Convention on Electronic Evidence

Article by Stephen Mason

Stephen Mason is a barrister specialising in the role of electronic evidence.  Here, he explains an initiative that he has created centred around the idea of a convention on electronic evidence. 

The Draft Convention is the first treaty on electronic evidence, dealing with the status of electronic evidence; the investigation and examination of electronic evidence, and general provisions regarding the recognition and admissibility of electronic evidence from foreign jurisdictions.

The main objective of the draft Convention on Electronic Evidence is to pursue a common policy towards electronic evidence, taking into account the differences in the treatment of evidence in individual jurisdictions.

The aim is to encourage judges and lawyers to more fully understand the concept of electronic evidence in the interests of providing for fairness in legal proceedings; to promote adequate legal procedures, to implement appropriate legislation where necessary and to promote international co-operation.

The idea of a Convention on Electronic Evidence:

I have undertaken a great deal of training of judges and lawyers in electronic evidence across the world, especially with the Academy of European Law. More recently, participants have asked if the United Nations or the Council of Europe were considering a Convention on Electronic Evidence.

I do not think either body are considering such a Convention, so I concluded that it might be useful to develop such a Convention with the help of judges and lawyers across the world. I appreciate this is a private initiative, but sometimes private initiatives help.

The aim is to help judges and lawyers to more fully understand the topic. I have two books on the topic, but they are not widely read, although I have plans to put Electronic Evidence online for free for the 4th edition.

The difference a Convention could make:

We have to think about electronic evidence in a different way to paper and other more familiar forms of evidence. In particular, we have to think about the authentication of electronic evidence and the need to encourage governments to permit the faster movement of evidence across jurisdictional boundaries.

We live in a networked world, and it is important for judges and lawyers to understand the importance of the topic.

In the criminal context, Mutual Legal Assistance can be slow, and prosecuting authorities sometimes give up with a prosecution because the evidence is not forthcoming from the requested state. Such a Convention might encourage a positive change.

This is a guest post written by Stephen Mason and may not reflect the views of Fair Trials. Stephen Mason is a barrister and a recognised authority on electronic signatures and digital evidence.