Coronavirus Act 2020

|Legal Guidance

Introduction

The Coronavirus Act (the Act) came into force on 25 March 2020, as a reaction to the Covid 19 pandemic. Its stated aim is to introduce new laws to protect public health, increase NHS capacity, strengthen social care and support the public to take the right action at the right time.

This guidance provides an overview of the main criminal justice measures in the Act – a number of new criminal offences, and the extension of live links in relation to criminal proceedings to prevent the spread of the Covid-19 in courts.

Prosecutors should note that the main provisions are contained in the schedules to the Act, and that many of these schedules are divided into a number of Parts, some of which relate to the jurisdictions of Scotland and Northern Ireland. It is therefore important to ensure that, when checking the provisions of a schedule, reference is made to the correct Part of the schedule, either that which relates to England or that which relates to Wales, depending on where the alleged offence took place.

Sunset clause

The Government has stated that the measures in the Act are temporary, proportionate to the threat, will only be used when strictly necessary, and will be in place for as long as required to respond to the situation.

Accordingly, the Act allows the four UK governments to switch on these new powers when they are needed and to switch them off again once they are no longer necessary, based on the advice of the four Chief Medical Officers.

The legislation is time-limited for two years: a sunset clause at section 89 of the Act allows the Act’s provisions to expire, unless there is formal Parliamentary approval for them to continue beyond that point. The Act will also be debated in the House of Commons one year after its implementation.

New Offences

Powers relating to potentially infectious persons: Section 51 and Schedule 21

These provisions extend those contained in the Health Protection (Coronavirus) Regulations 2020, for the screening and isolation of certain persons. The Act revokes the Regulations, although schedule 21, paragraph 24, ensures that any requirement or restriction imposed under the Regulations is to be treated as having been imposed under schedule 21 to the Act, so that it may continue to have effect.

Public health officers, constables and immigration officers are given powers for the purposes of protecting the public from the health risks associated with the Covid-19.

When reviewing a case, prosecutors will need to check that the applicable criteria for exercise of the specific powers that relate to the offence in question have been properly complied with by the authorities.

Public health officers are defined under schedule 21(3)(2) as an officer designated by the Secretary of State or Welsh Ministers for the purposes of the schedule, or a registered public health consultant.

The main provisions to note are contained in schedule 21. Part 2 relates to England; part 4 relates to Wales. The following paragraph references refer to the part 2 provisions but charges should refer to the relevant Part / paragraph of schedule 21, depending on where the offence takes place:

21(4)&(5): The Secretary of State (or Welsh Ministers under part 4) may make a declaration of risks of coronavirus: this may be made if they are of the view that there is a serious and imminent threat to public health due to the incidence or transmission of the Covid-19, and that the exercise of the powers in schedule 21 will be an effective means of delaying or preventing significant further transmission of the virus. Before making or revoking a declaration the Secretary of State / Welsh Minister must consult the Chief Medical Officer or any of the Deputy Chief Medical Officers. A declaration may be made more than on one occasion.

The period from the date of the declaration until it is revoked is known as the “transmission control period”, and the powers in schedule 21 apply during this period of time. The declaration must be published online and in the London Gazette / a newspaper in general circulation in Wales.  

20(6)&(7): Paragraph (6) applies to public health officers; paragraph (7) applies to constables and immigration officers. Where they have reasonable grounds to suspect that a person is potentially infectious, they may require that persons to go to suitable place to undergo screening and assessment, or may remove a person to such a place, or, in the case of a public health officer, request a constable to do so. In exercising these powers, immigration officers and constables will be obliged to consult a public health officer, so far as practicable to do so.

A “potentially infectious person” is defined in schedule 21(2) as: a person who is, or may be, infected or contaminated with coronavirus and there is a risk that the person might infect or contaminate others with coronavirus; or a person who has been in an infected area within the 14 days preceding that time. “Infected area” means any country, territory or other area outside the UK which the Secretary of State or Welsh Minister has declared as a country, territory or area where: there is known or thought to be sustained human-to-human transmission of coronavirus; or from which there is a high risk that coronavirus will be transmitted to the UK.

These powers may only be exercised if it is considered necessary and proportionate to do so in the interests of the person, for the protection of other people, or for the maintenance of public health.

The person must be informed of the reason for directing or removing them, and that it is an offence to fail without reasonable excuse to comply with a direction, or, where a person is removed, to abscond.

21(8)-(14): There are numerous additional powers for public health officers in particular, but also constables and immigration officers, which are exercisable at a screening and assessment place. These allow for further restrictions and requirements to be imposed upon potentially infectious persons where they are necessary and proportionate.

21(14)(6): Note that in order to impose the requirements to remain in a specified place or in isolation, under paragraph (14)(3)(d) & (e), the public health officer must have regard to a person’s wellbeing and personal circumstances.

