Introduction
Purpose of this document
Limitations on digital working
The Legal Framework
Authenticating digital documents
Service
Stages in proceedings
Definitions
Legislation and Rules

Digital working is at the centre of the CJS Efficiency Programme. Criminal justice agencies are now able to share a digital file - instead of paper - to carry out substantial parts of the criminal justice process. Work has started on the next phase that will see agencies working even better together.
To support the move to new ways of working, guidance has been agreed that sets out clearly the legal basis for digital working. This is provided as the background to separate practical advice within each department/agency on action to take where digital working is not yet possible.
The guidance has been agreed across criminal justice agencies and in consultation with the judiciary and defence practitioner representative bodies.
This document provides guidance on the legal provisions that apply to working with digital materials and electronic methods of service in both the magistrates’ court and
Crown Court.
It describes:
What is legally permissible : the
statutory provisions
and the rules and practice directions that govern digital working at all stages in criminal proceedings.
What is possible in practice : the situations in which paper and non-electronic forms of service will still be used (for some time to come) for sound operational reasons
Its purpose is to assist all those who work in the Criminal Justice System in the period of change from conventional working based on paper files, to full digital working.
It is not intended to initiate any new digital business processes or signal any immediate extension of digital working. Any changes will be agreed by and communicated from the
CJS Efficiency Programme at the appropriate time.
Whilst showing that digital working is entirely consistent with the relevant criminal statutes and Criminal Procedure Rules, this guidance does not change the current operational policies set by the CJS Efficiency Programme and agreed across the Criminal
Justice System.
Most importantly, this guidance does not mean that we can immediately ‘switch off paper’. Nationally agreed operational policy must be followed at local level.
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The limitations on digital working set out below must be strictly adhered to pending further guidance and as our ability to operate using mainly digital files expands.
There are a number of situations in which the agreed operational position is to continue to use paper or non-electronic methods of service:
Prosecutors must continue to serve paper files on:
• unrepre sented defendants;
• defendants in custody (including overnight remands);
• defendants granted representation on the morning of a first hearing (where it is impossible or otherwise impractical to serve a digital case file on the morning at little or no notice).
Prosecutors must continue to serve paper files on the courts for magistrates’ court trials and Committal hearings.
The CJS Efficiency Programme has not yet agreed to extend digital working to the Crown
Court. Prosecutors must continue to serve documents on the Crown Court on paper in most cases. Those cases that have routinely been served on disk before (usually large fraud or complex cases) will continue to be served on disk. No case that until now has been served on paper should be served on the Crown Court on disk, without first obtaining the agreement of the Judge in any particular case.
Where defence practitioners have a secure email address, the CPS has agreed with the law Society that it will use it to serve material only having first obtained the address holder’s written consent.
Where a representative does not agree to service through a secure e-mail address, service will be by non-electronic means which could be on paper or disk for instance.
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Criminal Procedure Rules
limitations on digital working
There are some statutory provisions that require documents to be served in a particular way. However, none of the statutes that govern the main stages of criminal proceedings either prohibit or prevent the service of documents by electronic means in general. The exceptions to the general rule are considered below in the section on the Criminal
Procedure Rules.
A number of statutory provisions contain requirements for signature of certain documents. This requirement can always be accommodated using digital materials and electronic methods of transmission.
'Authenticating digital documents'
The Criminal Procedure Rules are made by the Criminal Procedure Rule Committee and apply in all magistrates' courts, the Crown Court and the Court of Appeal (Criminal
Division). The Rules determine the way a criminal case is managed as it progresses through the criminal courts in England and Wales although they cannot override statutory provisions.
The Rules positively encourage digital working and electronic service where there is no statutory requirement to the contrary. They contain a number of helpful and permissive general provisions, some of which are referred to below.
Part 1 (the Overriding Objective) states quite simply that criminal cases must be dealt with justly. This includes that cases are dealt with efficiently and expeditiously in accordance with Rule 1.1(2)(e).
