The outbreak of COVID-19 has forced businesses all over the world to adapt to a new way of working, practically overnight. The criminal courts are no different and as an essential public service it is imperative that technology is utilised to ensure that they can continue to function in the midst of the crisis. The emergency Coronavirus Bill (‘the Bill’) is set to introduce a number of new measures to try and keep the criminal courts running in these unprecedented times.
While many of us are only now getting to grips with how our new Skype or Zoom accounts work, the use of audio and video links in the courts has been set out in legislation for some time. However, there are further measures in the new emergency legislation to expand the circumstances when video/audio technology can be used.
The Government says the aim of these measures is to ensure that courts:
Can continue to function and remain open to the public, without the need for participants to attend in person."
The Bill published by the Department of Health and Social Care expands the availability of video and audio link in court proceedings. This includes expanding the availability of video and audio link in various criminal proceedings, including full video and audio hearings in certain circumstance and allowing the public to participate in court and tribunal proceedings through audio and video.
Existing law on audio/video links in criminal courts
Current legislation enables ‘live links’ to be used at various stages of the criminal justice process. The current definition of ‘live link’ for these purposes is:
- A live television link or other arrangement by which a witness, while at a place in the United Kingdom which is outside the building where the proceedings are being held, is able to see and hear a person at the place where the proceedings are being held and to be seen and heard by the following persons. They are—
a)the defendant or defendants,
b)the judge or justices (or both) and the jury (if there is one),
c)legal representatives acting in the proceedings, and
d)any interpreter or other person appointed by the court to assist the witness.’
The following existing provisions are relevant for the purposes of the Bill:
- Section 51 of the Criminal Justice Act 2003, which enables witnesses (other than the defendant) to give evidence via live link in certain criminal proceedings;
- Sections 22 and 23 of the Criminal Appeals Act 1968, which enable convicted individuals being held in custody to attend appeal proceedings via live link; and
- Part 3A of the Crime and Disorder Act 1998, which enables adult defendants in custody or at a police station to attend certain preliminary, sentencing and enforcement proceedings via live link.
The legislation sets out various important safeguards, including a requirement for the court to consider whether it is ‘in the interests of justice’ for the judge to make a live link direction. It also ensures the opportunity for the defence and prosecution to make representations before it is given.
Key changes in the Coronavirus Bill
The key provisions are set out in the House of Commons briefing paper and are as follows:
- Section 51 of the 2003 Act (relating to witness evidence) would be expanded to cover anyone involved in a criminal trial who is giving evidence or otherwise participating in an expanded range of criminal proceedings – there would be a specific exception for jurors, who would continue to participate in person (clause 53 and Schedule 24 of the Bill).
- Sections 22 and 23 of the 1968 Act (relating to criminal appeals) would be expanded to match the new wider scope of section 51 of the 2003 Act (clause 51 and Schedule 22).
- Part 3A of the 1998 Act (relating to adult defendants in custody) would be expanded beyond defendants to cover all participants in preliminary, sentencing and enforcement hearings (clause 52 and Schedule 23).
- ‘Live links’ for all of the above would be expanded to include audio-only hearings as well as video hearings, and it would be possible for certain proceedings to take place wholly on the basis of audio or video links (Schedule 22).
- New provisions will be added be added to the Courts Act 2003 and the Tribunals, Courts and Enforcement Act 2007 to provide for the broadcast and recording of video and audio proceedings, to enable the public to observe proceedings and to maintain court and tribunal records (Clause 53 and Schedule 24).
Are these provisions good enough?
Commentators have raised concerns as to whether the Bill contains sufficient safeguards to protect the rights of defendants and the principle of open justice. Before these measures are used, careful consideration should be given as to whether video link provides adequate safeguards to the defendant’s right to a fair trial.
For example, ensuring that defendants are able to have confidential conversations with their legal representative is absolutely fundamental. For some courts, it is not always possible to guarantee this when the legal representative is in a different location than the defendant.
Vulnerable individuals, who are disproportionately over-represented in the criminal justice system and may be much more difficult to engage with effectively when the meeting is not in person, could also be at a distinct disadvantage if their liberty is to be determined over video link.
The quality and reliability of the technology available to the courts is also questionable and the training needed for all court staff to be able to enable video/audio link quickly and easily may take some time to put in place. The years of neglect and lack of investment in the criminal justice system is now, unfortunately, becoming increasingly apparent as we simply do not have the IT systems or infrastructure in place to deal with the current crisis.
As the current situation changes minute by minute, it is not clear what the future holds for the criminal justice system. The coronavirus crisis has caused many people to find solutions to problems we have never contemplated before. It is encouraging that the criminal courts are at least being given powers to try and adapt to this new way of working. However, this must not be done at the expense of the rights of the defendant.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
About the author
Maeve is an Associate in the Criminal Litigation team. She joined Kingsley Napley as a Trainee Solicitor in September 2016. Maeve read law at King’s College London and obtained a distinction in her LPC from BPP Law School earlier this year.