Paragraph 15 also stipulates time limits (14 days initially), and sets out the conditions for reviews and extensions.

Other requirements that may be imposed include: to provide a biological sample; to answer questions and provide information about their health; and restrictions on travel, activities such as work and business, and contact with other people.

Children

21(18): This paragraph places duties on those who have responsibility for a child (under 18s), such as ensuring the child complies with a direction, instruction or requirement, and providing information and assistance in relation to the child to a public health officer, constable or immigration officer.

Appeal

21(17): A person may appeal against a requirement or restriction imposed on them, or on a child for who they are responsible, under paragraph 14 - these relate to powers exercisable after assessment, such as restrictions on travel, work and contact. The appeal is to a magistrates’ court. On appeal, the court may:

  • confirm the requirement or restriction with or without modification; or
  • quash the requirement or restriction.

Offences

There are 5 separate summary only offences, which are contained in paragraph 23 of Schedule 21:

A person commits an offence if the person—

  • Fails without reasonable excuse to comply with any direction, reasonable instruction, requirement or restriction given to or imposed on the person under Part [2/4] of schedule 21.
  • Fails without reasonable excuse to comply with a duty under paragraph 18(1) or (2) (duties of individuals who have responsibility for a child).
  • Absconds or attempts to abscond while being removed to or kept at a place under Part [2/4] of schedule 21.
  • Knowingly provides false or misleading information in response to a requirement to provide information under Part [2/4] of schedule 21, or otherwise in connection with the exercise of any power under Part [2/4] of schedule 21.
  • Obstructs a person who is exercising or attempting to exercise a power conferred by Part [2/4] of schedule 21.

These offences are summary only, punishable with a fine not exceeding level 3 on the standard scale.

Evidence

In addition to proving the specific culpable acts of the suspect in relation to the relevant offence, it will also be necessary to evidence a number of other points relating to certain state of affairs that existed at the time, and specific actions required by the public health officer, constable or immigration officer.

These are set out below:

  • Declaration made by the Secretary of State.
  •  Alleged offence occurred during the transmission control period.
  • (If the alleged offence takes place at a screening / assessment location):

The suspect was at a place which was suitable for screening and assessment.

  • (If the alleged offence takes place after assessment):
  • The suspect was screened and assessed by a public health officer and:
    • the screening confirmed that the person was infected or contaminated with coronavirus; or
    • the screening was inconclusive;

OR

  • The suspect was assessed by a public health officer and the officer had reasonable grounds to suspect that the person was potentially infectious.
  •  The Public health officer, constable or immigration officer:
  • Had reasonable grounds to suspect that the suspect was potentially infectious. 
  •  Issued a direction, instruction, requirement or restriction: specify.
  • Considered it is necessary and proportionate to impose the specified requirement or restriction on the suspect:
    • in the interests of the person,
    • for the protection of other people, or
    • for the maintenance of public
  • (where a reasonable instruction is given under paragraph 20):

Informed the suspect:

  • of the reason for the instruction; and
  • that it is an offence to fail to comply with it
  • (If offence relates to directing or removing to a place, or another place, for screening / assessment)

Informed the suspect:

  • of the reason for directing or removing them; and
  • that it is an offence:
    1. in a case where a person is directed, to fail without reasonable excuse to comply with the direction.
    2. in a case where a person is removed (by the officer or by a constable), to abscond. 

OR

(If offence occurs at a screening and assessment place, before assessment)

Informed the suspect:

  • of the reason for imposing the requirement and/or or keeping them at the place; and
  • of the maximum period the person may be required to remain there (taking into account any extension of time periods); and
  • that it is an offence to fail to comply with the requirement and/or abscond.

OR

(If offence occurs at a screening and assessment place, after assessment)

Informed the suspect:

  • of the reason for imposing the requirement or restriction; and
  • that it is an offence to fail to comply with the requirement or restriction.
  • (If offence occurs at a screening and assessment place, after assessment, and relates to a requirement to remain at a place / in isolation):

(applicable to public health officer only): in deciding whether to impose a requirement to remain at a specified place /in isolation from others for a specified period, had regard  to the suspect’s wellbeing and personal circumstances.

  • (If it is an immigration officer or constable exercising the powers) before exercising the relevant power, consulted a public health officer to the extent that it was practicable to do so.
  •  Had regard to:
  • any relevant guidance issued, before or after the passing of the Coronavirus Act 2020 by the Secretary of State; and
  • any advice given by a public health officer in relation to any particular case.

Additionally, where relevant to an issue in the case, prosecutors should check carefully any time periods, including extensions, and reviews of requirements or restrictions placed on a suspect.

