R v Kadir [2022] EWCA Crim 1244, 21 September 2022. (judgment here)
Not a true headline – but one we might well see if the coronial world remains as ignorant as this blogger was until yesterday of the requirement to seek approval from a foreign state before hearing any live oral evidence from abroad.[1]
The Court of Appeal[2] have just handed down their decision in a criminal appeal that includes an important reminder (or warning, if you shared my ignorance) that when hearing evidence by a live link from a witness who is in another country, it is necessary to bear in mind the long existing understanding among Nation States that one state should not seek to exercise the powers of its courts within the territory of another state without the permission (on an individual or a general basis) of that other state.
It should not be simply presumed that all foreign governments are willing to allow their nationals, or others within their jurisdiction, to give evidence before a court in England and Wales via a live link.
Indeed, since the 1970s the Hague Convention[3] has recognised this and so established a uniform framework of co-operation mechanisms in order to facilitate and streamline the taking of evidence from abroad in civil and commercial cases by using an International Letter of Request (ILOR) to the state concerned sent by the judicial authority of a contracting State, to the Central Authority of the other State (see here). But of course not all States are signatories to the Hague Convention and even under this convention permission must be sought unless a Contracting State has declared that evidence may be taken under this Article without its prior permission.
Furthermore, it has been persuasively stated[4] that whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom, the question of whether it would be lawful to do so is a question of law for that country, whether or not that country is a signatory to the Hague Convention. In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom’s diplomatic relationship with the other country.
The potential damage includes consideration of wider harm to the interests of justice since, if a court or tribunal acts in such a way as to damage international relations with another State, this risks permission being refused in subsequent criminal and civil cases, where evidence needs to be taken from within that State.
The FCDO viewpoint
The position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom. [5]
The FCDO does not regard the making of oral submissions as akin to the giving of oral evidence. The FCDO’s position is that it is taking of oral evidence, without the requisite permission, that is problematic.
Permission is not considered necessary in the case of written evidence or oral submissions
Lest you might think this is only a recent concern and applies only to those practicing in strictly adversarial jurisdictions, it seems the other tribunals have been fully aware of the position for quite a while – with guidance from the Upper Tribunal having been given over a decade ago, in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC).[6]
The much more recent livelink guidance for the criminal courts here[7] also confirms the position that has now been made abundantly clear by the Court of Appeal in R v Kadir.
If this is the same surprise to you as it was to your blogger don’t berate yourself too much – it appears that it was only in June last year that the FCDO’s Consular Document Policy Team (who at that time dealt with 15-20 requests per year for civil and commercial cases) learned that there was no process within the UK government for checking that overseas governments had no diplomatic or other objections to provision of evidence to UK tribunals by video-link (such as to asylum and immigration appeal hearings).
The Upper Tribunal reaffirmed the ‘Nare guidance’ in 2021 when it set out the factors to consider, and the checks that can be made, in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC) here. We learn from Agbabiaka that the FCDO Team had previously been unaware of the decision in Nare that was by then a decade old.
The FCDO Taking of Evidence Unit
The FCDO rapidly considered how to address the identified gap, and by late 2021 a new FCDO ‘Taking of Evidence Unit’ was established in order to cover the likely increase to several hundred requests a year for Administrative Tribunals (see here ). The Chief Coroner’s Guidance #42 on Remote Hearings is, at least for the time being, silent on this issue. However, helpful guidance from the President of the First-tier Tribunal’s Property Chamber on witnesses giving evidence from abroad is available here which coroners too might wish to follow. Any requests are to be made to TOE.Enquiries@fco.gov.uk .
Hearing evidence from abroad is commonplace in Inquests, not the least because of the international mobility of doctors who readily appear from abroad to assist the court in accordance with their GMC obligations. Your blogger has seen live evidence taken under the Coroners (Inquest) Rules r.17 from witnesses in the Philippines, Bulgaria, South Africa, Namibia, Algeria, Australia, and USA without any thought given to matters of wider international diplomacy. Of course many countries will give their blanket approval with reciprocal arrangements in place, but post-Brexit it is not clear whether this can even be assumed for European jurisdictions.
Witnesses now can and do give live link evidence even from mobile phones in their bedrooms. Where a willing witness does so from abroad the chances of a foreign state becoming aware of this, let alone complaining through diplomatic channels about the event may be vanishingly small. But it cannot be simply ignored. Furthermore, when a witness is asked to give evidence from abroad, the burden of remembering to consider the UK’s international diplomatic relations should not only fall on coroners. Lawyers representing interested persons in Coroners Courts also have a duty to assist the court and should make themselves familiar with the Court of Appeal dicta in R v Kadir and the FCDO advice and so remind the Coroner of the FCDO’s position whenever hearing live evidence from abroad is being considered.
It now seems inescapable that where a witness in an Inquest is asked to participate from abroad, even if they are a British national who is voluntarily and willingly attending remotely, the coroner will need to consider whether the use of a live link would risk damaging international relations so as to be contrary to the public interest and hence contact with the FCDO Taking of Evidence Unit should be made.
