Examining admissibility of electronic evidence through the lens of leaked tape of IGP’s removal

This article centres on a discussion of Ghana’s current position on the admissibility of electronic records in trials. Trial based on the admission of electronic records as evidence has increasingly become a great concern to legal institutions of various jurisdictions across the country – due to cybersecurity issues and lack of proper implementation for policies and guidelines addressing the management and integration of electronic records in the justice delivery system.

A parliamentary committee is investigating a leaked tape concerning discussions about possible removal of the Inspector-General of Police (IGP) by three police officers and the former northern regional chairman of the ruling political party. Having been the subject of investigation, any seeming uncertainty regarding procurement of the tape is likely to affect the investigation’s outcome. In sum, this article aims to examine admissibility of the leaked tape through the following steps:

The article’s first step provides an overview of electronic evidence admission.

The second step looks at the leaked tape’s authenticity.

The third step discusses its human rights issues under the 1992 constitution.

Finally, the fourth step examines the instrument backing admission of Electronic Evidence –  i.e., the Electronic Transactions Act, 2008 (Act 772), as amended by the Cybersecurity Act 2020 (Act 1038).

Definitions/Meanings

1. Evidence: According to the Evidence Act, 1975 (NRCD 323) (hereafter called The Evidence Act), evidence means testimony, writings, material objects or things presented to the senses that are offered to prove the existence or non-existence of a fact.
2. Electronic: Refers to email transmission, digital transmission or other similar electronic means of communication.
3. Electronic evidence: Electronic Transaction Act, 2008 (Act 772) refers to electronic evidence as ‘electronic record’ which includes data generated, sent, received or stored by electronic means; and voice, where voice is used in an automated transaction and a stored record.

Overview of admission of evidence

The first step in assessing the issue of admissibility of electronic evidence is considering whether the evidence is relevant. The Evidence Act provides that “no evidence is admissible except relevant evidence”. This means that irrelevant evidence is not admissible and raises the important question: how does the law define relevance?

The Evidence Act defines relevant evidence as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”. In other words, the electronic evidence must have the potential to impact the outcome of the case.

This statute is applied in Republic v. Accra Circuit Court; Ex Parte Appiah, where the Court stated in relation to relevance and admissibility that “…in connection with relevance – i.e., does the evidence offered make the existence of the fact to be proved more or less probable? This question will turn on the application of reason to facts in evidence and facts known in the light of human understanding and experience.

“The evidence does not need to be conclusive on the fact to be proved; it need not even be persuasive. It is enough that the evidence has some effect on the probability of existence of the fact to be proved. To be relevant, the evidence need not be sufficient to support a finding of fact…to be relevant, the evidence need only constitute a part and not the whole of what is needed.”

From the above, it is clear that if a piece of electronic evidence affects the probability of existence or non-existence of a fact in issue, it is relevant. Evidence which does not meet this minimum threshold cannot be admitted in any proceedings. While meeting this threshold is necessary for proving relevance, it is not sufficient. The relevance of a piece of evidence is further affected by its authenticity and whether the facts to which it is being applied are pleaded or unpleaded.

Authenticity

In determining the relevance of a piece of electronic evidence, the issue of authenticity may be raised. For instance, where it is alleged that the original copy of the leaked tape of the IGP’s removal is doctored.

A document that is not authentic cannot be relevant. In the case of Abed Nortey vs. African Institute of Journalism & Communication, the Supreme Court stated that “a document or a writing needed as evidence must be relevant to the issue in trial. Such document cannot be relevant unless it is genuine or authentic”.

When a doubt is cast about the authenticity of a piece of evidence, the party offering that evidence must prove its authenticity.

The Evidence Act provides that “where the relevancy of evidence depends on its authenticity or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims”.

In the Abed Nortey case (supra), the Supreme Court listed the acceptable or permissive means of authentication to include authentication by testimony of a witness with knowledge; authentication by admission; authentication by non-expert opinion on writing; or authentication by comparison by court or witness.

A party whose evidence has been challenged on grounds of authenticity may prove the authenticity by testimony of a witness with knowledge supporting what a party is claiming; by admission when a party has acted upon it and treated it as authentic; by comparison by a court or witness, before the evidence may be relevant and admissible.

