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Since the UK is no longer an EU state, EU legislation does not apply between Finland and UK. However, like Sweden and the UK, Finland is party to the Hague Evidence Convention and, hence, this treaty is applied as the legal basis for the taking of evidence in Finland for a court in the UK. As mentioned above, the Hague Evidence Convention does not explicitly refer to modern technology, such as online video connections. Despite this, it has been established long ago that the use of technology for the effective functioning of the Hague Evidence Convention is possible and even recommended. In accordance with Article 27 of the Hague Evidence Convention, the Convention shall not prevent the use of national law for the taking of evidence by video link under less restrictive conditions.
Accordingly, it is important to be aware of the rules currently applicable to the taking of evidence by foreign courts from witnesses located overseas to ensure that there are no nasty surprises to taint the legitimacy of proceedings, to say the least of diplomatic problems. This article will therefore set out the law applicable to the taking of evidence by UK courts from witnesses in Sweden, Finland and Denmark as well as provide some practical tips on how to go about obtaining permission to do so by video-link. Applicable law in Sweden As a starting point, the taking of evidence by foreign courts is typically regulated at treaty level.
Of course, these instruments and legislation pre-date the availability of video-link technology that facilitated the taking of witness evidence. According to the 2020 Guide to Good Practice on the Use of Video-Link under the Evidence Convention, the admissibility of video-link under the Hague Evidence Convention depends on whether the taking of evidence is direct, i. e., conducted remotely by the requesting authority, or indirect, i. e., conducted by an authority of the state where the witness is located. While the Hague Evidence Convention permits the use of video-link for the indirect taking of evidence, the picture is less clear for the direct taking of evidence, i. e., when an authority conducts the examination of a witness located abroad. The Swedish perspective A foreign authority seeking the direct taking of evidence in Sweden via video-link will need to request permission from the central authority, the Swedish Ministry of Justice.
Taking of evidence in Sweden, Finland and Denmark by UK courts via video-link post-BrexitBackground Although the dust has now (mostly) settled on the Brexit saga as far as the European Union (EU) is concerned, the United Kingdom’s (UK) departure has left some interesting gaps in legal processes that were previously governed by EU law. Among the uncertainties remaining relates to judicial cooperation in civil and commercial matters and, in particular, the taking of evidence, e. g., witness examination abroad by UK courts by video-link. As the world transitions to a new phase of the coronavirus, most consider that hearings by video-link are largely here to stay. The demand for remote hearings, not least given the risk of further travel disruptions, will likely only lead to increased judicial cooperation in civil and commercial matters.
The Danish perspective The taking of evidence from witnesses via video or telecommunication is commonly applied in Danish proceedings, even if the main rule is that the hearing of witnesses shall be in person. In particular, the video witness statements are used in criminal proceedings, where there is a need to take special considerations to victims (in particular, minor victims). In civil proceedings, the Danish Administration of Justice Act (Dk. Bekendtgørelse af lov om rettens pleje) (Act) explicitly allows for witnesses to give their statements via video hearings insofar as the witness statement will be recorded in a Danish court or by a public agency or private operator, which has been authorised to provide means of telecommunication, in court proceedings.
g., for video statements to be taken, and also ensures that relevant regulations governing the duty to appear as a witnesses, right not to self-incriminate and duty to speak truthfully and applicable sanctions for violation by the witnesses (e. g., fines and imprisonment), will be applied and enforced by the Danish court.
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With respect to witnesses situated outside Denmark, the court may allow a witness to give evidence in a Danish proceeding by use of video communication, if it is deemed by the court that the statement can be given under similar secure circumstances as above. In respect of the taking of evidence from witnesses in proceedings in foreign jurisdictions outside EU, Denmark has also ratified the Hague Evidence Convention. Further, the Act specifically applies to witness examinations requested by foreign public authorities, including requests from foreign nations for observance of a special form or procedure, hereunder examination conducted from abroad by use of telecommunication equipment. Such requests must be complied with wherever possible unless such compliance would clearly be incompatible with Danish law. It is noteworthy that the Danish court will apply the Act generally to such requests, and the subsequent witness statements, which allows e.
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The authorities should first check whether the taking of evidence via video link is permitted under the internal law of the place where the trial is pending. Secondly, the authorities should check that taking evidence by video link is not contrary to the internal legislation of the place from which the evidence is received. In the case of Finland, the taking of evidence by video link is allowed under Finnish law, and, actually, very common in Finnish courts – especially since the outbreak of Covid-19.
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