2020 No. 417 (L. 12)
The Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020
Made
Laid before Parliament
Coming into force
The Criminal Procedure Rule Committee makes the following Rules under section 69 of the Courts Act 20031, after consulting in accordance with section 72(1)(a) of that Act.
Citation, commencement, cessation and interpretation
1
These Rules may be cited as the Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020 and shall come into force on 14th April 2020.
2
Rules 5, 6(a) and (b), 7, 8, 9, 10, 11, 13 and 14 cease to have effect when section 53 (and Schedule 23), section 54 (and Schedule 24) and section 55 (and Schedule 25) of the Coronavirus Act 20202 expire.
3
Rules 6(c) and 12 cease to have effect when paragraph 6 of Schedule 8 to the Coronavirus Act 2020 expires.
4
In these Rules a reference to a Part or rule by number alone means the Part or rule so numbered in the Criminal Procedure Rules 20153.
Amendments to the Criminal Procedure Rules
5
In Part 2 (Understanding and applying the Rules)—
a
in rule 2.2 (Definitions), for the definition of live link substitute—
‘live link’ means a live video link or a live audio link and:
- i
‘live video link’ means a live television link or other arrangement by which a person taking part in a hearing can see and hear, and be seen and heard by, everyone else who is taking part and who is not in the same place as that person,
- ii
‘live audio link’ means a live telephone link or other arrangement by which a person taking part in a hearing can hear, and be heard by, everyone else who is taking part and who is not in the same place as that person;
b
in rule 2.7 (Exercise of functions of the Crown Court), in paragraph (2)(b) for the words following “Crime and Disorder Act 1998” substitute “(Use of live link at preliminary hearings; Use of live link in sentencing hearings; Use of live link in enforcement hearings)”; and
c
in rule 2.8 (Exercise of functions of a magistrates’ court), in paragraph (4)(b) for the words following “Crime and Disorder Act 1998” substitute “(Live links in preliminary, sentencing and enforcement hearings)”.
6
In Part 3 (Case management)—
a
in rule 3.2 (The duty of the court)—
i
for paragraphs (4) and (5) substitute—
4
Where appropriate live links are available, making use of technology for the purposes of this rule includes giving a live link direction―
a
for the conduct of any hearing by live link under a power to which the rules in Part 18 apply (Measures to help a person give evidence or otherwise participate); and
b
whether an application for such a direction is made or not.
ii
for the note to the rule substitute—
[Note. In relation to taking part by live link at a pre-trial hearing, see sections 46ZA and 47 of the Police and Criminal Evidence Act 19844 and section 57B of the Crime and Disorder Act 19985. In relation to taking part by live link at a sentencing or enforcement hearing, see sections 57E and 57F of the 1998 Act6.
In relation to taking part by live link at trial, etc., see sections 19, 24 and 33A of the Youth Justice and Criminal Evidence Act 19997 and section 51 of the Criminal Justice Act 20038. Part 18 (Measures to help a person give evidence or otherwise participate) contains relevant rules.]
b
in rule 3.3 (The duty of the parties), from paragraph (2)(e)(i) omit “or (5)” and “or telephone”;
c
in rule 3.5 (The court’s case management powers), for paragraph (2)(d) substitute—
d
receive applications, notices, representations and information by letter, by live link, by email or by any other means of electronic communication, and conduct a hearing by live link or other such electronic means;
d
in rule 3.9 (Case preparation and progression)—
i
after paragraph (7) insert—
8
Facilitating the participation of any person includes giving a live link direction under a power to which the rules in Part 18 apply (Measures to help a person give evidence or otherwise participate)―
a
where appropriate live links are available;
b
for a witness or the defendant to give evidence by live link, subject to the requirements listed in rule 18.23 (Exercise of court’s powers) and in rule 18.24 (Content of application for a live link direction);
c
for a person to attend a hearing by live link when not giving evidence, subject to those requirements; and
d
whether an application for such a direction is made or not.
ii
for the first paragraph of the note to the rule substitute—
[Note. Part 18 (Measures to help a person give evidence or otherwise participate) contains rules about applications for special measures directions, defendant’s evidence directions and live link directions.
e
in rule 3.28 (Directions for commissioning medical reports, other than for sentencing purposes), at the end of the third paragraph of the note to the rule insert—
The court may act on the evidence of only one such practitioner for the purposes of the legislation listed in (c), (d) and (e) above where section 10 of the Coronavirus Act 20209applies and the court is satisfied that to comply with the requirement for two is impractical or would involve undesirable delay.
