Documents & Records

Public Records Common Law

There is a common law exception to the hearsay evidence rule for records containing matters of a public nature which are open for inspection and have been prepared by public officials under a duty to record information.  A range of statutory instruments specifically provide for the admissibility of many such records, including various statutory registrars et cetera.

A statement made in the course of duty by a person now deceased is admissible. Accordingly, statements made by holders and keepers of records who have duties to compile or record information of particular matters who are now dead are admissible.  They must have the first-time knowledge of the particular matters recorded or registered.

Business records may constitute hearsay.  At common law, they may have been recorded by a person in the course of their employment who has a duty to do so, who may or may not have had first-time knowledge of the facts.  Persons concerned are unlikely to recall any particular instance of recording which might later be in issue.

Business Records

Criminal Evidence Act 1992 provides for the admission of business records.

Information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information—

• was compiled in the ordinary course of a business,
• was supplied by a person (whether or not he so compiled it and is identifiable) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and
• in the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned.

The provision applies whether the information was supplied directly or indirectly but, if it was supplied indirectly, only if each person (whether or not he is identifiable) through whom it was supplied received it in the ordinary course of a business.

Mechanically or electronically prepared evidence is admissible real evidence.  It does not require compilation by an identified person for the purpose of a duty.

Scope

Information for the purpose of the section includes any representation of facts in words or otherwise.  A business includes any trade, profession or other occupation carried on inside or outside the State.  It may be for reward or otherwise.

It includes functions performed on behalf of bodies paid for out of public monies, institutions of the EU, local authorities and international organizations.

The exceptions do not apply where the person who compiled the information would have been compellable. The exception does not apply to information prepared for the purpose of or in contemplation of criminal investigations or criminal proceedings.

A range of documents are specifically admissible including information given on oath District Court, maps, plans and drawings, handling records, transmission, receipts of the forensic science laboratory, records of registered medical practitioners regarding the examination of living or dead person, certain other matters.

Proved by Certificate

A person putting forward business records as evidence may give a certificate confirming that the information complies with the conditions. If is signed or purported to be signed by a person who occupies a position in relation to the management of the business, in the course of which the information was compiled or is otherwise in a position to give the certificate, the certificate is evidence of any matter state shall specify therein.

The certificate is to state that the information was compiled in the ordinary course of the specified business, setting out that it is not within certain excepted categories either

• stating that the information was not compiled for the purpose of or on contemplation of an investigation or enquiry proceedings.
• stating that the information was supplied either directly or indirectly through an intermediary who or each of whom received that in the ordinary course of business, by a person who had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the information and where the intermediaries or persons can be identified specifying them.
• In the case of information in non-legible form, that it is being reproduced in permanent legible form stating that the reproduction was done in the normal course of operation of a specified system.
• Where appropriate, stating that the person who supplied the information cannot reasonably be expected to have any or any adequate recollection of the matter dealt with in the information having regard to the time that it has elapsed since it was supplied or to any other specified circumstances.
• Unless the date on which the information was compiled is already shown in the document specifying the date or if it is not known, the approximate date on which it was compiled.
• Stating any other matter that is relevant to the admissibility in evidence of the information and is required by rules of court to be certified for the purpose of this provision.

There is to be a certificate—

• stating that the information was compiled in the ordinary course of a specified business,
• stating that it is not subject to certain proceedings.
• stating that the information was not compiled for the purpose of or on contemplation of an investigation enquiry proceedings
• either stating that the information was not compiled for the purposes or in contemplation of any investigation, inquiry or proceedings.
• stating that the information was supplied, either directly or, as the case may be, indirectly through an intermediary or intermediaries (who, or each of whom, received it in the ordinary course of a specified business), by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information and, where the intermediary, intermediaries or person can be identified, specifying them,
• in case the information is information in non-legible form that has been reproduced in permanent legible form, stating that the reproduction was effected in the course of the normal operation of a specified system,
• where appropriate, stating that the person who supplied the information cannot reasonably be expected to have any, or any adequate, recollection of the matters dealt with in the information, having regard to the time that has elapsed since he supplied it or to any other specified circumstances,
• unless the date on which the information was compiled is already shown on the document, specifying the date (or, if that date is not known, the approximate date) on which it was compiled,
• stating any other matter that is relevant to the admissibility in evidence of the information and is required by rules of court to be certified for the purposes of this subsection,

and purporting to be signed by a person who occupies a position in relation to the management of the business in the course of which the information was compiled or who is otherwise in a position to give the certificate shall be evidence of any matter stated or specified therein.

It shall be sufficient for a matter to be stated or specified to the best of the knowledge and belief of the person stating or specifying it.

This certificate is not necessary where the records may come within the ambit of another exception to the hearsay rule.  Where information is admissible in evidence by reason of the provision, but it is expressed in terms that are not intelligible to the average person without explanation of the information, it shall also be admissible in evidence if either given orally by a person who is competent to do so, or it is contained in a document which purports to be signed by such a person.

Serve a Notice

A person putting forward the business record, must serve notice of his intention to do so on the other parties at least 21 days before trial.  It must include a copy of the document and, where necessary, a certificate.  It must be part of the book of evidence.

Where a party objects to the business record being admitted, the trial judge shall require oral evidence to be given of any matters specified in the certificate.

Discretion to Exclude

Notwithstanding the above exceptions to the hearsay evidence rule, the trial judge has the discretion to exclude evidence that would otherwise be admissible under statutory provisions where in his opinion, it is in the interest of justice to do so.

This is to take into account

• whether or not, having regard to the content and source of the information, it is a reasonable inference that the information is reliable
• whether or not, having regard to the nature and source of the document with the information and to other circumstances that appear relevant, it is a reasonable inference that the information is authentic
• any risk having regard in particular to whether it is likely to be possible to controvert the information,
• where the person who supplied it does not attend to give oral evidence that its admission or exclusion would result in unfairness to the accused or if there is more than one, any one of them.

The weight, if any, to be attached to information given in evidence by virtue of this Part, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

Banker’s Book Evidence

The Bankers Book Evidence Act allows for the admission of evidence contained in the book used in the ordinary course of banking.  A copy entry is received as prima facie evidence of such entry and of the matters transactions and accounts therein recorded.  The book must be an ordinary book of the bank in its custody and under its control, and the entry must be one which is made in the normal and usual course of its business.