Part 3 (Case Management) imposes a duty on the court to further the Overriding
Objective in Part 1 by actively managing the case. Rule 3.2(1)(h) specifies that this includes making use of technology. Rule 3.3(a) requires each party to actively assist the court in fulfilling its duty under rule 3.2, without or, if necessary, with a direction;
Part 4 (Service of Documents) not only facilitates the electronic service of documents, but actively encourages it. Where a document may be served by electronic means, the general rule is that the person serving it will use that method (Rule 4.2.2). It follows inevitably that the document must be a digital one. The Rules are therefore based on the assumption that digital documents will (eventually) be the norm within the process of criminal litigation.
Rule 4.6 provides that a document may be served by electronic means where the person to be served has:
• given an electronic address, and has not refused to accept service by that method; or
• is legally represented and the representative has given an electronic address.
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• Where a document is served under Rule 4.6 the person serving it need not provide a paper copy as well. This should not be taken to mean that a paper copy is required in all other circumstances, since that would conflict with Rule 4.2.2.
Rule 4.7 sets out the exceptional situations where statutory provisions expressly require documents to be served in ways other than electronically. The documents within Rule
4.7.2(a) to (j) most likely to be relevant to the CPS are those in paragraph (a): a summons, requisition or witness summons. They must be served by handing over or leaving or posting.
Note, however, that nothing in Rule 4.7 makes any stipulation as to the format of what is to be served by non-electronic methods. There is nothing to prevent the service of a DVD or other digital mass storage device under Rule 4.7. There is no requirement for service of paper.
Part 5 (forms and Court Records) governs the use of forms in criminal proceedings and provides for the use of digital versions.
Rule 5.3(2) provides for ‘any written or electronic authentication of the form by, or with the authority of, the signatory unless other legislation otherwise requires, or the court otherwise directs’.
One very narrow interpretation of Part 5 could be seen to restrict it to only those forms prescribed by the Consolidated Criminal Practice Direction that require a signature. This would mean, however, that whilst a statement made under the provisions of section 9
Criminal Justice Act 1967 would be covered by the Rule, a statement tendered at committal (section 5 Magistrates’ courts Act 1980) or a formal admission (section 10
Criminal Justice Act 1967) would not.
Such a result would appear illogical. The Criminal Procedure Rules Committee has, in fact, confirmed that the Rule was intended by to apply to any form used in criminal proceedings.
Should an argument based on this interpretation be raised, the provisions of section 7 of the Electronic Communications Act 2000 may in any event be relied upon, since they have legislative precedence over the Rules.
Section 7 provides (in effect) that an electronic signature is admissible in any legal proceedings for the purpose of establishing the authenticity or the integrity of any communication or data into which it is incorporated.
Part 21 (Initial details of the prosecution case) governs the provision of the initial details of the case by the prosecution
Part 27 (Witness statements) governs the use of written statements in criminal proceedings.
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The current legislative and regulatory framework for authentication of documents includes (but is not limited to):
•
section 9 Criminal Justice Act 1967 (proof by written statement in criminal
proceedings other than committal proceedings);
•
section 10 Criminal Justice Act
1967 (proof by formal admission);
•
sections 5A to 5F Magistrates’ Courts Act 1980
(proof by written statements at committal);
• paragraph 1 Schedule 2 Criminal Procedure and Investigations Act 1996 (proof by
written statement following committal)
• section 51 and 52 Crime and Disorder Act 1998 ; and the
Crime and Disorder Act
1998 (Service of Prosecution Evidence) Regulations 1998
(sending cases to the
Crown Court);
•
section 7 of the Electronic Communications Act 2000
(use of digital signatures in
‘any legal proceedings’)
• part 11 of the Criminal Justice Act 2003 (hearsay) and in particular sections
114,133 and 134;
It is essential to ensure the authenticity and integrity of all
documents
at each stage of criminal proceedings, including (but not limited to) the following:
• all those documents received or generated in the preparation and conduct of criminal proceedings;
• any correspondence, notices or forms generated during the proceedings;
• documentary evidence used at trial in whatever form;
• any unused material to be considered under the Criminal Procedure and
Investigations Act 1996.
