Section 110 – Live television links
278.Subsection (1) of section 110 inserts sections 288H to 288K into the 1995 Act. The new sections (discussed in greater detail in the following paragraphs) make provision for the participation of detained persons in hearings by means of live television link from the place of detention.
279.Subsection (2) repeals enactments in consequence of the new sections of the 1995 Act inserted by subsection (1). Specifically, paragraph (a) repeals section 117(6) of the 1995 Act, which requires an appellant in an appeal from solemn proceedings to appear before the court in ordinary civilian clothes. Paragraph (b) repeals section 80 of the Criminal Justice (Scotland) Act 2003, which allowed certain court appearances to be conducted by means of live television link, and is rendered obsolete by the wider reaching new sections inserted by this section.
Inserted section 288H – Participation through live television link
280.Subsection (1) requires a detained person to participate in a “specified hearing” (defined by inserted section 288L) by means of live TV link where the court has determined that the hearing should proceed in that manner. Before so determining, subsection (2) requires the court to give the parties an opportunity to make representations on the use of the TV link in the hearing. The court can only allow the hearing to proceed by TV link if satisfied that it is not contrary to the interests of justice to do so.
281.Subsection (3) gives the court the power to require a detained person to appear by TV link from the place where the person is in custody for the sole purpose of considering whether to make a determination on the use of TV links in the specified hearing itself.
282.Where a detained person participates in a hearing by means of a TV link, the effect of subsection (4) is that the place of detention is deemed part of the court room, so that the hearing is deemed to take place in the presence of the detained person.
Inserted section 288I – Evidence and personal appearance
283.Subsection (1) precludes evidence as to a charge against the detained person on a complaint or indictment being led at a hearing in which the detained person is participating by means of a TV link. It would therefore not be possible for a trial in which evidence is being led to proceed with the accused participating by TV link.
284.Subsection (2) gives the court the power to revoke, before or during a hearing, a determination (under section 288H(1)) that the accused is to participate at the hearing by TV link and subsection (2)(b) requires that the court exercise the power to revoke the determination if it considers that it is in the interests of justice for the detained person to appear in person. The court might consider revocation of its previous determination if, for example, a technical issue arises with the link itself, or when further information comes to light during the substantive hearing which, in the view of the court, makes it no longer appropriate to proceed by way of TV link.
285.In the event that the court decides not to proceed with the appearance of the accused by TV link, or revokes an earlier determination to allow proceedings via TV link, practical difficulties might arise – the accused may well need to be brought to court, which might not be readily achievable on the same day, so postponement of the hearing could be necessary. Subsection (3) allows the court, in these circumstances, to postpone the hearing to a later day. The effect of a postponement under this section is detailed in inserted section 288IA.
Inserted section 288J– Effect of postponement
286.Subsection (1) provides that, where a case is postponed to the next day under section 288I, that day and any intervening weekend days or court holidays do not count towards any time limits – such as, for example, those for detaining a person in custody pending a first diet or preliminary hearing in the case. However, this provision does not apply where the accused is in police custody under section 21(2) of this Act, which requires an accused, if practicable, to be brought before a court before the end of the first day on which the court is sitting following the accused’s arrest; or as soon as practicable thereafter.
287.The effect of this is that when a postponement is regarded as necessary for an accused in police custody, the accused still has a right to submit that the section 21 requirements have not been complied with, even if the postponement had become unavoidable by the time it was granted. It would then be up to the court to decide if the circumstances provide sufficient justification for the delay. Nonetheless, a postponement in such a situation remains competent, as subsection (2) makes clear.
Inserted section 288K – Specified hearings
288.Subsection (1) confers on the Lord Justice General the function of specifying the categories of hearings, such as the first appearance, at which a detained person may participate by live television link. Hearings may be specified by reference to the venues at which hearings take place (subsection (2)(a)), particular places of detention (subsection (2)(b)), or the types of cases or proceedings in which TV links can be used (subsection (2)(c)). Under subsection (3)(a) the Lord Justice General can vary or revoke any earlier directions and make different provision for different purposes (subsection (3)(b)).
Inserted section 288L – Defined terms
289.This section defines certain terms used within sections 288H to 288K. The expression “detained person” is defined so that the person is imprisoned or lawfully detained at a location in Scotland. The concept of lawful detention is a broad one: it includes detention at a police station pending first appearance at court, detention in hospital by virtue of an assessment order or a treatment order imposed under the 1995 Act, detention in hospital under the Mental Health (Care and Treatment) (Scotland) Act 2003, or a young person’s detention in local authority secure accommodation.
