Fugitive granted right to give evidence via video link: Polanski v Condé Nast

This decision of the House of Lords handed down on 10 February overturned the decision of the Court of Appeal refusing the film director Roman Polanski leave to give evidence at the trial of his libel action via video link. The Court of Appeal had in turn overturned the decision of Mr Justice Eady granting the application. The decisions of the various Law Lords show clearly the legal and moral dilemma which is reflected in the 3 to 2 majority by which the House of Lords overturned the Court of Appeal judgment.

Roman Polanski had pleaded guilty to unlawful sexual intercourse with a 13 year old girl in 1977. He fled the United States in 1978 and since then he has resided in France from which he cannot be extradited as he is a French citizen. If he were to come to this country he would be liable to be extradited under the terms of the extradition treaty with the United States.

In 2002 Mr Polanski began proceedings against the publishers of Vanity Fair over allegations that on the way to attending the burial of his wife (Sharon Tate), who had been viciously murdered, he had stopped off in New York and seduced a woman he met at a restaurant by promises that he would make her as famous as his late wife. The conundrum facing the House of Lords was whether in these circumstances he should be allowed to give evidence at his libel trial by video link.

As Lord Nicholls observed, permitting him to do so may at first sight appear ‘unattractive’ because it would give the impression ‘that a person can, at one and the same time, evade justice in respect of his criminal conduct and yet seek the assistance of the courts in protection of his own civil rights.’

Lord Nicholls stated, however, that to do otherwise would in effect ‘mean that for so long as a fugitive remained ‘on the run’ from the criminal law, his property and other rights could be breached with impunity. That could not be right … Mr Polanski is not a present-day outlaw.’

Lord Hope agreed, adopting Mr Justice Eady’s observation ‘that nothing had been said to him that led him to conclude that he would be justified in shutting out [Mr Polanski] from access to justice in these proceedings in his attempt to vindicate himself in respect of the publication … of the ‘Vanity Fair’ article.’

Lord Hope went on to observe that where civil rights have been infringed, the law provides remedies: ‘To deny a fugitive access to the courts where his rights have been infringed is to deny him access to those remedies.’

It was a key factor in Lord Hope’s reasoning that ‘the granting or refusing of the order will have no effect whatever on the claimant’s continued status as a fugitive.’ He went on to observe that the effect of refusing the order ‘will not be to assist the normal processes of the law.’

Baroness Hale took the same view, observing that although there was a strong public interest in not assisting a fugitive from justice to escape his just desserts, ‘the appellant will escape those desserts whether or not the order is made.’ She observed that had (for example) Mr Polanski suffered from personal injuries while in transit from the US to France and his evidence was necessary to prove a claim, there would be little hesitation in allowing him to give evidence via video link.

Lords Slynn and Carswell expressed strong contrary views to those of the majority. Lord Slynn observed that if Mr Polanski’s request was acceded to ‘whose avowed sole aim is to avoid being extradited …’ it would be ‘… contrary to public or judicial policy.’

Lord Carswell was equally robust in his opposition to the order, beginning his judgment with a detailed paragraph setting out Mr Polanski’s criminal past. He likened this situation to one where the claimant was on the run from justice within this jurisdiction, when he considered that he would not receive the assistance of the court to bring a civil claim ‘without giving his evidence in person in court in the ordinary fashion.’ Lord Carswell could see no distinction in principle between that situation and the one he was addressing in the case of Mr Polanski.

As is often the case with the House of Lords, issues of policy and morality rather than strict questions of law decided the outcome. Clearly the House of Lords found this a difficult balance to strike, and it is also significant that whereas four judges (i.e. the majority of the House of Lords and Mr Justice Eady) found in favour of Mr Polanski, five judges (the minority of the House of Lords and the three members of the Court of Appeal) found against him.

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