Electronic Signatures and Statements Obtained Over the Telephone

• Electronic Signatures: the legal framework
• Witness statements taken over the telephone
• Unsigned witness statements and charging

Electronic Signatures: the legal framework

Section 9 Criminal Justice Act 1967 requires that a statement ‘…purports to be signed by the person who made it…’. There is no requirement in relevant statutes or the CrimPR for a signature to be in ink on paper (a so-called ‘wet signature’) or that a document must be signed in any particular way.

Rule 16.2 of the Criminal Procedure Rules set outs the requirements for the contents of a witness statement:

“The statement must contain—

(a) at the beginning—

(i) the witness’ name, and

(ii) the witness’ age, if under 18;

(b) a declaration by the witness that—

(i) it is true to the best of the witness’ knowledge and belief, and

(ii) the witness knows that if it is introduced in evidence, then it would be an offence wilfully to have stated in it anything that the witness knew to be false or did not believe to be true;

(c) if the witness cannot read the statement, a signed declaration by someone else that that person read it to the witness; and

(d) the witness’ signature.”

Further information can be found in Admitting Evidence.

The common law in England and Wales has always been flexible in recognising a range of types of signature. The courts have considered electronic signatures on several occasions and have accepted electronic forms of signatures including a name typed at the bottom of an email or clicking an “I accept” tick box on a website. Signatures can be captured in a variety of ways in connection with digital documents:

1. as a graphical digital representation of the witness’s usual signature (typed version);
2. as a scanned copy of a ‘wet signature’ (if they have the facilities to do so);
3. using a digital signature authorised or certified by the maker;
4. using a password (an e-mail from a named e-mail account could also be considered to ‘purport to be signed’ by the account holder, particularly so if it is a secure account and one that requires a password to obtain access).

All the above would appear to ‘purport to be’ a signature for the purposes of both the Criminal Justice Act 1967 and Magistrates’ Courts Act 1980.

There is specific legislative provision in the Electronic Communications Act 2000 (ECA 2000) that makes the use of digital signatures admissible in evidence in any legal proceedings. Section 7 ECA 2000 provides that an electronic signature incorporated into or logically associated with a particular electronic communication or data and the certification by any person of such a signature will be admissible in any legal proceedings for the purpose of establishing the authenticity or the integrity of any communication or data.

Witness statements taken over the telephone

Where it is not practicable to obtain a signed witness statement in person, it can be taken over the telephone. The steps set out below are best practice but the process may vary between different police forces and investigative bodies. Where best practice has not been followed, prosecutors will need to consider on a case-by-case basis whether they are satisfied as to the admissibility of the statement.

• The witness’ account should be typed digitally by the statement taker.
• Consideration should be given to whether there is a risk of harm to the witness if the statement was to be intercepted when sent by e-mail or post.
• If it is considered safe to do so, the typed statement should be emailed or posted to the witness with instructions to:
  1. review the contents of the statement;
  2. make any amendments or corrections; and
  3. place their electronic or wet signature under the statement of truth to confirm the contents are accurate and true. An electronic signature can take any of the forms set out above, however a typed version of the signature below the statement of truth is preferable.
• If the witness is unable to make any corrections or amendments to the statement themselves, the statement taker can do this over the telephone. The amended version of the statement must then be sent to the witness to read and sign.
• If the witness cannot read the statement, a signed declaration is required by someone else that that person read it to the witness. This can be in the form of another statement signed by the person who read the statement to the witness confirming the same.
• All statements taken by telephone should state that they have been taken by telephone and that the witness has had the opportunity to consider the contents and authenticate it. The following suggested wording can be placed at the top of the statement (in addition to the required statement of truth):
  • “This statement has been taken over the telephone by xxxx [Officer’s Name/Interpreter’s name]. I have had the opportunity to review the contents of the statement and confirm that the contents are accurate and true.”
• The e-mail correspondence between the police and the witness will be relevant unused material and should be scheduled by the disclosure officer on the schedule of unused material.
• If the statement is taken in a foreign language using an interpreter the same process set out above applies to authenticate the contents of the statement by the witness.

Unsigned witness statements and charging

For the purposes of making a charging decision under the Code, Prosecutors should note that for a Full Code Test decision to be made a statement taken over the telephone must be authenticated as set out above so that it is admissible at the point of charge.

An unsigned telephone statement may, however, fall to be considered under the Threshold Test because under the Code prosecutors must be satisfied that the material to be relied on at that stage is capable of being put into an admissible format for presentation in court within a reasonable time.

The MG3/request for charging advice should clearly identify any unsigned statements. The investigator can confirm that the statement has been read to the witness and the contents agreed in principle. If unsigned statements are submitted to the CPS, they should be named accordingly with the addition of the word UNSIGNED.