Certain statutory provisions impose procedural requirements that provide for what may be called ‘procedural admissibility’ in order that documents may be used in criminal proceedings. What lies behind these provisions is the need to authenticate a document so that it can be shown that the maker of it accepts and adopts it.
The usual procedural requirement for admissibility of a document in criminal proceedings is that it should ‘purport to be signed’ by the person who made it.
The principal statutory provisions concerning the procedural admissibility of documents are found in section 9 of the Criminal Justice Act 1967 and section 5A to 5E of the
Magistrates’ Courts Act 1980. They require that the document:
‘…purports to be signed by the person who made it…’
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‘Signed’ is not, however, defined within any of the relevant legislation, the Criminal
Procedure Rules or the Interpretation Act 1978. The common law provides that a person’s mark amounts to a signature. (See the
Definitions section on the legal definition
of a
signature
for a more detailed account of the relevant law.)
Authentication of a statement by signature does not, of course, provide any guarantee as to the quality of the evidence contained in it. It is simply a procedural device to show that the statement is made, authenticated and acknowledged by the person who signed it.
There is no requirement in relevant statutes or Rules for a signature to be in ink on paper
(a so-called ‘wet signature’) or that a document must be signed in any particular way.
A ‘wet signature’ is no more inherently reliable for confirming the authorship, integrity, or authenticity of a document than is a digital signature. In the event of a dispute about the authenticity or integrity of a document, an enquiry would need to be held into the provenance of the statement in question, whether it were in ‘wet’ or digital form.
There is specific legislative provision in the
Electronic Communications Act 2000 that
makes the use of digital signatures admissible in evidence in any legal proceedings.
Section 7 provides that an electronic signature, or the certification by any person of such a signature, is admissible in evidence to determine the authenticity of an electronic communication, or of the data in it.
Section 7(2)(b) of the Electronic Communications Act 2000 uses a formula for digital signatures that can be seen as an updated restatement of the provisions in the 1967 and
1980 Acts:
‘…purports to be so incorporated or associated for the purpose of being used in establishing the authenticity of the communication or data, the integrity of the communication or data, or both.’
Signatures can be captured in a variety of ways in connection with digital documents:
• as a graphical digital representation of the witness’s usual signature;
• as a scanned copy of a ‘wet signature’;
• by the use of a password;
• by the use of a digital signature authorised or certified by the maker
All of the above would appear to ‘purport to be’ a signature for the purposes of both the
Criminal Justice Act 1967 and Magistrates’ Courts Act 1980.
It is arguable that an e-mail from a named e-mail account could also be considered to
‘purport to be signed’ by the account holder, particularly so if it is a secure account and one that requires a password to obtain access.
Any doubts as to the provenance, authenticity or integrity of a digital document containing a digital signature would need to be tested in the same way that they would be tested in respect of a traditional ‘wet’ signature on paper by the calling of relevant evidence.
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It is important to distinguish between the format of documents and the method by which they are served.
At no stage of the proceedings (Initial details; committal, sending; trial; or disclosure of unused material) is there any provision in the relevant legislation or the Criminal
Procedure Rules that compels a party to criminal proceedings to serve material in any particular format.
Section 5E(4) Magistrates’ Courts Act 1980 and section 134 of the Criminal Justice Act
2003 define a ‘document’ very broadly as ‘anything in which information of any description is recorded’.
The word ‘document’ is not defined in the Criminal Procedure Rules or the accompanying glossary of terms or in the main criminal statutes governing criminal procedure (Criminal
Justice Act 1967; Criminal Procedure and Investigations Act 1996; Crime and Disorder
Act 1998).
