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Polanski v Conde Nast Publications Limited (2005) UKHL 10



The House of Lords has recently ruled on a three-to-two majority that a fugitive from justice may - contrary to what the Court of Appeal had found (see [2003] Gazette, 19 December, 16) - use a video conference link (VCL) to give evidence in a libel action in the UK to avoid possible extradition.


The decision of the appeal court had been a considerable blow to the libel action of celebrated film director Roman Polanski. Being denied the opportunity to give evidence by VCL - and thus his ability to give evidence at all, as he does not wish to come to the UK - his action was in the balance. He took the matter to the Lords, where his win has breathed life back into his libel claim.


Polanski had sued for libel in the UK over an article in the US publication, Vanity Fair, which reported the alleged incident of an attempted seduction by him after the brutal murder of his wife. He claimed it was untrue and showed him to have a callous indifference to the fate of the murdered Sharon Tate.


Mr Polanski is entitled to bring a claim in the UK notwithstanding that fewer copies of the magazine were sold in this country than in the US, provided that he limits his claim to damage to his reputation in the UK. But he did not wish to leave France, where he is a citizen, to give evidence, as he would be at risk of extradition after fleeing the US before sentencing for under-age sex in 1977.


Damage to reputation may be hard for a jury to grasp if the alleged victim of the libel does not give evidence. Accordingly, Mr Polanski had applied for a direction that he might give evidence by VCL, available at the court's discretion under rule 32 of the Civil Procedure Rules 1998.


While Mr Justice Eady made the relevant direction, the appeal court considered it to be an indulgence and overturned the decision, deciding that this would not breach his article 6 rights to a fair trail as it was up to him to decide to take the action and whether he would give evidence in support of that action.


Mr Polanski appealed, and the defence counter-argued that any departure from the appeal court decision would bring the administration of justice into disrepute.


The House of Lords was divided in its decision in this contentious matter. But it divided in favour of Mr Polanski, with the majority finding that that his fugitive status did not deprive him of the right to use the VCL facilities available to other parties to proceedings and that his ability to do so did not unfairly prejudice the defence.


The majority found that, given a fugitive was entitled to avail himself of the UK courts to bring proceedings in the first place, it would be inconsistent to deprive him of the ability to provide evidence to that court in support of those proceedings. According to Lord Nicholls of Birkenhead, the question was 'whether the development of this new facility [VCL] should ensure for the benefit of fugitives from justice as much as it does for other parties to litigation' and if it did, would it be an 'affront to the public conscience'. There are certainly some who think that it would be - two of the Law Lords included - but according to Lord Nicholls, 'Mr Polanski's status as a fugitive offender does not deprive him of any rights he would otherwise possess in respect of the subject matter of [his] action'.


Lord Nicholls accepted that the VCL order 'will enable Mr Polanski to sidestep one of the adverse consequences of his own criminal conduct and flight from justice'. But nevertheless, he was entitled to do so. The judge said: 'If the administration of justice is not brought into disrepute by a fugitive's ability to have recourse to the court to protect his civil rights, even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court's current procedures, which will enable him in a particular case to pursue his proceedings while remaining a fugitive. To regard the one as acceptable and the other as not smacks of inconsistency'.


The counter view was expressed by Lord Carswell in the minority: 'Most heavily against him has to be weighed the factor, which to my mind is a very powerful one, that the claimant wishes to have the assistance of the court to give his evidence in a special way, which will enable him to avoid the consequences of his criminal act. I consider that it would be quite wrong to allow him to do that...'


But Baroness Hale in the majority did not consider the use of VCL to be a 'revolutionary departure from the norm to be kept strictly in check'. Rather, it was 'simply another tool for securing effective access to justice for everyone'.


In obiter, the Law Lords also disagreed with the appeal court's position that if the claimant were denied the opportunity to give evidence by way of a VCL, his evidence should automatically be excluded if he were not available at court for cross-examination. An order to exclude such evidence should only be made if justice required and regard should be had to the general principle that hearsay evidence should be allowed in compliance with the overriding objective to deal with cases justly. It was then up to the court to decide how much weight to give to any such untested evidence.


This decision will allow Mr Polanski to give evidence in the High Court via VCL. Advances in technology mean that the court considers jurors to be able to gauge just as well as if a witness were sitting in the witness box that witness's credibility and how much weight is to be given to what the witness says. According to Baroness Hale: 'The court is to be trusted to evaluate the weight of the relevant evidence for itself.'


The fact that a claimant gives evidence by VCL means that it is no more or less likely to be accepted by the jury than if it were given from the witness box; the jury will make up its own mind.


Whether one agrees or not with the majority judges, this decision has shone the spotlight on the court's willingness to use modern technology in the interests of justice. The carrier pigeons used when Polanski's 19th century 'Tess' was set have been replaced by faxes and e-mails; the 1960s manual typewriters from the era of his psychological thriller 'Rosemary's Baby' have been superseded by laptop computers.


Just as a director loses his fans if he cannot engage his audience, the courts need to keep up with the times to serve the modern community. While likely to remain steeped in controversy, perhaps this decision is an example of the courts trying to do just that.


By Amber Melville-Brown, David Price Solicitors & Advocates, London