Section 116 of NRCD 323 makes a duplicate of a writing admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or the duplicate, or if in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Human rights

The common law position is that every evidence is admissible or acceptable in court irrespective of how it was acquired or obtained. This stance was confirmed by Crompton J in R vs Leatham, where the court stated that ‘it matters not how you get it, if you steal it even, it would be admissible in evidence’. In Ghana, not every evidence is admissible by the Courts in the determination of legal matters. The Evidence Act provides that it is only relevant if admissible.

In the cases of Raphael Cubagee vs. Michael Yeboah Asare & 2 Ots, and Abena Pokua Ackah vs. Agricultural Development Bank, the Supreme Court declared as inadmissible the secret recording of conversations. This was premised on the court’s assertion that such secret recording was a breach of the privacy provisions of the 1992 Constitution under Article 18(2).

Thus, although the Courts have not been against the admissibility of electronic records as evidence, it has nevertheless rejected same where it is shown that it is obtained in violation of a person’s rights under the 1992 constitution. However, if the case on trial is a criminal or the case is outweighed by public interest – such as the parliamentary investigation into the alleged IGP’s removal, an electronic record such as the leaked tape may be admissible in breach of human rights.

Overview of Act 772

It is useful to note that the Electronic Transactions Act, 2008 (Act 772), as amended by the Cybersecurity Act 2020 (Act 1038) provides certain relevant factors that must be borne in the court’s mind when assessing the admissibility of an electronic evidence.

1. The reliability of the manner in which the electronic record was generated, displayed, stored or communicated

To rely on electronic evidence depends on the type of medium in which it was obtained. The courts may determine this reliability by their own analysis or with the assistance of a forensic expert. The Supreme Court in International Rom v Vodafone Ghana did not question the reliability of an email sent from a public official in determining the degree of weight to be attached to it by virtue of section 175 of the Evidence Act.

Digital forensic experts in relation to legal practice in Ghana have been adopted. In the case of Republic v Alexander Tweneboah, testimony was taken from a Ghanaian digital forensic expert of E-Crime Bureau, a Ghanaian-based digital forensics agency, to verify the source of the electronic record as evidence.

1. Reliability of the manner in which the information’s integrity was maintained

The second factor to assess in the admissibility of electronic evidence is whether integrity of the evidence to be introduced has been properly maintained. Integrity in the context of electronic evidence refers to evidence being complete and unaltered. While the previous factor deals with the authenticity of the medium, this deals with the accuracy and completeness of what it purports to portray.

In Republic v Alexander Tweneboah (supra) a report could not be said to be a complete and unaltered representation of the conduct for which the accused had been charged. It therefore failed to meet the integrity test as required by the Electronic Transactions Act; hence, it was not admitted into evidence.

1. The manner in which its originator was identified

The third factor may consider the issues’ privacy rights and human rights were violated in identifying the originator.  In Raphael Cubagee vs. Michael Yeboah Asare (supra) the Supreme Court dealt with the issue of whether evidence obtained by the breach of a party’s fundamental rights ought to have been excluded in the disciplinary proceedings against her. The court stated that the appropriate approach is to apply the ‘balancing doctrine’ – which entails weighing the rights of the opposing parties to determine which one ought to prevail under the circumstances of the case.

Thus, there is a need to balance human rights against public interest under the discretionary exclusionary rule to admit the evidence in trial.

1. Any other facts that the Court may consider relevant

The Supreme Court in International Rom v Vodafone Ghana (supra) provided direction on what this factor entails, stating: “This requires that any other pieces of evidence on the same issue be considered in order to arrive at a conclusion on the weight to attach to the issue”. In other words, when the court is admitting an electronic record as evidence it should consider the holistic approach by testing its usefulness and corroborative evidence with reference to any other pieces of evidence, such as testimonies of witnesses or facts available at trial.

Conclusion

In conclusion, the admissibility and evidential weight of electronic records is a step in the right direction to advance the administration of justice in dispute resolutions, and the procedure governing same in the courts and tribunals of Ghana.

Legal issues regarding electronic evidence exist and shall no doubt be raised over the course of the next few years. What’s most important is that our legal system is adequately equipped to deal with whatever issues may arise.

>>>The author is a Professional Law Student. He can be reached via marcusgarvey.snr@gmail.com