The Criminal Procedure (Amendment No. 2) (Coronavirus) Rules 2020

Amendments to the Criminal Procedure Rules

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.”; and

(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 2003(1) (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 1999(2), 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.”, and

(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 1998(3) and in section 51 of the Criminal Justice Act 2003(4) (‘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 1988(5)”, 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.”; and

(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.”; and

(j) amend the tables of contents of Part 18 and of the Criminal Procedure Rules 2015 correspondingly.

(1)

2003 c. 39; section 85A was inserted as a modification by section 55 of, and paragraph 1 of Schedule 25 to, the Coronavirus Act 2020 (c. 7).

(2)

1999 c. 23; section 20 was amended by paragraph 384(a) of Schedule 8 to the Courts Act 2003 (c. 39). Section 33A was inserted by section 47 of the Police and Justice Act 2006 (c. 48). Section 33BB is inserted by section 104 of the Coroners and Justice Act 2009 (c. 25), with effect from a date to be appointed.

(3)

1998 c. 37; sections 57A to 57E were substituted for section 57 as originally enacted by section 45 of the Police and Justice Act 2006 (c. 48). Section 57B was amended by section 106 of the Coroners and Justice Act 2009 (c. 25) and is modified by section 54 of, and paragraphs 1 and 3 of Schedule 24 to, the Coronavirus Act 2020 (c. 7). Section 57E was amended by sections 106 and 178 of, and Schedule 3 to, the Coroners and Justice Act 2009 (c. 25) and is modified by section 54 of, and paragraphs 1 and 4 of Schedule 24 to, the Coronavirus Act 2020 (c. 7). Section 57F was inserted by section 109 of the Coroners and Justice Act 2009 (c. 25) and is modified by section 54 of, and paragraphs 1 and 5 of Schedule 24 to, the Coronavirus Act 2020 (c. 7).

(4)

2003 c. 44; section 51 is modified by section 53 of, and Part 1 of Schedule 23 to, the Coronavirus Act 2020 (c. 7).

(5)

1988 c. 33; section 32 was amended by section 55 of the Criminal Justice Act 1991 (c. 53), section 29 of, and paragraph 16 of Schedule 2 to, the Criminal Appeal Act 1995 (c. 35), section 62 of the Criminal Procedure and Investigations Act 1996 (c. 25), section 67 of, and Schedule 6 and paragraph 3 of Schedule 7 to, the Youth Justice and Criminal Evidence Act 1999 (c. 23) and paragraphs 24 and 26 of the Schedule to S.I. 2004/2035. Under modifications made by the Coronavirus Act 2020 (c. 7) 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.