Police, Crime, Sentencing And Courts Act 2022

Part 13: Procedures in courts and tribunals

Section 196: British Sign Language interpreters for deaf jurors

1. Section 196 inserts new sections 9C, 20H and 20I into the Juries Act 1974 and makes a minor related amendment to section 22(A1) of the same Act. It makes provision for British Sign Language ("BSL") interpreters to be present in the jury deliberation room, meaning that profoundly deaf jurors will no longer be automatically excluded from completing jury service simply because they require the assistance of a BSL interpreter.
2. New section 9C(1) and (2) place a duty on the judge to consider whether the assistance of a BSL interpreter would enable a profoundly deaf person to act as a juror and, if so, to appoint one or more interpreters and to affirm the summons in the exercise of their discretion.
3. New section 9C(3) and (4) permit an interpreter appointed under new subsection (2) to remain with the jury in the course of their deliberations in proceedings before a court, and make clear that the interpreter must not interfere in or influence the deliberations of the jury.
4. New section 20H addresses those existing provisions in the Juries Act 1974 which are to apply to BSL interpreters as they already apply to jurors, with a necessary modification being made to the meaning of "the trial period" for these purposes. New section 20H(1) deals with challenge for cause; new section 20H(2) deals with surrender of electronic communication devices; new section 20H(3) deals with the offence of research; new section 20H(4) deals with the offence of sharing research; and new section 20H(5) deals with exceptions to the offence of disclosing jury deliberations.
5. New section 20I makes it an offence for an interpreter appointed under new section 9C(2) intentionally to interfere in or influence jury deliberations, and sets out the penalty where proceedings have been instituted by or with the consent of the Attorney General and a person is found guilty of this offence.
6. A reference to new section 20I is inserted alongside existing references to sections 20A, 20B and 20C within section 22(A1) (offences which do not affect contempt of court at common law) to confirm that nothing in new section 20I affects what constitutes contempt of court at common law.

Section 197: Continuation of criminal trial on death or discharge of a juror

1. Section 197 makes a minor, technical amendment to section 16 of the Juries Act 1974 (continuation of criminal trial on death or discharge of juror) to omit subsection (2) which references trials for offences punishable with death.

