An interesting feature of the published judgments and material to date on the appropriateness of remote hearings has been this question: is it more difficult to judge if a witness is telling the truth in a remote hearing? There is, it has been said, an advantage for the court in being able to see and observe the parties themselves; both throughout the hearing and when they give their evidence. It has been said that this is far more difficult to achieve via a video-platform. A recent examination of this issue was made by Lieven J in A Local Authority v Mother (& Ors)[1] on 5 May 2020.
This factor was of particular concern to the President in Re P (A Child: Remote Hearings)[2], a case concerning factitious illness when the need for the judge to see all parties in the court room was stressed. It was said to be an important part of the judicial function.
However, as Lieven J in A Local Authority v Mother (& Ors) highlighted, this is a complex issue. It was said by Leggatt LJ in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department[3]:
“Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth.”
In Re A (Children) (Remote Hearing: Care and Placement Orders)[4] the Court of Appeal, made up of the President, Jackson LJ and Davies LJ, said “the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right.”
However if that is so, then how does that sentiment sit with the regular use of video-link as a means of giving evidence for vulnerable witnesses pursuant to PD3AA? Lieven J does, however, point out that a vulnerable witness giving evidence in this way would often be assisted by an intermediary if they were going to be subject to complex cross-examination or referred to numerous documents. That qualification does not necessarily go to the issue of judging whether a witness is telling the truth or not, though.
Notably, it was said by one respondent to the NFJO’s research “the ability to see the demeanour and facial expressions of witnesses [is] probably clearer than in a court room where they are at some distance”[5]. The reality of this probably depends on how many parties are involved and therefore how many people the judge has visible on the screen at any one time.
A connected issue is the question of whether giving evidence remotely is more or less likely to result in a witness telling the truth. There is a concern that parties giving evidence from their sofas via Zoom does not reflect the serious nature of the issues at hand nor the formality of the court process. Is a witness more likely to give truthful evidence when they are placed in the stressful environment of the court room with all the formality that entails? Of course, one advantage to a vulnerable witness in giving evidence via video-link has been said to be that they will be more relaxed away from the stressful environment of a court room, and therefore more likely to give truthful and complete evidence.
Ultimately, Lieven J said that she could reach no conclusion about what environment was most likely to elicit the most truthful and/or revealing evidence. Lieven J was able to rule out any general rule that a remote hearing is less good at getting to the truth than one in a court room.
This issue is not unique to the judiciary, as MacDonald J said: “the effective cross examination by an advocate of a witness arguably depends to a degree on close observation of body language and subtle indications of discomfort and variations in tone of delivery.”[6]
[1] [2020] EWHC 1086 (Fam)
[2] [2020] EWFC 32, paragraph 26
[3] [2018] EWCA Civ 1391
[4] [2020] EWCA Civ 583, paragraph 58
[5] Nuffield Family Justice Observatory: “Remote hearings in the family justice system: a rapid consultation” (5 May 2020)
[6] MacDonald J: “The Remote Access Family Court – What Have We Learnt So Far in England and Wales?” (21 May 2020)