Coronavirus Bill

The COVID-19 pandemic has completely changed the way we live our lives, at least for the time being.

Criminal courts have not been immune from the pandemic’s vast reach.  Indeed, given the significant flow of people through the courts on a daily basis, the confined nature of most courtrooms and the neglected nature of its unsanitary estate – they have the potential to undermine the Government’s virus mitigation strategy.

In seeking to address potential issues with conducting ‘business as usual’ in the criminal courts, the Government has included various measures within their draft Coronavirus Bill, which seek to mitigate the difficulties for all concerned.

The Coronavirus Bill

The Bill, which is currently being accelerated through Parliament, contains a variety of emergency powers intended to enable an effective response to the crisis.  

There are measures enabling authorities to direct that people be screened and assessed if a person is suspected to have COVID-19, as well as measures for authorities to impose restrictions upon events and premises for the purpose of containing the disease. Those failing to comply with such directions risk conviction of a criminal offence and a fine.  

It also addresses a wide range of other areas; including the use of emergency volunteers, the NHS, the expansion of statutory sick pay, the postponement of elections, the temporary appointment and registration of certain roles and the expedition of the process of registering deaths. The full contents are available here https://publications.parliament.uk/pa/bills/cbill/58-01/0122/cbill_2019-20210122_en_1.htm.

Criminal courts

Of particular interest to criminal practitioners will be the deceptively bland part of the legislation concerning “Courts and tribunals: use of video and audio technology” found in Clauses 51 – 54 and Schedules 22 – 25.

These revive and slightly reframe parts of the ‘virtual hearing’ provisions in the abandoned Prison and Courts Bill 2017 and would greatly expand the statutory powers of the court to order participation in hearings by live link.

The two main statutory provisions enabling use of live link in criminal hearings exist in s.51, Criminal Justice Act 2003 and s.57A – s.57E, Crime and Disorder Act 1998. Currently, S.51 is exclusively concerned with witnesses giving evidence while s.57A – s.57E cover the accused’s attendance at preliminary and sentencing hearings. They are narrowly drafted measures that prescribe the circumstances in which those two categories of people may attend court.

The Coronavirus Bill would combine and swell those statutory powers to accommodate almost all participants to take part in a wide array of hearings by live link.

In particular:

• A court may direct that anyone can take part in a hearing by live link, including even a judge or magistrate. The only exceptions are jury members, who cannot be directed to take part by live link, at all.
• Audio links may be used in addition to video links, although there are restrictions upon the Defendant’s ability to take part in this way – for example where he is required to give evidence or enter a plea.
• Certain hearings may be held wholly by live audio link, including Crown Court preliminary hearings (which are not otherwise excluded) and Court of Appeal preliminary hearings. An even wider range of hearings may be held wholly by live video link – including substantive appeals to the Crown Court and even summary trials. The court may direct that hearings be broadcasted and/or recorded, in these circumstances, to enable the public to see and hear the proceedings.

The test for enabling people to take part in a hearing by live link is also modified slightly, although the general premise remains. Under this amendment, no direction may be made unless:

• The court is satisfied that it is in the interests of justice for the person concerned to take part in the hearing in accordance with the direction through the live audio link or through the live video link.
• The parties to the preliminary hearing have been given the opportunity to make representations.
• In the case of those being tried as youths, the relevant youth offending team has been given the opportunity to make representations.

It is true that some of the ‘new’ powers are already exercised, on occasion, under the court’s inherent jurisdiction. In fact, the Criminal Procedure Rules impose a duty on courts to consider use of telephone facilities for the conduct of a “pre-trial case management hearing“ (CPR 3.2(5)). A number of Crown Court venues utilise this. However, by consolidating, broadening and placing these measures on statutory footing, it seems that the Coronavirus Bill could have a significant impact on the conduct of criminal cases – especially in the current environment.

It is unclear whether this Bill provides an answer to concerns about the ability of the criminal courts to function safely and effectively amidst the current crisis. There are wider concerns about the viability of any jury trials at all during this period and the courts will inevitably be impacted by the approach of other agencies within the Criminal Justice System, whose responses remain to be seen.  This is unprecedented territory for all involved. Nevertheless, the Government will hope that the measures contained in this Bill can do something to keep justice on track during an episode that is only going to become more challenging.

Luc Chignell

1 High Pavement

20^th March 2020