The Legality of Microfilm as Evidence
During the 1980s G G Baker & Associates organised many seminars, conferences and training courses on micrographic subjects. When the time came for questions, the two most predictable were:-
1. “Can microfilm be used as evidence in court?”
2. “Can documents be destroyed after they have been microfilmed?”
Because these subjects were of such concern to users and potential users of microfilm, G G Baker & Associates held a conference at the Chartered Accountants’ Hall in London in May 1982 which included two papers covering the subject.
The first paper covered the situation in the UK – it was presented by Mrs H S Fletcher Rogers who represented the Bar Association for Commerce, Finance and Industry on a BSI committee (Chaired by Gerald Baker) which was working on a British Standard covering the preparation of microfilm and other microforms that might be required as evidence in the UK. Mr Baker then gave a summary of the situation in over 30 other countries.
Since then, G G Baker & Associates have attempted to keep abreast of matters concerning the use of microfilm as evidence, but our information has been obtained from a multitude of sources at differing times and some of the details have been greatly condensed from lengthy Acts, standards and other documents. The following comment should only be used as general guidance on a complex subject, it is no substitute for expert legal advice and G G Baker & Associates cannot accept responsibility for its accuracy or damage resulting from its use.
England and Wales
The Civil Evidence Act 1995 (England and Wales)
This Act specifically permitted business records on paper, microfilm or produced by a computer to be admitted as evidence subject to certain conditions concerning its authenticity. It also contained a rule of “best evidence” which dictated that the original of a document must be produced unless it is not available in which case microfilm (usually a certified print from a microfilm) can be submitted with proof that it is a true copy of the original.
The Criminal Evidence Act 1984 (England and Wales)
This is similar to the Civil Evidence Act but slightly more lenient in that it only requires proof that the film or print is an authenticated copy. It states that a copy (which includes microfilm) will be admissible as evidence as if it were the original provided that there is evidence of the destruction of the original and identification of the copy.
This seems to be confirmed by an amendment to the Civil Evidence Act in 1995 which states:- “The Police and Criminal Evidence Act 1984 is amended as follows:-
In section 72(1) (interpretation of provisions relating to documentary evidence), for the definition of “copy” in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
The Civil Evidence (Scotland) Act 1988
The situation is a little different in Scotland. This Act states under “Document as part of business records”:-
Unless the court otherwise directs, a document may in any civil proceedings be taken to form part of the records of a business or undertaking if it is certified as such by a docquet purporting to be signed by an officer of the business or undertaking to which the records belong; and a statement contained in any document certified as aforesaid may be received in evidence without being spoken to by a witness.
And under “Production of copy document”:-
For the purposes of any civil proceedings, a copy of a document, purporting to be authenticated by a person responsible for the making of the copy, shall, unless the court otherwise directs, be deemed a true copy.
The Criminal Procedure (Scotland) Act 1995
In this Act there is provision for the admission in evidence of business records. There are three essential conditions of admissibility which must all be satisfied before a statement in a document is admissible as evidence of any fact or opinion of which direct oral evidence would be admissible. The conditions are as follows:-
1. The document was created or received in the course of, or for the purposes of, a business or undertaking or in pursuance of the functions of the holder of a paid or unpaid office;
2. The document is, or at any time was, kept by a business or undertaking or by or on behalf of the holder of such an office.
3. The statement was made on the basis of information supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in it.
“Document” includes in addition to a document in writing:- “Any film, negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced there from (film includes a microfilm)”.
Civil Evidence (Northern Ireland) Order 1997
This states that where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved by the production of that document or, 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 manner as the court may approve.
It also states that it is immaterial for this purpose how many removes there are between a copy and the original and that a document which is shown to form part of the records of a business or public authority may be received in evidence in civil proceedings without further proof. A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong.
However, it also states that the court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this Article do not apply in relation to a particular document or record, or description of documents or records.
