Policy paper

Audio and video live links: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

What are we going to do?

Video remand hearings in police stations

We will be legislating to enable Prisoner Escort and Custody Service (PECS) officers to manage Video Remand Hearings (VRH) in police stations.

Use of video/audio hearings at court

We will also replace the current temporary emergency provisions in the Coronavirus Act 2020 (“the 2020 Act”), which enable participants in criminal hearings (witnesses, defendants, lawyers etc) to attend remotely by live audio or video link and have worked well. This means the courts will be able to operate more efficiently in the future, with greater flexibility to make full use of improvements in technology in court processes and respond to unusual or changing circumstances like the pandemic. The courts will be more accessible and delays to justice will be minimised.

The Act also contains enabling provisions which would allow criminal courts to make use of new technology as it develops. This would make it possible in the future, for example, for a jury, sitting collectively, to participate in a trial by live video link, where the court considered this appropriate.

Open Justice

We will also replace the current temporary provisions in the 2020 Act which aim to ensure that wholly video/audio hearings can be observed by members of the public.

The Act will include provisions which allow for the remote observation of public hearings in a wider range of courts and tribunals, in order to facilitate open justice and greater access to, and transparency of, our justice system – subject to judicial discretion.

These powers will be enabled via Secondary Legislation as and when is appropriate, and may be applied to various types of hearings: wholly remote hearings; hybrid hearings (i.e. those hearings taking place in a courtroom but with some participants joining via audio and video technology); and traditional wholly in-person hearings.

This legislation will provide safeguards which will prohibit observers or participants making unauthorised recordings or broadcasting of proceedings.

How are we going to do it?

Video remand hearings in police stations

This option will amend the Criminal Justice Act 1991 to provide PECS officers with the power to have custody over prisoners in police stations, including detainees in legal custody, for the purpose of overseeing a preliminary, sentencing or enforcement hearing taking place by way of live link, in particular remand hearings conducted by video link, and matters associated with such hearings (such as overseeing pre-trial meetings with solicitors and probation officers).

Use of video/audio hearings in court

These changes remove some restrictions in the 2020 Act about which types of hearings or which participant(s) may appear by live link in the criminal courts. It will be for judges to decide when and how live links can be used. The court must be satisfied that it is in the interests of justice, having considered any representations from the parties in the hearing (i.e. defendants, witnesses, lawyers, prosecutors, Youth Offending Teams etc).

The process for considering live link applications in the criminal courts (including guidance on the circumstances which would make a hearing more or less suitable for live links) will be set out in the Criminal Procedure Rules, Criminal Practice Directions and any guidance from the Lord Chief Justice. This will help to ensure that a consistent approach is taken when considering these applications.

Open Justice

The Government wishes to make permanent and build upon the existing temporary provisions in the Coronavirus Act 2020 (“the 2020 Act”) which prohibit unauthorised recording or broadcasting of a hearing taking place entirely by audio or video technology outside of a physical courtroom (i.e. ‘wholly remote hearings’) and will also clarify how the prohibitions on unauthorised livestreaming and broadcasting will apply to “hybrid” hearings (i.e. those hearings taking place in a courtroom but with some participants joining via audio and video technology).

This legislation builds on the 2020 Act and will also seek to facilitate the principle of open justice by allowing for the remote observation of all types of hearings (wholly remote, hybrid, and traditional wholly ‘in-person’ hearings).

It will ensure that, regardless of the nature of the hearing, it is prohibited for observers and participants to record or broadcast the proceedings, as is the case in physical public galleries. These powers will be enacted via Secondary Legislation by the Lord Chancellor and with the concurrence of the Lord Chief Justice, Senior President of Tribunals, or both.

These provisions will now be extended to all courts, tribunals and bodies which exercise the judicial power of the State except for the Supreme Court (which is already legislated for) and devolved courts and tribunals. . This will make permanent and build upon legislation prohibiting the unauthorised recording or transmission of proceedings as laid out in the Coronavirus Act 2020 for the courts and unified tribunals, and will now bring previously-excluded jurisdictions in line with this legislation, such as employment tribunals, other non-HMCTS tribunals, the Court of Protection and coroners’ courts.

This legislation will therefore refine and extend the previous temporary provisions of the Coronavirus Act that allow for remote observations of public courts and tribunal proceedings, subject to judicial discretion.

Background

Video remand hearings in police stations

Before the pandemic, remand hearings were normally conducted at court. Detainees remanded in police custody overnight were collected by PECS officers from police stations and brought before magistrates’ courts where they remained in the custody of PECS officers before being transported to prison on remand or released on bail. Once the police handed over the detainee to the custody of the PECS officer at the police station, the police had no further involvement. In video remand hearings (VRH), the detainee remains in the police station. This means the cell is occupied for longer and the police have additional work to facilitate the remote remand hearing (both in terms of booking/arranging the hearing and in facilitating the detainee’s participation). The new provision will enable criminal justice partners to revise business processes, which will allow for more effective and efficient ways of working in the future.