There is no list available of the countries that are content for evidence to be given remotely, in each case an inquiry needs to be made. The latest information that this blog is aware of – received on an inquiry to the TOE Unit in March 2023 was that:
“The FCDO has historically provided a service where enquirers can check if other countries have diplomatic objections to their citizens/residents providing evidence by video link to Civil, Commercial and Family courts in the UK. This process involves our Missions overseas writing to the host government seeking confirmation that they have no objection to evidence being given in this way. The response has a statue limit of 5 years after which we are required to seek approval again from the host government to confirm their response…..Your enquiry may need to be sent to an Embassy or High Commission for guidance, and this can take time. You should contact us about video link enquiries before arranging hearing or court dates. If the hearing date has already been set, you should aim to make the enquiry a minimum of 8 weeks before the hearing date. PLEASE ALLOW A MINIMUM OF 8 WEEKS FOR US TO GET A RESPONSE FROM THE HOST COUNTRY.”
It is not safe to assume there will be no issue – as the updates at the bottom of this page reveal, although Turkey is a signatory to the Hague convention on ‘Taking of Evidence Abroad in Civil or Commercial Matters’ the Turkish government has not given the required approval regarding oral evidence, and so the FCDO in turn therefore has diplomatic objections to any coroner hearing evidence from a witness in Turkey.
The application of rule 17
Our post-pandemic courts are rapidly becoming familiar with the taking evidence by electronic means. On occasions unilateral decisions regarding r.17 are made by coroners about when they will take remote evidence without giving formal directions or providing reasoned decisions. The increased use of technology to aid the smooth and pragmatic running of hearings is of course to be welcomed, but many of the Court’s observations in Nare[9] also remain apposite in Coroners Courts:
- The usual model in the common-law system is for direct oral evidence to be given in the courtroom.
- Departures from that model are likely to reduce the quality of evidence, the ability of the parties to test it, and the ability of the judge or coroner to assess it, particularly where it has to be assessed against other oral evidence.
- Any application to call oral evidence by electronic link therefore needs to be justified.
- A relevant aspect of the giving of oral evidence live at a hearing is a measure of formality and supervision. The witness attends what is clearly a formal (or semi-formal) room, stands or sits in the place used by those giving evidence from time to time and is directly subject to the procedure in the hearing. The setting of the hearing room, and the judge’s supervision of it.
- The court can ensure that the evidence given is the evidence of the witness, unassisted save as may be clearly apparent. If evidence is given electronically it should be clear that nothing can be happening “off camera” (or equivalent) that could cast doubt on the integrity of the evidence.
- No person has a right to give evidence by electronic link. It is for those seeking to adduce evidence that way to establish that, for the Tribunal to take evidence in this way, is in the interest of justice,
- It is for the Tribunal to decide whether to allow evidence to be given by electronic link, and to give the appropriate directions. The Tribunal needs to bear in mind the interest of all parties.
Indeed in the coronial jurisdiction the importance of rule 17(3) should also not be overlooked. Before giving a direction that a witness may give evidence at an inquest hearing through a live video link the coroner must consider all the circumstances of the case, including in particular any views expressed by the witness or any interested person. Consideration of the Interested Person’s views is mandatory before any coroner exercises their discretion to permit evidence to be given by video link from anywhere. The FCDO position may also need to be part of that consideration.
UPDATE: RECENT RESPONSES TO CORONERS ON APPROACHING THE TOE UNIT
NEW ZEALAND (coroner’s inquiry: 9 March 2023)
“The information we currently hold is that New Zealand has no objection to the Taking of Evidence by Video Conferencing, by a UK Court, from a witness in New Zealand, in a court matter… The response has a statue limit of 5 years after which we are required to seek approval again from the host government to confirm their response….Therefore, we are currently seeking approval from New Zealand for an updated response. Please note this process can be lengthy and there could be a delay in getting the information to you.”
TURKEY (coroner’s inquiry: 16 November 2022)
“The Government of Turkey confirmed to the FCDO on 02 November 2021 that they object to nationals / residents of Turkey voluntarily giving evidence, either as an appellant or witness, to Tribunal proceedings in the United Kingdom, by video link from Turkey. Therefore, the FCDO therefore has diplomatic objections to this.”
AUSTRALIA (coroner’s inquiry: 26 Sept 2022)
“The UK and Australia are a party to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. According to the information on the Hague Convention website, under Central Authorities and Practical Information for the above convention, there are no legal obstacles in the country concerned to the Taking of Evidence by Video Conferencing.(see link below).”
https://www.hcch.net/en/states/authorities/details3/?aid=485
Information from the Australian government on that link then states “There appears to be some uncertainty as to whether the procedures under the Hague Evidence Convention provide for the ability to take video-link evidence. Australia considers that the Hague Convention makes no specific provision for the taking of evidence by video-link. Notwithstanding, Australia considers that there are no legal obstacles to the usage of modern technologies under the Convention. Australia further notes that the private international law issues that may arise as a result of video-link evidence are not all addressed by the Convention“.
PERMISSION NOT REQUIRED FROM BRITISH OVERSEAS TERRITORIES
The latest guidance from the war pensions tribunal (here) states that:
‘Permission is not required where persons wish to give oral evidence by video or telephone from England, Scotland, Wales, Northern Ireland, the Isle of Man, the Channel Islands, or from British Overseas Territories such as Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, The Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands, Virgin Islands.’
Footnotes
[1]With thanks to the Deputy Chief Coroner, HHJ Durran, for the heads up on this decision
[2] Notably the previous Chief Coroner, HHJ Lucraft KC, was part of the bench
[3] The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970).
[4] By the Upper Tribunal President in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC) at §19
[5] See Agbabiaka at §22-32
[7] At §18
[9] At §§17-19