Section 198: Remote observation and recording of court and tribunal proceedings

1. This section makes provision for the remote observation of court and tribunal proceedings using audio and/or audio-visual transmissions. These measures (together with Section 197) replace the temporary and more limited modifications made by Schedule 25 to the Coronavirus Act 2020.
2. Subsection (1) inserts into the Courts Act 2003 a new section 85A, which makes provision to enable the public to remotely observe proceedings by the direction of the judge in any court, tribunal or body exercising the judicial power of the State, with the exception of the Supreme Court and devolved courts or tribunals, in order to satisfy the principle of open justice.
3. New section 85A(1) of the Courts Act 2003 defines the scope of the new section, which applies to proceedings in any "court" within the meaning of the Contempt of Court Act 1981. "Court" in the Contempt of Court Act 1981 (see section 19 of that Act) means "any court, tribunal or other body exercising the judicial power of the State". This is subject to the exceptions set out in new sections 85A(12) and (13).
4. New section 85A(2) empowers the court to direct that proceedings are to be transmitted electronically for the purpose of enabling persons not taking part in the proceedings to watch or listen to the proceedings – but only if the proceedings are ones which are specified under new section 85A(8)(a).
5. New section 85A(3) sets limits on the power to direct transmission, ensuring that it does not extend to directing any general broadcast of the proceedings (broadcasting of proceedings being the province of section 32 of the Crime and Courts Act 2013, which is unaffected by these provisions).
6. The court may only direct transmissions either to designated livestreaming premises (defined in new section 85A(4)) or to individuals who have been given access only after first having identified themselves to the court (or to a person acting on behalf of the court).
7. New section 85A(5) makes it clear that a direction for transmission of proceedings can include provision about the method of transmission (for example, to fit it to the particular platform used by the court for conducting proceedings by virtual means) and the persons who are permitted to watch or listen to it (so that, for example, if only certain people would be allowed to be present in court if the proceedings were being held in a courtroom in the normal way, only those people would be allowed to watch or listen to the transmission).
8. New section 85A(6) makes it clear that a recording can be made by the court of a transmission of any proceedings which are conducted "virtually", to ensure that an appropriate record is kept for such proceedings in the same way as proceedings may be recorded when conducted in a courtroom in the normal way.
9. New section 85A(7) makes it clear that a direction for transmission or recording can, as appropriate in the court’s discretion, relate to part of the proceedings rather than the whole, and be varied or revoked.
10. New section 85A(8) enables the Lord Chancellor to make regulations to specify the proceedings in relation to which a direction for transmission may be made, any matters of which the court must be satisfied before making, or must take into account in making, any direction, and any provision for matters under new section 85A(5) which a direction must cover.
11. New section 85A(10) provides that regulations under subsection (8) may only be made with the concurrence of the Lord Chief Justice, the Senior President of Tribunals, or both of them, as determined by the Lord Chancellor, and new section 85A(9) requires the Lord Chancellor first to have determined whether the function in subsection (10) of giving or withholding concurrence would most appropriately be performed by the Lord Chief Justice, the Senior President of Tribunals, or both of them.
12. New section 85A(11) allows for greater flexibility in making clear that regulations may make different provision for different purposes (so that, for example, different factors would be taken into account by the court for particular types of proceedings).
13. New section 85A(12) and (13) set out exceptions from the scope of application of new section 85A, making provision so that section 85A does not apply to the Supreme Court of the United Kingdom (subsection (12) and to devolved courts and tribunals (subsection (13)).
14. Subsection (3) amends section 41 of the Criminal Justice Act 1925 to make it clear that section 41 does not apply to anything done in accordance with a direction made under the new section 85A; and so no offence is committed by any filming necessary to deliver the transmission pursuant to such a direction.
15. Subsection (4) amends section 29 of the Criminal Justice (Northern Ireland) Act 1945 to make similar provision to that made by subsection (3) but with regard to UK tribunals in Northern Ireland.
16. Subsection (5) makes a similar amendment to that of subsection (3) to section 9 of the Contempt of Court Act 1981, so that any sound recording necessary to deliver that transmission is not a contempt.
17. Subsection (6) amends section 108(3) of the Courts Act 2003, which lists the secondary legislative powers under that Act which are subject to affirmative resolution procedure, to add to the list the power to make regulations under the new section 85A(8).
18. Regulations under section 85A(8) are accordingly subject to affirmative resolution procedure (but see Section 200 for provision about procedure for the first set of regulations to be made under that power).
19. Section 199: Offence of recording or transmission in relation to remote proceedings
20. This section makes provision, corresponding broadly to the prohibitions in section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981, prohibiting unauthorised recording or transmission of an image or sound that has been transmitted to a person who is remotely attending court proceedings.
21. Subsection (1) inserts a new section 85B into the Courts Act 2003, making provision prohibiting unauthorised recording or transmission in relation to such "remote proceedings", as both an offence and, alternatively, a contempt of court.
22. New section 85B(1) of the Courts Act 2003 sets out the offence (which by virtue of new section 85B (8) is a summary-only offence for which the penalty is a fine not exceeding level 3 on the standard scale) of unauthorised recording or transmission of an image or sound covered by new section 85B(2) (an image or sound of proceedings which is received remotely) or new section 85B(3) (an image or sound of a person who is remotely attending proceedings).
23. New section 85B(4) defines what is meant by remotely attending proceedings, to include remote participation in, or watching or listening to, proceedings. So, for example, making an unauthorised recording of a witness giving evidence by live link would be captured.
24. New section 85B(5) defines an "unauthorised" recording or transmission as being one which is not authorised, either specifically or generally, either by the court conducting the proceedings in question, or by the Lord Chancellor.
25. New section 85B(6) provides a defence for a person who, when making an unauthorised recording or transmission of an image or sound, was not in designated live-streaming premises (defined in new section 85B(7)) and did not know that the image or sound in question was one within new section 85B (2) or (3).
26. New section 85B(9) provides for unauthorised recording or transmission to be a contempt as well as an offence, and makes provision to avoid double jeopardy, so that a person may not be punished by way of contempt for conduct for which that person has been convicted of an offence new section 85B(1), and vice versa.
27. New section 85B(10) makes it clear that unauthorised recording or transmission is an offence or contempt regardless of whether the person in question intended the recording or transmission in question to be seen or heard by anyone else.
28. New section 85B(11) and (12) set out exceptions from the scope of application of new section 85B in the same way as new section 85A(12) and (13) do for the scope of application of new section 85A, so that section 85B does not apply to the Supreme Court of the United Kingdom (subsection (11) and to devolved courts and tribunals (subsection (12)).
29. New section 85B(13) defines specific terms used throughout the new section.

