These guidelines, adopted by Commonwealth Law Ministers, draw on a wealth of academic and practitioner sources and other international guidelines on electronic evidence.
This resource is designed to assist and guide countries to create processes for the reliable and secure treatment of electronic evidence in criminal proceedings, while recognising and respecting the diversity of evidential frameworks across Commonwealth countries. It also acknowledges the challenges in effectively using electronic evidence, and highlights the need to provide practical guidance for courts and other competent authorities handling such evidence in criminal proceedings.
In their 2018 Cyber Declaration, Commonwealth Heads of Government committed to support a cyberspace that promotes economic and social development and rights online, and effective national cybersecurity responses.
Ensuring that electronic evidence can be safely and securely relied upon in domestic criminal proceedings is central to achieving these aims. These guidelines thus seek to:
- inform understandings of the concept of electronic evidence
- assist countries in the creation, implementation and adaptation of domestic rules of evidence and procedure applicable to electronic evidence
- underline the utility of electronic evidence in criminal cases, while also highlighting the risks associated with relying on this category of evidence and offering guidance on how to address these risks in criminal proceedings
- identify key principles and factors that should guide courts and other competent authorities in the use and management of electronic evidence.
These guidelines are non-binding and are thus to be applied only insofar as they do not conflict with national law. They are underpinned by the following fundamental principles.
- Electronic evidence should be admissible in electronic form in any criminal proceedings. Courts should not refuse to admit electronic evidence, or deny its legal effect, solely because it was generated, collected or presented in electronic form.
- General rules of evidence should normally apply to electronic evidence as they do to other types of evidence. Nevertheless, heightened scrutiny may be required in applying certain admissibility rules, and rules for proof of evidence, due to the ease with which electronic evidence can be manipulated, distorted or erased.
- Courts should seek to ensure a fair balance between the opportunities afforded to the prosecution and defence with respect to any reliance on electronic evidence in criminal proceedings.
- It is for the finder of fact in any criminal proceedings to determine the ultimate probative value of electronic evidence, if any, in accordance with national law and rules of evidence.