Powers relating to events, gatherings and premises: Section 52 and Schedule 22

Section 52 and schedule 22 give the Secretary of State and Welsh Ministers the power to prohibit or restrict events and gatherings, and to close and restrict access to premises, if the public health situation deems it necessary. This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible during a public health response period, which is determined by Ministers based on criteria defined in the schedule.

Part 2 of the schedule makes provision for England; part 4 relates to Wales. The following paragraph references refer to the part 2 provisions. Prosecutors should ensure that charges refer to the relevant Part / paragraph of schedule 22, depending on where the offence takes place.

22(1): “Premises” are defined as including any place and any vehicle, train, vessel, aircraft, tent or movable structure. References to premises include a part of premises.

Declaration

22(3): The Secretary of State / Welsh Minister may make a declaration under part 2 / part 4 of the schedule. They may do so, If they are of the view that:

  • The incidence or transmission of coronavirus constitutes a serious and imminent threat to public health in England; and
  • The powers conferred by this Part of this Schedule will be an effective means of:
    • Preventing, protecting against, delaying or otherwise controlling the incidence or transmission of coronavirus in England / Wales; or
    • Facilitating the most appropriate deployment of medical or emergency personnel and resources in

Before making or revoking a declaration the Secretary of State / Welsh Minister must consult the Chief Medical Officer or any of the Deputy Chief Medical Officers. A declaration may be made more than on one occasion. The declaration must be published online and in the London Gazette / a newspaper in general circulation in Wales.  

22(8): Before issuing a direction under part 2 or 4 of this schedule, the Secretary of State / Welsh Minister must have regard to any relevant advice given by the Chief Medical Officer or any of the Deputy Chief Medical Officers.

Where a direction imposes prohibitions, requirements or restrictions on a person specified by name, the direction must be given in writing to that person. In any other case, the direction must be published in such manner as the Secretary of State considers appropriate to bring it to the attention of other persons who may be affected by it.

22(4):  The period between the declaration and its revocation is known as “public health response period”. The directions described below may only be issued during this period.

Events and gatherings

22(5): The Secretary of State / Welsh Minister may issue a direction prohibiting, or imposing requirements or restrictions in relation to, the holding of an event or gathering in England / Wales. This may be in relation to a specific event or gathering, or events or gatherings of a specific type.

The direction may only be imposed on:

  • The owner or occupier of premises for an event or gathering to which the direction relates;
  • The organiser of such an event or gathering; or
  • Any other person involved in holding such an event or This does not include a person whose only involvement in the event or gathering is, or would be, by attendance at the event or gathering.

Premises

22(6)-(8): the Secretary of State / Welsh Minister may issue a direction imposing prohibitions, requirements or restrictions in relation to the entry into, departure from, or location of persons in premises in England / Wales. This may be in relation to specific premises or premises of a specific type.

A direction may only impose prohibitions, requirements or restrictions on:

  • The owner or occupier of premises to which the direction relates;
  • Any other person involved in managing entry into, or departure from, such premises or the location of persons in them.

Requirements imposed by the direction may include closing the premises, restricting entry into the premises, and securing restrictions in relation to the location of persons in the premises.

The prohibitions, requirements or restrictions imposed may be by reference to, for instance: the number of persons in the premises; the size of the premises; the purpose for which a person is in the premises; the facilities in the premises; a period of time.

Offences

22(9): A person commits an offence if the person fails without reasonable excuse to comply with a prohibition, requirement or restriction imposed on the person by a direction issued under [Part 2/4] of the Schedule.        

22(10): This provides that where an offence is committed by a body corporate, and is proved to have been committed with the consent or connivance of an officer of the body, or to be attributable to any neglect on the part of such an officer, the officer (as well as the body corporate) is guilty of the offence and liable to be prosecuted and proceeded against and punished accordingly.

“Officer” is defined as a director, manager, secretary or other similar officer of the body corporate.

This offence is summary only, punishable with a fine. 

Power to suspend port operations: Section 50 and Schedule 20

The provisions of schedule 20 provide a power to the Secretary of State to give a direction in writing to a person responsible for the management of an airport, seaport or an international rail terminal in the UK, requiring them to suspend such operations that are specified in the direction. It is an offence for the person to fail without reasonable excuse to comply with a direction.

The main provisions to note are contained in schedule 20:

20(1) The Secretary of State may give a direction only if:

  • The Secretary of State considers that there is a real and significant risk that, as a direct or indirect result of the incidence or transmission of coronavirus, there are or will be insufficient border force officers to maintain adequate border security; and
  • The Secretary of State has taken such other measures as are reasonably practicable to mitigate that

20(2): The initial suspension period must be for no longer than 6 hours but this period may be extended by a further 6 hours, and subsequently for periods of 12 hours.  

