Electronic or digital evidence according to Opoku-Agyemang (2010) is any probative information stored or transmitted digitally and which a party to a judicial dispute may use in a trial. Trust in electronic records as evidence has increasingly become a great concern to legal institutions in various countries across the world due to security issues and lack of proper implementation of policies and guidelines addressing the management of electronic records. Traditionally, it is easy to authenticate the source of records due to original stamps and seals. Duranti & Rogers (2012) stated that reputation, performance, competence and confidence were the four types of knowledge that was traditionally needed about creators or custodians of records to render them as authentic.
However, advances in Information Communication Technology in recent years have led to records in different formats and media with different mode of documentation which according to Franks (2013) includes email messages, word processing documents, electronic spreadsheets, digital images, databases, video and audio files, voice mail, webpages and data stored in geographic information systems (GIS). These are difficult to authenticate due to their vulnerabilities.
ISO 15489, define records as information created, received and maintained as EVIDENCE and information by an organisation or person, in pursuance of legal obligations or in the transaction of business. The records provide evidence and can exist in different formats. Once records have been created, they must be managed and maintained for as long as required to ensure their authenticity, reliability, integrity and usability. As I always maintain, electronic records management has become necessary with the recognition that paper is an extremely costly means of communicating ideas and storing information. Electronic records systems therefore seek to help organizations, institutions and individuals improve productivity by organizing corporate documents and establishing standards and controls to archive and retrieve records while ensuring compliance with external audit and satisfying legal and regulatory requirements. Organizations, institutions and individuals across the world that have embraced electronic records have enjoyed immense benefits. These benefits are however accompanied by various challenges hitherto unknown to our Lawyers and Judges in the Court of Law.
Court rules in general require that for digital evidence to be admissible, it must be authenticated. This means that data and information must be shown to be what they purport to be by the proponent. Thomson (2011) states that, to authenticate digital evidence, the focus must be on the three key aspects of information technology: People, Process and Technology. Factors to be considered in evaluating the integrity of digital data include who created the evidence, what processes and technology were used, and what was the chain of custody throughout the entire digital evidence lifecycle. Because electronic records can be easily modified and modification is difficult to detect, courts across the world are struggling with ways to authenticate electronic evidence.
Legal instruments backing electronic records in Ghana
Due to the growing use of ICT, laws are being promulgated to protect customers, consumers and employees across the world. In Ghana, The Electronic Transaction Act (Act 772) was enacted in 2008 to provide for the regulation of electronic communications and related transactions and to provide for connected purposes. In its application, the Act applies to electronic transactions and electronic records of every type with the objects to provide for and facilitate electronic communications and related transactions in the public interest; remove and prevent barriers to electronic communications and transactions; promote legal certainty and confidence in electronic communications and transactions; promote e-government services and electronic communications with public and private bodies, institutions and citizens; ensure efficient use and management of the country domain name space; and ensure that the interest and image of the Republic are not compromised through the use of electronic communications among others.
Prior to the enactment of the Electronic Transaction Act, Section 31B under Hearsay and Computer-generated Evidence of the Evidence Act listed what can be referred to as a “document” apart from documents in writing to include: -
(a) any map, plan, graph or drawing;
(b) any photograph;
(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced;
(d) any film (including microfilm), negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom.
(Evidence Act, 1975, NRCD 323).
Although the Ghana Electronic Transactions Act, 2008 provide for the regulation of electronic communications, making room for recognition of digital certificates, digital signatures, notarization and automated transactions, the act in a practical sense is subject to the Evidence Act of Ghana. The Evidence Act sets forth parameters for authenticating and identification of electronic evidence. Parameters most public and private institutions in Ghana are struggling with in their creation, receipt, management and use of electronic records. Notwithstanding, evidence obtained outside Ghana are admissible under Section 71 of the Mutual Legal Assistance Act, 2010 which may be admissible in spite of non-compliance with the Evidence Act.
From the above, it is clear that the basic legal requirements for establishing a foundation for admissibility in courts are well established, backed by various Acts of parliament. But making them applicable to electronic records and systems from which electronic evidence is generated is faced with various challenges.
