the data from being considered a document. A similar issue as to the meaning of a ‘document’ in the context of data stored on a computer for discovery was also discussed in Alliance & Leicester Building Society v Ghahremani on a motion to commit Naresh Chopra, a solicitor, to prison for contempt of court.1 Mr Chopra was alleged to have deliberately deleted part of a file that showed crucial transaction details stored on his computer in contempt of court, when investigations into possible mortgage fraud and negligence were being conducted into his affairs. A court order had directed Chopra to restrain from destroying or altering any document relating to the transaction, and required him to deliver up all such documents in his control. In the contempt proceedings, counsel argued that the word ‘document’
required there to be some form of visible writing on paper or other material, and because there was no physical document, the order had not been breached. Hoffmann J noted the comments of Vinelott J in Derby v Weldon (No. 9),2 and held that ‘document’
would bear the same meaning in the discovery order. Taking into account the expert evidence, Hoffmann J concluded that it was proved beyond reasonable doubt that Chopra did alter or destroy part of the file as a document,3 and granted the motion, although Chopra was eventually fined instead.4
1 (1992) 32 RVR 198, [1992] TLR 129 (Ch).
2 [1991] 2 All ER 901, [1991] 1 WLR 652 (CA).
3 (1992) 32 RVR 198, 203. Forged evidence has increased. For some examples in the context of England & Wales, see ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch), [2003] All ER 252 [106]-[111]
for a forged document; Fiona Trust & Holding Corporation v Privalov [2010] EWHC 3199 (Comm) [1405]–[1430] for a forged and back-dated agreement and employment contract; Apex Global Management Ltd v FI Call Ltd [2015] EWHC 3269 (Ch) for forged emails; in the criminal context, see R v Brooker [2014] EWCA Crim 1998 (available in the LexisNexis electronic database), where Brooker sent text messages from a second mobile telephone in her possession, claiming that her boyfriend sent them; Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV [2014] EWHC 3777 (Comm) a case of fictitious litigation; Otkritie International Investment Management Ltd v Urumov (Rev 1 - amended charts) [2014] EWHC 191 (Comm), in which the allegations (and counter-allegations) included, amongst other things, the forgery of the contents of a laptop and metadata in relation to documents; Steven Morris, ‘Barrister becomes first to be jailed for perverting justice’, The Guardian (London, 20 September 2007).
4 Communications by email between Nicholas Leviseur, counsel for Mr Chopra, and Stephen Mason dated 14 October 2006 and 23 November 2006.
3.32 There is judicial recognition that the acceptance and use of technology will increase the range of objects that fall within the definition of ‘document’. In R v McMullen,1 Linden J held that a current account ledger card printed from a computer was a document within the meaning of s 29(2) of the Canada Evidence Act. The judge commented that: ‘It is merely a new type of copy made from a new type of record. Though the technology changes, the underlying principles are the same.’2 Citing this comment, Morden JA observed that the ‘section should be considered as “always speaking” and
“be applied to the circumstances as they arise …”’.3 The same view was emphasized by Buxton LJ in Victor Chandler International v Customs and Excise Commissioners,4 where he observed that ‘… the word “document” is not constrained by the physical nature that documents took in 1952, so we are entitled, and indeed bound, to consider the appropriate application of the concept of circulation, etc, of a document in the light of current practice and technology’. In this case, an advertisement contained in a teletext transmission was held to be a document for the purposes of the Betting and Gaming Act 1981. This view was reinforced by Pumfrey J in Marlton v Tectronix UK Holdings,5 when the judge held that a computer database, in as far as it forms part of the business records of a company, is a document for the purposes of the Civil Procedure Rules, and therefore can be disclosed. Calvert Smith J also concluded, in Kennedy v Information Commissioner,6 that the word ‘document’ in s 32 of the Freedom of Information Act 2000 included information recorded in an electronic medium. The judge said:
It seems clear to me that for the Act to work at all – and in particular for Section 32 to work at all – the word ‘document’ must now mean what everybody now thinks it means and includes both hard and electronic copies of documents.7 1 42 CCC (2d) 67.
2 42 CCC (2d) 67.
3 R v McMullen (1979) 100 DLR (3d) 671, 676.
4 [2000] 2 All ER 315, 329.
5 [2003] EWHC 383 (Ch), [2003] Info Tech LR 258, 2003 WL 1610255.
6 [2010] EWHC 475 (Admin), [2010] 1 WLR 1489.
7 [2010] EWHC 475 (Admin), [79].
3.33 As such, a ‘document’ is a medium upon which information is stored. The medium may sometimes determine the admissibility of the evidence, but the definition of a document is considered wide enough to bring any medium into its ambit without causing difficulties.1 This must be correct, because if information is not stored on a medium, the content is not available without the medium, and therefore the information remains oral evidence. As Lord Milligan in Rollo (William) v HM Advocate2 said, when he indicated that the information stored in a Sharp Memomaster 500 hand- held device was a document:
Unsurprisingly, the word ‘document’ in normal usage is most frequently used in relation to written, typed or printed paper documents. Where information is stored by other means on other surfaces we accept that the storing item concerned is more readily referred to by reference to the means of storage or surface for storage concerned rather than as a ‘document’. Hence reference to, for example, machines or tapes. However, terminological emphasis in description in such cases on the means or surface for recording information does not deprive
such alternative stores of information from qualifying as ‘documents’ any more so than, for example, a tombstone, which is expressly included in the dictionary definition referred to. It seems to us that the essential essence of a document is that it is something concerning recorded information of some sort. It does not matter if, to be meaningful, the information requires to be processed in some way such as translation, decoding or electrical retrieval.3
1 Charles Hollander, Documentary Evidence (12th edn, Sweet & Maxwell 2015) para 7–22.
2 1997 JC 23, 1997 SLT 958 (HCJ).
3 1997 SLT 958, 960F-G.