THE EXPLANATORY NOTES TO THE CORONAVIRUS BILL: LIVE LINKS IN COURT PROCEEDINGS
The explanatory notes to the Coronavirus Bill have a detailed explanation of the plans for the expansion of live links in court proceedings, particularly criminal proceedings.
Clause 51 and Schedule 22 Expansion of availability of live links in
408 The Schedule amends the Criminal Justice Act 2003 (“CJA 2003”) in order to extend the
circumstances in which a criminal court can use audio and live links during hearings.
409 It expands the courts’ powers to use technology across a wider range of hearings, and
participants. The court may direct that a person (but not a jury member) take part in eligible
criminal proceedings through the use of a live audio link or a live video link. The court must
be satisfied that a live link direction is in the interests of justice before making one. By way of an
additional safeguard, it also provides for the parties, and the relevant youth offending team in
youth cases, to be given the opportunity to make representations to the court before the court
determines whether to make a live link direction.
410 The amendments made by paragraph 2(5) of the schedule provide that the court may direct the
use of live link to multiple, or all persons participating in particular proceedings, and may also
give a direction which only applies to certain aspects of the proceedings, for example the giving
of evidence. A person directed to give evidence in proceedings by live link must only give
evidence in accordance with the direction. Persons outside of England and Wales may
participate through a live link if the court so directs. These powers are subject to the restrictions
set out in new Schedule 3A to the CJA 2003.
411 The court may rescind a live link direction at any time, but only if this is in the interests of
justice, and only after having considered representations from the parties or relevant youth offending team in youth cases.
412 The schedule amends section 53 of the CJA 2003 (magistrates’ courts permitted to sit at other
locations) to accommodate any participation through live link, rather than just the giving of
413 Participation in eligible criminal proceedings through a live audio or video link as directed by
the court will be treated as complying with any requirement to attend or appear before court, or
to surrender to the custody of the court, and such persons will be treated as present in court for
the purposes of the proceedings.
414 The schedule also amends section 54 of the CJA 2003 (warning to jury) in accordance with the
expanded power to use live links and section 55 of the CJA 2003 (rules of court) in accordance
with the expanded power to use live links, and to enable the Criminal Procedure Rules to
provide for contested as well as uncontested live link applications to be determined without a
hearing. Paragraph 8 of the schedule creates a new Schedule 3A to the CJA 2003, which
introduces additional prohibitions and limitations on use of live links in certain circumstances.
415 Part 2 of the schedule amends the Criminal Appeal Act 1968 in accordance with the expanded
powers to use live links under section 51 of the CJA 2003 in relation to appeals to the criminal
division of the Court of Appeal. It also provides for a single judge of the Court of Appeal and the
Registrar of Criminal Appeals to be able to exercise these powers.
416 The territorial extent and application of this clause and schedule is England and Wales.
Clause 52 and Schedule 23: Expansion of availability of live links in
other criminal hearings
417 Part 1 of the schedule expands the use of live links in Part 3A of the Crime and Disorder Act
1998 (“CDA 1998”) beyond the attendance of the accused at certain preliminary, sentencing and
enforcement hearings to all participants in preliminary, sentencing and enforcement hearings.
418 Paragraph 3 of the schedule amends section 57B of the CDA 1998 to expand the availability of
live links at preliminary hearings in a magistrates’ court or the Crown Court to include live
video and audio links and all persons participating in the hearing, not solely live video links for
the accused when in custody. Safeguards are introduced such that the court in making any live
link direction in a preliminary hearing must be satisfied that it is in the interests of justice to do
so. The parties or the relevant youth offending team must also have been given the opportunity
to make representations.
419 The schedule makes similar provision in relation to live links in preliminary hearings as
paragraph 2(5) of Schedule 22 does in relation to live links in ‘eligible criminal proceedings’. The
amendments sets out the factors that the court must consider when deciding whether to give,
vary or rescind a live link direction.
420 The schedule allows for the expansion of the use of live links in sentencing hearings and
enforcement hearings in a similar way to preliminary hearings.
421 A court may not impose imprisonment or detention in default of payment of a sum at an
enforcement hearing where proceedings are being conducted with participation via live audio
link (other than for the purpose of giving evidence).