20(1)(3): A direction under sub-paragraph (1) must specify—

  1. the operator to whom it is given,
  2. the relevant port operations which are to be suspended,
  3. the time at which the direction takes effect,
  4. the period of time for which the direction is to remain in effect (the “suspension period”), and
  5. any arrangements that must be made, or steps that must be taken, by the operator which are reasonably incidental to the direction.

20(3): Where a suspension direction has been given, the Secretary of State may also give written direction to any person (specified in the direction) to make arrangements or take steps, which the Secretary of State considers appropriate in consequence of the primary direction. This could include requiring a person to take action to secure the safe arrival of a vessel, aircraft or train or other conveyance or vehicle at an alternative port.

Offences

20(6)(1): A person commits an offence if the person fails without reasonable excuse to comply with a direction under the schedule.

20(6)(2): Note that a person will have a reasonable excuse for the purposes of sub- paragraph (1) if complying with the direction would cause the person to breach a duty to which the person is subject by virtue of any enactment.

20(6)(3): The schedule contains a non-exhaustive list of statutory provisions that include such duties:

  1. Schedule 3A to the Merchant Shipping Act 1995;
  2. Part 2 of the Aviation Security Act 1982;
  3. sections 118 and 119 of the Railways Act 1993;
  4. articles 13 to 16 of the Channel Tunnel (Security) Order 1994.

This offence is summary only, punishable with a fine or 6 months’ imprisonment, or both. 

ECHR considerations

The Secretary of State for Health and Social Care has made a statement under section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with the Convention rights.

The measures in the Act may engage convention rights under Article 8 (private and family life) and Article 11 (freedom of assembly and association). These are both qualified rights, which may be legitimately interfered with, in order to protect the wider public interest. The interference must be necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

These rights must therefore be balanced against the rights of others and the wider public interest, including the Article 2 right to life. Article 17 of the Convention also protects against the limitation or destruction of the rights of others by the assertion of an individual’s rights.

The extent to which the measures set out in the Act are necessary will depend on the risk of prevalence of Covid-19 within the community at any particular time. Clearly, where there is a high or increasing rate of infection, the risk is greater, and the measures are likely to be considered necessary and proportionate in achieving the aims referred to above. Use of the powers is also based on the advice of the Chief Medical Officers.

For these reasons, interference with A8 or A11 rights is likely to be justified.

Public Interest

When deciding whether a prosecution is in the public interest, prosecutors should consider each of the questions set out in paragraph 14.14 of The Code for Crown Prosecutors , so as to identify and determine the relevant public interest factors tending for and against prosecution.

Given that the offences in the Act are related to measures imposed to prevent the spread of infection throughout the UK, and potentially high incidences of serious illness and death, they should be considered serious. A prosecution will therefore be required in the public interest in the overwhelming majority of cases.

However, there may be some cases in which a prosecution is not required, where an out-of-court disposal or no action at all may be in the public interest: for instance, where a suspect on request promptly complies with any relevant direction, instruction, requirement, restriction or duty, having initially failed to do so.

Live Video and Audio Links

The Act’s provisions on virtual courts aim to protect court users by preventing the courts from becoming sources of infection.

The courts currently have various statutory and inherent powers which enable them to make use of technology. The Act makes temporary modifications to existing legislation, so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

The arrangement of the new statutory provisions are in two groups, one dealing with trials, appeals and certain other hearings (by amendments to the Criminal Justice Act 2003 (CJA) (Schedule 23 of the CA), and the other with preliminary, sentencing and enforcement hearings (by amendments to the Crime and Disorder Act 1998 (CDA)) (Schedule 24 of the CA).

It should be noted that whilst these new provisions extend what is permissible in terms of the use of live links, and the court may have inherent powers, there are also a number of clear prohibitions and limitations that prosecutors should be aware of, especially in relation to live audio links.

Expansion of availability of live links in criminal proceedings: Section 53 and Schedule 23

Criminal Justice Act 2003

The Schedule amends the Criminal Justice Act 2003 (CJA 2003) in order to extend the circumstances in which a criminal court can use audio and live links during hearings.

S51 of the CJA allows a witness, other than the defendant, if the court so directs, to give evidence through a live link in the following criminal proceedings:

  1. a summary trial,
  2. an appeal to the Crown Court arising out of such a trial,
  3. a trial on indictment,
  4. an appeal to the criminal division of the Court of Appeal,
  5. the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (references by the Criminal Cases Review Commission),
  6. a hearing before a magistrates' court or the Crown Court which is held after the defendant has entered a plea of guilty, and
  7. a hearing before the Court of Appeal under section 80 of the CJA (application for a re-trial for serious offences).

