On 25 March 2020, the Coronavirus Act 2020 (‘the 2020 Act’) was given Royal Assent. Most of its provisions came into force immediately (s. 87). Almost all of them will expire within two years (s. 89). As an additional safeguard, Parliament is required to conduct a review of the legislation every six months (s. 98). The 2020 Act has, at least for the time being, radically changed the appearance of proceedings in the Crown Court: there will now be hearings where neither the parties nor the judge will actually be in court at all.
Trials, appeals from the magistrates’ court and acts and omissions hearings (Schedule 23)
Schedule 23 of the 2020 Act amends s. 51 of the Criminal Justice Act 2003, which now allows the court to direct that the parties (as well as the judge) may attend a number of hearings in the Crown Court by video or audio link, including:
- jury trials;
- appeals from the magistrates’ court; and
- acts and omissions hearings under s. 4A of the Criminal Procedure (Insanity) Act 1964.
There is, though, one exception: jurors will still have to sit in the courtroom. When trials resume, the jury could, at least in theory, be the only people physically present apart from the court staff. Trial lawyers attending remotely would bring with it inevitable challenges: defence advocates needing further instructions from their lay client mid-trial; prosecutors attempting to play CCTV without a ClickShare dongle; and anybody trying to establish if a witness or a juror is looking at the same version of a document as everyone else.
In order to make a live link direction, s. 51(4) requires:
- the judge to be satisfied that it is in the interests of justice;
- the parties to be given the opportunity to make representations; and
- the youth offending team to be given the opportunity to make representations when a young person is involved.
The court must, according to s. 51(7), consider all the circumstances of the case, including:
- the person’s availability;
- the need for them to attend in person;
- the person’s own views;
- the facilities available at court; and
- whether they can participate effectively if the direction is granted.
The power to give a direction under s. 51 is not quite as unlimited as it first appears. Schedule 23 of the 2020 Act also inserts a number of ‘Safeguards’ into Schedule 3 CJA 2003, which provide, for instance, that:
- a defendant may not give evidence by audio link;
- a witness may not give evidence by audio link unless a video link is unavailable and the parties agree;
- only some hearings (e.g. appeals against sentences imposed in the magistrates’ court) may be conducted ‘wholly via video-link’, i.e. with no physical presence in court;
- only a limited number of minor hearings may be conducted ‘wholly via audio-link’ (e.g. case management hearings in relation to an appeal from the magistrates’ court).
The 2020 Act recognises that being able to see someone’s face makes a difference. This is particularly important when someone gives evidence: otherwise, as Lord Normand put it in relation to hearsay, ‘the light which his demeanour would throw on his testimony is lost’ (Tepper [1952] AC 480, 486). Although the prohibition on a defendant doing so by audio link is absolute, in relation to witnesses the parties will have to consider whether hearing only a voice will, if it comes to it, allow the jury safely to assess the evidence. Over a video link, the Criminal Practice Direction makes it clear (CPD I Annex, para 6(h)) that the ‘camera(s) must be positioned to ensure that the witness’ face and demeanour can be seen whether he or she sits or stands’: over the phone, needless to say, no such protection is possible.
Pre-trial, sentencing and enforcement hearings (Schedule 24)
Schedule 24 of the 2020 Act amends ss. 57A-57G (Part 3A) of the Crime and Disorder Act 1998 (‘CDA 1998’), which now allow the parties and the judge (if a live link direction is made, applying a test which mirrors the one above) to appear by video or audio link at:
- pre-trial (‘preliminary’) hearings;
- sentencing hearings;
- enforcement hearings.
Schedule 24 inserts a new Schedule 3A into the CDA 1998, which sets out a lengthy list of ‘Prohibitions and limitations on use of live links’: this stipulates, in particular, that defendants should not attend sentencing hearings or enter guilty pleas by audio link. This second prohibition guards against the obvious danger that someone pleading guilty over the phone might later claim that the person speaking was in fact someone else (although requiring the defendant’s presence has not always extinguished the risk of misidentification altogether: see the judgment of Holroyde LJ and Dove J in R (Bahbahani) v Ealing Magistrates’ Court [2019] EWHC 1385 (Admin), which begins ‘The facts of this case are extraordinary, and we think it almost inconceivable that they will ever be replicated…’).
Broadcasting and recording hearings over live link (Schedule 25)
If the court directs that a hearing is to be conducted ‘wholly as video proceedings’ or ‘wholly as audio proceedings’ (i.e. with all participants on video-conferencing software or all participants on the phone), Schedule 25 inserts a new s. 85A into the Courts Act 2013, which provides that the court ‘may direct’ that it should be:
- broadcast ‘for the purpose of enabling members of the public to see and hear the proceedings’; and/or
- recorded ‘for the purpose of enabling the court to keep an audio record of the proceedings’.
The new s. 85A makes conspicuous some of the more radical aspects of the new live-link regime. Tellingly, it applies not just to criminal proceedings but also to civil and family proceedings (where open justice is still of paramount importance, but the balance with other competing factors is usually struck in different ways). Section 85A seems to envisage criminal hearings where nothing can be seen or heard in a physical courtroom at all:
- The provision is not simply a concession to the reality that, at least for as long as the Prime Minister’s current instruction to ‘stay at home’ lasts, nobody will be able to travel to court to sit in the public gallery and watch what is happening: if that were its purpose, s. 85A would apply to almost all hearings in the Crown Court, whether conducted wholly by live link or not.
- Although this has already become standard practice in Crown Court hearings where the judge and the parties are all attending remotely, there appears to be no requirement in the new legislative scheme for the presence of a court official in a physical courtroom who would be be subject to the usual duty to make sure that DARTS is switched on during proceedings (CPD 47B.15).
- The provision is clear that it applies only to hearings where ‘all of the persons taking part in the proceedings … do so through a live video link’ or ‘through a live audio link’: there is no provision for a mixture of audio and video. It follows that s. 85A refers exclusively to hearings where a physical courtroom is, in practical terms, redundant (simply put, everybody dialling into a call can hear everybody else).
On this analysis, s. 85A reflects more of an inroad into the principle of open justice than it first appears: unless the judge exercises the discretion to broadcast the hearing in s. 85A and/or media representatives are given sufficient notice to allow them to participate remotely, the hearings it has in mind are, effectively, in private. The most substantial of these virtual hearings are appeals against sentences imposed in the magistrates’ court (which can be conducted ‘wholly as video proceedings’ ): this perhaps recognises that if there is a shortage of open court buildings and/or court staff, the alternative to a virtual hearing (and the public access complications it brings with it) may be for a defendant to serve a custodial sentence in full before an appeal can even be listed.
In hearings to which s. 85A applies, it will be incumbent on the Crown Court to identify interested parties in a case wherever possible, and allow them to have the hearing broadcast to them (whether on the phone or by Skype), in order to give at least some effect to the principle of open justice, which Lady Hale has called ‘one of the most precious in our law’ (R (C) v Secretary of State for Justice (Media Lawyers Association Intervening) [2016] UKSC 2, [2016] 1 WLR 444). Although s. 85A makes no explicit provision for media representatives, they too will need to be given the opportunity to dial or in or join a video conference. It is difficult to imagine circumstances when it will not be appropriate, in a criminal case, for a judge to exercise the discretion to record a virtual hearing, given the requirement in the Crown Court for DARTS to be used in a courtroom (CPD 47B.15).
Section 85A may, with no fanfare or forewarning, quietly bring in a hearing of a kind we have never seen (or, for completeness, heard) before. In the Crown Court, it remains to be seen how exactly it will be interpreted, at least for as long as it remains in force.
