Even in very serious single principle witness cases such as rape, trials involving witnesses who reside out of the jurisdiction seem to be on the rise. Often, the default position adopted by the CPS is that such witnesses should be permitted to give evidence via video link if travelling to the UK would be inconvenient. These applications are often ‘waved through’, even if the witness is the central witness of fact and the true inconvenience is relatively minor. The most troubling aspect of these cases, however, is that witnesses are now being permitted to give evidence from the comfort of their own home.
Convenience to the witness, however, is not the end of the matter. In these cases, the CPS often dispenses with the notion that the relevant foreign police force (or the British police) should play any role in making sure that the witness will actually give evidence from a secure environment. In this context, it is important to remember the terms of s.51(7) CJA 2003, which lists the criteria which the court is obliged to take into account when determining an application for a video link:
(7)Those circumstances include in particular—
(a)the availability of the witness,
(b)the need for the witness to attend in person,
(c)the importance of the witness’s evidence to the proceedings,
(d)the views of the witness,
(e)the suitability of the facilities at the place where the witness would give evidence through a live link,
(f)whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.
It is clear that, in enacting the video link scheme under s.51, Parliament envisaged that some facilities would be available in the witness’s location. Where those facilities consist of no more than the witness’s own laptop and a wifi connection, is it right that applications of this type should be waved through for fear of causing a witness to be inconvenienced?
In these cases, a legitimate question arises as to how the court is to protect the integrity of the proceedings. For example, what measures should the police or the court take to ensure that the witness is alone in the room from which they are giving evidence, such that the risk of outside influences is eliminated? How can the court prevent the witness from having access to electronic material whilst giving evidence? If the court simply accepts that a witness can dial in from their house and the environment does not need to be checked by a police or local court officer, the witness could – quite unbeknownst to anyone in the UK courtroom – have unfettered access to their phone or some other device whilst they are sitting in front of their computer screen. The (all too often) poor quality of video links means that a witness glancing down at their phone or across to another computer may not be obvious to the lawyers and the judge in the UK. What about a witness making notes? It may be that a well-meaning witness assumes that they can make notes and use them, without even thinking to as the court for permission. If no officer is present with them before they give their evidence and the witness has notes in front of their computer, this will simply go unnoticed.
These are not trivial concerns – if they occur, they may prejudice the efficient running of the trial and in extreme examples may cause a trial to collapse altogether. An obvious example is where a complainant or witness accesses their phone while giving their evidence – perhaps to look at social media, for example – and introduces inadmissible or prejudicial evidence. In those circumstances, a defendant will be forced into seeking discharge of the jury because of something which would never have arisen, had the police or court ensured that the witness was giving evidence from a secure environment.