Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Criminal Practice Directions 2015
Amendment No. 3
Practice Direction
AMENDMENT NO. 3 TO THE CRIMINAL PRACTICE DIRECTONS 2015
Introduction
This is the third amendment to the Criminal Practice Directions 2015. (Footnote: 1) It is handed down by the Lord Chief Justice on 31st January 2017 and comes into force on 31st January 2017.
This amendment adds a new section at 3N in relation to the use of live links and telephone hearings. Additional operational guidance is to be found at Annex 1 to this part
The table of content is amended accordingly.
CPD I General matters 3N: USE OF LIVE LINK AND TELEPHONE FACILITIES
3N.1 Where it is lawful and in the interests of justice to do so, courts should exercise their statutory and other powers to conduct hearings by live link or telephone. This is consistent with the Criminal Procedure Rules and with the recommendations of the President of the Queen’s Bench Division’s Review of Efficiency in Criminal Proceedings published in January 2015. Save where legislation circumscribes the court’s jurisdiction, the breadth of that jurisdiction is acknowledged by CrimPR 3.5(1), (2)(d).
3N.2 It is the duty of the court to make use of technology actively to manage the case: CrimPR 3.2(1), (2)(h). That duty includes an obligation to give directions for the use of live links and telephone facilities in the circumstances listed in CrimPR 3.2(4) and (5) (pre-trial hearings, including pre-trial case management hearings). Where the court directs that evidence is to be given by live link, and especially where such a direction is given on the court’s own initiative, it is essential that the decision is communicated promptly to the witness: CrimPR 18.4. Contrary to a practice adopted by some courts, none of those rules or other provisions require the renewal of a live link direction merely because a trial has had to be postponed or adjourned. Once made, such a direction applies until it is discharged by the court, having regard to the relevant statutory criteria.
3N.3 It is the duty of the parties to alert the court to any reason why live links or telephones should not be used where CrimPR 3.2 otherwise would oblige the court to do so; and, where a direction for the use of such facilities has been made, it is the duty of the parties as soon as practicable to alert the court to any reason why that direction should be varied CrimPR 3.3(2)(e) and 3.6.
3N.4 The word ‘appropriate’ in CrimPR 3.2(4) and (5) is not a term of art. It has the ordinary English meaning of ‘fitting’, or ‘suitable’. Whether the facilities available to the court in any particular case can be considered appropriate is a matter for the court, but plainly to be appropriate such facilities must work, at the time at which they are required; all participants must be able to hear and, in the case of a live link, see each other clearly; and there must be no extraneous noise, movement or other distraction suffered by a participant, or transmitted by a participant to others. What degree of protection from accidental or deliberate interception should be considered appropriate will depend upon the purpose for which a live link or telephone is to be used. If it is to participate in a hearing which is open to the public anyway, then what is communicated by such means is by definition public and the use of links such as Skype or Facetime, which are not generally considered secure from interception, may not be objectionable. If it is to participate in a hearing in private, and especially one at which sensitive information will be discussed – for example, on an application for a search warrant – then a more secure service is likely to be required.
3N.5 There may be circumstances in which the court should not require the use of live link or telephone facilities despite their being otherwise appropriate at a pre-trial hearing. In every case, in deciding whether any such circumstances apply the court will keep in mind that, for the purposes of what may be an essentially administrative hearing, it may be compatible with the overriding objective to proceed in the defendant’s absence altogether, especially if he or she is represented, unless, exceptionally, a rule otherwise requires. The principle that the court always must consider proceeding in a defendant’s absence is articulated in CrimPR 3.9(2)(a). Where at a pre-trial hearing bail may be under consideration, the provisions of CrimPR 14.2 will be relevant.
3N.6 Such circumstances will include any case in which the defendant’s effective participation cannot be achieved by his or her attendance by such means, and CrimPR 3.2(4) and (5) except such cases from the scope of the obligation which that rule otherwise imposes on the court. That exception may apply where (this list is not exhaustive) the defendant has a disorder or disability, including a hearing, speech or sight impediment, or has communication needs to which the use of a live link or telephone is inimical (whether or not those needs are such as to require the appointment of an intermediary); or where the defendant requires interpretation and effective interpretation cannot be provided by live link or telephone, as the case may be.
