20th Apr 2020

Following the announcements that, from 17 March 2020 no new jury trials lasting longer than three days would begin, and that from 23 March 2020 jury trials would be stopped altogether, you’d be forgiven for thinking that the criminal courts have ground to a halt.  But for the last few weeks, the courts have been adjusting to remote working and have continued to deal with bail applications, pleas, case management hearings and sentences. Next step: conducting remote trials.

New Technology

In a remarkably short time, judges, court staff and advocates have adapted to new regulations and a new way of working, making use of various technology to keep the wheels of the justice system turning (see here for a useful summary of the requirements for compliant hearings in the Crown Court and here for HMCTS guidance on joining remote hearings). The innovation continues. The Cloud Video Platform (CVP) has been successfully used in the Court of Appeal and for multi-party hearings in courts on the South Eastern circuit. From today, a pilot is due to begin in Southwark Crown Court, which, if successful, may result in CVP being rolled out for use in criminal courts nationally.

CVP allows anyone with an IP address to join a secure ‘virtual meeting room’. No specialist software is needed; all that is required is access to the internet (Google Chrome is said to be the preferred browser, but in our experience, Microsoft Edge also works well), the weblink and the password provided by the court. Those remanded in custody can join using the established Prison Video Link (PVL) system and are able to have conferences with counsel prior to the start of the hearing, addressing one of the most commonly reported issues encountered by defence counsel using Skype for Business.

With access to CVP comes the possibility of the resumption of at least some criminal trials. Whilst a solution to facilitate jury trials (juries are unable to attend remotely) is still some way off, it seems likely that high-priority Magistrates’ Court trials and appeals to the Crown Court will be able to take place via CVP in the very near future. Although attendance at court to give evidence is permitted under the Coronavirus Act 2020 as an ‘essential’ reason to leave home and the regulations stipulate that not all proceedings can take place wholly via video link, it is anticipated that where a party is required to be in court during proceedings this will most usually be the Bench.

This note on listing in Magistrates’ Courts makes it clear that, where possible, hearings will be conducted remotely, although there will be occasions where it is not possible to do so. Although operational courts observe social distancing measures, whether it is appropriate to require witnesses to attend court will undoubtedly require a risk assessment. Giving evidence via live video link using CVP has the benefit of avoiding any unnecessary risk to health associated with travelling to court, particularly for individuals in high-risk categories. Witnesses who have an internet connection and access to a laptop or smartphone will be able to participate from the safety of their homes.

Audio Links

Witnesses may also be able to give evidence in trial over the telephone. We are not aware of any examples of this to date, but temporary modifications to existing legislation (see Section 53 Coronavirus Act 2020) expand the availability of live links in criminal proceedings to include live audio links. The changes mean that in certain circumstances, participation in ‘eligible criminal proceedings’, which includes giving evidence, may take place over the phone.  This applies to summary trials, appeals to the Crown Court, trials on indictment or any other trial in the Crown Court and to appeals to the Court of Appeal.

It is clear from the legislation that giving evidence via audio link will be the exception rather than the norm. For an order for audio link to be given:

· There must be no suitable arrangements available for the evidence to be given via video link;

· The parties must agree to use of audio link, and both must be given the opportunity to make representations;

· For defendants under 18, the view of the Youth Offending Team must be canvassed, and they must be given the opportunity to make representations; and

· The court must be satisfied that it is in the interests of justice to make the direction.

The court will consider the importance of the witness’ evidence to the proceedings and whether the direction would inhibit any party from effectively testing the evidence, as well as the witness’ availability, the need for them to attend, the suitability of the facilities at the place they will take part in proceedings, whether they will be able to take part effectively via the telephone and their views. This option is not available to defendants.

Although it has been possible to give evidence solely via audio link in other jurisdictions for some time, this is revolutionary in criminal trials and we await guidance as to how the courts intend to deal with identifying witnesses and ensuring that they are alone and free from influence while giving evidence, particularly when multiple witnesses live together. Procedures will need to be developed for exhibiting documents and ensuring that witnesses can refresh their memories from statements but are not simply reading from them when giving evidence. At 18SJS, we are well placed to learn from the experiences and successes of our colleagues using audio links in other jurisdictions and will continue to keep you updated on the developments in the criminal courts.

Andy Evans and Verity Quaite
April 2020

If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.