Stephen Smith, who leads our Employment & Contract team, shares insights into giving evidence by video in online legal hearings. At Livingstone Brown, all of our lawyers have the capability to take part in online legal hearings across the areas of crime, family, employment, civil court, child protection and mental health, and to attend ‘in person’ hearings. Contact us today to talk to one of our solicitors about your case and the process of online court hearings call us on 0141 429 8166 or complete our online contact form.
For almost a year it has been the main topic of discussion between court lawyer and client: can the case go ahead by video?
Followed immediately by: how will that affect my case?
The answer to the first question has largely depended on the type of case. Some courts have been slow to adapt. But in the Employment Tribunal, video hearings have become some so routine that the standard claim form has now been amended so that anyone raising a new action is asked to indicate Yes or No to whether they can take part in hearings held online.
But of course all this does is tend to prompt the second question – if I say ‘Yes’, what could the consequences be?
The ET has been at pains to point out that if claimants do not have the means to obtain a laptop, then their case will not be stopped from going ahead. But during both lockdowns, the reality has been that asking for a hearing to take place ‘in person’ would inevitably lead to a delay, due the need for social distancing reducing the availability of hearing rooms.
Can online video hearings have an impact on cases?
Now that the second lockdown has ended, there is the possibility that these rules will ease, and more hearing rooms will become available. Given the backlog of cases, the choice between hearings in video and in person is here for the foreseeable future, but in time it may make no difference about when the case is actually heard.
But that does not answer the second question completely. As well as knowing how video hearings will affect the time waiting for their case to call, clients also want to know how it will affect the conduct of the case in a practical, legal sense.
Will the lawyers’ questions to witnesses have less impact over a video link? Will those who are not telling the truth find it easier to do so while sitting in their living rooms rather than a court? Will the judges be less able to scrutinise witnesses if they are on a screen rather than sitting a few feet away from them?
A legal argument based on these legitimate concerns has been put before the Court of Session, Scotland’s highest civil court. And it has been roundly rejected.
The case was a high-value divorce between a husband and wife who lived largely in Dubai. The evidence had been due to be heard in person but after the first lockdown, the court managed to allow it to go ahead by both sides agreeing to give evidence via video.
However, the husband’s lawyer then tried to make the point to the Judge, Lady Wise, that it was difficult for her to assess the credibility of the five witnesses she heard from, because she had only seen them on screen, and not ‘in person’. The Judge did not agree, and she gave detailed reasons why, with a number of concrete examples of how video was no barrier to her doing her job in assessing who was telling the truth, and who wasn’t:
“While there were some technical difficulties from time to time with witnesses’ wireless connectivity and/or sound quality, I have no hesitation in rejecting that submission. My vision and ability to hear the witnesses was clear and unimpeded.
“The pursuer (the wife) came across as emotional and a little fraught, speaking as she was in her second language. She sometimes used hyperbole to make a point – for example she said her son cried and did not sleep for 24 hours a day seven days a week as a baby, when she clearly intended to make the point that he was a particularly wakeful and demanding infant, not that he literally did not sleep. That type of linguistic nuance was as easy to pick up on screen as it would have been in the courtroom.
“So far as the defender (the husband) is concerned, I have assessed his lack of credibility on the inconsistencies in his different accounts and the documentation and concluded that these illustrate his willingness to make false statements to secure a desired result. However, insofar as relevant, my conclusion on that is fortified by the way in which he gave his evidence as video recorded.
"On one occasion in cross-examination when it was asserted to him that he had used foul and derogatory terms to his wife he leant forward towards the camera to state his denial in what I noted at the time was an aggressive manner. He rolled his eyes more than once when he was asked questions about the sexual allegations and he folded and unfolded his arms. He became noticeably red in the face when he denied calling his wife her “friendly rapist” and then appeared to admit it but said that his wife had instigated the term.
“He laughed when it was suggested that he would sulk and become difficult if his wife refused to have sex with him and when he said he couldn’t recollect having had sex the last time in April 2018 in the parties’ kitchen.
“My observations of his behaviour were noted just as I would have done had he been appearing in a physical court. The connectivity and sound difficulties had no bearing on that assessment, or on my ability to assess the credibility and reliability of NM, EI and AW (the other witnesses). It was a little unsatisfactory that NM and EI gave evidence using mobile telephones but again that does not have a bearing on my assessment of credibility and reliability.”
The views of Lady Wise in the case of YI v AAW is therefore something of a barrier now to anyone who wishes to challenge the use of video hearings, in terms of how it could affect the outcome of the case by the decision-maker having less information available to them online than they would in person.
It is possible that other judges will have different views, and one case is not the most scientific basis for deciding how hundreds more should be heard. But the scientific research that has been carried out on this issue has reinforced the view expressed above.
A paper published by the Scottish Government in 2018 looked at the effect which hearing evidence by video, compared to in person, had on the ability of jurors to detect falsehood. The context for the research was looking at whether, if steps were taken to allow children to given evidence from another room, there was a danger that this would mean jurors were either less or more likely to believe the witness – potentially impeding the accused having a fair trial.
The paper reviewed a number of experiments that had been carried out in the courts in the United States and elsewhere. It found that jurors were no better at being able to reach the truth when children testify in open court than they would be compared to hearing evidence via live video-link or pre-recorded testimony.
In one study, children aged between 7 and 9 were filmed playing games and were asked three weeks later to a courthouse and testify in open court or via CCTV about this, with some children being told to deliberately lie about their experiences. Mock jurors recruited from the local community were separated into groups of 12 and asked to assess the children’s testimony and discuss a ‘verdict’ among themselves. The jurors were no better at detecting deceit when the child spoke in open court than when they delivered their evidence via CCTV.
In another, child witnesses were then divided between live, CCTV and pre-recorded evidence before a total of 240 jurors, 86% of whom were undergraduate students. They were asked to complete individual questionnaires, rather than deliberate as a mock jury. But the result was the same - no significant differences were detected about the accuracy of being able to tell who was not telling the truth, between the medium used.
There have been some prominent dissenting voices within the legal profession to the idea that all evidence should now be heard by video. There is a suspicion, which is easy to understand, about the danger of this masking a Government money-saving exercise, doing away at a stroke with the need to have buildings, heating, security, etc.
But the individual client is unlikely to be too invested in the ‘big picture’ argument – they will want to know what happens now with their own case, and the lawyers will need to be ready with answers.
*All lawyers at Livingstone Brown have the capability to take part in online legal hearings across the areas of crime, family, employment, civil court, child protection and mental health, and to attend ‘in person’ hearings.