The police confirmed that forces had to resource two new and distinct roles to operate VRH in police stations. Both of these roles involve work which would normally be undertaken by PECS officers in court cells, with the support of court staff:

a) The administrative role of Custody Video Single Point of Contact which oversees and coordinates the video hearing and arranges any meetings the defendant has with lawyers and probation.

b) The custodial role of Video Dock Officer which involves escorting detainees to and from police cells, hearings and meetings with legal representatives and probation.

The current legislation under which PECS officers operate does not specifically provide they may have custody of detainees at police stations, in the same way it specifies they may have custody of detainees at court. This means that whilst we have been able to deploy PECS officers to police stations during the pandemic they have only been able to take on the first of these two roles. PECS officers have therefore been able to assist with the administration of VRH via the Custody Video Single Point of Contact role but not the custodial Video Dock Officer role.

This measure will enable PECS officers to have custody over detainees in police stations for the purpose of overseeing VRH and matters associated with VRH. It will ensure we continue to make the best use of technology. The use of VRH supported the CJS response to COVID-19. They reduced the number of people travelling to our magistrates’ courts and subsequently reduced the risk of transmission of COVID-19 across our court users. This increased the resilience of the CJS during COVID-19.

A solution to the long-term structural and resourcing issues is required to allow HMCTS to bring forward the rollout of VRH. This forms part of the wider Crime Reform Programme, to modernise the court service and improve access to justice. The use of VRH is a key element of the wider HMCTS Reform Programme as it will reduce unnecessary travel and, crucially, will help ensure that the CJS is making the best use of new technology to improve efficiency in our system.

Whilst VRH offer many benefits, it is hard for the police to continue to deploy highly trained officers to help run the hearings, meaning take up is currently low. This option can therefore be considered enabling legislation to ensure that any future VRH rollout is not reliant on police resource, which would be an ineffective and inefficient use of their training and skills. While the rollout of VRH across police stations is intended during the life of the Programme, the implementation plan is being developed and not yet finalised.

Use of video/audio hearings at court

Current legislation already allows for certain criminal proceedings to take place using electronic means, enabling participants to appear through (i) live video link, (ii) live audio link, (iii) live “wholly” video conference or (iv) live “wholly” audio conference (all are live links). Live video links into a courtroom are often used for vulnerable or intimidated witnesses and for defendants remanded in the custody of a prison.

In addition, the court has inherent powers to allow live links in some circumstances other than those specified in legislation. The Criminal Procedure Rules on live links for pre-trial hearings place an obligation on the court to make use of the technology when it is appropriate and also broaden the scope of defendants for whom the technology might be used to include defendants who are not in custody but who “[want] to attend by video link”.

In March 2020, the Coronavirus Act introduced temporary provisions to extend the circumstances in which live audio and video links can be used in criminal proceedings. The 2020 Act is due to expire in March 2022, at which point these temporary provisions will cease to be available to the courts. The 2020 Act also imposed certain prohibitions and limitations on the use of video and audio hearings, which recent experience has shown to be unnecessary and these will be repealed. The new measures recognise the importance of allowing courts greater flexibility in how audio and video technology is used both now and in the future.

Open Justice

The Coronavirus Act 2020 provisions have a sunset clause in place and are not a long-term legislative solution. When the Act expires, legislative control over recording or transmission of broadcasts will be s.41 of the Criminal Justice Act 1925 and s.9 of the Contempt of Court Act 1981, which do not adequately provide for the current and future practical use of video/audio hearings.

Frequently asked questions

Video remand hearings (VRH) in police stations

Why does this change require legislation if PECS officers already manage detainees attending remand hearings at court?

While we have been able to deploy PECS officers to police stations to assist with the administration of VRH, the current legislation under which they operate does not specifically provide they may have custody of detainees at police stations in the same way it specifies they may have custody of detainees at court. Therefore, PECS officers can only currently perform part of the role required to effectively operate VRH. This is causing pressure on police resources that is not sustainable in the longer term.

Use of video/audio hearings at court

How will you ensure the technology is of sufficient quality to ensure a fair trial?

We believe the technology is of sufficient quality and have seen how valuable it can be during the pandemic, both in and outside of the criminal justice system. Audio and video live links provide an additional channel for conducting a hearing and should be as accessible as possible.

HMCTS rolled out the Cloud Video Platform technology which makes this possible at considerable pace during the Coronavirus pandemic, to enable justice to continue to be delivered in very challenging circumstances. We will build on this progress and sustain the reforms that have proved useful as we continue to develop the quality of the user experience through insight and feedback from stakeholders and the judiciary.

How would you ensure a fair trial once you enabled juries to participate via live link in the future?

This would only be used in appropriate circumstances. A jury would still sit collectively in another room in the court or another building to attend a trial via video link and the judge would maintain full supervision of the jury. Jurors would not be able to take part individually by live link (for example, from home) under any circumstances.