Channel 4's alternative or 'deepfake' of the Queen's Christmas message in 2020 sparked much controversy but what it only goes to show, is that as technology advances it will become easier to deepfake (digitally alter the face or body of a person to appear to be someone else) images and voices. Criminals who routinely send phishing emails are already using deepfake technology. In January 2020 the Guardian newspaper reported that technology involving "voice skins" had been used to impersonate a CEO's voice and resulting in £200,000 transferred to a fraudster.

With this in mind, how can we be assured that witnesses who appear online really are who they say they are? Can we be assured that they are not being fed answers or being coached online, or by someone else in the room or by means of WhatsApp, text, messenger, etc?

Over the last year, almost all court lawyers have had to get used to using technology to "appear" before courts. That includes examining and cross-examining witnesses and trying to assess whether they can be relied upon to be telling the truth and doing so accurately.

Our civil courts have, to a great extent, heard cases remotely, although parties can argue for "in person" hearings if they have cause to ask for one. Sometimes it is said that if issues of credibility and reliability are in play then it is better to see a witness in person. In July 2020, Lady Wise quickly rejected a submission that it was particularly difficult to assess credibility when a proof had been conducted remotely (YI v AAW 2020 CSOH 76). We will all have heard tales about how one can always tell if someone is lying, perhaps because they look down and left, or scratch their nose, but in reality it is well known and understood that it is almost impossible to know for certain whether someone is credible and reliable.

It is perhaps a feature of global emergencies that changes are made in days or months that would have taken years previously. The courts were moved quickly to using video technology for the majority of evidential hearings, although technology has been used for some time to deal with the evidence of vulnerable witnesses.

In addition to the risks of deepfakes, witnesses being coached online and difficulties assessing credibility would we be losing something by taking evidence remotely?

It is a relatively well known proposition that the majority of communication is non-verbal, indeed Wikipedia suggests that it could account for 60-70% of human communication. Such non-verbal communication includes body posture, eye contact, gestures, displays of emotion, body distance and many other non-verbal cues. Those cues are not just from the witness but from the lawyers, any jury or other people present in the court. There can be no doubt that many of these cues are lost or diluted when a witness gives evidence over a video link. Indeed, it is part of the intent behind vulnerable witnesses giving evidence remotely that some of the non-verbal stressors they might face in giving evidence be removed, filtered, or diluted.

There is no doubt that the great leaps taken in the use of technology is something that the courts and the profession should be proud of. There is also no doubt that many of those advances should be retained and exploited. However, as we emerge slowly from the pandemic the politicians, profession and the public as a whole, will need to consider the lessons learned over the last 12 months, consider how best to protect the justice system, and to ensure fairness in the context of the increased use of technology. With that in mind, it seems probable that the profession should investigate and consider a more structured and scientific approach to assesses credibility and reliability.