Requirements for making electronic records admissible
Different world literature on the subject provide various requirements for making electronic records admissible. An electronic material that may be admissible in one country may not be in another depending on the systems in place. But RELEVANCE of the evidence to the case is the main item that run through all requirements. According to Ofori-Boateng (1993), a document, or the writing in a document cannot be used as evidence unless it is relevant to the issue being tried. Opoku-Agyemang (2010) suggested that a proponent of electronic evidence should focus on Relevance, that is, asking whether the evidence has any tendency to make some fact that is of consequence to the litigation more or less probable than it would be otherwise. Other requirements stated includes, Authenticity, Hearsay, Best evidence rule and General exclusion rule.
Moreover, Section 31G of the Ghana Evidence Act of 1975 also states that, a statement contained in a document produced by a computer shall not be admissible in any proceedings as evidence of any fact stated unless at all material times the computer was operating properly, not subject to any malfunction and there were no alterations to its mechanism or processes that might reasonably be expected to have affected the validity or accuracy of the content of the document. Again, there should not be any reasonably cause to believe that the accuracy or validity of the document has been adversely affected by the use of any improper process or safeguards in the use of the computer, there were no errors in the preparation of the data from which the document was produced, the computer was properly programmed and it is established by or on behalf of the person tendering the document in evidence that the use of more than one computer did not introduce any factor that might reasonably be expected to have had any adverse effect on the validity or accuracy of the document.
In sequence, Section 7(1) of the Electronic Transactions Act, 2008 (Act 772) states that, the admissibility of an electronic record shall not be denied as evidence in legal proceedings except in assessing the evidential weight of an electronic record, the Court have regard to;
(a) the reliability of the manner in which the electronic record was generated, displayed, stored or communicated,
(b) the reliability of the manner in which the integrity of the information was maintained,
(c) the manner in which its originator was identified, and
(d) any other facts that the Court may consider relevant.
In a keynote address delivered by His Lordship Justice William Atuguba on behalf of Her Ladyship the Chief Justice on 14th July, 2017, he noted that this aspect of the law is relevant in that, a substantial part of the evidence adduced in the Financial and Economic Crimes Courts are electronic. These pieces of evidence may be videos from CCTV footage, emails, on VCD, DVD, flash drive and so on. However, he noted that, it must be borne in mind that due to the fact of the transnational nature of financial crimes like cybercrime and other emerging crimes, the accused persons may be resident in Ghana, but the witnesses, made up of victims and investigators, may be resident abroad. The cost of transporting such witnesses from abroad might be prohibitive.
He cited a case in 2013 of The Republic Vrs. Mathias Appiah Bill (Suit No. FTRM /49/14) noting that, for the first time in Ghana’s criminal jurisprudence, an evidence could be taken via video link once it is so directed by the Chief Justice. This is however a discretion not available to the Court in criminal cases except with the express permission of the Honourable Chief Justice under section 69 of the Courts Act, 1993 (Act 459). This means that in any case, once an application is made and granted for an order to take evidence via video link, permission also ought to be granted by the Chief Justice, before evidence can be taken in criminal matters. But with the passage of the High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I.87) there is no such requirement in civil actions.
Information Communication Technology systems have become central to business, social and government operations as well as the delivery of services. Courts around the world are considering how they can best authenticate evidence from new technologies to protect the right of the individual citizen and the nation. Currently, various Acts of Parliaments are paving the way for a better regulatory framework to protect the interest of individuals who communicate through electronic means.
Legal admissibility of electronic records in Ghana is accompanied by challenges such as functional policies and regulations, issues of authenticity, issues of reliability and accuracy. However, there are benefits that far outweighs the challenges. These benefits, challenges and associated recommendation would be discussed in the Part Two of this article.
(The article reviews the nature of electronic records and their legal admissibility as evidence in Ghana. Written in two separate articles, it highlights the requirements, benefits and challenges of different regulations guiding electronic records management and focuses on lessons that policymakers, particularly in Ghana can learn from nations that have begun making electronic records admissible in court.) The writer, Baaba Bonuedie presented a full essay on the subject to the Department of Information Studies, University of Ghana during her MA studies).
Information Management Professional