Prisons and Courts Bill (HC Bill 170)

Prisons and Courts BillPage 80

all of the other persons taking part in the proceedings
(including any who are not in court) are able to hear P.

(2C) Eligible criminal proceedings are conducted wholly as audio
proceedings if all the persons taking part in the proceedings do so
5through a live audio link.

(2D) A person (P) takes part in eligible criminal proceedings through a
live video link if, by means of a live television link or other
arrangement—

(a) the person is able to see and hear all of the other persons
10taking part in the proceedings (including any who are not in
court), and

(b) all of the other persons taking part in the proceedings
(including any who are not in court) are able to see and hear
P.

(2E) 15Eligible criminal proceedings are conducted wholly as video
proceedings if all the persons taking part in the proceedings do so
through a live video link.”

(4) In subsection (3)—

(a) for the words before paragraph (a) substitute—

(3) 20A reference to the persons participating in eligible criminal
proceedings includes—”;

(b) after paragraph (b) insert—

(ba) witnesses in the proceedings,”;

(c) in paragraph (d), for “the witness” substitute “in the proceedings”.

(5) 25After subsection (3) insert—

(3A) Subsections (2A) to (3) apply for the purposes of this Part.”

(6) In subsection (4), for “subsection (2)” substitute “subsections (2B) and (2D)”.

Safeguards

8 After Schedule 3 to the Criminal Justice Act 2003 insert—

30Schedule 1
Conduct of proceedings wholly as audio proceedings

1 (1) Eligible criminal proceedings may be conducted wholly as audio
proceedings only if the proceedings meet one of the following
conditions.

(2) 35Condition A: the proceedings are preliminary or incidental to an
appeal to the Crown Court arising out of a summary trial.

(3) Condition B: the proceedings are preliminary or incidental to an
appeal to the criminal division of the Court of Appeal.

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(4) Condition C: the proceedings are preliminary or incidental to a
reference to the Court of Appeal by the Attorney General under
Part 4 of the Criminal Justice Act 1988.

(5) Condition D: the proceedings are preliminary or incidental to the
5hearing of a reference under section 9 or 11 of the Criminal Appeal
Act 1995.

(6) Condition E: the proceedings are a hearing following conviction
held for the purpose of making a decision about whether to
impose or vary conditions of bail in respect of the person
10convicted.

(7) Condition F:

(a) the proceedings are a hearing following conviction held
for the purpose of deciding whether to grant or continue
bail in respect of the person convicted, and

(b) 15either—

(i) section 4 of the Bail Act 1976 does not apply to the
person, or

(ii) the making of the decision is not disputed
(including where the court is minded to refuse or
20revoke bail of its own motion).

(8) But proceedings which meet any of those conditions may not be
conducted wholly as audio proceedings if the court is minded to
deal with a person for contempt of court (including enquiring into
conduct and imposing punishment) at the proceedings.

25Conduct of proceedings wholly as video proceedings

2 (1) Eligible criminal proceedings may be conducted wholly as video
proceedings only if the proceedings meet one of the following
conditions.

(2) Condition A: the proceedings are—

(a) 30an appeal to the Crown Court arising out of a summary
trial which is an appeal only against sentence,

(b) an appeal to the Crown Court arising out of a summary
trial—

(i) which is an appeal arising out of a summary trial
35which was itself conducted wholly as video
proceedings, and

(ii) which the parties agree may be conducted wholly
as video proceedings, or

(c) preliminary or incidental to any appeal to the Crown
40Court arising out of a summary trial.

(3) Condition B: the proceedings are preliminary or incidental to an
appeal to the criminal division of the Court of Appeal.

(4) Condition C: the proceedings are preliminary or incidental to a
reference to the Court of Appeal by the Attorney General under
45Part 4 of the Criminal Justice Act 1988.

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(5) Condition D: the proceedings are preliminary or incidental to the
hearing of a reference under section 9 or 11 of the Criminal Appeal
Act 1995.

(6) Condition E: the proceedings are preliminary or incidental to a
5hearing before the Court of Appeal under section 80 of this Act.

(7) Condition F: the proceedings are a hearing following conviction
held for the purpose of making a decision about bail in respect of
the person convicted.

(8) Condition G:

(a) 10the proceedings are a summary trial in a magistrates’
court,

(b) a written procedure notice has been served on the
defendant but the offence is not being tried in accordance
with section 16A of the Magistrates’ Courts Act 1980, and

(c) 15the parties agree to the proceedings being conducted
wholly as video proceedings.

(9) Condition H: the proceedings are a hearing under section 142(1) or
(2) of the Magistrates’ Courts Act 1980 or under section 155 of the
Powers of Criminal Courts (Sentencing) Act 2000.

20Other use of live audio links in preliminary and incidental proceedings etc

3 (1) This paragraph applies to eligible criminal proceedings which
meet any of the conditions in paragraph 1.