The schedule 23 amendments to s51 include:

  • S51(1) now allows any person to take part in eligible criminal proceedings (see below), not just a witness, including a judge or a justice. But it does not apply to any jury member.
  • 23(7)(3)(2B): A reference to a person taking part in eligible criminal proceedings includes:
    1. giving evidence in the proceedings, and
    2. attending the proceedings when not giving evidence.
  •  
  •  The live link may be a live audio or video link.
    • A “live audio link” is defined in schedule 23(7)(3)(2B) as a live telephone link or other arrangement that enables the participant to hear all the other participants to the proceedings, and vice versa.
    • A “live video link” is defined in schedule 23(7)(3)(2D) as a live television link or other arrangement that enables the participant to see and hear all the other participants to the proceedings, and vice versa.
  •  23(7)(3)(2C) Eligible criminal proceedings are conducted wholly as audio proceedings if:
    1. directions have been given under section 51 for all of the persons taking part in the proceedings to do so through a live audio link, and
    2. all of those persons take part in the proceedings in accordance with those directions.
  • 23(7)(3)(2E): Eligible criminal proceedings are conducted wholly as video proceedings if:
    1. directions have been given, whether under section 51 or any other power, for all of the persons taking part in the proceedings to do so through a live video link, and
    2. all of those persons take part in the proceedings in accordance with those directions.

The court must state in open court its reasons for refusing to give a live link direction and if in the magistrates’ court it must be entered into the register.

Eligible criminal proceedings for live links

Paragraph 3 of schedule 23 extends the list of “eligible criminal proceedings” to include:

  • Any proceedings that are preliminary or incidental to a criminal appeal to the Crown Court.
  • Any trial in the Crown Court for an offence.
  • Proceedings under section 4A or 5 of the Criminal Procedure (Insanity) Act 1964 (unfit to plead; insanity).
  • Proceedings under Part 3 of the Mental Health Act 1983 (Remands to hospital, Hospital Orders, Restriction Orders etc).
  • Proceedings under section 11 of the Powers of the Criminal Courts (Sentencing) Act 2000; or section 81(1)(g) of the Senior Courts Act 1981; or section 16 of the CJA, in respect of a person who  has  been  remanded  by  a  magistrates’ court on adjourning a case under that section of the 2000 Act (remand for medical examination following finding that accused did an act or omission).
  • Any proceedings that are preliminary or incidental to an appeal to the criminal division of the Court of Appeal.
  • An AG’s reference to the Court of Appeal, under Part 4 of the Criminal Justice Act 1988 (ULS), and any proceedings that are preliminary or incidental to such a reference.
  • Any proceedings that are preliminary or incidental to the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (references by the Criminal Cases Review Commission).
  • A hearing under section 142(1) or (2) of the Magistrates’ Courts Act 1980 (proceedings invalid where accused did not know of them) or under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (alteration of Crown Court sentence).
  • Any proceedings that are preliminary or incidental to a hearing before the Court of Appeal under section 80 of the CJA (application for a re-trial for serious offences).
  • Any hearing following conviction held for the purpose of making a decision about bail in respect of the person convicted. But this does not apply to preliminary hearings and sentencing hearings in the course of proceedings for an offence and enforcement hearings relating to confiscation orders: these are covered by the live links provisions in Part 3A of the Crime and Disorder Act 1998 applies (see section 57A(1)).

Prohibitions and limitations on the use of live links under CJA

23(8): A new Schedule 3A is inserted into the CJA. This sets out prohibitions and limitations on the use of live links. In particular, it sets out which proceedings can be conducted wholly as audio proceedings and wholly as video proceedings:

Conduct of proceedings wholly as audio proceedings

  • The proceedings are preliminary or incidental to a criminal appeal to the Crown
  • The proceedings are preliminary or incidental to an appeal to the criminal division of the Court of
  • 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 (ULS).
  • The proceedings are preliminary or incidental to the hearing of a reference under section 9 or 11
  • of the Criminal Appeal Act 1995 (references by the Criminal Cases Review Commission).
  • 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 convicted.
  • 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 either: section 4 of the Bail Act 1976 does not apply (general right to bail) to the person; or the making of the decision is not  disputed (including where the court is minded to refuse or revoke bail of its own motion).

There are exceptions to all of the proceedings above (references are to new Schedule 3A is inserted into the CJA):

  • 3A(3)(2): The defendant may not give evidence via audio link.
  • 3A(3)(3): Any other person may not give evidence by audio link unless there are no suitable arrangements for the person to give evidence by video link and the parties agree.
  • 3A(3)(4) & 3A(4): Where the court is minded to deal with the person for contempt of court then the defendant may not take part by an audio link. Any other person may not take part unless there are no suitable arrangements for a video link and the parties agree.
  • Where the proceedings relate to unfitness to plead then it is for the defendant’s representative to give consent and not the defendant.

