Administration of justice

The Coronavirus Act 2020: video and audio technology in courts

This article sets out the provisions relating to 'Courts and tribunals: use of video and audio technology' as detailed in the legislation's explanatory notes.*

Among other things, the Act amends existing legislation so as to enable the use of technology either in video/ audio-enabled hearings... or by a wholly video/audio hearing

Overview of Courts and tribunals: use of video and audio technology provisions

The efficiency and timeliness of court and tribunal hearings will suffer during the COVID-19 pandemic. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned. In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links, telephone or email where this is lawful and appropriate. Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.

The Act amends existing legislation so as to enable the use of technology either in video/ audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

Provisions are also made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.

There are existing restrictions on photography and sound recording in physical courts. Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings. These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible. Provisions in the Act therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and livelinks.

The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore ensures that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court. 

Commentary on Courts and tribunals: use of video and audio technology provisions 

Section 53 and Schedule 23: Expansion of availability of live links in criminal proceedings 

This Schedule amends the Criminal Justice Act 2003 (the “CJA 2003”) in order to extend the circumstances in which a criminal court can use audio and live links during hearings.

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.

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.

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.

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 evidence.

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.

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.

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.

The territorial extent and application of this section and Schedule is England and Wales only.

Section 54 and Schedule 24: Expansion of availability of live links in other criminal hearings

Part 1 of the Schedule expands the use of live links in Part 3A of the Crime and Disorder Act (the “CDA 1998”) 1998 beyond the attendance of the accused at certain preliminary, sentencing and enforcement hearings to all participants in preliminary, sentencing and enforcement hearings.

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.

The Schedule makes similar provision in relation to live links in preliminary hearings as paragraph 2(5) of Schedule 23 does in relation to live links in ‘eligible criminal proceedings’. The provisions set out the factors that the court must consider when deciding whether to give, vary or rescind a live link direction.

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.

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).

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 23 does in relation to ‘eligible criminal proceedings’ conducted in accordance with a live link direction.

The Schedule creates a new Schedule 3A to the CDA 1998, which introduces additional prohibitions and limitations on use of live links.

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 required.

The territorial extent and application of this section and Schedule in so far as they relate to Part 2 of the Schedule is England and Wales, Scotland and Northern Ireland.

The territorial extent and application of the section and the Schedule so far as they relate to Parts 1 and 3 of the Schedule is England and Wales only.

Section 55 and Schedule 25: Public participation in proceedings conducted by video or audio 483

This 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.

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 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 £1,000) (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 £1,000) (section 85C).

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 Upper Tribunals.

The territorial extent and application of this section in respect of paragraph 1 to Schedule 25 is England and Wales only.

The territorial extent and application in respect of paragraph 2 to Schedule 25 is England and Wales, Scotland and Northern Ireland.

Section 56 and Schedule 26: Live links in magistrates’ court appeals against requirements or restrictions imposed on a potentially infectious person.

This Schedule inserts sections 57ZA to 57ZF into the Magistrates’ Courts Act 1980. It provides that appeals against decisions by the Secretary of State or an authorised public health official to impose restrictions under powers set out in section 51 and Schedule 21, 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 magistrate or authorised court officer (as defined in subsection (5)).

Sections 57ZD and 57ZE create new criminal offences in relation to: a. the unauthorised recording or transmission of a broadcast of a live video or audio hearing and, b. 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 section 55 and Schedule 25. The territorial extent and application of the section and Schedule is England and Wales only.

Section 57 and Schedule 27: Use of live links in legal proceedings: Northern Ireland

This section and Schedule ensure that 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.

The territorial extent and application of this section and Schedule is Northern Ireland only.