(2) The defendant may not take part in the proceedings through a live
audio link for the purpose of giving evidence.

(3) 25A person (other than the defendant) may not take part in the
proceedings through a live audio link for the purpose of giving
evidence unless—

(a) there are no suitable arrangements by means of which that
person could give evidence through a live video link, and

(b) 30the parties agree to that person giving evidence through a
live audio link.

(4) This paragraph does not apply to proceedings which meet any of
the conditions in paragraph 1 if the court is minded to deal with a
person for contempt of court (including enquiring into conduct
35and imposing punishment) at the proceedings (but see paragraph
4).

Other use of live audio links in other eligible criminal proceedings

4 (1) This paragraph applies to—

(a) eligible criminal proceedings which do not meet any of the
40conditions in paragraph 1, and

(b) eligible criminal proceedings which meet any of those
conditions if the court is minded to deal with a person for
contempt of court (including enquiring into conduct and
imposing punishment).

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(2) The defendant may not take part in the proceedings through a live
audio link.

(3) A person (other than the defendant) may not take part in the
proceedings through a live audio link unless—

(a) 5that person’s participation through the live audio link is
only for the purpose of giving evidence in the proceedings,

(b) there are no suitable arrangements by means of which that
person could give evidence through a live video link, and

(c) the parties agree to that person giving evidence through a
10live audio link.

(4) Where this paragraph applies by virtue of sub-paragraph (1)(b),
references to the defendant include references to the person whom
the court is minded to deal with for contempt of court.

(5) Where this paragraph applies to proceedings under section 4A or
155 of the Criminal Procedure (Insanity) Act 1964, it is for the
defendant’s representative (if such a representative has been
appointed), rather than the defendant, to give any agreement
under sub-paragraph (3)(c).

(6) In this paragraph “defendant’s representative” means the person
20appointed by the court to put the case for the defence.

Other limitations to apply also

5 The limitations imposed under this Schedule are in addition to
any others (such as those in section 51(4)) which apply to the
exercise of the power to give a direction under section 51.”

25Part 2 Other amendments

Criminal Appeal Act 1968

9 (1) The Criminal Appeal Act 1968 is amended as follows.

(2) In section 22 (right of appellant to be present), omit subsections (4) to (6).

(3) 30In section 23 (evidence), omit subsection (5).

(4) In section 31 (powers of Court which are exercisable by single judge)—

(a) in subsection (1), after paragraph (a) insert—

(aza) the powers under section 51(1), (4D) and (4G) of the
Criminal Justice Act 2003 as they are exercisable in
35relation to appeals to the criminal division of the
Court of Appeal and preliminary and incidental
proceedings;”;

(b) in subsection (2), omit paragraph (ca).

(5) In section 31A (powers of court under Part 1 which are exercisable by
40registrar)—

(a) in the heading, omit “under Part 1”;

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(b) after subsection (2) insert—

(2A) The registrar may exercise the powers under section 51(1),
(4D) and (4G) of the Criminal Justice Act 2003 as they are
exercisable in relation to appeals to the criminal division of
5the Court of Appeal and preliminary and incidental
proceedings.”;

(c) in subsection (4), after “subsection (2)” insert “or (2A)”.

Section 33

SCHEDULE 5 Live links in other criminal hearings

10Part 1 Expansion of powers under the Crime and Disorder Act 1998

Introduction

1 (1) The Crime and Disorder Act 1998 is amended in accordance with this Part of
this Schedule.

(2) 15For the heading of Part 3A substitute “Live links in preliminary,
sentencing & enforcement hearings
”.

Interpretation etc

2 (1) Section 57A is amended as follows.

(2) For subsections (1) and (2) substitute—

(1A) 20This Part applies to—

(a) preliminary hearings and sentencing hearings in the course
of proceedings for an offence, and

(b) enforcement hearings.”

(3) In subsection (3)—

(a) 25before the definition of “confiscation order” insert—

  • ““bail” includes remand to local authority
    accommodation in accordance with Chapter 3 of Part
    3 of the Legal Aid, Sentencing and Punishment of
    Offenders Act 2012;”;

(b) 30omit the definitions of “confiscation order” and “custody”;

(c) for the definition of “enforcement hearing” substitute—

  • ““enforcement hearing” means a hearing relating to
    collection, discharge, satisfaction or enforcement of—

    (a)

    a sum that has been adjudged to be paid on
    35conviction by a magistrates’ court or the
    Crown Court, or

    (b)

    a financial penalty that is enforceable in
    accordance with section 85(6) and (7) of the
    Criminal Justice and Immigration Act 2008 as
    40if it were such a sum (including a hearing to

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    determine whether a financial penalty is so
    enforceable);”;

(d) omit the definitions of “live link” and “police detention”;