Conduct of proceedings wholly as video proceedings

  • An appeal to the Crown Court which is an appeal only against
  • An appeal to the Crown Court arising out of a summary trial which: is an appeal arising out of a summary trial which was itself conducted wholly as video proceedings; and which the parties agree may be conducted wholly as video proceedings
  • The proceedings are preliminary or incidental to any criminal appeal to the Crown
  • The proceedings are preliminary or incidental to an appeal to the criminal division of the Court of
  • 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 (ULS).
  • The proceedings are preliminary or incidental to the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (references by the Criminal Cases Review Commission).
  • The proceedings are preliminary or incidental to a hearing before the Court of Appeal under section 80 of this Act (application for a re-trial for serious offences).
  • The proceedings are a hearing following conviction held for the purpose of making a decision about bail in respect of the person
  • The proceedings are a summary trial in a magistrates’ court, 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 (trial by single justice on the papers), and the parties agree to the proceedings being conducted wholly as video
  • The proceedings are a hearing under section 142(1) o(2) of the Magistrates’ Courts Act 1980 (power to rectify mistakes) or under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (alteration of Crown Court sentence).

Other modifications to the CJA

(References are to the Coronavirus Act, Schedule23)

  • The test to be applied by the court before giving a direction that live links may be used is changed: see 23(2)(4). In addition to an “interests of justice test”, this includes the parties and the youth offending team (where D is under 18) having an opportunity to make representations.
  •  23(2)(5): Live links directions may be applied to some or all of the participants; may apply only to some aspects of a person’s participation proceedings, such as giving evidence; and may apply to persons outside England and Wales.
  • 23(2)(8): Section 51(7) CJA, which sets out circumstances that a court must when deciding whether to give a live links direction, is amended - with different criteria for witnesses and other participants:
    1. in the case of a direction relating to a witness—
      1. the importance of the witness’s evidence to the proceedings;
      2. whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence;
    2. in the case of a direction relating to any participant in the proceedings—
      1. the availability of the person;
      2. the need for the person to attend in person;
      3. the views of the person;
        1. the suitability of the facilities at the place where the person would take part in the proceedings in accordance with the direction;
        2. whether the person will be able to take part in the proceedings effectively if he or she takes part in accordance with the direction.
  • 23(2)(9): A single justice in a magistrates’ court may give live links directions.
  • 23(2)(10)&(11): Contested bail applications - a court may not refuse or revoke bail at live links proceedings if any person takes part in the proceedings, other than for the purpose of giving evidence, through a live audio link, and the defendant objects to the refusal or But subsection this does not apply if section 4 of the Bail Act 1976 does not apply to the defendant: so it will not apply if the defendant does not have a general right to bail. The effect of this provision is that participants at such proceedings, including the CPS, would need to access a live video link.
  • 23(2)(12): Contempt of court proceedings: participants must take part via a live video link, apart from giving evidence, which may be via an audio link.
  • 23(4): A person who takes part in proceedings via live links is treated as being present in court, and having complied with any requirement to attend court or surrender to the custody of the court.

Modifications to other legislation

  • The provisions relating to live links directions under the Criminal Appeal Act 1968 and s32 of the Criminal Justice Act 1988 (witness outside the UK) are amended, so as to make them broadly consistent with the CJA amendments, save for some exceptions. For instance, s31 of the Criminal Appeal Act 1968 is amended so that a single judge of the Court of Appeal and the Registrar of Criminal Appeals are able to exercise the expanded live links powers in s51 CJA.

Expansion of availability of live links in other criminal hearings: Section 54 and Schedule 24

Crime and Disorder Act 1998

Schedule 24 amends Part 3A of the (CDA), which enable the court to direct the use of a live link for securing the accused's attendance at preliminary hearings, sentencing hearings and enforcement hearings relating to confiscation orders.

Schedule 24 paragraph 3 relates to CDA ss57A-D, preliminary hearings; paragraph 4 relates to CDA s57E, sentencing hearings; and paragraph 5 relates to CDA s57F, enforcement hearings.

The definitions of these hearings in section 57A CDA are amended, so that they now read:

“Preliminary hearing”: a hearing in the proceedings held before the start of the trial (within the meaning of subsection (11A) or (11B) of section 22 of the 1985 Act) including, in the case of proceedings in the Crown Court, a preparatory hearing held under:

(a) section 7 of the Criminal Justice Act 1987 (cases of serious or complex fraud); or

(b) section 29 of the Criminal Procedure and Investigations Act 1996 (other serious, complex or lengthy cases)

“Sentencing hearing”: any hearing following conviction which is held for the purpose of:

  • proceedings (in a magistrates' court) relating to committal to the Crown Court for sentencing;
  • sentencing the offender or determining how the court should deal with him in respect of the offence (including reviewing, amending or revoking such a sentence or determination); or
  • determining:

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

(ii) how 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.

