Polanski (Appellant) v. Conde Nast Publications Limited (Respondents)
39. He asks accordingly that he should be allowed to give evidence from Paris by video link under Rule 32.3 of the Civil Procedure Rules which provide that "The Court may allow a witness to give evidence through a video link or by other means." On the face of it there is no restriction on the Court's power to permit evidence to be given by video link but the grant of permission is a matter for the discretion of the Court which itself in my view may be affected by policy as well as by case management considerations.
40. His present application raises at least two policy considerations which are in conflict. The first is that the Court should not frustrate his accepted right to sue in the civil courts here by refusing a procedural step provided for by the Rules when there is no valid reason to do so. The second is that the civil courts should not take steps the effect of which is to frustrate or impede the due execution of the criminal procedure of another state with which the United Kingdom has an extradition treaty and under which if the appellant were in England the United Kingdom would be required to respond to a request for his extradition so that he could be sentenced and obliged to comply with any sentence imposed.
41. On the one hand thus if he comes here to give evidence and is extradited the criminal proceedings in the Californian Court can continue, as in the interests of justice it is said they should. It was a serious offence which he admitted and he only avoided punishment because he had the wherewithal to flee, and did flee, the United States to live in a country from which he could not be extradited. On the other hand if he is allowed to give evidence by video link he will not be extradited, the criminal proceedings in California will not continue and he will avoid punishment. He will, however, be able to pursue his civil claim for libel in England. If he cannot give evidence by video link he will not realistically be able to come here to give evidence or he will be arrested and extradited. If he cannot give oral evidence in one way or another his case probably cannot be pursued effectively or perhaps at all.
42. There are strong arguments both in favour of and against his being allowed to give evidence by video link as the judgments of Eady J on the one hand and the Court of Appeal on the other, and the differing views that my noble and learned friends Lord Nicholls of Birkenhead and Lord Carswell show. They are set out so clearly that it is not necessary to repeat them more.
43. It seems to me however that as a starting point it is important to recall that although evidence given in court is still often the best as well as the normal way of giving oral evidence, in view of technological developments, evidence by video link is both an efficient and an effective way of providing oral evidence both in chief and in cross examination. Eady J's experience led him "to believe that there is in most cases very little, if any, actual disadvantage or prejudice to either side when that means is adopted" and that "my experience is that the process of cross examination takes place as naturally and freely as when a witness is present in the courtroom." Thomas LJ's opinion was very much to the same effect. It may be, however, that in different types of case the balance tilts more in favour of evidence in a courtroom. It has been suggested that defamation actions are one such type of case. Even so it seems to me clear that video link evidence cannot be ruled out ab initio as not being effective in this sort of case.
44. However, as to whether as a general procedure, video link evidence should be allowed, it is relevant to refer to Annex 3 to the Practice Direction to the Civil Procedure Rules Part 32. It is said that
45. As between the parties, if all other questions of policy are ignored, it seems here that the use of video link could be efficient and fair and contribute to the economic disposal of the litigation. If indeed there is any disadvantage it may be to the person asking for video link evidence and it is not established that the respondents would be adversely affected by the use of video link evidence.
46. It weighs heavily in the appellant's favour that this article, if not true, is a serious and unpleasant libel only published some 33 years after the incident and with a motive about which it would be wrong to speculate. On any view it is one in which his desire to clear his name from the slur, whatever other suggestions may have been made about his conduct in sexual matters, is well understandable.
47. It is also clear that whether or not he could have sued in France or the United States of America he was entitled to start an action here and for it to be pursued in accordance with our procedural rules, those which are mandatory and those which include the power of the court to regulate the way in which evidence may be given. It is clear that the fact that he is a fugitive offender does not bar him from starting proceedings any more than an alleged terrorist is barred from claiming that his human rights under the European Convention have been violated.