7
In Part 5 (Forms and court records), in rule 5.4 (Duty to make records)—
a
at the end of paragraph (1)(l)(v) omit “and”;
b
at the end of paragraph (1)(l)(vi) insert “; and”; and
c
after paragraph (1)(l)(vi) insert—
vii
each person who takes part in a hearing by live link;
8
In Part 14 (Bail and custody time limits), in rule 14.20 (Exercise of court’s powers: extension of live link bail) from paragraph (5) omit “or telephone”.
9
In Part 18 (Measures to assist a witness or defendant to give evidence)—
a
for the heading to the Part substitute “Measures to help a person give evidence or otherwise participate”;
b
in rule 18.1 (When this Part applies)—
i
for paragraphs (e) and (f) substitute—
e
where the court can give, vary or rescind a direction (a ‘live link direction’), on an application or on its own initiative, for a witness, defendant or other person to take part in a hearing by live link under—
i
section 57B, 57E or 57F of the Crime and Disorder Act 1998, or
ii
section 51 of the Criminal Justice Act 2003; and
f
where the court can exercise any other power it has to give, make, vary, rescind, discharge or revoke a direction for a measure to help a witness or defendant to give evidence or otherwise participate.
ii
at the end of the rule insert—
[Note. At the end of this Part is a summary of—
a
the circumstances in which a person may be eligible for the assistance of one of the measures to which this Part applies; and
b
the circumstances in which the court may receive evidence and conduct a hearing by live link.]
c
at the end of rule 18.2 (Meaning of ‘witness’) omit the note to the rule;
d
in rule 18.4 (Decisions and reasons)—
i
for paragraph (3) substitute—
3
Where the court can give, make, vary or discharge a special measures direction, a defendant’s evidence direction or a witness anonymity order the court must—
a
announce the reasons for a decision to do so or not to do so; and
b
in the case of a special measures direction, make that announcement at a hearing in public before the witness who is the subject of that direction gives evidence.
4
Where the court can give, vary or rescind a live link direction the court must—
a
announce the reasons for a decision not to give such a direction; and
b
in the case of a live link direction for a sentencing hearing, announce the reasons for a decision to rescind that direction.
5
Where the court gives a direction for everyone taking part in a hearing to do so by live link the court must announce the reasons for a decision—
a
not to direct that the proceedings are to be broadcast, within the meaning of section 85A of the Courts Act 200310 (Enabling the public to see and hear proceedings); or
b
not to direct that a recording of the proceedings is to be made, within the meaning of that section of that Act.
ii
for the first paragraph of the note to the rule substitute—
[Note. See sections 20(5), 33A(8) and 33BB(4) of the Youth Justice and Criminal Evidence Act 199911, sections 57B(6), 57E(8) and 57F(9) of the Crime and Disorder Act 1998 and section 51(8) of the Criminal Justice Act 2003.
iii
after the second paragraph of the note to the rule insert—
Under section 85A of the Courts Act 2003, if the court directs that proceedings are to be conducted wholly by live video or live audio link the court may direct (i) that the proceedings are to be broadcast for the purpose of enabling members of the public to see and hear, or to hear, those proceedings (as the case may be), and (ii) that a recording of the proceedings is to be made for the purpose of enabling the court to keep an audio-visual, or audio, record of the proceedings (as the case may be).
e
for rule 18.23 (Exercise of court’s powers) substitute—
18.23
1
The court may exercise its power to give, vary or rescind a live link direction—
a
at a hearing, in public or in private, or without a hearing; and
b
without requiring an application under rule 18.24 (Content of application for a live link direction).
2
Whether it acts on an application or on its own initiative, the court must not—
a
give or vary such a direction in contravention of a prohibition or limitation imposed by the Crime and Disorder Act 1998 or the Criminal Justice Act 2003; or
b
give, vary or rescind such a direction—
i
in the absence of any party and (if applicable) any representative of the youth offending team whose functions are exercisable in relation to a defendant unless the absentee has had an opportunity to make representations, and
ii
without first satisfying itself that the requirements of the Crime and Disorder Act 1998 or the Criminal Justice Act 2003 which apply are met.
