Admissibility of written statements and the use of digital signatures

03 July 2019

Not reviewed after the date of publication

Question:

Is a written witness statement admissible as evidence if it has a digital signature, or is a 'wet signature' required?

Are there any rules regarding the admissibility of digital signatures on statements?

Answer:

Section 9 of the Criminal Justice Act 1967 allows written statements to be admissible as evidence, where 'the statement purports to be signed by the person who made it'. Although a 'wet signature' can still be applied, there are no requirements in legislation for such a signature to be used; the requirement for a signature can always be accommodated using digital materials and electronic methods of transmission, where possible. This is established by section 7 of the Electronic Communications Act 2000, which provides that an electronic signature is admissible in any legal proceedings for the purpose of establishing the authenticity of any communication or data into which it is incorporated.

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 section 9 of the Criminal Justice Act 1967. 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. 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.

Please see 'Legal Guidance on digital working across the Criminal Justice System' for further information.

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