48. It does not, however, follow that when it comes to the exercise of its discretion as to how permissive powers are exercised, the Court cannot have regard to all the circumstances of the particular case. The guidance notes state "A judgment must be made in every case in which the use of VCF is being considered" in respect of the matter specified. In my view those matters are not exclusive and it may be necessary to consider the significance of other matters.
49. It is thus in my opinion relevant to inquire why he asks for this permission. The reason is clear and there is only one reason. It is to avoid the risk or likelihood of arrest and extradition and to escape sentence and punishment in the USA for an admitted offence. No other reason is suggested as to why video link evidence should be provided or is needed.
50. In this connection the appellant can no doubt say that the Extradition Treaty does not in terms require the United Kingdom to seek to bring him here or to avoid any step which would result in his not having to come here. It only needs to extradite when he is in fact in the United Kingdom. At present he is not actually in the United Kingdom so that there is no Treaty obligation to extradite. But that is too narrow a construction of the appropriate policy. Just as the United Kingdom has an interest in ensuring that people wanted here for criminal trial or following conviction here are brought here by extradition from other states, so by the very nature of the extradition process the United Kingdom has an interest in seeing that those who have been convicted are returned, in this case, to carry out their sentences. It seems to me that to accede to a request like the present, whose avowed sole aim is to avoid his being extradited, in the absence of other overriding considerations compelling the grant of the application, is contrary to public or judicial policy.
51. The position might well be different if there is a valid self-standing reason for allowing the evidence to be given by video link and the avoidance of punishment or extradition are incidental consequences. So also it may in other cases be relevant to consider whether being a defendant rather than a plaintiff (so that there is no choice about being a party to the proceedings) would more readily justify the order for a video link.
52. It is relevant in the present case to consider whether proceedings elsewhere were open to the appellant. It seems that he could not sue in the United States whilst out of the jurisdiction as a fugitive offender and if he were to go back and take his sentence it might not be possible for him effectively to pursue his claim. To say that he could leave the claim until he was free again after serving due sentence is subject to obvious difficulties. I am prepared to assume that he could not effectively take proceedings in the United States. But the same is not true it seems of his position in France of which he is a citizen and where he resides. True there is a short limitation period but as far as I can see he began his action in England well within the limitation period applicable in France when he could have sued there. I have not seen an acceptable excuse put forward on his behalf as to why he could not have sued in France. The publication in France was in smaller numbers than in England and much less than that in the USA. It may be for that and other reasons that he would be likely to recover less damages in France than he would in the United Kingdom. That does not seem to be here a significant reason for not suing in France since, as I understand it, the appellant's motive is not to secure a large sum of money but to clear his reputation of what he regards as a nasty slur. Qualitatively if not quantatively that could be done as well in France as in England.
53. It has been suggested that since the language of the article is English it could be more easily dealt with in an English speaking country. There are cases where that is likely to be true, where there are nuances or refinements of language not easy to translate. The words here are, however, direct and clear. I do not see that a French judge would have difficulty in understanding what is said very baldly or what is its alleged effect.
54. It does not follow, as seems to be suggested, that if the video link is refused here a fugitive offender can never in any case assert his civil rights without risking extradition and imprisonment. His evidence may not be needed where he is asserting either a right to property or damages for breach of a written contract which is admitted. He may be able to sue elsewhere.
55. I agree with Jonathan Parker LJ that an English court would be most unlikely to grant a video link approval where the sole reason was that the applicant should be able to avoid going back to England where he would be liable to sentence and perhaps punishment or indeed liable to prosecution. It seems to me, as a matter of comity, that the same should apply to an application by the United States between which country and the United Kingdom an extradition treaty exists. If he was sought in order to face charges rather than to receive sentence for a conviction following a plea of guilty, different considerations might, but would not necessarily, arise.
