In Attorney General of the Turks and Caicos Islands v Misick & Ors [2020] UKPC 30 the Privy Council rejected an argument that continuing a criminal trial by remote means would be innately unfair.

It cannot be said that it would be unfair for any part of the trial to be conducted remotely. Covid-19 has necessarily required court procedures in many countries to be adapted so as to enable courts to continue sitting, and the use of audio visual links has been of great assistance in enabling them to do so.”


The Judicial Committee of the Privy Council were considering an appeal on the issue of whether a criminal case could, potentially, proceed remotely.  The case was being heard by a single judge. The trial had been, effectively, adjourned by the Covid outbreak, but proposals were being considered that it be re-started remotely. The appellants (the defendants in the criminal case) had argued that the regulations that allowed this were ultra vires.  This decision was overturned by the Court of Appeal which also rejected an argument that a trial by video link would place the appellants at a substantial disadvantage.   The appellants appealed to the Privy Council.


The Privy Council rejected the appeal on the grounds that the relevant regulations were ultra vires.  It also rejected an argument that a remote hearing led to “inequality of arms”.



The inequality of arms issue
67.              The appellants contended that evidence by video link is ‘second best’ evidence and that it would create unfairness or at least a perception of unfairness if they were compelled to continue the trial with the judge sitting remotely. This is all the more so in circumstances where the prosecution case has been presented in court in the ordinary way and it is the defence evidence and case which will have to be given remotely.
68.              A fundamental difficulty with the appellants’ case on this issue is that no decision has yet been made to continue with the trial remotely and, even if one assumes that such a decision will be made, one cannot tell how much of the remainder of the trial will be so conducted. The Covid-19 situation has ameliorated in the TCI, as reflected in PD4.20, and it may further improve. If Harrison J was confident that it would be safe for him to continue with the trial in the TCI then no doubt he would do so.
69.              It cannot be said that it would be unfair for any part of the trial to be conducted remotely. Covid-19 has necessarily required court procedures in many countries to be adapted so as to enable courts to continue sitting, and the use of audio visual links has been of great assistance in enabling them to do so. In the UK, for example, many trials have been successfully conducted either wholly or mainly by video link. Whilst jury trials raise distinct issues in relation to the use of such links, there is no intrinsic reason why video links cannot be used in criminal proceedings, and indeed in the UK video evidence has long been used for vulnerable and child witnesses in criminal proceedings. Similar steps are being taken in the TCI as reflected in the Audio-Visual Link Ordinance and the Vulnerable Witness Ordinance. As Mottley P stated at para 59 of his judgment in the present case:
“Changes have been made to the common law by the enactment of the Audio Visual Link Ordinance. This Ordinance permits a witness to give evidence by audio and visual links from a remote point in both criminal and non-criminal matters. This is mentioned to show that changes are being made to criminal trials. These changes are taking place having regard to the rapid development of technology such as Microsoft Teams, Zoom, Skype, Webex etc. A developing law must have regard to, and keep pace with the technological developments.”
70.              There may be some cases, or some parts of cases, where there are particular reasons why it may not be appropriate to use video links, but these are matters for a trial judge to determine in the exercise of his discretion on the basis of the particular facts and circumstances before him. As the appellants submitted “much will turn on the specific nature of a particular case and the evidence to be called”. There is no proper basis upon which the Board can or should seek to usurp the trial judge’s role by making a pre-emptive ruling. The trial judge can also use his case management powers to ameliorate any issues which may be identified.
71.              The appellants acknowledged that they are not in a position to establish by reference to empirical data or otherwise that the conduct of the defence cases over a video link will or is likely to have a detrimental impact on the trial judge’s ability to follow and assess the evidence. They nevertheless contended that public confidence in the fairness of criminal trials and the appellants’ perception of such fairness would be undermined by the appearance of imbalance if the defence alone was presented remotely. The Board does not accept that any such general assertion is justified. It all depends on the particular facts and circumstances, as they transpire, and these are matters for the trial judge to consider, as and when it may be appropriate to do so.
72.              In this particular case, for example, it is of relevance that over 40 prosecution witnesses gave evidence by video link without any adverse comment as to the quality of such evidence. It is also of relevance that the courtroom is so large and the witness box so distanced that both the judge and counsel have had a live feed of the witness evidence to screens in front of them. This is also a trial in which much of the evidence is documentary. No doubt, there are other matters of relevance best known to the trial judge with his long experience of the case.
73.              Finally, on the hearing of the appeal Mr Fitzgerald advanced a new but related point to the effect that a defendant in a criminal trial has a right to be in the presence of the judge when evidence is given so that the defendant can see how he reacts and that the evidence must be assessed with the defendant and judge in the same physical space. This is simply another way of stating that no part of a criminal trial should ever be conducted with a judge sitting remotely, a submission which the Board has already rejected. Whilst it will be preferable that the judge be physically present, there may be circumstances in which a remote hearing is justified, and it is a matter for the judge to determine whether and how that is to be done. If, for example, there is a particular concern about being able to note the reaction of the judge, then the parties, at the discretion of the judge might, for instance be provided with a screen view of both the judge and the witness as viewed by the judge. That would be likely to provide a closer and clearer view than in court, especially in a large court.
74.              In summary, the Board is effectively being invited to interfere in the trial process by making a preclusive ruling as to the future conduct of the trial. It is neither necessary nor appropriate for the Board to do so.