3N.7 Finally, that exception sometimes may apply where the defendant’s attendance in person at a pre-trial hearing will facilitate communication with his or her legal representatives. The court should not make such an exception merely to allow client and representatives to meet if that meeting can and should be held elsewhere. However, there will be cases in which defence representatives reasonably need to meet with a defendant, to take his or her instructions or to explain events to him or her, either shortly before or immediately after a pre-trial hearing and in circumstances in which that meeting cannot take place effectively by live link.
3N.8 Nothing prohibits the member or members of a court from conducting a pre-trial hearing by attending by live link or telephone from a location distant from all the other participants. Despite the conventional view that the venue for a court hearing is the court room in which that hearing has been arranged to take place, the Criminal Procedure Rules define ‘court’ as ‘a tribunal with jurisdiction over criminal cases. It includes a judge, recorder, District Judge (Magistrates’ Court), lay justice and, when exercising their judicial powers, the Registrar of Criminal Appeals, a justices’ clerk or assistant clerk.’ Neither CrimPR 3.25 (Place of trial), which applies in the Crown Court, nor CrimPR 24.14 (Place of trial), which applies in magistrates’ courts, each of which requires proceedings to take place in a courtroom provided by the Lord Chancellor, applies for the purposes of a pre-trial hearing. Thus for the purposes of such a hearing there is no legal obstacle to the judge, magistrate or magistrates conducting it from elsewhere, with other participants assembled in a courtroom from which the member or members of the court are physically absent. In principle, nothing prohibits the conduct of a pre-trial hearing by live link or telephone with each participant, including the member or members of the court, in a different location (an arrangement sometimes described as a ‘virtual hearing’). This is dependent upon there being means by which that hearing can be witnessed by the public – for example, by public attendance at a courtroom or other venue from which the participants all can be seen and heard (if by live link), or heard (if by telephone). The principle of open justice to which paragraph 3N.17 refers is relevant.
3N.9 Sections 57A to 57F of the Crime and Disorder Act 1998 allow a defendant who is in custody to enter a plea by live link, and allow for such a defendant who attends by live link to be sentenced. In appropriate circumstances, the court may allow a defendant who is not in custody to enter a plea by live link; but the same considerations as apply to sentencing in such a case will apply: see paragraph 3N.13 beneath.
3N.10 The Crime and Disorder Act 1998 does not allow for the attendance by live link at a contested trial of a defendant who is in custody. The court may allow a defendant who wishes to do so to observe all or part of his or her trial by live link, whether she or he is in custody or not, but (a) such a defendant cannot lawfully give evidence by such means unless he or she satisfies the criteria prescribed by section 33A of the Youth Justice and Criminal Evidence Act 1999 and the court so orders under that section (see also CrimPR 18.14 – 18.17); (b) a defendant who is in custody and who observes the trial by live link is not present, as a matter of law, and the trial must be treated as taking place in his or her absence, she or he having waived the right to attend; and (c) a defendant who has refused to attend his or her trial when required to do so, or who has absconded, must not be permitted to observe the proceedings by live link.
3N.11 Paragraphs I 3D to 3G inclusive of these Practice Directions (Vulnerable people in the courts; Ground rules hearings to plan the questioning of a vulnerable witness or defendant; Intermediaries; Vulnerable defendants) contain directions relevant to the use of a live link as a special measure for a young or otherwise vulnerable witness, or to facilitate the giving of evidence by a defendant who is likewise young or otherwise vulnerable, within the scope of the Youth Justice and Criminal Evidence Act 1999. Defence representatives and the court must keep in mind that special measures under the 1999 Act and CrimPR Part 18, including the use of a live link, are available to defence as well as to prosecution witnesses who meet the statutory criteria. Defence representatives should always consider whether their witnesses would benefit from giving evidence by live link and should apply for a direction if appropriate, either at the case management hearing or as soon as possible thereafter. A defence witness should be afforded the same facilities and treatment as a prosecution witness, including the same opportunity to make a pre-trial visit to the court building in order to familiarise himself or herself with it. Where a live link is sought as a special measure for a young or vulnerable witness or defendant, CrimPR 18.10 and 18.15 respectively require, among other things, that the applicant must identify someone to accompany that witness or defendant while they give evidence; must name the person, if possible; and must explain why that person would be an appropriate companion for that witness. The court must ensure that directions are given accordingly when ordering such a live link. Witness Service volunteers are available to support all witnesses, prosecution and defence, if required.