56. The task of the Court here is one of balancing different policy considerations and not merely deciding case management. Where a person convicted on his own admission flees the jurisdiction, it seems to me that in the absence of special factors compelling a different result, a video link conference may and should here be refused where the sole reason for asking for it is that he wishes to escape conviction or sentence in the country where he has commenced proceedings or to avoid extradition to another country for the same reason. The mere fact that the person cannot pursue proceedings here does not necessarily mean that a video link must or should be granted. The policy requirement of satisfying the criminal sentence is by no means less important than the desirability of his suing in libel for an allegation which is serious but no more serious than the criminal offence of which he has been convicted. The possibility of suing in France is a further contra-indication to any obligation to grant such a video link.
57. Accordingly in my view the learned judge to whose great experience in these matters tribute has rightly been paid did not give the necessary weight to the policy arguments to which I have referred.
58. I agree with what Lord Carswell has said about possible cross-examination on written statements admitted by way of a hearsay notice and like Simon Brown LJ I do not consider that to refuse a video link would amount to a breach of Article 6 of the European Convention on Human Rights as Scheduled to the Human Rights Act 1998. I would, therefore, like Lord Carswell and substantially for the reasons he gives, dismiss the appeal.LORD HOPE OF CRAIGHEAD
59. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree with it, and for all the reasons that he has given I would allow the appeal and restore the order of Eady J. But, as we are differing from a unanimous decision of the Court of Appeal and as we are not ourselves unanimous, I should like to explain briefly in my own words why, like my noble and learned friend Baroness Hale of Richmond, I too have come to this conclusion.
60. As Lord Nicholls points out, it would not be satisfactory for your Lordships to dispose of this issue, as the Court of Appeal did, by saying that it all depends on the circumstances: see  1 WLR 387, 399, para 46. A general rule must be identified. The question then is, what is the general rule to be? Is the fact that the applicant for an order under CPR r 32.3 wishes to remain outside the United Kingdom so that he can avoid the normal processes of the law in this country a sufficient reason in itself for refusing to allow him to give evidence by means of a video link? Or is the court, as a general rule, not entitled to decline to make the order on this ground?
61. I take as my starting point Eady J's observation that nothing that had been said to him led him to conclude that he would be justified in shutting out the appellant from access to justice in these proceedings in his attempt to vindicate himself in respect of the publication in this jurisdiction of the 'Vanity Fair' article. The question whether the administration of justice would be brought into disrepute if his order is allowed to stand is said to raise a question of public policy. But it also raises a question about access to justice. On the one hand a fugitive from justice must accept the consequences of his criminal act. He is not entitled to seek the assistance of the court in seeking to avoid these consequences. That is the essence of the public policy objection. But access to justice is also founded on the rule of law, and in this respect too the rule of law informs public policy. Where civil rights have been infringed the law provides remedies. To deny a fugitive access to the courts where his rights have been infringed is to deny him access to those remedies.
62. As the search is for a general rule, the particular circumstances of this case need to be viewed more generally. The appellant complains of libel. But others in his position may have claims in this jurisdiction for the infringement of their property rights, as Lady Hale has pointed out, or may have claims for damages for personal injury. The general rule must be capable of being applied generally, irrespective of the nature of the civil right that the fugitive seeks to enforce. The principle which guarantees access to justice does not distinguish between different types of claim, nor does it distinguish between different classes of litigant.
63. The appellant did not commit his criminal act in this country. That does not, of course, mean that the public interest in furthering the ends of justice is less important in his case than it would have been if his crime had been committed here. The general rule ought not to depend on where or when the crime was committed. So it should be capable of being applied generally to all fugitives, irrespective of the jurisdiction in which the crime was committed and irrespective of the particular processes which the authorities might wish to pursue against him were he to set foot in this country.
