He who asserts, must prove. In the field of family law, for example, we deal with problems that arise in people’s private lives and where allegations or assertions are made, tangible evidence to support those allegations or assertions is generally sought and relied upon to satisfy the standard of proof. Commonly, we look to documents, most often contemporaneously created, to prove allegations and assertions. In short, documents comprise evidence, and are generally assumed to amount to evidence upon which the parties and the court can rely. For every point that is made, one hopes there is a document to support that point.
Until the common use of the internet and email in the late 1990s, the solicitor/barrister would deal with hard copy documents. Thanks to legal aid provision being more available, litigants were frequently represented and they would provide their original documents to their legal representatives, who would then make copies and file and serve them. The original documents were available to be scrutinised. Any attempt to make alterations would be obvious, or the client would have to be skilled at forgery to be able to replicate an official bank document or a payslip from a large company. If there were any issues raised about the veracity of a document, a further hard copy might be obtained by the solicitor (at the client’s expense) from the relevant institution.
Nowadays, legal representatives often rely upon their clients to provide the relevant documents. Bank statements come as downloads from bank accounts after insertion of customer numbers, passwords, and telephone-sent passcodes. Likewise, pension information can arrive in the same manner. Large companies often provide digital payslips through online portals. Mortgage capacity evidence might arrive as an attachment to an email. Medical evidence and housing officer evidence likewise. All of these documents are printed out by the client and brought into their solicitor, or otherwise may be collated and scanned to the solicitor. In both of those circumstances, the originals have not been provided to the solicitor and the solicitor is relying upon their client being honest. Are they likely to try to alter a document? Who would know?
Litigants in person have no one to account to for their honesty other than the other party and the court. If they think they can get away with altering a document, are they likely to try it?
Common forms of manipulation
Adobe Acrobat Reader
The limited remit of Adobe Acrobat Reader, so common to so many of us, has allowed us all to feel secure in the belief that PDF documents cannot be altered. The Acrobat Reader allows us to open PDFs, read them, and include text on certain forms, but not necessarily be able to save the forms with the completed text included on them. However, PDFs can be manipulated with ease and there are several ways to do so.
Where a document has been prepared in Word and then saved as a PDF, quite often it can be manipulated by the recipient of the document using Word. Upon receipt of a PDF document, it should be saved to the computer. The recipient should then open Word, locate the PDF that is to be altered, open the PDF file and Word will inform the computer operator that the document is converting to a Word file. Once open in Word it will be able to be manipulated and changes made. Once they have been made, the file should be saved using the ‘Save As…’ function and from the drop down menu ‘Save as type:’ ‘PDF’ should be selected.
Administrators preparing documents for onward transmission may restrict the ability of the person receiving that document to amend it in Word, eg I was unable to open a Natwest PDF statement in Word.
To alter a document using Google Drive, go into it, under ‘My Drive’ select ‘File Upload’, find your PDF for amending, click on it, and it will upload. Once uploaded, select the PDF to open it. At the top of the page is a drop-down menu. Select ‘Open with Google Docs’. You can then edit the text. In order to save the amended document, go to the File menu and select ‘Download As’. Select ‘PDF’. Your amended document is then converted back into a PDF and saved on your computer.
The same Natwest statement I was able to open in Google Docs, but its appearance changed completely and I was unable to save it in the same style.
Acrobat DC permits the user to edit PDFs freely. The file is found, selected and opened, and on the right hand side of the screen there is a toolbar with the third icon down being ‘Edit PDF’. Text and objects in the PDF can be altered.
Where a document uses a proprietary font or has specific characteristics, opening and editing the file from the copy downloaded from the original document creator may mean that Acrobat DC does not have access to that font and cannot replicate the document exactly. It will automatically select a font it thinks is the most similar. If, however, that same document is first printed out, scanned, and then re-opened, optical character recognition (‘OCR’) will attempt to match the document as well as it can. The document can then be saved again as a PDF and, indeed, in the original type of PDF as that which was sent. The program informs the user directly if the document was not intended to be edited, but allows them to do so, and enables the user then to save the amended document in a form which indicates to the next recipient that it is not intended to be available for editing.
This tool, and other available programs such as Photoshop enable easy and accurate amendments, including replicating blemishes in the document, for those who wish to create credible-looking documents.
