Fake or fact? (2) Digital docs manipulation and how to deal with it

In part 2 of this two-part series, Helen Brander looks at the measures we can put in place to tackle fraud in disclosure, and minimise the possibility of it happening in the first place. Is it a judge's role to be on the alert for fraud? Do the proposed draft practice guidelines go far enough?


It is likely that document fraud as described in 'Fake or Fact? (1)' has been going on for years. Clients will raise suspicions about the other party’s truthfulness of their assertions, and they, together with the legal representatives may spend considerable time and expense addressing it. Where suspicion is raised, it may be that, with the assistance of this talk and the guidance of others, we will all be on the look-out for basic indicators of fraud. But that will involve considerable time for both solicitor and client and expense for the client, particularly if a forensic expert has to be engaged to prove it. 

What about the position where both parties are litigants-in-person? What judge is going to be able to take the time to scrutinise disclosed documents? Should judges be on the alert for fraud? Is that their role? Or is it to consider what evidence is put before them and come to a conclusion about it? If they suspect something is awry, should they be the ones scrutinising the document? Do they become investigating magistrates? 

Draft practice guidelines

The issue of fraudulent manipulation of digital documents has been brought to the attention of the President of the Family Division by District Judge Peter Devlin, formerly of Slough, now of Oxford, and Byron James, a Partner at Expatriate Law. They have proposed draft practice guidance which has been discussed by the Family Procedure Rules Committee. Their proposals comprise: 

  1. That the starting point is not to trust the content of any hard copy document which has not been subject to verification from the original third party source and/or the underlying metadata of the document. 
  2. In the normal course of disclosure the original electronic file of any document should be disclosed to the other parties and to the court, together with the electronic communication with which it was provided from the purported creator of the document. Those document should be sent to a designated secure professional email address that the parties and the court can access. 
  3. PDF files should be the preferred file for documents (as the metadata can be easily verified). Screenshots and image files are inappropriate and should be rejected. 
  4. Where a question is raised regarding the veracity of a hard copy document or electronic file, the party producing the file should be required to answer a questionnaire detailing who was responsible for creating the document, their relationship to the person producing it, how the person producing came to be in possession of it, to confirm that they retain the original (hard copy or electronic original), and setting out how the electronic document has been held, saved and changed, if at all, by the person producing it. 
  5. Where the questionnaire is not answered, the court shall not assume the content of the document is accurate without independent third party verification. 
  6. Where there are inaccuracies / inconsistencies, then there should be verification by the third-party source, either by way of a third party disclosure order or a joint request from the parties. 
  7. If questions still exist, then forensic expert evidence should be sought and contempt / fraud warnings should be given. 
  8. If only hard copy documents are produced, without the original file or original document being available for scrutiny, then the court should consider making a specific finding about whether the producing party is able to rely upon that document in evidence. 

In late February 2020, the President responded, stating is that there is always a residual risk of fraud and this was considered by HMCTS and the former President when the online divorce process was being designed. The current consensus within the judiciary and the Rules Committee(s) is that robust action by the courts on discovery of fraud is the right course of action and operates as a suitable deterrent. Nonetheless, this issue is going to be reconsidered by the Judicial Digital Steering Committee.  

Enhanced measures

It does seem to me that, if one is to tackle fraud in disclosure, we have to put in measures which will minimise the possibility of it in the first place. To the proposals put forward by Byron James and District Judge Devlin I add the following: 

  1. Where both parties instruct solicitors, we should revert to the old days where the individual solicitors wrote to the third party banks, pension providers, etc, requesting that copies of disclosure be provided to each party via their respective solicitors directly by the third party. 
  2. Upon the issue of a financial remedy claim, the parties’ legal representatives should be obliged to collaborate to obtain instructions from their clients on their financial arrangements and then together, prior to the first appointment, serve Form A on all the institutions on their joint list (banks, pension providers, mortgage companies, company accountants, surveyors) and jointly seek disclosure. 
  3. If not that, then there could be a standard pre-First Appointment direction that the parties and / or their legal teams meet with an independent third party with a computer on a particular day and collaborate with that independent third party to download and disclose all the relevant documents from the various institutions, with all disclosure overseen so that there can be no manipulation. Where both parties are in person, this can be done together with the ‘disclosure officer’ at a neutral venue. 
  4. Specific disclosure sought of private documents belonging to one party, or relevant and belonging to a third party related to one of the litigating parties should occur in accordance with the proposals set out by District Judge Devlin and Byron James above. 

False information presented to court

Finally, it is a frequently unacknowledged truth that people exaggerate, minimise or lie in documents they present to the court. Forms E have on their front page the following warning: 

‘If you are found to have been deliberately untruthful, criminal proceedings may be brought against you for fraud under the Fraud Act 2006.

The information given in this form must be confirmed by a statement of truth. Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth.’ 

It is extremely rare that family courts do anything about people who present false information to the court. It is not accepted that the courts act with adequate robustness. That may be due to wanting to permit parties to finalise their litigation and get on with their private lives. If someone is subject to prosecution, who is it that might be affected? If there are minor children being provided for by the perpetrator, what is the effect on them of pursuing and prosecuting the fraudster? Justice may be considered to be done via the mischief and deceit being recognised by a hefty rebalancing of the assets in the innocent party’s favour.  

Moreover, having to take matters further involves using precious police, Crown Prosecution Service and court resources. If a matter is sent to the Director of Public Prosecutions to consider whether a prosecution should take place, is it likely that the Crown Prosecution Service will say that it is not in the public interest to prosecute fraud by manipulation of documents in the context of internal division of family wealth? But is that a just approach? Is it not in the public interest to pursue all matters of fraud? Does the deceitful party then get away with it? Is there, in fact, any deterrent to those intent on manipulating documents to prove their point? 

Conclusion

Until we accept that document manipulation of this sort probably happens far more frequently than we would like to think, and adapt our working practices to accommodate the possibility or otherwise probability of an electronic document being manipulated, then it is likely that unfair decisions are being made in court regularly. Where a fraud comes to light later, then proceedings may begin to set aside the original order, but that involves time, expense, heartache and overcoming the legal hurdles required to meet the test for set aside.  

It would be best for parties and for courts to truncate the process of disclosure – to save time and money in obtaining and scrutinising documents. In order to enable this, legal representatives, courts, law makers and Rules Committees need to move away from thinking of family litigation as an adversarial process. The Procedure Rules could be altered to provide that parties have to cooperate and liaise in the disclosure process and at the proposed disclosure appointment, with adverse inferences being drawn and / or contempt proceedings being considered and brought in cases where parties refuse to do so. 

Further information:
  • This article will appear in print Counsel February 2021. Fake or Fact? (1) Digital docs manipulation and how to spot it was published in Counsel January 2021 and available here.
  • Digital fraud in family law webinar: Byron James, Partner and Barrister at Expatriate Law, discusses with Ben Fearnley of 29 Bedford Row and Helen Brander of Pump Court Chambers how to deal with digital fraud in family law.
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Helen Brander

Helen Brander is a barrister and arbitrator at Pump Court Chambers specialising in matrimonial finance and inheritance work. She, Byron James (Expatriate Law) and Ben Fearnley (29 Bedford Row) have written and spoken extensively on the likely prevalence of manipulated digital evidence.