Documentary evidence

Introduction

Under the law in Ireland a document includes anything with writing on it. Documents also include a photograph, an X-ray, an audio recording, a stone, a map, a plan, a graph, a drawing, or computer generated material.

Documentary evidence can be admitted as evidence in court.

Documentary evidence in criminal cases

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

In an exception to the hearsay rule, the information in a document can be admitted in criminal cases as evidence of any facts contained in it. 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.

In criminal cases the court will look for original documents. However, in certain circumstances they may accept a copy or oral evidence about the existence and content of a document if the original has been destroyed, lost, or it is impossible to get it.

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 court case.

The Act also allows either side (prosecution or defence) to challenge the credibility of the documentary evidence and to give the court evidence to support this view.

Documentary evidence in civil cases

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.

Further information

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.

Free Legal Advice Centre

85/86 Upper Dorset Street
Dublin 1
D01 P9Y3
Ireland

Tel: +353 (0)1 906 1010

Law Society of Ireland

Blackhall Place
Dublin
Ireland

Tel: +353 (0)1 6724800
Fax: +353 (0)1 6724801
Page edited: 18 August 2020