3
Where the court gives a direction for everyone taking part in a hearing to do so by live link the court may exercise its power under section 85A of the Courts Act 2003 (Enabling the public to see and hear proceedings) to direct that―
a
the proceedings are to be broadcast, within the meaning of that section of that Act; and
b
a recording of the proceedings is to be made, within the meaning of that section.
[Note. The summary at the end of this Part lists the prohibitions and limitations imposed on the use of live links by the Crime and Disorder Act 1998 and the Criminal Justice Act 2003. The requirements for giving, varying and rescinding a live link direction are contained in sections 57B (preliminary hearings), 57E (sentencing hearings) and 57F (enforcement hearings) of the Crime and Disorder Act 199812and in section 51 of the Criminal Justice Act 200313(‘eligible criminal proceedings’, as defined by that section, including trials and appeals). Those requirements are reflected in the requirements of this rule and in the information required of an applicant for a live link direction by rule 18.24(1)(f), (g), (h).]
f
in rule 18.24 (Content of application for a live link direction)—
i
for paragraph (1) substitute—
1
An applicant for a live link direction must—
a
identify the power that the applicant wants the court to exercise;
b
specify the hearing or hearings in respect of which the applicant wants the direction to apply;
c
identify each person to whom the applicant wants the direction to apply and specify—
i
each one whom the applicant wants to give evidence by live link, and
ii
each one whom the applicant wants to take part by live link without giving evidence;
d
in respect of each such person, specify the type of live link proposed (either video or audio);
e
unless the court otherwise directs, identify the place from which each such person will take part if the direction is given;
f
identify any material circumstances relating to—
i
the availability of the proposed participant by live link,
ii
any potential need for that participant to attend in person, not by live link,
iii
any views which that participant may have expressed,
iv
the suitability of the facilities at the place from which that participant would take part by live link if the direction were given, and
v
that participant’s ability to take part effectively if the direction were given, including in particular, if that participant is the defendant, whether he or she will be represented at the hearing in respect of which the direction is proposed;
g
if the proposed direction is for a person to give evidence by live link, identify any material circumstances relating to—
i
the importance to the hearing of that person’s evidence, and
ii
any potential for the proposed direction to inhibit a party from effectively testing that evidence;
h
explain why it is in the interests of justice for each proposed participant by live link to take part by those means;
i
if the applicant wants a witness to be accompanied by another person while giving evidence—
i
name that person, if possible, and
ii
explain why it is appropriate for that witness to be accompanied; and
j
ask for a hearing of the application, if the applicant wants one, and explain why it is needed.
ii
in paragraph (2), after “live link direction” omit “under section 32 of the Criminal Justice Act 198814”, and
iii
in the first paragraph of the note to the rule, for “section 32 of the Criminal Justice Act 2003” substitute “sections 57B, 57E and 57F of the Crime and Disorder Act 1998,”;
g
in rule 18.25 (Application to discharge a live link direction, etc.)—
i
for the heading to the rule substitute “Application to vary or rescind a live link direction, etc.”,
ii
in paragraphs (1) and (2)(b), for “discharge”, in each place it appears, substitute “vary or rescind”, and
iii
in the note to the rule, for “section 32(4) of the Criminal Justice Act 1988, section 52(3) of the Criminal Justice Act 2003 and” substitute “sections 57B(3D) to (3J), 57E(4C) to (6E) and 57F(4C) to (7B) of the Crime and Disorder Act 1998, section 51(4C) and (4E) to (7) of the Criminal Justice Act 2003 and”;
h
in rule 18.26 (Representations in response)—
i
in paragraph (1), for “discharge” substitute “variation or rescission”, and
ii
for paragraph (3) substitute—
3
Representations must explain why the requirements of the Crime and Disorder Act 1998 or the Criminal Justice Act 2003, as applicable, are not met.
i
in the note at the end of the Part, for the first two paragraphs beneath the heading “Live link direction” substitute—
Under rule 2.2 ‘live link’ means (i) a live television link or other arrangement by which a person taking part in a hearing can see and hear, and be seen and heard by, everyone else who is taking part and who is not in the same place as that person (a ‘live video link’), and (ii) a live telephone link or other arrangement by which a person taking part in a hearing can hear, and be heard by, everyone else who is taking part and who is not in the same place as that person (a ‘live audio link’).