64. But not all fugitives abroad can remain at large indefinitely. Extradition is the normal process by which they can be brought here to face justice, and in the majority of cases extradition will be available. Where extradition arrangements are in place fugitives abroad are likely, as are domestic fugitives who are seeking to escape the ends of justice, to wish to remain out of sight for as long as possible. They are not likely to risk revealing their whereabouts by pursuing civil claims in this country. So we are not dealing here with fugitives who are amenable to the ordinary processes. The class of fugitives who will be in a position to seek an order under CPR 32.3 without compromising their liberty is a limited one. It is limited to fugitives who cannot legally be extradited to this country, or who cannot legally be extradited to countries to which the United Kingdom would be under an obligation to extradite them if they were to come here. In practice the class is confined to fugitives in countries with whom there is no extradition treaty and to those like the appellant to whom, as citizens of the countries in which they reside, a constitutional right is given not to be extradited.
65. This brings me to what I see as the critical factor. It is the factor that leaves me in no doubt that the general rule should be that the fugitive's unwillingness to come to this country is not in itself a reason for refusing to allow his evidence to be given through a video conference link. This is that the granting or refusing of the order will have no effect whatever on the claimant's continued status as a fugitive. The granting of the order will not help him to escape from the normal processes of the law, nor will declining to grant the order do anything to assist them. This is because he is already beyond the reach of those processes. So long as the claimant remains where he is, and irrespective of whether or not the order is made, those processes will be incapable of reaching him if he is a member of that class of fugitives that cannot be extradited.
66. The appellant is in that position because he has an undoubted constitutional right, as a citizen of France, not to be extradited. That is his right, and he wishes to exercise it. He is not trying to hide from anybody. It is incorrect, then, to say that his sole aim in seeking the order is to avoid being extradited. He does not need the help of the courts of this country to do that. This is not why he asks for the order to be made in his case. His reason for asking for the order to be made is so that he can give evidence in a case where, leaving aside issues of public policy, he has a legitimate interest in doing so. The effect of refusing the order will not be to assist the normal processes of the law. Its only effect will be to deny him access to justice. I think that Eady J was right to see this as the crucial point which justified the making of the order in his case. But now that we are looking for a general rule, I would hold that the appellant's case falls within the generality of cases where the fact that the claimant wishes to remain outside the United Kingdom to avoid the normal processes of law in this country is not a ground for declining to allow him to remain abroad and give his evidence by VCF.
67. There is however a further point which should be mentioned. For the reasons that Lady Hale has given, with which I respectfully agree, I think that the Court of Appeal went too far when it held that the court would be bound to exclude the appellant's witness statement, which would otherwise be admissible as hearsay evidence under section 1(1) of the Civil Evidence Act 1995, if he did not attend court in person for cross-examination. There are, of course, various procedural safeguards, failure to give effect to which may affect the weight to be given to the evidence. The power under CPR r 33.4(1) to permit another party to call the maker of the statement for the purpose of cross-examining him is one of those safeguards. But a failure to attend for cross-examination does not in itself make such a statement inadmissible.
68. The appellant has made it clear that he would be willing to make himself available for cross-examination by VCR if his request that he should be allowed to give his evidence by this means were to be refused on grounds of public policy. Eady J tells us that in his experience the process of cross-examination in this way takes place as naturally and freely as when a witness is in the court room. So it cannot be said that the appellant was seeking to obtain a tactical advantage by offering himself for cross-examination by this means, or that he was attempting to prevent a proper evaluation of the hearsay evidence: see 1995 Act, section 4(2)(f). The objection to his giving evidence by this means on grounds of public policy, if upheld, would not have justified the sanction of refusing to admit the witness statement into evidence, for what it might be worth. This is a further indication that the interests of justice are better served in this case by allowing him to give his evidence by VCR, as he seeks to do.
BARONESS HALE OF RICHMOND
69. I agree, for all the reasons given by my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead, that this appeal should be allowed and the judge's order restored. In brief:
(1) As between the parties to this action, there is no doubt that this order was correctly made. The respondent will suffer no prejudice from the appellant's evidence being given in this way; it is common ground that any prejudice will be suffered by the appellant, not least because the jury will be forcibly reminded of the reasons why he is not present in person and will be obliged to take them into account where they are relevant.
(2) As between the competing public interest arguments, there is a strong public interest in allowing a claim which has properly been made in this country to be properly and fairly litigated here.