The civil, and more importantly, the criminal courts have construed the meaning of
‘document’ widely. Audio tapes; television film; facsimile transmissions; have all been accepted as documents. In the case of Alliance and Leicester Building Society v
Gharemani [1992] NLJR 313, [1992] TLR 1198, data stored on a computer was held to be a document in proceedings where the criminal standard of proof applied (for the purposes of proceedings for committal for contempt).
It is submitted therefore that in the absence of any other statutory definition, the term
‘document’ is broad enough to include a digital document in criminal proceedings.
The definition in section 5E of the Magistrates’ Courts Act 1980 and section 134 Criminal
Justice Act 2003 should be applied and used as a starting point where the issue is raised.
Part 3 Criminal Procedure Rules governs the court’s duty to manage cases in accordance with the overriding objective in Part 1 of the Rules. Criminal Procedure Rule 3.2 imposes a specific duty on the court to use technology as part of its case management process. Rule
3.3(b) places a duty on the parties to assist the court to fulfil its duties under Rule 3.2.
This implies a duty on the parties to make use of appropriate technology and to receive electronic communications where appropriate.
Part 4 Criminal Procedure Rules deals specifically with the issue of electronic service of documents.
Rule 4.2 (2) provides that where a document may be served by electronic means, the general rule is that the person serving it will use that method.
An unrepresented defendant may refuse electronic service in accordance with Rule
4.6(1)(a)(ii). By virtue of Rule 4.6(1)(b) a document may be served by electronic means where the defendant is represented and the representative has given an electronic address. (In practice this is required to be a secure e-mail address).
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There are limited exceptions listed in Criminal Procedure Rule 4.7 when service must be by hand. (None of the exceptions, however, applies specifically to documents to be served by the prosecutor). Even for those exceptions where a document is to be served by hand (a summons for example) there is nothing in the Rule that requires it to be printed on paper.
The provision of Initial Details of the prosecution case is governed by Part 21 of the
Criminal Procedure Rules . It creates no specific requirements for the format or the method of service or the timing of the details on the defence and the court.
method of service
There is nothing in the legislation or Rules that prevents the service of committal statements electronically. There are, however, procedural requirements concerning the form and content of statements to ensure admissibility when magistrates are inquiring into an offence as examining justices.
The primary requirement for admissibility of a written statement for the purposes of committal to the Crown Court is that it purports to be made by the person who made it
(section 5B(2)(a) Magistrates’ Courts Act 1980).
This requirement can be complied with by a digital signature on a document or by a printed copy of the maker’s signature.
There is no legal requirement for an ‘original’, or for a paper document of any kind, carrying a signature applied directly by the maker (a so-called ‘wet signature’). Section
5F(1)(b) Magistrates’ Courts Act 1980 permits committal by production of ‘a copy or the material part of’ a statement that complies with section 5B. In relation to such a statement, deposition or document, ‘copy’ means ‘anything onto which information recorded in the statement, deposition or document has been copied, by whatever means and whether directly or indirectly’ (section 5F(4) Magistrates’ Courts Act 1980).
Section 10(1) Criminal Justice Act 1967 provides that:
‘…any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings…and the admission shall as against that party be conclusive evidence in those proceedings of the fact admitted’.
The requirements of section 10 include that a formal admission:
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• is in writing; and
• purports to be signed by the person making it (unless made on behalf of the defendant by solicitor or counsel)
Digital versions of formal admissions are therefore fully compliant with section 10 provided they meet the admissibility criteria.
Sections 5A(3) and 5E(1) Magistrates’ Courts Act 1980 together permit the admission of documents at committal. It is submitted that an admission may be used at committal by treating it as a document within section 5E (1). A document within section 5E may be read aloud to the court or an account of it given orally so that it is a ‘… fact of which oral evidence may be given…’ for the purposes of committal proceedings.
Sections 51 and 52 Crime and Disorder Act 1998 contain no requirement for authentication of the documents used to serve the case on the defence and the court.