Under sections 57A to 57G of the Crime and Disorder Act 1998 the court may require or permit a participant to take part by live link in (i) a pre-trial hearing (in the 1998 Act, a ‘preliminary hearing’), (ii) a sentencing hearing or (iii) a hearing relating to the enforcement, etc. of a fine or other sum to which the rules in Part 30 apply (Enforcement of fines and other orders for payment) (in the Act, an ‘enforcement hearing’). A direction may apply to one or more such hearings and to any or all of the participants, including the court itself. A hearing may be conducted wholly as a video or audio hearing (but that is subject to the prohibitions and limitations listed beneath). A participant by live link may take part from any place in England and Wales or beyond.
Under sections 57B(8), (9) and 57F(11) of, and under Schedule 3A to, the 1998 Act, the following prohibitions and limitations apply—
A. Pre-trial hearings
1
The defendant may not give evidence by live audio link.
2
A person other than the defendant may not give evidence by live audio link unless—
a
there are no suitable arrangements for that person to give evidence by live video link; and
b
the parties agree.
3
Where bail is in dispute or the court is minded to refuse or revoke bail—
a
the defendant may not take part by live audio link;
b
a person other than the defendant may not take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
4
Where the court is minded to deal with someone for contempt of court—
a
no defendant or person accused of contempt may take part by live audio link;
b
no other person may take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
5
Where the court conducts a hearing to which rule 25.10 applies (Trial and sentence in the Crown Court: Defendant unfit to plead)—
a
the court may not conduct the hearing wholly by live video link;
b
the defendant may not take part by live audio link;
c
a person other than the defendant may not take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
6
Where a person takes part in a pre-trial hearing by live audio link then, unless they do so only to give evidence, the court may not—
a
refuse or revoke the defendant’s bail if the defendant objects;
b
take a guilty plea; or
c
deal with anyone for contempt of court.
B. Sentencing hearings
1
The defendant may not take part by live audio link.
2
A person other than the defendant may not take part by live audio link unless—
a
they do so only to give evidence;
b
there are no suitable arrangements for that person to give evidence by live video link; and
c
the parties agree.
C. Enforcement hearings
1
The defendant may not give evidence by live audio link.
2
A person other than the defendant may not give evidence by live audio link unless—
a
there are no suitable arrangements for that person to give evidence by live video link; and
b
the parties agree.
3
Where the court is minded to imprison or detain the defendant for default in payment—
a
the defendant may not take part by live audio link;
b
a person other than the defendant may not take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
4
Where the court deals with someone for contempt of court—
a
the defendant may not take part by live audio link;
b
a person other than the defendant may not take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
5
Where a person takes part in an enforcement hearing by live audio link then, unless they do so only to give evidence, the court may not—
a
imprison or detain the defendant for default in payment; or
b
deal with anyone for contempt of court.
Under section 51 of the Criminal Justice Act 2003 the court may permit a participant to take part by live link in (i) a trial, (ii) an appeal or (iii) one of the other hearings listed in section 51(2) of the 2003 Act and may require a participant who gives evidence at such a hearing to do so by live link.A direction may apply to any or all of the participants (except a juror), including the court itself. A hearing may be conducted wholly as a video or audio hearing (but that is subject to the prohibitions and limitations listed beneath). A participant by live link may take part from any place in England and Wales or beyond.
Under section 51(1B), (10) and (12) of, and under Schedule 3A to, the 2003 Act, the following prohibitions and limitations apply—
1
No juror may participate by live link.
2
The following hearings may be conducted wholly as video hearings—
a
a trial in a magistrates’ court where—
i
rule 24.9 applies (Written procedure case: special rules), and
ii
the parties agree;
b
a hearing of an application to which applies—
i
rule 24.18 (Setting aside a conviction or varying a costs, etc. order), or
ii
rule 28.4 (Variation of sentence);
c
a hearing to make a decision about bail after conviction;
d
an appeal to the Crown Court that is against sentence only or is one where—
i
the trial from which it is an appeal was conducted wholly as a video hearing (see paragraph (2)(a) above), and
ii
the parties agree;
e
a hearing that is preliminary or incidental to an appeal to the Crown Court;
f
a hearing that is preliminary or incidental to an appeal or reference to the Court of Appeal, or to an application to which rule 27.4 applies (Application for order for retrial).