Section 200: Expansion of use of video and audio links in criminal proceedings

1. Subsection (1) amends the CJA 2003 to extend the circumstances in which a criminal court can make a direction for the use of live links during "eligible criminal proceedings".
2. It expands the courts’ powers to use technology across a wider range of hearings and participants so that any person (including members of the jury in a criminal trial) may take part in criminal proceedings through a live link. New section 51(2) of the CJA 2003 makes clear that any live link directions relating to the jury must apply to all members of the jury, who must all take part through live video link while present at the same place, at the same time; a direction for a live audio link cannot be made for a jury panel.
3. New section 51(3) of the CJA 2003 defines "eligible criminal proceedings" as encompassing preliminary hearings, summary trials, Crown Court trials, appeals to the Crown Court and appeals to the Court of Appeal (criminal division) and proceedings that are preliminary or incidental to such appeals, bail hearings following conviction, sentencing hearings, enforcement hearings and others.
4. New section 51(4) of the CJA 2003 provides that 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.
5. Section 51(5) of the CJA 2003 places a duty on the court to consider all the circumstances of the case when deciding whether to make a live link direction, as well as any relevant guidance from the Lord Chief Justice. Section 51(6) lists those circumstances, including the views of the person to whom the direction would apply, the suitability of facilities that they would need to use, whether the person would be able to take part in the proceedings effectively through a live link, and the arrangements that would need to be made for the public to see or hear the proceedings if a live link is to be used.
6. Subsection (2) amends the Crime and Disorder Act 1998 ("the CDA 1998") to omit Part 3A (live links in preliminary, sentencing and enforcement hearings), as the provisions governing live links in those types of hearing are now dealt with under the CJA 2003.
7. Subsection (3) introduces Schedule 20 which makes further provision relating to the changes introduced by this section.

Schedule 20: Further provision about video and audio links in criminal proceedings

1. Paragraph 1(2) inserts new sections 52 and 52A into the CJA 2003, setting out the supplementary procedural matters around the giving, variation and rescinding of live link directions.
2. New section 52 provides that the court may direct the use of live link to several, or all, persons participating in "eligible criminal proceedings" (as defined in new section 51 of the CJA 2003 – see paragraph 1221 above) and may also give a direction which only applies to a particular person for certain aspects of the proceedings, such as the giving of evidence. Persons outside of England and Wales may be directed to participate through a live link if the court so directs.
3. Under new section 52(2) and (3) of the CJA 2003, the court may vary or rescind a live link direction at any time, but only if this is in the interests of justice and only after the parties to the proceedings have been given the opportunity to make representations (including the relevant youth offending team in youth cases).
4. New section 52(4) provides that, where the court varies a live link direction, other provisions in the CJA 2003 will apply. If another person is to be added to the direction, the test for and the effect of making the original direction apply. If the effect of the variation is such that a person can no longer take part in the proceedings, the test and conditions for rescinding a direction apply.
5. New section 52(5) ensures that any decision to vary or rescind a live link direction is subject to the same considerations as a decision to give such a direction, namely any relevant guidance from the Lord Chief Justice and the circumstances of the case.
6. New section 52(6) states that a live link direction may be given, varied or rescinded either by the court’s own motion or on application by a party to the proceedings but specifies that a party may only apply for a variation or rescinding of a live link order if there has been a material change of circumstances since the direction was originally made.
7. New section 52(7) requires the court to state, in open court, its reasons for refusing any application from a party to give, vary or rescind a live link direction. It also requires magistrates’ courts to enter the reasons in the register of their proceedings.
8. Under new section 52(8), any hearings taking place in relation to the giving, varying or rescinding of a live link direction can themselves involve a live link, either upon application to the court or by order of the court.
9. New section52 (9) clarifies that requirements for the relevant youth offending team to have an opportunity to make representations before a live link direction is made only apply in cases where the defendant is a party to the proceedings and is either not yet 18 years old or is 18 years old but the court is dealing with the case as if they were still under 18.
10. New section 52A makes further provision about the effect of live link directions made under section 51 of the CJA 2003. Under new section 52A(1) and (2), participation in eligible criminal proceedings through a live 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 proceedings.
11. New section 52A(3) states that any eligible criminal proceedings occurring in accordance with a live link direction will be regarded as taking place at the court where at least one member of the court taking part in the proceedings is in a courtroom. If no member of the court, but one other participant, is taking part in proceedings in a courtroom, then that court is deemed to be the court where the proceedings take place. If nobody taking part in proceedings is doing so from a courtroom or if more than courtroom is involved, then the proceedings will be regarded as taking place wherever the court directs (which will be a place where the court can lawfully sit for the purposes of the proceedings).
12. New section 52A(4) defines "courtroom" for the purposes of subsection (3), as any place where proceedings of the sort in question might ordinarily be held.
13. New section 52A(5) clarifies that any statement made by a witness outside the United Kingdom through a live link is treated as having been made in the proceedings (just as it would were they to have made their statement whilst physically present in court).
14. Paragraph 1(3) amends current section 53 of the CJA 2003 (magistrates’ courts permitted to sit at other locations) to accommodate any participation through live link, rather than only the giving of evidence. It inserts a new subsection (4) into section 53 which allows a single justice to give, vary or rescind live link directions, and to require or permit a person taking part in a hearing about the giving, varying or rescinding of a live link direction to participate in that hearing by live link.
15. Paragraph 1(4) amends section 54 of the CJA 2003 (Warning to jury) to explicitly refer to the defendant as a person who may take part in proceedings by live link. Paragraph 1(5) amends 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 live link applications to be determined without a hearing. (Uncontested live link applications can already be determined without a hearing.)
16. Paragraph 1(6) amends section 56 (Interpretation of Part 8) in accordance with the expanded power to use live links, to define the key terms used in these provisions, including the different types of hearing to which they apply. This section defines "live audio link" and "live video link" and states these two matters shall be disregarded (i) the extent to which a person may be unable to see or hear proceedings by reason of impairment of eyesight or hearing, and (ii) the effect of any other direction or order which prevents a person from seeing another person taking part in proceedings.
17. Paragraph 2 amends the Extradition Act 2003 to enable live links to be used in extradition proceedings.
18. Paragraph 3 amends the Criminal Appeal Act 1968 in accordance with the expanded powers to use live links under sections 51 and 52 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.
19. Paragraph 4 amends PACE to reflect the omission of Part 3A (live links in preliminary, sentencing and enforcement hearings) from the CDA 1998 (see paragraph 1203 above), which previously governed the use of live links for the purposes of this Act. Reference is now made to live link directions made under section 51 of the CJA 2003.
20. The Criminal Justice Act 1998, the Youth Justice and Criminal Evidence Act 1999 and the Crime (International Co-operation) Act 2003 are also amended in accordance with the expanded powers to use live links.