Nor do they specify the format in which the evidence should be served.
The Regulations created pursuant to Schedule 3 paragraph 1 of the Crime and Disorder
Act 1998 simply require that ‘…copies of the documents containing the evidence on which the charge or charges are based…’ are served upon the defendant and the court.
There are no barriers to the use of digital materials and electronic methods of service in respect of unused material in either statute or Criminal Procedure Rules.
The schedule of unused material (MG6) may be served electronically in the same way as
Initial Details, committal statements or those served under section 51 Crime and
Disorder Act 1998.
Paragraph 9.1 of the Code of Practice issued under section 23 Criminal Procedure and
Investigations Act 1996 requires that the disclosure officer must ‘sign and date’ the disclosure schedule confirming that all relevant material has been revealed. A typed
‘signature’ would be sufficient in accordance with the general law on signatures and a digital signature in accordance with section 7 Electronic Communications Act 2000.
Any material that must be disclosed in accordance with the Criminal Procedure and
Investigations Act 1996 may also be served in digital format where this is possible.
A witness may be shown the written statement before trial to confirm that:
• It is the witness’s statement signed by him/her;
• The contents are an accurate representation of the witness’s recollections or evidence
There is no difference between showing a witness a traditional paper statement and a statement in digital format.
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A statement admitted in evidence in written form is hearsay evidence. Chapter 2 of Part
11 Criminal Justice Act 2003 governs the use of hearsay evidence generally.
Two statutory provisions provide for a written statement to be admissible in evidence at trial in place of (and to the same extent as) oral evidence:
 Section 9 Criminal Justice Act 1967; and
 Paragraph 1 schedule 2 Criminal Procedure and Investigations Act 1996.
Section 9 provides for the admission of written evidence in trials in any court when the conditions in sections 9(2) and (3) are complied with.
Paragraph 1 makes equivalent (but simpler) provision, for the admission at trial of written statements following committal proceedings. The statement may without further proof be read as evidence on the trial of the accused. This is subject only to the power given to the court of trial by sub-paragraph (4) to deal with any objections.
Rule 27.4(1)(a) of the Criminal Procedure Rules deals directly with the requirements of section 9(2)(c) of the Criminal Justice Act 1967. It requires service on the other parties and the court officer of a copy of any written statement a party wishes to have admitted in evidence at trial pursuant to section 9.
Rule 27.4(1)(b) requires that, at or before the hearing, the party wanting to introduce a written statement in evidence must serve ‘the statement or an authenticated copy’ on the court officer. This requirement is based on the reference in section 9(2)(c) to the statement being ‘tendered in evidence’ at the hearing.
The requirements of Rule 27 do not apply to a statement admitted under Paragraph 1 of
Schedule 2 of the Criminal Procedure and Investigations Act 1996.
Where a statement in a document is admissible as evidence in criminal proceedings, section 133 of the Criminal Justice Act 2003 provides that the statement may be proved by producing either:
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material part of it authenticated in whatever way the court may approve.
Section 133(b) does not prescribe or limit the ways in which a document may be authenticated. This is left to the discretion of the court.
The admission of a written statement in evidence pursuant to s9 Criminal Justice Act
1967 can take place only with the consent of the other parties. In practice, therefore, compliance with Rule 27.4(1)(b) should be a formality in most cases. It can be satisfied by the copy already served under rule 27.4(1)(a), if that can be authenticated in a manner approved by the court.
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By virtue of section 134 Criminal Justice Act 2003 a document is ‘anything in which information of any description is recorded’. Digital versions of statements are therefore documents admissible to the same extent as paper-based statements, provided the requirements of form and signature are complied with.
Similar considerations apply to the admissibility of digital versions of formal admissions under section 10 Criminal Justice Act 1967.
Where a statement to be tendered in evidence is a scanned copy of a paper statement, the paper version should be necessary only to resolve any issues concerning the authenticity of the paper statement or the copying process.