How can I tell if a PDF has been altered?
Your client has sent you a bundle of bank statements as a PDF. Have they arrived as a direct download and have simply been emailed on? If so, open the document and right click on ‘File’> ‘Properties’. Under the ‘Description’ tab there will be the date and time the document is created and the date and time it was last modified. This information should be the same if the PDF has not been modified after creation.
If the file is a scanned document which has been emailed to you, look for discrepancies in the fonts. Banks often use fonts that are difficult for OCR to replicate. Question why a document has come to you in an unusual format and ask for the original, eg if a microfiche-style version of a statement is provided, or otherwise an Excel download of bank transactions. These cannot be relied upon at all and courts generally will not accept them.
Be careful to scrutinise the documents sent to you properly. Do the figures at the end of page 88 of a run of statements match the figures at the start of page 89? Are the balances correct and continuous throughout? Does a pension CETV correspond to a likely contribution history?
Is that, then, enough? Not necessarily. More evidence will be required in order to be able to allege a fraud. At that point, a forensic IT specialist might be necessary to interpret the data.
Under ‘Document Properties’ > ‘Description’ of the PDF document, there is a button entitled ‘Additional Metadata’. This is where the history of the document is contained. Those who are able to read the information contained therein are able to make clear to the layperson (and legal professional) when and how any amendments took place. There is, of course, a cost to this, but it may be necessary to spend it in order to prevent a larger injustice. Questions of proportionality will always come into play in that instance.
Anecdotal examples of manipulated documents
- In TOLATA proceedings C was seeking a 50% share of D's investment properties and which formed part of D's business. C, in his particulars of claim, relied upon an email which he said evidenced the parties' express common intention that he had that share. A copy of the email was exhibited to the particulars of claim. D was convinced that the email was fake. The advocate instructed to draft the defence advised that a forensic IT specialist review the back-up tapes of the business, which they did, and found the original email, which original contained different text to that relied upon by C. The defence was drafted specifically pleading fraud and exhibiting a copy of the original email. When that was served, it went to the claimant together with a without prejudice offer inviting him to discontinue proceedings and pay the defendant's costs on an indemnity basis. This he did. He was later convicted of fraud (and arson) for an unrelated matter of burning down his pub to claim on the insurance.
- Creditors applied for a final charging order over a property to be enforced by an order for sale. The defendant disclosed an ‘agreement’ purporting to show that he had agreed with his mother some years before that she could continue to occupy the property for the remainder of her life. The agreement claimed it was drawn up by a firm of solicitors. The creditors’ counsel noted that the wording was unusual and found nothing online about any such firm of solicitors. Typing the first words of the agreement into Google came up with a website that sold template legal agreements. Counsel advised that the solicitors contact the web company to find out when the document was created and placed on the internet. The response was that the company was formed in year XXXX and the agreement placed online sometime after. Year XXXX was one year after the agreement was said to have been entered into by the defendant and his mother. The creditors ran the case to trial and the defendant, when confronted with the evidence from the company that this was their document and that it was created a year after the supposed agreement, meant that the defendant lied in his oral evidence about it at trial. He ended up with a £40k indemnity costs order and very strong words in the judgment which would have allowed for a prosecution had anyone referred the matter to the Police/Director of Public Prosecutions (DPP).
- At a final hearing in a variation claim for maintenance the respondent was claiming that he could not pay maintenance as his income had plummeted and the 800 pages of bank statements disclosed supported this, but his lifestyle did not. During preparation, counsel noted the date of 31 September on one of the bank statements (provided in PDF form but genuine statement) and raised it in cross-examination. The answers given were unsatisfactory. The district judge (‘DJ’) ordered that the disclosing party provide a run of bank statements from this off-shore bank account that night. He managed to do so, together with a letter stating that the ‘dodgy date’ was an administrative error. This was received by counsel on the train to court. He checked the meta data of the document which showed it had been created by the discloser. This was one of those cases where eventually the discloser admitted that the documents had been created by him. The DJ found that the discloser had committed fraud, backdated the maintenance payable in full and ordered indemnity costs, both of which were paid that day. A referral was also made to the DPP, although it is not known if anything has come of it.
- ‘Fake or fact? Digital docs manipulation and how to deal with it (2)’ is 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 here.