(e) after the definition of “preliminary hearing” insert—

  • 5““relevant youth offending team”, in relation to a case
    where—

    (a)

    the accused, the offender or the person liable
    to pay the sum or financial penalty has not
    attained the age of 18 years, or

    (b)

    10the accused or the offender has attained the
    age of 18 years since proceedings for the
    offence were begun, and the court has decided
    to continue to deal with the case as if he or she
    had not attained that age,

    15means the youth offending team (established under
    section 39 of the Crime and Disorder Act 1998) whose
    functions are exercisable in relation to the accused,
    the offender or the person liable to pay the sum or
    financial penalty;”;

(f) 20in the definition of “sentencing hearing”—

(i) omit paragraph (a);

(ii) in paragraph (b), omit “or”;

(iii) in paragraph (c), for “offence.” substitute “offence (including
reviewing, amending or revoking such a sentence or
25determination); or”;

(iv) after paragraph (c) insert—

  • “(d)

    determining—

    (i)

    how the offender has complied with a sentence
    given in respect of the offence, or

    (ii)

    30how the offender should be dealt with in respect
    of compliance with such a sentence;

    and here “sentence” includes any way in which a court
    has determined that the offender should be dealt with in
    respect of the offence.”

(4) 35After subsection (3) insert—

(4) A reference to a person taking part in a hearing includes—

(a) giving evidence in the hearing, and

(b) attending the hearing when not giving evidence.

(5) A person (P) takes part in a hearing through a live audio link if, by
40means of a live telephone link or other arrangement—

(a) the person is able to hear all of the other persons taking part
in the hearing (including any who are not in court), and

(b)
all of the other persons taking part in the hearing (including
any who are not in court) are able to hear P.

(6) 45A hearing is conducted wholly as an audio hearing if all the persons
taking part in the hearing do so through a live audio link.

(7) A person (P) takes part in a hearing through a live video link if, by
means of a live television link or other arrangement—

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(a) the person is able to see and hear all of the other persons
taking part in the hearing (including any who are not in
court), and

(b) all of the other persons taking part in the hearing (including
5any who are not in court) are able to see and hear P.

(8) A hearing is conducted wholly as a video hearing if all the persons
taking part in the hearing do so through a live video link.

(9) Subsections (4) to (8) apply for the purposes of this Part.

(10) Nothing in this Part is to be regarded as affecting any power of a
10court—

(a) to make an order, give directions or give leave of any
description in relation to any witness (including the accused),
or

(b) to exclude evidence at its discretion (whether by preventing
15questions being put or otherwise).”

Expansion of availability of live links at preliminary hearings

3 (1) Section 57B is amended in accordance with sub-paragraphs (2) to (6).

(2) In the heading, omit “where accused is in custody”.

(3) For subsections (2) and (3) substitute—

(2) 20The court may, by a direction (a “live link direction”), require or permit a
person to take part in the preliminary hearing through—

(a) a live audio link, or

(b) a live video link.

(3) But the court may not give a direction for a person to take part in a
25preliminary hearing through a live audio link or a live video link
unless—

(a) the court is satisfied that it is in the interests of justice for the
person concerned to take part in the preliminary hearing in
accordance with the direction through the live audio link or
30through the live video link,

(b) the parties to the preliminary hearing have been given the
opportunity to make representations,

(c) the relevant youth offending team has been given the
opportunity to make representations, if it is a case where—

(i) 35the accused has not attained the age of 18 years, or

(ii) the accused has attained the age of 18 years since
proceedings for the offence were begun, and the court
has decided to continue to deal with the case as if he
or she had not attained that age.

(3A) 40A direction under this section—

(a) may be given by the court of its own motion or on an
application by a party; and

(b) may be given in relation to all subsequent preliminary
hearings before the court or to such hearing or hearings as
45may be specified or described in the direction.

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(3B) The power to give a live link direction under this section includes
power to give—

(a) a direction that is applicable to several, or all, of the persons
participating in a particular preliminary hearing;

(b) 5a direction that is applicable to a particular person in respect
of only some aspects of a particular preliminary hearing
(such as giving evidence or attending the hearing when not
giving evidence);

(c) a direction for a person who is outside England and Wales
10(whether in the United Kingdom or elsewhere) to take part in
a preliminary hearing through a live audio link or a live video
link.

(3C) The power of the court to give a direction under this section is subject
to Schedule 3A (prohibitions and limitations on use of live links).

(3D) 15The court may rescind a live link direction under this section at any
time before or during the preliminary hearing to which it relates (but
this does not affect the court‘s power to give a further live link
direction in relation to the hearing).