Where the statement has only ever existed in digital format the ‘statement’ will, in effect, be the digital version of the statement already served on the court.
A written statement signed by the maker may be shown to a witness giving evidence to validate that it was made by that witness.
This may occur (for example) if the witness gives oral evidence that departs substantially from what is recorded in the written statement.
In the event of such a challenge it may be necessary to be able to produce the statement purportedly signed by the person who made it.
There is no difference in this respect between a paper-based and a digital statement. The issue of authenticity will need to be established. The real issue in such a situation is usually the credibility of the witness, based on any discrepancy between the earlier written statement and any subsequent testimony.
The following are definitions of how some important terms in this guidance are used. The aim is to provide clarity and consistency.
The terms ‘digital’ and ‘electronic’ are broadly interchangeable in common usage. Either term may be used as a general description of a system that is based on the use of computer technology.
In this document they have been distinguished and used in a way that matches as closely as possible how they are used in the relevant legislation and rules.
‘Digital’ is used to describe the format in which information is stored using computer technology as against storage using paper.
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‘Digital material’ can include:
Material created ‘natively’ within a computer system such as e-mails, systems files, digital photographs; or
Material which has been digitised from analogue form such as a scanned copy of a document, faxed document
This document uses ‘electronic’ to describe the means by which digital materials of any kind are transmitted.
‘Document’ is used here as broadly defined in a number of statutes (including section
5E(4) of the Magistrates’ Courts Act 1980 and section 134 of the Criminal Justice Act
2003) as ‘…anything in which information of any description is recorded’
In relation to a document, ‘copy’ means ‘anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly’ in accordance with the definitions in section 5F of the Magistrates’ Courts Act 1980 and section 134 of the Criminal Justice Act 2003.
The Interpretation Act 1978 itself contains no definition of the expressions ‘sign’ or
‘signature’.
There is helpful case law from a commercial context: (in Re a debtor [No 2021 of 1995], ex parte Inland Revenue Commissioners v The debtor [1996] 2 All ER 345).
The Court held that:
‘…a proxy form is signed for the purposes of [the relevant rule] if it bears upon it some distinctive or personal marking which has been placed there by, or with the authority of, the creditor. When a creditor faxes a proxy form to the chairman of a creditors’ meeting he transmits two things at the same time, the contents of the form and the signature applied to it. The receiving fax is in effect instructed by the transmitting creditor to reproduce his signature on the proxy form which is itself being created at the receiving station. It follows that, in my view, the received fax is a proxy form signed by the principal or by someone authorised by him. The view which I have reached appears to me to be consistent with the realities of modern technology. If it is legitimate to send by post a proxy form signed with a rubber stamp, why should it not be at least as authentic to send the form by fax ?’
The court elaborated on that conclusion as follows:
‘Once it is accepted that the close physical linkage of hand, pen and paper is not necessary for the form to be signed, it is difficult to see why some forms of non-human agency for impressing the mark on the paper should be acceptable while others are not.
For example, it is possible to instruct a printing machine to print a signature by electronic signal sent over a network or via a modem. Similarly, it is now possible with standard personal computer equipment and readily available popular word processing software to compose, say, a letter on a computer screen, incorporate within it the author’s signature
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which has been scanned into the computer and is stored in electronic form, and to send the whole document including the signature by fax modem to a remote fax. The fax received at the remote station may well be the only hard copy of the document. It seems to me that such a document has been ‘signed’ by the author.’
Criminal Justice Act 1967 (Part 1)
Magistrates’ Courts Act 1980 (Part 1)
Criminal Procedure and Investigations Act 1996 (Schedule 2)
Crime and Disorder Act 1998
The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 1998
( Regulation 2 )
Electronic Communications Act 2000
Criminal Justice Act 2003 (Part 11)
Criminal Procedure Rules 2011
Consolidated Criminal Practice Direction
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