3N.12 Under sections 57A and 57D or 57E of the Crime and Disorder Act 1998 the court may pass sentence on a defendant in custody who attends by live link. The court may allow a defendant who is not in custody and who wishes to attend his or her sentencing by live link to do so, and may receive representations (but not evidence) from her or him by such means. Factors of which the court will wish to take account in exercising its discretion include, in particular, the penalty likely to be imposed; the importance of ensuring that the explanations of sentence required by CrimPR 24.11(9), in magistrates’ courts, and in the Crown Court by CrimPR 25.16(7), can be given satisfactorily, for the defendant, for other participants and for the public, including reporters; and the preferences of the maker of any Victim Personal Statement which is to be read aloud or played pursuant to paragraph VII F.3(c) of these Practice Directions.
Youth defendants
3N.13 In the youth court or when a youth is appearing in the magistrates’ court or the Crown Court, it will usually be appropriate for the youth to be produced in person at court. This is to ensure that the court can engage properly with the youth andthat the necessary level of engagement can be facilitated with the Youth Offending Team worker, defence representative and/or appropriate adult. The court should deal with any application for use of a live-link on a case-by-case basis, after consultation with the parties and the Youth Offending Team. Such hearings that may be appropriate, include, onward remand hearings at which there is no bail application or case management hearings, particularly if the youth is already serving a custodial sentence.
3N.14 It rarely will be appropriate for a youth to be sentenced over a live link. However, notwithstanding the court’s duties of engagement with a youth, the overriding welfare principle and the statutory responsibility of the youth offending worker to explain the sentence to the youth, after consultation with the parties and the Youth Offending Team, there may be circumstances in which it may be appropriate to sentence a youth over the live-link:
If the youth is already serving a custodial sentence and the sentence to be imposed by the court is bound to be a further custodial sentence, whether concurrent or consecutive;
If the youth is already serving a custodial sentence and the court is minded to impose a non-custodial sentence which will have no material impact on the sentence being served;
The youth is being detained in a secure establishment at such a distance from the court that the travelling time from one to the other will be significant so as to materially affect the welfare of the youth;
The youth’s condition-whether mental or otherwise- is so disturbed that his or her production would be a significant detriment to his or her welfare.
3N.15 Arrangements must be made in advance of any live link hearing to enable the youth offending worker to be at the secure establishment where the youth is in custody. In the event that such arrangements are not practicable, the youth offending worker must have sufficient access to the youth via the live link booth before and after the hearing.
Conduct of participants
3N.16 Where a live link is used, the immediate vicinity of the device by which a person attends becomes, temporarily, part of the courtroom for the purposes of that person’s participation. That person, and any advocate or legal representative, custodian, court officer, intermediary or other companion, whether immediately visible to the court or not, becomes a participant for the purposes of CrimPR 1.2(2) and is subject to the court’s jurisdiction to regulate behaviour in the courtroom. The substance and effect of this direction must be drawn to the attention of all such participants.
Open justice and records of proceedings
3N.17 The principle of open justice to which CrimPR 6.2(1) gives effect applies as strongly where electronic means of communication are used to conduct a hearing as it applies in other circumstances. Open justice is the principal means by which courts are kept under scrutiny by the public. It follows that where a participant attends a hearing in public by live link or telephone then that person’s participation must be, as nearly as may be, equally audible and, if applicable, equally visible to the public as it would be were he or she physically present. Where electronic means of communication are used to conduct a hearing, records of the event must be maintained in the usual way: CrimPR 5.4. In the Crown Court, this includes the recording of the proceedings: CrimPR 5.5.
CPD I Annex:
GUIDANCE ON ESTABLISHING AND USING LIVE LINK AND TELEPHONE FACILITIES FOR CRIMINAL COURT HEARINGS
This guidance supplements paragraph I 3N of these Practice Directions on the use of live link and telephone facilities to conduct a hearing or receive evidence in a criminal court.
