Abdul Kadir v The King

A Crown Court may direct a witness outside England and Wales to give evidence by WhatsApp where the service can operate as a live video link and the statutory interests-of-justice test is met. The application must be prepared early and supported by information about the witness, the foreign state’s position, the proposed facilities, technical alternatives and risks to effective judicial control. A technically possible link does not itself justify a direction. For hearsay, the unavailable-witness condition in CJA 2003 does not replace the requirement that the maker could have given admissible oral evidence. Multiple hearsay requires the high-value, interests-of-justice threshold. A vague statement that invites speculation may properly be excluded, and convictions remain safe where the excluded material adds little to a strong case.

The appellant was convicted at the Crown Court at Snaresbrook of ten sexual offences and sentenced to a special custodial sentence of 18 years. On appeal against conviction, he challenged the refusal of applications concerning evidence from his half-brother, Samad, who was in Bangladesh. The first application sought live evidence via WhatsApp. The second sought admission of Samad’s statement as hearsay, including multiple hearsay. The central issues were whether the court had power to receive live evidence from abroad by WhatsApp, whether the statutory hearsay gateways were satisfied, and whether the convictions were safe.

The appeal against conviction was dismissed.

1. Live link. At the time of trial, the temporary version of s51 of CJA 2003 empowered the court to direct a person outside England and Wales to participate in a trial through a live video link where it was in the interests of justice. Under s56(2D), a live video link included an arrangement enabling the participant and other participants to see and hear one another. WhatsApp was capable of being such an arrangement and, particularly for evidence in open court, capable of being sufficiently secure. Suitability remained a fact-specific question.
2. The party seeking the direction had to provide the necessary information and make timely preparations. The defence had failed to notify the prosecution properly of Samad’s identity, investigate whether Bangladesh permitted the proposed link, test the technical arrangements in good time, identify suitable alternatives, or provide adequate information about Samad’s location and the risks of outside pressure. The judge therefore lacked the information required to assess the statutory factors, including the prosecution’s ability to test the evidence and the court’s ability to maintain effective control. The refusal of the live-link application was correct, even if the judge had mistakenly believed that she lacked the power to authorise WhatsApp.
3. Hearsay. Section 116(1)(a) required proof that Samad could have given admissible oral evidence of the matter stated. Although the condition in s116(2)(c) was met, the statement did not show that Samad had personally witnessed or heard the alleged threats and demands. The multiple-hearsay passage was similarly vague and could only invite jury speculation, so it did not satisfy s121(1)(c). For the general interests-of-justice gateway in s114(1)(d), the judge need not decide that hearsay was reliable as a condition of admissibility. The question was whether it was potentially safely reliable, but the deficiencies justified exclusion.
4. The excluded material added little to the prosecution case, which was strong. The convictions were safe.

1. Court of Appeal (Criminal Division): On appeal against convictions, the court dismissed the appeal and held that the convictions were safe. [2022] EWCA Crim 1244
2. Crown Court at Snaresbrook: HH Judge English presided over the trial, refused the applications concerning Samad’s evidence, and the jury convicted the appellant of ten offences.