Tribunal practice in Covid times – witnesses giving evidence virtually

In the past couple of weeks we have been hearing from Jacques Algazy QC, barrister and Head of Cloisters chambers who, as well as being an advocate in the tribunals, also regularly sits as an employment judge. Jacques has been explaining how the judicial system has adapted to the challenges of Covid-19 with the result we are now seeing some full in-person hearing, some hearings conducted completely remotely and lots of hybrids, a bit of both. That virtual, online, dimension is, of course, very new to everyone, including the witnesses, many of whom may be quite daunted by the strangeness of giving evidence in this new way. So let’s hear more about that. Jacques again: 

Jacques Algazy: “It's actually a problem that has arisen from ordinary practice long before pandemic. The very dynamics of the tribunal or court room are artificial. Most tribunal rooms are set up with the witness either to the left or the right of the advocates’ bench with the bench to the rear of the witness and the natural tendency, when being asked questions from the advocates’ bench, is to answer the person who is asking the questions. I always tell, and I know it's a regular feature of witness familiarisation, that you remind the witness in the ordinary courtroom to turn and address the judge, or the judges, and if it's a panel, not the focus simply on the judge because all three panel members are just as important, and to vary your gaze to demonstrate your engagement with the process and willingness to give answers as best you can. Many, many witnesses forget and fail to do that and end up in the trap of entering into a kind of dialogue with the barrister or representative, which is unhelpful. That's what happens in the ordinary way. The problem is magnified, and added to, in remote hearings because you don't even have that reference point, if you're told or have been told about that process of giving evidence before you give evidence, because you're just staring at a screen. As I say, the natural inclination, if you're staring at a number of different screens, is to address the person that you want to be speaking to, oblivious of the fact that, of course, that has got nothing to do with what the camera is picking up. A little tip that I like to use myself, is to put a little post-it or marker near the camera screen so that I can remind myself that I need to be addressing the camera. The judge needs to see me as the advocate, and how I'm putting my question across, if he's interested or she's interested in that, but for a witness it's even more important that the judge gets the full facial features. I've heard it said that the disadvantage of remote hearings, especially in important cases, and especially in cases where credibility is at stake, people say oh, you've got to have a proper sense of the demeanour of the witness and how they're giving their evidence and matters of that kind. Well, in the ordinary way of things views differ enormously about the importance of the demeanour of the witness. There's nothing more compelling than a witness who believes fervently that they're telling the truth, but they're not. So I'm one of those from the camp of somewhat sceptical reliers on demeanour, but it is not something that you can ignore. Actually, it seems to me that if you use the camera properly, and if you use the way that witnesses come across properly, you're actually picking up every little tic on a screen in a way that you don’t necessarily get when you're actually in the courtroom. Don’t forget that when I'm sitting as a judge, I've got my head down making notes half the time. The whole process is different now. Most judges will be using multi-screens and will be looking at the screen at the same time as perhaps making notes on another laptop or an iPad or something of that kind. In fact, the opportunity for interface and inter-viewing, as it were, the facial features and the demeanour of the witness is, in some respects, enhanced by this process because you get a more screen time, as it were, than you will ordinarily. So I I'm not one that thinks that this is a disaster for witnesses who were going to be shifty and try and avoid gaze and matters of that kind. I personally will be looking very carefully to see, for example, if a witness is constantly looking above and over the camera. I'd want to know if anybody else was in the room suggesting or assisting with answers or documents or matters of that kind. One doesn't want to be cynical, but it's certainly not beyond imagination that that would happen and I've seen it happen in real life and in court anyway. With the luxury of being concealed by a screen, I imagine the temptation will only be greater. So I think we all have to be alive to these issues and, when you say it, it seems obvious, but until you say it, it doesn't seem so obvious. So those are the kind of practical issues you need to worry about whether you are the advocate or whether you're the witness. I think really an issue for the witness, if the witness wants to come across well, then they need to remember they are addressing the judge. When I have done, in another sphere of my practice, witness familiarisation courses, we sometimes video witnesses giving evidence in cross examination in matters completely unconnected with the case, because that's not allowed, so we cross examine a witness on a personal topic and show them the experience of cross examination, and they see themselves on a video, they are often amazed at how they come across, and how little tics come across and you see it on video. I once had a course I was giving with a communications trainer to an expert witness who given evidence in 73 cases, I think. I started off the training session thinking I really don't know what I'm going to teach this chap, he's so experienced at giving evidence, and when he saw himself on video, he said, have I been doing that all these years? He was rather shocked at how he came across when he actually saw himself on video and this was, as it were, in real life. So I think it's an interesting issue and I think it kind of exemplifies the need to be aware of how you're giving your evidence and how you're engaging with the judge. So just turning to the side and looking perhaps at a document can look on camera as though you are looking askance or looking shifty or passing comment on what you consider to be a stupid question asked by the last barrister. All of these are features which the panel will pick up and, don’t forget, that when you've got a panel, even if the judge is busy burying his or her head in their notes, the panel member will be very alive to what's going on and pass a note to the judge and say every time you mention the sausages he visibly flinches, sausages being a sensitive area for this particular witness in this particular case, by way of example.”