This guidance deals with many of the practical considerations that arise in connection with setting up and using live link and telephone facilities. However, it does not contain detailed instructions about how to use particular live link or telephone equipment at particular locations (how to turn the equipment on; how, and exactly when, to establish a connection between the courtroom and the other location; etc.) because details vary from place to place and cannot practicably all be contained in general guidance. Those details will be made available locally to those who need them. Nor does this guidance contain detailed instructions about the individual responsibilities of court staff, police officers and prison staff because those are matters for court managers, Chief Constables and HM Prison Governors.
Installation of live link and telephone facilities in the courtroom
Everyone in the courtroom must be able to hear and, in the case of a live link, see clearly those who attend by live link or telephone; and the equipment in the courtroom must allow those who attend by live link or telephone to hear, and in the case of a live link see, all the participants in the courtroom. If more than one person is to attend by live link or telephone simultaneously then the equipment must be capable of accommodating them all. (These requirements of course are subject to any special or other measures which a court in an individual case may direct to prevent a witness seeing, or being seen by, the defendant or another participant, or members of the public.)
Some of the considerations that apply to the installation and use of equipment in other locations will apply in a courtroom, too. They are set out in the following paragraphs. In the case of a live link, attention will need to be given to lighting and to making sure that those attending by live link can see and hear clearly what takes place in the courtroom without being distracted by the movement of court staff, legal representatives or members of the public, or by noise inside the courtroom. The sensitivity and positioning of the courtroom microphones may mean that even the movement of papers, or the operation of keyboards, while barely audible inside the courtroom itself, is clearly audible and distracting to a witness or defendant attending by live link or telephone.
Installation and use of live link and telephone facilities in a live link room
Paragraph 6 applies to the installation and use of equipment in a building or in a vehicle which is to be used regularly for giving evidence by live link. It applies to a room within the court building, but separated from the courtroom itself, from which a witness can give evidence by live link; it applies to such a room at a police station or elsewhere which has been set aside for regular use for such a purpose; and it applies to a van or other vehicle which has been adapted for use as a mobile live link room. However, that paragraph does not apply to the courtroom itself; it does not apply to a place from which a witness gives evidence, or a participant takes part in the proceedings, by live link or telephone, if that place is not regularly used for such a purpose (but see paragraph 7 beneath); and it does not apply in a prison or other place of detention (as to which, see paragraph 12 beneath). The objective is to ensure that anyone who participates by live link or telephone is conscious of the gravity of the occasion and of the authority of the court, and realises that they are required to conduct themselves in the same respectful manner as if they were physically present in acourtroom.
A live link room should have the following features:
the room should be an appropriate size, neither too small nor too large.
the room should have suitable lighting, whether natural or electric. Any windows may need blinds or curtains fitted that can be adjusted in accordance with the weather conditions outside and to ensure privacy.
there should be a sign or other means of making clear to those outside theroom when the room is in use.
arrangements should be made to ensure that nobody in the vicinity of the room is able to hear the evidence being given inside, unless the court otherwise directs (for example, to allow a witness’ family to watch the witness’ evidence on a supplementary screen in a nearby waiting room, as if they were seeing and hearing that evidence by live link in the courtroom).
arrangements should be made to minimise the risk of disruption to the proceedings by noise outside the room. Such noise will distract the witness and may be audible and distracting to the court.
the room should be provided with appropriate and comfortable seating for the witness and, where the witness is a civilian witness, seating for a Witness Service or other companion. A waiting area/room adjacent to the live link room may be required for any other persons attending with the witness. There must be adequate accommodation, support and, where appropriate, security within the premises for witnesses. If both prosecution and defence witnesses attend the same facility, they should wait in separate rooms. It may be inappropriate for defence witnesses to give evidence in police premises (for example in a trial for assaulting a police officer) and in that case parties and the court should identify an alternative venue such as a court building (not necessarily the location of the hearing), or arrange for evidence to be given from elsewhere by Skype, etc. Care must be taken to ensure that all witnesses, whether prosecution or defence, are afforded the same assistance, respect and security.
the equipment installed (monitor, microphone and camera, or cameras) in the room must be good enough to ensure that both the picture and sound quality from the room to the court, and from the court to the room, is fit for purpose. The link must enable all in the courtroom to see and hear the witness clearly and it must enable the witness to see and hear clearly all participants in the courtroom.