3
The following hearings may be conducted wholly as audio hearings, unless at any such hearing the court is minded to deal with someone for contempt of court—
a
a hearing to make a decision about bail conditions after conviction;
b
a hearing to make a decision about bail after conviction where—
i
section 4 of the Bail Act 1976 does not apply (the section applies to a person who is accused of an offence but, except in some circumstances, not to a person who is convicted of an offence), or
ii
bail is not in dispute and the court is not minded to refuse or revoke bail;
c
a hearing that is preliminary or incidental to an appeal to the Crown Court;
d
a hearing that is preliminary or incidental to an appeal or reference to the Court of Appeal.
4
Where a hearing can be conducted wholly as an audio hearing, nevertheless—
a
the defendant may not give evidence by live audio link;
b
a person other than the defendant may not give evidence by live audio link unless—
i
there are no suitable arrangements for that person to give evidence by live video link, and
ii
the parties agree.
5
Where a hearing cannot be conducted wholly as an audio hearing, or where a hearing could be so conducted but for the court being minded to deal with someone for contempt of court—
a
no defendant or person accused of contempt may take part by live audio link;
b
no other person may take part by live audio link unless—
i
they do so only to give evidence,
ii
there are no suitable arrangements for that person to give evidence by live video link, and
iii
the parties agree.
6
Where a person takes part in a hearing by live audio link then, unless they do so only to give evidence, the court may not—
a
refuse or revoke the defendant’s bail if the defendant objects, where section 4 of the Bail Act 1976 applies; or
b
deal with anyone for contempt of court.
Under section 32 of the Criminal Justice Act 1988, the court can allow a witness who is outside the United Kingdom to give evidence by live link—
a
in proceedings in a youth court, or on appeal from such proceedings; or
b
at a trial in the Crown Court, or on appeal from such a trial.
Under modifications made by the Coronavirus Act 2020 the 1988 Act has effect as if section 32 were omitted, except for the purposes specified by paragraph 10 of Schedule 23 to the 2020 Act.
j
amend the tables of contents of Part 18 and of the Criminal Procedure Rules 2015 correspondingly.
10
In Part 24 (Trial and sentence in a magistrates’ court), in the third paragraph of the note to rule 24.11 (Procedure if the court convicts) for “sections 57D and 57E” substitute “section 57E”.
11
In Part 25 (Trial and sentence in the Crown Court), in the second paragraph of the note to rule 25.16 (Procedure if the court convicts) for “sections 57D and 57E” substitute “section 57E”.
12
In Part 28 (Sentencing procedures in special cases), in rule 28.8 (Directions for commissioning medical reports for sentencing purposes) for the third paragraph of the note to the rule substitute—
For the purposes of the legislation listed in (b), (c) and (d) above, the court requires the written or oral evidence of at least two registered medical practitioners, at least one of whom is approved as having special experience in the diagnosis or treatment of mental disorder (but the court may act on the evidence of only one such practitioner where section 10 of the Coronavirus Act 2020 applies and the court is satisfied that to comply with the requirement for two is impractical or would involve undesirable delay). For the purposes of (a), (e) and (f), the court requires the evidence of one medical practitioner so approved.
13
In Part 47 (Investigation orders and warrants), from each of the following rules omit “or telephone”—
a
rule 47.5(7) (exercise of court’s powers in relation to investigation orders);
b
rule 47.25(2) (exercise of court’s powers in relation to investigation warrants);
c
rule 47.36(3) (exercise of court’s powers in relation to orders for the retention or return of property);
d
rule 47.55(7) (exercise of court’s powers in relation to investigation approval orders under the Regulation of Investigatory Powers Act 2000);
e
rule 47.60(5) (exercise of court’s powers in relation to European investigation orders);
f
rule 47.63(5) (exercise of court’s powers in relation to orders for the extension of a moratorium period under the Proceeds of Crime Act 2002); and
g
rule 47.67(7) (exercise of court’s powers in relation to orders for access to electronic data under the Crime (Overseas Production Orders) Act 2019).
14
In Part 50 (Extradition)—
a
in rule 50.3 (Exercise of magistrates’ court’s powers)—
i
for paragraph (2) substitute—
2
If the court so directs, a person must attend a hearing by live video link.
ii
for the second paragraph of the note at the end of the rule substitute—
Under sections 206A to 206C of the 2003 Act15the court may require a person to attend by live video link any hearing to which the rules in Sections 2 and 4 of this Part apply.
b
in rule 50.17 (Exercise of High Court’s powers), in paragraph (2) for “party” substitute “person”.
I allow these Rules, which shall come into force on 14th April 2020.
(This note is not part of the Rules)