Section 201: Repeal of temporary provisions

1. Section 201 repeals sections 53 to 55 and Schedule 23 to 25 of the Coronavirus Act 2020 which are temporary modifications that are superseded by the provisions made by sections 198 to 200 and Schedule 20.

Section 202: Expedited procedure for initial regulations about remote observation of proceedings

1. Section 202 makes provision to enable the first set of regulations made under the power conferred by new section 85A(8) of the Courts Act 2003 inserted by section 198 to be made subject to the made affirmative procedure, rather than the draft affirmative procedure for which the amendment made by section 198(6) provides. This will enable regulations to be in place to ensure that there is no gap in coverage for transmission of remote proceedings between the expiry of the Coronavirus Act provisions which sections 198 and 199 will replace, and the coming into force of the new provisions, should that prove necessary.
2. Subsection (1) provides that section 202 applies to the first regulations under new section 85A(8) of the Courts Act 2003 (and so will not apply to any subsequent regulations under that power, which will be subject to the draft affirmative procedure for which the amendment made by section 198(6) provides). Subsection (2) provides that the first regulations may (but do not have to be) made without first having been laid in draft before each House of Parliament. This, taken with the following subsections, allows for the "made affirmative" procedure to be adopted should that be necessary to avoid a gap in coverage, but for the draft affirmative procedure to be used instead if there is no risk of such a gap.
3. Subsections (3) and (4) provide for the made affirmative procedure for the regulations should the option provided by subsection (2) be taken: the regulations must be laid before Parliament after being made (subsection (3)) and will cease to have effect after 28 days beginning with the day on which they are made if they have not before then been approved by a resolution of each House of Parliament (subsection (4)). Subsection (5) makes provision for calculating the 28-day period (days during prorogation or dissolution, or any period of recess for either House which lasts more than four days are disregarded); and subsection (6) provides for a saving for anything done under the regulations should they cease to have effect under subsection (4), and makes it clear that should the regulations cease to have effect, that will not prevent the making of fresh regulations (which would be subject to draft affirmative procedure).