unless the court otherwise directs, the witness usually will sit to take the oath or affirm and to give evidence. The camera(s) must be positioned to ensure that the witness’ face and demeanour can be seen whether he or she sits or stands.
the wall behind the witness, and thus in view of the camera, should be a pale neutral colour (beige and light green/blue are most suitable) and there should be no pictures or notices displayed on that wall.
the Royal coat of arms may be displayed to remind witnesses and others that when in use the room is part of the courtroom.
a notice should be displayed that reminds users of the live link to conduct themselves in the same manner as if they were present in person in the courtroom, and to remind them that while using the live link they are subject to the court’s jurisdiction to regulate behaviour in the courtroom.
the room should be supplied with the same oath and affirmation cards and Holy books as are available in a courtroom. The guidance for the taking of oaths and the making of affirmations which applies in a courtroom applies equally in a live link room. Holy books must be treated with the utmost respect and stored with appropriate care.
unless court or other staff are on hand to operate the live link or telephone equipment, clear instructions for users must be in the live link room explaining how, and when, to establish a connection to the courtroom.
Provision and use of live link and telephone facilities elsewhere
Where a witness gives evidence by live link, or a participant takes part in proceedings by live link or telephone, otherwise than from an established live link room, the objective remains the same as explained in paragraph 5 above. In accordance with that objective, the spirit of the requirements for a live link room should be followed as far as is reasonably practicable; but of course the court will not expect adherence to the letter of those requirements where, for example, a witness who is seriously ill but still able to testify is willing to do so from his or her sick bed, or a doctor or other expert witness is to testify by live link from her or his office. In any such case it is essential that the parties anticipate the arrangements and directions that may be required. Of particular and obvious importance is the need for arrangements that will exclude audible and visible interruptions during the proceedings, and the need for adequate clarity of communication between the remote location and the courtroom.
Conduct of hearings by live link or telephone
Before live link or telephone equipment is to be used to conduct a hearing, court staff must make sure that the equipment is in working order and that the essential criteria listed in paragraph I 3N.4 of the Practice Directions (‘appropriate’ facilities) are met.
If a witness who gives evidence by live link produces exhibits, the court must be asked to give appropriate directions during preparation for trial. In most cases the parties can be expected to agree the identity of the exhibit, whatever else is in dispute. In the absence of agreement, documentary exhibits, copies of which have been provided under CrimPR 24.13 (magistrates’ court trial) or CrimPR 25.17 (Crown Court trial), and other exhibits which are clearly identifiable by reference to their features and which have been delivered by someone else to the court, may be capable of production by a witness who is using a live link.
Where a witness who gives evidence by live link is likely to be referred to exhibits or other material while he or she does so, whether or not as the producer of an exhibit, the court must be asked to give directions during preparation for trial to facilitate such a reference: for example, by requiring the preparation of a paginated and indexed trial bundle which will be readily accessible to the witness, on paper or in electronic form, as well as available to those who are in the courtroom. It is particularly important to make sure that documents and images which are to be displayed by electronic means in the courtroom will be accessible to the witness too. It is unlikely that the live link equipment will be capable of displaying sufficiently clearly to the witness images displayed only on a screen in the courtroom; and likely to be necessary to arrange for those images to be displayed also at the location from which the witness gives evidence, or made available to him or her by some other means. It is likewise important that there should be readily accessible to the witness, on paper or in electronic form, a copy of his or her witness statement (to which she or he may be referred under CrimPR 24.4(5), in a magistrates’ court, or under CrimPR 25.11(5), in the Crown Court) and transcript of his or her ABE interview, if applicable.
