HEARING WHERE PARTIES MADE SUBMISSIONS BY TELEPHONE IS NOT INCONSISTENT WITH THE OPEN JUSTICE PRINCIPLE
In the judgment given today in Jankowski v Regional Court of Torun, Poland  EWHC 826 (Admin) Mr Justice Fordham explained the steps taken by the court meant that a hearing held where the parties attended by telephone complied with the open justice principle.
“I am satisfied that the mode of hearing, although unusual, caused no prejudice to any person or their interests, nor detriment to justice or the public interest.”
MR JUSTICE FORDHAM :
This is an extradition appeal in which the issue is whether extraditing the appellant to Poland is compatible with article 8 ECHR (private and family life). Permission to appeal, and permission to rely on fresh evidence not available at the time of the hearing before the district judge – in the form of witness statements from the appellant and his partner – were granted by Holman J on 29 January 2020.
Mode of hearing
I conducted an oral hearing of the appeal using special arrangements, by agreement of the parties, necessitated by the coronavirus pandemic. I sat, robed, in court 2 at the Royal Courts of Justice. The hearing and its timing were listed in the published cause list. The court building was open. The cause list recorded that the hearing was to be by telephone conference, giving an email contact for any person who wished to dial-in. BT Conferencing was used. The two Counsel addressed the court, just as they would have done had they been physically present in court. Everything said by them, and by me, could be heard clearly in open court and recorded on the court recording system which I had been told was running throughout. On the application of any person, the recording so made will be able to be accessed in a court building, with the consent of the court. The two Counsel, the appellant’s solicitor (Anna Matelska), the appellant himself and a simultaneous interpreter (Anna Westwood) were all able to join the hearing by telephone. Interpretation took place through a separate phone link. These arrangements were agreed between the parties, at my invitation, in the light of the Protocol regarding Remote Hearings published on 20 March 2020. The parties were content, as was I, that telephone – as opposed to Skype – was a suitable and appropriate mode.
I do not consider that there has been any derogation from the open justice principle, nor from the need to conduct an oral hearing in open court, nor from the rights of the parties. If and insofar as there has been any derogation, I am satisfied that it was necessary, justified and proportionate in securing the proper administration of justice. I was conscious that the appeal to me was pursuant to section 26 of the Extradition Act 2003 and governed by the Criminal Procedure Rules (CrPR). The hearing satisfied the standards described in CrPR CPD I paragraph 3N.17 (open justice and records of proceedings). The appellant did not attend by “live link” (CrPR50.17(3)), as that term is defined (CrPR2.2). The receiving of representations by telephone (CrPR3.5(2)(d)) is not to be undertaken where inconsistent with the rules (CrPR3.5(1)). I am satisfied, were it necessary, that the appellant waived his right to attend by another means than by telephone (CrPR50.17(3)(a)). I am also satisfied, were this necessary, that I exercised my power (recognised in CrPR50.17(1)(a)(iii)) to order that the hearing be in “private”, but in such a way as guaranteed the rights and interests of all concerned, including the press, the public and the public interest. I am confident, even absent the comfort of an equivalent to CPR PD51Y of the Civil Procedure Rules that the hearing, as conducted, was lawful and within my powers, as being necessitated by the interests of justice. I commend the parties and their representatives for the prompt, cooperative and practical way in which the hearing was approached. I am satisfied that the mode of hearing, although unusual, caused no prejudice to any person or their interests, nor detriment to justice or the public interest. Had any submission been made, by any person, that the mode of hearing was inconsistent with any right, interest, principle or rule, I would have considered it and ruled on it on its merits.”