Key takeaways
Remote evidence abroad requires foreign-state permission
Video link accommodations are not automatic, local consent must be secured first.
Hague and non-Hague countries have distinct processes
Requests can take months, needing early planning and formal paperwork.
Travel disruptions can jeopardise witness availability
Assess risks early and secure permissions well before hearings.
If like us, you are seeing the impact of holiday and travel plans being disrupted over the past few weeks due to the current affairs unfolding in the Middle East, you are probably also finding yourself refreshing your knowledge on the rules for giving remote evidence from a foreign state, if, in the ever more frequent occurrence, witnesses are stranded abroad.
The Foreign Process Section at the Royal Courts of Justice has been informed by the Foreign, Commonwealth and Development Office (FCDO) that all service of applications for remote attendance from the Middle East and the UAE has been suspended due to the current difficulties in the region. Consequently, it is important for those involved in inquest proceedings to consider the wider global climate when travelling abroad close to the time of scheduled inquest hearings. This involves pro-actively anticipating what impact foreign travel may have on court commitments, particularly with Easter and summer break approaching.
In cross-border evidence, the trap is usually the same, everyone assumes that because Microsoft Teams or Zoom exist, the law will politely accommodate. It often does not, unless processes are followed. It is important for those involved in coronial processes to consider if key witnesses have relocated, or, as has been the case recently, found themselves in the unfortunate (and often unforeseen) circumstance of being stranded abroad.
The legal answer, however, is rather less simple. In England and Wales, the court may allow evidence by video link, but that does not mean a witness can automatically give oral evidence from another state merely because they are willing to do so. The legal position is, unless stated otherwise by a foreign state, that witness will still require permission to do so from the foreign state from where the witness will be giving evidence. This has been reinforced in the case of R -v- Kadir [2022] EWCA Crim 1244.
The steps to follow for seeking this permission will largely depend on the foreign state, and whether they are members of the Hague Convention. It is important to first check if the foreign state has communicated their unilateral consent via the FCDO. Their list can be found here.
If the witness is residing in a Hague Convention Country (you can check if the country is a signatory of the Hague Convention here: HCCH | #20 - Authorities), an application must come from the central authority (Foreign Process Section of the Royal Courts of Justice) and will be then sent to the relevant central authority (the Ministry of Justice) under The Hague Convention. In practise, this involves preparing the following in hard copy:
A cover letter to the FPS with an overview of the request and contact details;
A sealed order from the court in England and Wales in which the hearing is taking place, giving you the permission for the witness to give evidence via video link or obtaining documents out of jurisdiction;
Two copies of the Letter of Request which complies with Article 3 of the Hague Convention – a copy of which can be found here.
Completion of Form PF78 - Solicitor's Undertaking as to Expenses.
For non-Hague Convention Countries, the process is similar, but the Letter of Request is not in Hague Convention form and would need to be accompanied by local language certified translations.
All of this typically could take a minimum of three months. So, if you are stranded days or weeks before a hearing, chances are, it may be too late! Do consider travel carefully before travelling and ask yourself if permission ought to be sought for any of your witnesses who are willing to give evidence remotely from abroad in good time before the Hearing.
Should you want to contact the Foreign Process Section of the Royal Courts of Justice, their contact details are [email protected] or 020 3936 8957 (select option 7).