(3) Against that, there is also a strong public interest in not assisting a fugitive from justice to escape his just deserts. But the appellant will escape those deserts whether or not the order is made. He will continue to be outside the reach of the US authorities in any event. All the refusal to allow his evidence to be given by VCF will do is effectively to deprive him of his right to take action to vindicate his civil rights in the courts of this country.
(4) If this were almost any other cause of action, I venture to think that the outcome would not be in doubt. Suppose, for example, that the appellant had suffered personal injuries while in transit from the US to France and his evidence was necessary to prove either the circumstances of the accident or the extent of his injuries: would we hesitate to allow it to be given by VCF? Suppose, perhaps more plausibly, that there were a dispute about whether the appellant had intellectual property rights in one of his films which is distributed or marketed here: would we hesitate to allow his evidence to be given by VCF? It should not make a difference that the right in question is the right to such reputation as he has, rather than a right to bodily integrity or a right to property. That reputation was attacked in an English language publication and is most appropriately defended in an English language jurisdiction.
(5) Generally, therefore, I agree that this should be an acceptable reason for seeking a VCF order, although there may be cases in which the affront to the public conscience is so great that it will not be a sufficient reason. This is not such a case.
70. I wish, however, to expand a little on the question of whether the appellant's witness statement should have been admitted if he were not permitted to give oral evidence by VCF. The judge assumed that if he were not called to give evidence, his witness statement would be admitted as hearsay evidence. The Court of Appeal took the view that it would not: indeed they said in terms that if the appellant failed to attend in person to be cross examined on his witness statement, the court would be 'bound' to refuse to admit it: see  1 WLR 387, 401, para 53. In my view this goes far too far.
71. It remains the general procedural rule that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence: see CPR 32.2(1)(a). But in civil proceedings this is now a matter of procedure rather than substance. The substantive rule is that all relevant evidence is admissible unless there is a rule excluding it. There used to be a rule excluding hearsay evidence, that is, a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated: see Civil Evidence Act 1995, s 1(2). To this rule there were numerous exceptions which deprived it of much of its force in civil proceedings. But in 1995 the rule itself was abolished. Section 1(1) of the 1995 Act provides simply that:
72. This new rule is not made subject to the later provisions of the Act which provide for procedural safeguards where hearsay evidence is to be adduced. Section 2 requires a party proposing to adduce hearsay evidence to give such notice of that fact as is reasonable and practicable in all the circumstances to enable the other party to deal with it. But a failure to comply with this requirement (or with the rules of court dealing with how such notice is to be given) 'does not affect the admissibility of the evidence'; rather it may be penalised in costs and taken into account in assessing weight: see section 2(4).
73. Section 3 gives power for rules of court to provide that if the party adducing hearsay evidence does not call the maker of the statement to give evidence in person, the other party may do so and may cross-examine him as if he had been called by the party adducing the statement; see also CPR 33.4. Nothing in section 3 or in the CPR provides or suggests that if the maker does not attend for cross-examination at trial his statement becomes inadmissible. Section 4 provides for the considerations relevant to assessing the weight (if any) to be given to hearsay evidence, the first of which is whether it would have been reasonable or practicable for the maker of the statement to be called as a witness. Section 5(2) provides that the same evidence of credibility or of inconsistent statements is admissible as would be admissible had the maker of the statement been called to give evidence: see also CPR 33.5. Section 6 deals with the treatment of statements made by people who are called as witnesses in the proceedings.
74. The substantive law following the 1995 Act, therefore, is that relevant hearsay is always admissible; there are various procedural safeguards aimed at reducing the prejudice caused to an opposing party if he is not able to cross-examine the maker of the statement; but the principal safeguard is the reduced - even to vanishing - weight to be given to a statement which has not been made in court and subject to cross-examination in the usual way. The court is to be trusted to give the statement such weight as it is worth in all the circumstances of the case.