Kadir v R: Live link via WhatsApp – a potentially useful development for young witnesses

In the case of Kadir the Court of Appeal Criminal Division gave important guidance on the use of live link evidence from abroad and more specifically, the use of WhatsApp.


One of the grounds of appeal in this case concerned the trial's judge's refusal of the Apellant's application for his brother to give evidence via a WhatsApp video call which he sought to adduce in his defence. At the time of the trial Samad was in Bangladesh.

The Court gave helpful analysis regarding the use of live link evidence from abroad, which reads as follows:

  1. A judge has the power to direct a live link via WhatsApp – which is end-to-end encrypted – under S.51, CJA 2003; it is for the judge concerned to make a fact-specific decision in the circumstances of the case. 
  1. The party making the application for a live link direction must provide the judge with all the requisite information.
  1. The parties need to consider and prepare any applications for witnesses to testify from another country via a live link at an early stage of proceedings:
  • Section 6C of CPIA Act 1996 must be complied with. This applies to a witness who will give evidence in person as well as to a witness who will give evidence via a live link. Notice of the identity of the witness affords an opportunity for appropriate investigations to be made and failure to give notice is an inhibition on the prosecution’s ability to effectively test his evidence; see s.51(6)(f)(ii).
  • It is also necessary to bear in mind the principle that one state should not seek to exercise the powers of its courts within the territory of another state without the permission of that other state. 
  • The adequacy of the arrangements needs to be checked in good time.
  • There needs to be sufficient information to enable the judge to assess the risks which might be involved in a witness giving evidence from abroad, including any risk that s/he would be under any form of pressure from any other person. 


This decision translates not only as an acknowledgement by the Courts of the ever-growing presence of social media in people’s everyday lives, but also as an effort to utilise the technological tools made available by the internet, to improve access to justice. The latter is likely to be particularly effective for younger witnesses, as it would allow them to testify in an alternative environment more suited to their needs.

The Courts should already be familiar with the use of the Cloud Video Platform (CVP), especially following the provisions introduced by the Coronavirus Act 2020, but the extent to which WhatsApp will be used for live link witness evidence remains to be seen. 

Written by Nikki Hadjivasiliou, Trainee Solicitor, Just For Kids Law