“enforcement hearing”: a hearing relating to collection, discharge, satisfaction or enforcement of:

  • a sum that has been adjudged to be paid on conviction by a magistrates’ court or the Crown Court, or
  • a financial penalty that is enforceable in accordance with section 85(6) and (7) of the Criminal Justice and Immigration Act 2008 as if it were such a sum (including a hearing to determine whether a financial penalty is so enforceable);

The amendments to Part 3A of the CDA include:

  • Expands the use of live links beyond the attendance of the accused at certain preliminary, sentencing and enforcement hearings to all participants, including the court, in preliminary, sentencing and enforcement hearings (not just those relating to confiscation).
  • The availability of live links at these hearings is expanded to include live video and audio links (subject to prohibitions and limitations) and all persons participating in the hearing, not solely live video links for the accused when in custody.
  • A participant by live link may take part from any place in England and Wales or beyond.
  • The test to be applied by the court before giving a direction that live links may be used is changed, as above in relation to the CJA: this includes an “interests of justice” test, the parties and the youth offending team (D is under 18 ) having an opportunity to make representations.
  • The circumstances that a court must consider when deciding whether to give / rescind a live links direction, is amended as per the amendments relating to the CJA above - with different criteria for witnesses and other participants: s57B(3J) (preliminary hearings); s57E(6E) (sentencing hearings); and s57F(7B) (enforcement hearings).
  • 24(3)(5): Contested bail applications at a preliminary hearing: as per the CJA revision above, a court may not refuse or revoke bail on a contested application at live links proceedings if any person takes part in the proceedings, other than for the purpose of giving evidence, through a live audio link.
  • 24(3)(5): Guilty pleas: If any person takes part in a preliminary hearing, other than for the purpose of giving evidence, through a live audio link, the court may not accept a guilty plea, or deal with a person for contempt of court. The CPS would therefore need to access a live video link for a plea to be taken at a preliminary hearing, as we will not able to anticipate with certainty what the plea will be.
  • 24(4)(9): The following functions of a magistrates’ court under s57E CDA, sentencing hearings, may be discharged by a single justice: (a) giving a live link direction under this section; (b) rescinding a live link direction before a sentencing hearing begins; and (c) requiring or permitting a person to attend by live link a hearing about a matter within paragraph (a) or (b).
  • 24(5)(11): If any person takes part in an enforcement hearing, other than for the purpose of giving evidence, through a live audio link, the court may not: impose imprisonment or detention in default of payment of a sum or financial penalty, or deal with a person for contempt of court. The CPS would therefore need to access a live video link for imprisonment or detention to be imposed.
  • Paragraph 6 to schedule 24 inserts new section 57G of the CDA 1998 (requirement to attend court, perjury): a defendant who takes part in proceedings via live links under ss57B, 57E or 57F CDA is treated as being present in court, and having complied with any requirement to attend court or surrender to the custody of the court.
  • Perjury: paragraph 6 also makes provision for a statement made on oath by a witness outside the UK, via live audio or video link, to be treated for the purposes of section 1 of the Perjury Act 1911 as having been made in the proceedings in which it is given in evidence.

Prohibitions and limitations – CDA

Schedule 24, paragraph 7, inserts a new Schedule 3A into the CDA, on the prohibitions and limitations on the use of live links. These largely mirror those inserted into in the CJA – see above:

  • 3A(2): Giving evidence: the defendant may not take part in a preliminary hearing through a live audio link for the purpose of giving Any other person may not do so, unless there are no suitable arrangements by means of which that person could give evidence through a live video link, and the parties agree to that person giving evidence through a live audio link. This paragraph does not apply to contempt of court proceedings.
  • 3A(3): Bail proceedings at preliminary hearing: the defendant may not take part at a contested bail hearing through a live audio link. Any other person may not take part through a live audio link unless: that person’s participation through the live audio link is only for the purpose of giving evidence at the hearing; there are no suitable arrangements by means of which that person could give evidence through a live video link; and the parties agree to that person giving evidence through live audio link.
  • 3A(4): Contempt of court: the same restrictions apply as those that apply to contested bail hearings.
  • 3A(6): Anticipated guilty plea at preliminary hearing: the same restrictions apply as those that apply to contested bail hearings.
  • 3A(5): Unfitness to plead hearing, s4 Criminal Procedure (Insanity) Act 1964: the same restrictions apply as those that apply to contested bail hearings. Additionally, the hearing may not be conducted wholly as a video hearing.
  • 3A(9): Sentencing hearing: The offender may not take part in a sentencing hearing through a live audio link. The same restrictions apply to the offender and any other persons as those that apply to contested bail hearings.
  • 3A(12): Enforcement hearing: the person liable to pay the relevant sum may not take part in an enforcement hearing through a live audio link for the purpose of giving Any other person may not do so, unless there are no suitable arrangements by means of which that person could give evidence through a live video link, and the parties agree to that person giving evidence through a live audio link. “Relevant sum” means the sum or financial penalty whose collection, discharge, satisfaction or enforcement the enforcement hearing is concerned with. This paragraph does not apply to contempt of court proceedings.
  • 3A(13): Enforcement hearing – court minded to impose imprisonment or detention: the same restrictions apply to the defaulter and any other persons as those that apply to contested bail hearings.
  • 3A(14): Enforcement hearing - contempt of court: the same restrictions apply to the person liable to pay the relevant sum and any other persons as those that apply to contested bail hearings.

