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A New Approach to Giving Evidence? WhatsApp with Tha
- Feb 15, 2023
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On 21 September 2022, the Court of Appeal gave judgment in Kadir v R  EWCA Crim 1244, which considered the issue of whether witnesses in a criminal trial can give evidence via WhatsApp.
What is the case about?
Following a Crown Court trial, Mr Kadir was convicted of various sexual offences. During trial he applied to adduce evidence from a witness in Bangladesh via a WhatsApp video call. The trial judge refused the application. Unfortunately, there was no record of the judge's ruling (nor was any agreed note made by counsel of the ruling when it was given). The judge also refused permission for Mr Kadir to adduce a short statement from the witness as hearsay evidence. He appealed both rulings. The Court of Appeal dismissed the appeal in its entirety.
Is WhatsApp a permissible means of giving evidence?
A unanimous Court of Appeal confirmed (under the temporary provisions of s.51 CJA 2003 in force at the time) that the judge did have the power to direct that the witness could give evidence from Bangladesh via WhatsApp, if satisfied that it was in the interests of justice to do so.
The panel went on to say that a judge in similar circumstances today would similarly have the power to direct a live link via WhatsApp under the statutory provisions now in force.
However, any decision to permit the use of WhatsApp is dependent on the facts of a particular case and the court emphasised that the onus is on the appellant to provide the judge with all the requisite information.
Mr Kadir's application was seriously deficient in many respects including that no request or enquiry, formal or informal, had been made of any relevant authority in Bangladesh, the failure of which meant that the judge lacked vital information in deciding whether it was in the interests of justice for a live link direction to be made (it was accepted on behalf of Mr Kadir that no steps were taken to establish whether Bangladesh was willing to permit a live link by WhatsApp).
Why is the decision significant?
Although the appeal was dismissed on the facts, the Court of Appeal confirmed its power to direct that a live link via WhatsApp (which uses end-to-end encryption) is capable of being used for giving evidence in open court on the basis that it is "sufficiently secure".
While this judgment is in the context of a criminal trial, and it remains to be seen whether a court in a civil action would come to the same view if faced with a similar application, the judgment is encouraging in that it demonstrates the court's continuing enthusiasm (and pragmatism) in embracing technology to improve the efficiency of the justice system.
Of course, the courts have already shown their willingness to permit WhatsApp to further the interests of justice, for example, by permitting service of a claim form via the messaging platform (Gray v Hurley  EWHC 1636 (QB)).
This case is also a timely reminder of the importance of obtaining local permissions to give evidence in civil actions and that parties participating in virtual (or hybrid) hearings should ensure that arrangements are made (and the virtual platform technology thoroughly tested) so that any technical issues are identified and resolved in good time before the start of a hearing.