Introduction

Kadir v R. ([2022] EWCA Crim 1244) is a pivotal case adjudicated by the England and Wales Court of Appeal (Criminal Division) on September 21, 2022. The case revolves around the appellant, Kadir, who was convicted of rape, attempted rape, and indecent assault, with the convictions later challenged on appeal. A central issue in the appeal was whether a witness located outside the United Kingdom could be permitted to give evidence via WhatsApp, a popular messaging application.

The appellant contended that the refusal to allow his half-brother, Samad, to testify via WhatsApp deprived him of a critical witness who could corroborate his defense. The case delves into the procedural and technical aspects of remote testimony, the admissibility of hearsay evidence, and the broader implications for the criminal justice system's adaptability to modern communication technologies.

Summary of the Judgment

The Court of Appeal dismissed Kadir's appeal against his convictions. The court upheld the original judgment, ruling that the refusal to allow Samad to testify via WhatsApp was justified. The appellate court found that the defense had failed to comply with statutory requirements necessary to establish the admissibility and reliability of Samad's hearsay statements. Furthermore, logistical and procedural deficiencies undermined the appellant's position, leading to the affirmation of the convictions.

Analysis

Precedents Cited

The judgment references several key cases and statutory provisions that have shaped the court's approach:

• R v Riat [2012] EWCA Crim 1509: Emphasized that hearsay evidence must be potentially reliably assessed by the court.
• R v Friel [2012] EWCA Crim 2871: Clarified the conditions under which multiple hearsay statements could be admissible.
• Sexual Offences (Amendment) Act 1992: Provides lifelong protection against the identification of victims.
• Criminal Justice Act 1988 & 2003: Governs the admissibility of live video links and hearsay evidence in criminal proceedings.
• Coronavirus Act 2020: Introduced temporary provisions affecting the application of sections related to live links.
• Police, Crime, Sentencing and Courts Act 2022: Amended sections relevant to live links post the temporary provisions.

Legal Reasoning

The court meticulously examined whether the trial judge erred in refusing the live link testimony via WhatsApp and in excluding Samad's hearsay statements. The analysis hinged on the interpretation of statutory provisions and the compliance with procedural requirements:

• Live Link Testimony: The court assessed whether WhatsApp could constitute a "live video link" under section 51 of the Criminal Justice Act 2003. They concluded that if properly implemented, WhatsApp's end-to-end encryption could satisfy security requirements. However, the defense failed to provide necessary procedural notifications under section 6C of the Criminal Procedure and Investigations Act 1996, undermining the application.
• Hearsay Evidence: The court evaluated Samad's statement under sections 114, 116, and 121 of the Criminal Justice Act 2003. It found that the statements lacked sufficient clarity and reliability, rendering them inadmissible as they failed to meet the criteria for hearsay exceptions.
• Compliance with Procedures: The defense did not adhere to statutory requirements for notifying intended witnesses, complicating the prosecution's ability to challenge the witness's credibility and the overall admissibility of the evidence.

Impact

This judgment has significant implications for the future handling of remote witness testimonies in England and Wales:

• Clarification of Live Link Protocols: It delineates the stringent requirements for utilizing live video links, emphasizing the necessity of adhering to procedural safeguards to ensure the admissibility and reliability of remote evidence.
• Reliability of Hearsay Evidence: Reinforces the courts' cautious stance on hearsay statements, necessitating clear indications of reliability and the ability to cross-examine witnesses to uphold justice.
• Technological Adaptation: Signals the judiciary's recognition of modern communication tools but underscores the importance of secure and reliable methods before their adoption in court proceedings.
• Preparatory Rigor: Highlights the need for early and thorough preparation when intending to call remote witnesses, including compliance with notification and verification processes.

Complex Concepts Simplified

Conclusion

The Kadir v R. judgment underscores the judiciary's commitment to upholding procedural rigor and the reliability of evidence in criminal proceedings. While recognizing the potential of modern communication technologies like WhatsApp for facilitating remote testimony, the court emphasizes the necessity of adhering to statutory requirements and ensuring that such methods meet stringent security and reliability standards. The dismissal of the appeal reinforces the importance of procedural compliance and the judiciary's cautious approach towards integrating new technologies into the legal framework.

This case serves as a precedent for future cases involving remote witness testimonies, highlighting the delicate balance between technological advancement and the foundational principles of justice.