Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials

Date01 November 2008
DOI10.1350/ijep.2008.12.4.303
AuthorRosemary Pattenden
Publication Date01 November 2008
SubjectArticle
AUTHENTICATING ‘THINGS’ IN ENGLISH LAW
Authenticating ‘things’
in English law:
principles for adducing
tangible evidence in
common law jury trials
By Rosemary Pattenden*
Professor of Law, University of East Anglia
Abstract This article explores the true nature of authentication of tangible
evidence in English law and kindred jurisdictions. It first identifies general
principles governing the respective roles of judge and jury in the authentication
of tangible evidence embedded within the case law of England and Wales. Those
principles are then compared and contrasted to the rules governing authenti-
cation of evidence under the US Federal Rules of Evidence. Finally, general
principles of authentication in English law are examined in relation to the
authentication of forensic science evidence; film, video, photographs and sound
recordings; private documents; computer output; and recorded confessions.
Keywords Authentication of evidence; Tangible evidence/real evidence;
Documents, photographs, film, video, tape recording, computers; Chain of
evidence, provenance, continuity and integrity; Roles of judge and jury
n its infancy the Law of Evidence was preoccupied with authentication,
principally of writings.1Paradoxically, today, when evidence requiring
authentication abounds, the subject is barely discussed in England by
doi:1350/ijep.2008.12.4.303
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2008) 12 E&P 273–302 273
1 The organising principle of Geoffrey Gilbert’s posthumously published The Law of Evidence (Dublin,
1754) was the best evidence principle whose purpose is to secure the authenticity of written
evidence.
I
* Email: R.Pattenden@uea.ac.uk. This research has been made possible by an AHRC research award
to study pre-verdict fact-finding by judges in criminal trials with juries. I am very grateful to
Professor Colin Tapper, Hodge Malek QC, editor of Phipson on Evidence, and the two referees of this
article for their helpful comments.
Evidence scholars. This lack of contemporary commentary needs explaining. The
gap probably has a number of causes. The first is the fragmented nature of the
case law which focuses narrowly on authentication of particular kinds of
evidence, not on the principle of authentication itself. A second reason may be
that reference in judgments to authentication tends to be ‘brief and incidental’2
and authentication may not be identified as such. This reduces the chances of a
groundbreaking judgment about authenticity making the pages of a published
law report series.3A further reason that may be suggested is the conceptual diffi-
culty of the whole subject of pre-verdict fact-finding by judges, an aspect of the
Law of Evidence that has been neglected in England in secondary legal literature.4
To explain the authentication of tangible ‘things’ adduced as evidence in English
trials it is necessary to examine, integrate and reconcile many cases, including
those of kindred jurisdictions. This is what this article attempts.
Part 2 below is a synthesis of the case law about authentication and common law
principles for the paradigm case of a criminal trial by jury. Part 3 looks at the
authentication of specific types of tangible evidence: forensic science evidence;
film, video, photographs and sound recordings; private documents; computer
output; and recorded confessions. What the judge has to decide when deter-
mining the admissibility of these various forms of evidence is not uniform in
English law. That consistency is possible in principle is demonstrated by the
United States Federal Rules of Evidence (FRE), which have generated a well-
developed jurisprudence for preliminary facts, including the issue of authenticity.
However, it will be argued that the approach to authentication which this code
takes is flawed and should not be transplanted to England.5
274 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
AUTHENTICATING ‘THINGS’ IN ENGLISH LAW
2National Australia Bank Ltd vRusu (1999) 47 NSWLR 309 at 315, per Bryson J.
3 The reader will notice that some important English judgments discussed in this article are only
available electronically.
4 In the United States where the law on authentication is much more developed, judicial
fact-finding before verdict was the subject of a number of influential articles in the 1920s by
Evidence scholars of high standing. See E. Morgan, ‘Functions of Judge and Jury in the Determi-
nation of Preliminary Questions of Fact’ (1929) 43 HLR 165; J. Maguire and C. Epstein, ‘Preliminary
Questions of Fact in Determining Admissibility of Evidence’ (1926) 40 Harv L Rev 392. Their work
has apparently escaped the attention of the Bench, Bar and academics in the United Kingdom. See
further R. Pattenden, ‘Pre-Verdict Judicial Fact-Finding in Criminal Trials with Juries’ (2009) 29
Oxford Journal of Legal Studies, forthcoming.
5 As it has (with modifications) to Australia, see Australian Evidence Act 1995 (Cw), s. 57(1). Arguably
the worst flaw—application of a standard of proof—has been avoided. There is, however, no
Australian decision which confirms that ‘reasonably open’ in s. 57(1) does not mean ‘reasonably
open on the balance of probabilities’.

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