Conduct of those attending by live link or telephone: practical considerations
A person who gives evidence by live link, or who participates by live link or telephone, must behave exactly as if he or she were in the courtroom, addressing the court and the other participants in the proper manner and observing the appropriate social conventions, remembering that she or he will be heard, and if using a live link seen, as if physically present. A practical application of the rules and social conventions governing a participant’s behaviour requires, among other things, the following:
in the case of a professional participant, including a police officer, lawyer or expert witness:
a participant should prepare themselves to communicate with the court with adequate time in hand, and especially where it will be necessary first to establish the live link or telephone connection with the court.
on entering a live link room a participant should ensure that those outside are made aware that the room is in use, to avoid being interrupted while in communication with the court.
a participant should ensure that they have the means to communicate with court staff by some means other than the proposed live link or telephone equipment, in case the equipment they plan to use should fail. They should have to hand an alternative contact number for the court and, if using a mobile phone for the purpose, they should ensure that it is fully charged.
immediately before using the live link or telephone equipment to communicate with the court the person using that equipment and any other person in the live link room must as a general rule switch off any mobile telephone or other device which might interfere with that equipment or interrupt the proceedings. If the device is essential to giving evidence (for example, an electronic notebook), or if it is the only available means of communication with court staff should the other equipment fail, then every effort must be made to minimise the risk of interference, for example by switching a mobile telephone to silent and by placing electronic devices at a distance from the microphone.
a person who gives evidence by live link, or who takes part in the proceedings for some other purpose by live link, must dress as they would if attending by physical presence in the courtroom.
each person in a live link room, whether he or she can be seen by the court or not, and each person present where a telephone conference or loudspeaker facility is in use, must identify themselves clearly to the court.
a person who participates by telephone otherwise than from a room specially equipped for that purpose must take care to ensure that they cannot be interrupted while in communication with the court and that no extraneous noise will be audible so as to distract that participant or the court.
a person who participates by telephone in a call to which he or she, the court and others all contribute must take care to speak clearly and to avoid interrupting in such a way as to prevent any other participant hearing what is said. Particular care is required where a participant uses a hands-free or other loudspeaker phone.
a witness who gives evidence by live link may take with him or her into the live link room a copy of her or his written witness statement and (if a police officer) his or her notebook. While giving evidence the witness must place the statement or notes face down, or otherwise out of sight, unless the court gives permission to refer to it. The witness must take the statement or notes away when leaving the live link room.
where successive witnesses are due to give evidence about the same events by live link, and especially where they are due to do so from the same live link room; where the events in question are controversial; or where there is any suggestion that arrangements arerequired to guard against the accidental or deliberate contamination of a witness’ evidence by communication with one who has already given evidence, then the court must be asked to give directions accordingly. Subject to those directions, the usual arrangement should be that a witness who has been released should remain in sight of the court, by means of the live link, in the live link room while the next witness enters, and then should leave: so that the court will be able to see that no inappropriate communication between the two has occurred.
in the case of any other participant:
the preparation of any live link room and the use of the equipment will be the responsibility of court staff, or of the staff present at that live link room if it is outside the court building. Where the participant is a witness giving evidence pursuant to a special measures direction, detailed arrangements will have been made accordingly.
mobile telephones and other devices that might interfere with the live link or telephone equipment must be switched off.
a witness or other participant should take care to speak clearly and to avoid interrupting or making a sound which prevents another participant hearing what is said, especially where a hands-free or other loudspeaker phone is in use.
the party who calls a witness, or the witness supporter, or court or other staff, as the case may be, must supply the witness with all he or she may need for the purpose of giving evidence, in accordance with the relevant rules and Practice Directions. This may, and usually will, include a copy of the witness’ statement, in case it becomes necessary to ask him or her to refer to it, and copies of any exhibits or other material to which he or she may be asked to refer: see also paragraph 10 above.
Prison to court video links
The objective of the guidance in the preceding paragraphs applies. It is essential that the authority and gravity of the proceedings is respected, by defendants and by their custodians. Detailed instructions are contained in the information issued jointly by the National Offender Management Service and by HM Courts and Tribunals Service, with which prison and court staff must familiarise themselves. The principles set out in that guidance correspond with those of the Criminal Practice Directions, as elaborated in this guidance.
Where a defendant in custody attends court by live link it is likely that he or she will need to communicate with his or her representatives before and after the hearing, using the live link or by telephone. Arrangements will be required to allow that to take place.
Court staff are reminded that a live link to a prison establishment is a means of communication with the defendant. It does not provide an alternative means of formal communication with that establishment and it may not be used in substitution for service on that establishment of those notices and orders required to be served by the Criminal Procedure Rules.