(3E) A live link direction under this section may not be rescinded
20unless—

(a) the court is satisfied that it is in the interests of justice for the
direction to be rescinded,

(b) the parties to the preliminary hearing have been given the
opportunity to make representations,

(c) 25the relevant youth offending team has been given the
opportunity to make representations, if it is a case where—

(i) the accused has not attained the age of 18 years, or

(ii) the accused has attained the age of 18 years since
proceedings for the offence were begun, and the court
30has decided to continue to deal with the case as if he
or she had not attained that age.

(3F) A live link direction under this section may be rescinded by the court
of its own motion or on an application by a party; but such an
application may not be made unless there has been a material change
35of circumstances since the direction was given.

(3G) If a hearing takes place in relation to the giving or rescinding of a live
link direction under this section, the court may require or permit a
person to take part in that hearing through—

(a) a live audio link, or

(b) 40a live video link.”

(4) Omit subsections (4) and (5).

(5) For subsection (6) substitute—

(6) The court must give the following reasons in relation to all
preliminary hearings (insofar as the circumstances to which the
45reasons relate arise in the hearing concerned) and must (if the court
is a magistrates’ court) cause the reasons to be entered into its
register of proceedings—

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(a) its reasons for the hearing not being conducted wholly as an
audio hearing;

(b) its reasons for the hearing not being conducted wholly as a
video hearing;

(c) 5as respects each person taking part in the hearing—

(i) its reasons for not giving a direction for the person to
take part in the hearing through a live audio link;

(ii) its reasons for not giving a direction for the person to
take part in the hearing through a live video link;

(d) 10the rescission of any live link direction under this section
given in relation to the hearing.”

(6) After subsection (7) insert—

(8) A court may not refuse or revoke bail for a person (P) at a
preliminary hearing if—

(a) 15any person takes part in the hearing — other than for the
purpose of giving evidence — through a live audio link, and

(b) P objects to the refusal or revocation.

(9) If any person takes part in a preliminary hearing— other than for the
purpose of giving evidence — through a live audio link, the court
20may not—

(a) accept a guilty plea, or

(b) deal with a person for contempt of court (including enquiring
into conduct and imposing punishment).”

(7) Omit sections 57C and 57D.

25Use of live link in sentencing hearings

4 (1) Section 57E is amended as follows.

(2) For subsections (1) to (3) substitute—

(1) The court may, by a direction (a “live link direction”), require or permit a
person to take part in a sentencing hearing through—

(a) 30a live audio link, or

(b) a live video link.

(2) But the court may not give a direction for a person to take part in a
sentencing hearing through a live audio link or a live video link
unless—

(a) 35the court is satisfied that it is in the interests of justice for the
person concerned to take part in the sentencing hearing in
accordance with the direction through the live audio link or
through the live video link,

(b) the parties to the sentencing hearing have been given the
40opportunity to make representations, and

(c) the relevant youth offending team has been given the
opportunity to make representations, if it is a case where—

(i) the offender has not attained the age of 18 years, or

(ii) the offender has attained the age of 18 years since
45proceedings for the offence were begun, and the court

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has decided to continue to deal with the case as if he
or she had not attained that age.”

(3) In subsection (4), for “Such a direction” substitute “A live link direction
under this section”.

(4) 5After subsection (4) insert—

(4A) The power to give a live link direction under this section includes
power to give—

(a) a direction that is applicable to several, or all, of the persons
participating in a particular sentencing hearing;

(b) 10a direction that is applicable to a particular person in respect
of only some aspects of a particular sentencing hearing (such
as giving evidence or attending the hearing when not giving
evidence);

(c) a direction for a person who is outside England and Wales
15(whether in the United Kingdom or elsewhere) to take part in
a sentencing hearing through a live audio link or a live video
link.

(4B) The power of the court to give a direction under this section is subject
to Schedule 3A (prohibitions and limitations on use of live links).”

(5) 20Omit subsection (5).

(6) In subsection (6)—

(a) omit “if it appears to the court to be in the interests of justice to do
so”;

(b) for “offender” substitute “hearing”;

(c) 25omit the second sentence.

(7) After subsection (6) insert—

(6A) A live link direction under this section may not be rescinded
unless—

(a) the court is satisfied that it is in the interests of justice for the
30direction to be rescinded,

(b) the parties to the sentencing hearing have been given the
opportunity to make representations, and

(c) the relevant youth offending team has been given the
opportunity to make representations, if it is a case where—

(i) 35the offender has not attained the age of 18 years, or

(ii) the offender has attained the age of 18 years since
proceedings for the offence were begun, and the court
has decided to continue to deal with the case as if he
or she had not attained that age.

(6B) 40A live link direction under this section may be rescinded by the court
of its own motion or on an application by a party; but such an
application may not be made unless there has been a material change
of circumstances since the direction was given.

(6C) If a hearing takes place in relation to the giving or rescinding of a live
45link direction under this section, the court may require or permit a
person to take part in that hearing through—