The Police & Criminal Evidence (Northern Ireland) order 1989
This contained a specific reference to microfilm copies as follows:-
“In any criminal proceedings the contents of a document may (whether or not the document is still in existence) be proved by the production of an enlargement of a microfilm copy of that document or of the material part of it, authenticated in such manner as the court may approve.” (This reference may have subsequently been amended.)
The “Best Evidence” rule.
In England and Wales, if strictly applied, the “best evidence” rule required documents stored in a remote archive to be located and produced, even though authenticated copies were easily available. It is the main reason why some organisations had doubts regarding the destruction of documents after filming or scanning. In recent years it has been the subject of judicial debate. Lord Denning MR has stated “Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight and not to admissibility”.
There is little recent Scottish authority on the application of the ‘best evidence’ rule in this digital age, but a Scottish Court of Session decision indicates that the Scottish courts may not be softening their stance and that if the original document exists it should be produced. If this is the case there is a possible argument for certified destruction of documents after filming or scanning.
Financial Conduct Authority Guidelines
The FCA Handbook deals not only with guidance for the term of document retention but also with the form of the record. 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 (regarded as) readily accessible if it were available for inspection within 48 hours of the request being made.
An HMRC document states:- “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.”
This attitude is confirmed by HMRC advice to its staff in its Repayment Claims Manual 26-7-2016 RO instructions: Microfilmed vouchers, which states. “Some banks and other financial concerns keep dividend, interest or annuity vouchers for their customers. These vouchers are recorded on microfilm after a certain period and then destroyed. If you need evidence of tax suffered after the original voucher has been destroyed:-
Accept a paper copy of the microfilm of the original voucher accompanied by a certificate which:-
1. Quotes Inland Revenue Policy Division reference T1726/1/87.
2. Confirms that the paper copy is a true copy of the microfilm record of the original voucher.
3. Confirms that the original voucher has been destroyed.
Practical application of the above rules.
Many readers of this article will be in possession of microfilmed material which does not fully comply with all of the above rules. Some may already be considering scanning those films to make their content widely available throughout their organisations or even to the general public. Nothing in the above prevents them from doing so, but lack of documentation concerning the circumstances in which a document was filmed reduces its “weight” if it should be required as evidence in a court case.
It follows that any records which confirm that the film is a true copy of the original, that filming was part of an established business practice, the date on which the filming took place, the destruction of the original and the identity of the persons who authorised and undertook the filming, should be carefully preserved.
For any new microfilming projects for converting paper to film BS 6498 : 2002 – Guide to preparation of microfilm and other microforms that may be required as evidence gives valuable advice. This is the latest edition of a standard produced under the chairmanship of Gerald Baker in 1982-84. It is somewhat expensive at £116 but is available at half price to BSI members.
The standard covers suggested forms and certificates for recording the establishment of a filming programme, authorising filming, the camera operator’s certificate stating his/her identity, the date of the filming and an explanation for any splices, which is to be filmed at the end of the first roll, the beginning of the second etc. Suggested certificates are provided for an authorised person to record that he/she has checked the microform copy and evidence of destruction of the originals. There is an outline of the possible layout of a register in which all of the above certification is recorded. Other matters mentioned include quality control and special provision for jackets which contain images produced at different dates.
A large number of current projects involve the conversion of digital data to microfilm via COM (Computer Output Microfilming). So far as GGB&A are aware there is no specific standard covering the legal admissibility of film produced via COM, but it can be assumed that the same terms and conditions relating to camera film apply if such films are to be produced in evidence.
Comment and corrections.
Comment on this article, corrections to its content and potential additional material are welcomed. In particular we encourage anyone concerned with the production of microforms or involved with the law regarding evidence to draw our attention to any omissions or inaccuracies which GGB&A will correct as quickly as possible.
In compiling this article, GGB&A have made extensive use of material obtained from the web and from respected sources including H M Government publications, HMRC, The British Standards Institution and The Financial Conduct Authority combined with information gathered in our files since 1978. Neither Gerald Baker nor G G Baker & Associates intend to benefit financially from the publication of this article and we do not seek to restrict use of its content, but we would appreciate a mention if it is reproduced in whole or in part.