Documentary evidence

Documentary evidence is evidence that contains a record of some kind. Documents may be admitted as evidence in court, but there are rules in place to determine their admissibility, and to help the court (or jury) to decide what the documents prove.

Under the law in Ireland a document includes:

• Anything with writing on it
• Maps, plans, graphs or drawings
• Photographs or films
• Audio recordings
• Computer records

This is not a full list, and other types of documentary evidence may be accepted.

Documents may be classed as real evidence where they are entered into evidence to prove their existence (rather than as proof of the contents of the document). Documents may also be classed as real evidence where they have been produced automatically (for example CCTV footage and mobile phone records).

The Criminal Evidence Act 1992 deals with the rules about what documentary evidence can be admitted in criminal proceedings.

Copies and originals

The document does not have to be the original document. A copy of a document may be entered into evidence so long as it is authenticated in a way that satisfies the court.

The hearsay rule

The rule against hearsay prohibits out of court statement being used as evidence of the truth of that statement. For documentary evidence to be admitted, it must come under one of the exceptions to the rule against hearsay.

Some of the types of documents that are permitted as exceptions to the rule against hearsay include:

• Public documents (for example birth certificates).
• Business records or other documents made in the ordinary course of business by someone with knowledge of the matter. This does not have to be in a commercial business setting (it could include documents made in the ordinary course of business of running a local authority for example).

However, there are a number of safeguards in place under Section 8 of the Criminal Evidence Act 1992, which allow the court to exclude a document in the interests of justice. This means that if the court thinks that a document is unreliable, fake or would result in unfairness to the accused, they can exclude the document from evidence.

Entering documentary evidence

If the Gardaí or prosecution want to have documentary evidence included in a court case, they must serve the accused with a copy of the document at least 21 days before the case is heard.

Either side (prosecution or defence) can challenge the credibility of the documentary evidence used by the other by using contradictory evidence.

Documentary evidence can also be used as evidence in civil proceedings. Traditionally, though, a witness familiar with the document has to attend court or swear an affidavit for the document to be used.

Part 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 sets out new rules on how most business records can be used as evidence in civil proceedings without a witness familiar with the document attending court or swearing an affidavit.

Business records include records compiled in the course of any trade, profession of occupation or by charities, State bodies or international organisations.

Procedure

To be used, a copy of the business record must be given to all parties within 21 days of the start of hearing along with a notice of intention to give the information in evidence.

If a party wishes to object to the use of the document in this manner, that objection must be made within 7 days of the start of the hearing. A court waive or shorten these timelines.

If an objection is made, the court will then decide whether to allow or exclude the business record without an appropriate person attending to verify the record. The factors which a court must consider in deciding what is in the interests of justice include:

• Whether the information is sufficiently reliable based on its content, source and the manner in which it was compiled
• The potential unfairness to the other party and its ability to challenge the information if an appropriate person does not attend court
• Any other circumstances affecting the accuracy of the information in the document

A court can also allow a copy of that document to be used rather than the original.

For more information on documentary evidence, you should seek legal advice.

You can find contact details for solicitors and firms throughout Ireland on lawsociety.ie

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all.

Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.