422 Paragraph 6 inserts new section 57G of the CDA 1998 (requirement to attend court, perjury)
which makes identical provision in relation to hearings conducted in accordance with a direction
under section 57B, 57E or 57F as paragraph 4 of Schedule 22 does in relation to “eligible criminal
proceedings” conducted in accordance with a live link direction.
423 The schedule creates a new Schedule 3A to the CDA 1998, which introduces additional
prohibitions and limitations on use of live links.
424 Part 2 of the schedule makes amendments to the Police and Criminal Evidence Act 1984 in
accordance with the expanded powers to use live links under section 57B of the CDA 1998. It
also amends section 22 of the Prosecution of Offences Act 1985 to reflect the fact that a jury no
longer determines whether a defendant is unfit to plead. It omits section 32 of the Criminal
Justice Act 1988 (evidence given by persons abroad through television links) as it is no longer
425 The territorial extent and application of this clause and schedule is England and Wales.
Clause 53 and Schedule 24: Public participation in proceedings
conducted by video or audio
426 The Schedule inserts new sections 85A, 85B, 85C and 85D to the Courts Act 2003, making
provisions for the live streaming of wholly audio or video hearings.
427 The new sections of the Act provide that proceedings which are conducted as wholly video
proceedings or wholly audio proceedings (a ‘fully virtual’ hearing) can be broadcast so members
of the public can observe proceedings or to be made for record-keeping purposes (section 85A).
It is an offence to make, or attempt to make, an unauthorised recording or transmission which
relates to the broadcasting of such proceedings. The maximum penalty for being found guilty
of such an offence is a fine not exceeding level 3 on the standard scale (currently £1000) (section
85B). It is also an offence to make, or attempt to make an unauthorised recording or
transmission of an image or sound which is being transmitted through a live audio or video link
including in relation to a person’s participation in court proceedings through a live link. This
includes a recording or transmission of the person’s own participation. The maximum penalty
for being found guilty of such an offence is a fine not exceeding level 3 on the standard scale
(currently £1000) (section 85C).
428 The Schedule also inserts new sections 29A, 29B, 29C and 29D to the Tribunals Courts and
Enforcement Act 2007, making provisions for the live streaming of wholly audio or wholly video
hearings. New sections 29A to 29D to that Act make identical provision as that in s85A to 85D
of the Courts Act 2003 for wholly video or wholly audio proceedings in First‐tier Tribunals and
429 The provisions extend and apply to England and Wales only in relation to court proceedings;
but to the United Kingdom in so far as proceedings in the First-tier Tribunal and Upper Tribunal
are concerned. Paragraph 2 of Schedule 24 amends the Tribunals, Courts and Enforcement Act
2007 and so extends and applies to the United Kingdom.
Clause 54 and Schedule 25: Live links in magistrates’ court appeals
against requirements or restrictions imposed on a potentially
430 The Schedule inserts sections 57ZA to 57ZF into the Magistrates’ Courts Act 1980.
431 It provides that appeals against decisions by the Secretary of State or an authorised public
health official to impose restrictions under clause 49, be heard by telephone or video in civil
proceedings in the Magistrates Court, subject to the court’s power to direct different
arrangement be made. The court may, if it is in the interests of justice, direct that one or more
persons should not participate in the appeal by video; or that they should participate by
telephone. Such a direction may be made by a single justice or authorised court officer (as
defined in subsection (5)).
432 Sections 57ZD and 57ZE create new criminal offences in relation to (i) the unauthorised
recording or transmission of a broadcast of a live video or audio hearing and (ii) the
unauthorised recording and transmission in relation to a person’s participation in proceedings
through live video or audio links. These sections create the same criminal offences and make
identical provisions to those in clause 53 and Schedule 24.
433 These provisions extend and apply to England and Wales.
Clause 55 and Schedule 26: Use of live links in legal proceedings:
434 The clause and Schedule ensures all courts and devolved tribunals in Northern Ireland can
require some or all of the participants in a case to take part in proceedings via audio or video
live link. The Schedule also makes provisions for the live streaming of wholly audio or wholly
video hearings by courts and devolved tribunals in Northern Ireland. Provision is also made for
offences of recording or transmission in relation to broadcasts and in relation to participation
through live link. Specific provision is also made for public health applications via live links to
the Magistrates’ Courts.
435 The territorial extent and application of this clause and schedule is Northern Ireland