Extradition

  • Schedule 24, paragraphs 8 - 10 apply to sections 206A and 206C of the Extradition Act 2003 are modified by schedule 24 to permit extradition hearings to be conducted by live link under both parts 1 and 2 of the 2003 Act.
  • 24(9): The power to give a live link direction includes the power to give a direction to all or any of the following persons to take part in the hearing through a live link—

(a) the appropriate judge,

(b) the person affected by the extradition claim,

(c) any other party,

(d) the prosecutor or any other legal representative acting in the hearing,

(e) any witnesses in the hearing, and

(f) any interpreter or other person appointed by the court to assist in the hearing.

  • 24(9)(7): A person who takes part in the hearing through a live link is to be treated as present in court for the purposes of the hearing.
  • Note that the effect of the amendments to section 206C of the Extradition Act 2003 mean that a live link in these hearings must be by video link only.

Public participation in proceedings conducted by video or audio: Section 55 and Schedule 25

Provisions are made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal courts to make directions to live stream a hearing which is taking place in this manner.

There are existing restrictions on photography and sound recording in physical courts. Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings. These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible: see CPS guidance on Contempt of Court. Provisions in the Bill therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and live-links.

Courts Act 2003

Section 55 and Schedule 25 inserts new section 85A to the Courts Act 2003 (CA), making provisions for the live streaming of wholly audio or video hearings.

Proceedings which are conducted as wholly video proceedings or wholly audio proceedings (a ‘fully virtual’ hearing) can be broadcast so members of the public can observe proceedings or to be made for record-keeping purposes (section 85A).

Offences

There are a number of offences created in relation to the new provisions.

Offences of recording or transmission in relation to broadcasting: s85B CA

These offences relate to the broadcasting of proceedings.

(1) It is an offence to make, or attempt to make, an unauthorised recording or transmission of an image or sound, which is being broadcast in accordance with a direction under s85A.

(2) It is an offence to make, or attempt to make, an unauthorised recording or transmission of an image, or sound made by, another person while the other person is viewing or listening to a broadcast made in accordance with a direction under section 85A.

There is a statutory defence for these offences:

It is a defence for a person charged with an offence under subsection (1) or (2) to prove that, at the time of the actual or attempted recording or transmission of the image or sound concerned:

  1. he or she was not in designated live-streaming premises, and
  2. he or she did not know, and could not reasonably have known, that the image or sound was—
    1. being broadcast in accordance with a direction under section 85A (in the case of an   offence under subsection (1)), or                                                   
    2. an image of, or sound made by, another person while viewing or listening to a broadcast made in accordance with a direction under section 85A (in the case of an offence under subsection (2)).

These are summary only offences, punishable with a fine not exceeding level 3 on the standard scale.

Offences of recording or transmitting participation through live link: s85C CA

These offences relate to the transmission of proceedings.

(1) It is an offence for a person to make, or attempt to make an unauthorised recording, or an unauthorised transmission, of an image or sound which is being transmitted through a live video link or transmitted through a live audio link.

(2) It is an offence for a person (P) to make, or attempt to make an unauthorised recording, or an unauthorised transmission, of an image of, or sound made by, any person (whether P or another person) while that person is participating in court proceedings through a live video link or a live audio link.

There is a statutory defence for these offences, which is similar to that for the s85B offence.

These are summary only offences, punishable with a fine not exceeding level 3 on the standard scale.

Tribunals, Courts and Enforcement Act 2007

Schedule 25 also inserts sections 29ZA, to 29ZD to the Tribunals Courts and Enforcement Act 2007, making identical provisions to those inserted in the CA 2003, for the live streaming of wholly audio or wholly video hearings in First‐tier Tribunals and Upper Tribunals.

Offences

New offences are created at sections 29ZB and 29ZC, in relation to the broadcasting and transmission of proceedings, similar to those inserted in the Courts Act 2003.

These are summary only offences, punishable with a fine not exceeding level 3 on the standard scale.

Live links in magistrates’ court appeals against requirements or restrictions imposed on a potentially infectious person: Section 56 and Schedule 26

Schedule 26 inserts sections 57ZA to 57ZF into the Magistrates’ Courts Act 1980.

It provides that appeals against decisions by the Secretary of State or an authorised public health official to impose requirements or restrictions on a potentially infectious person under schedule 21 of the Coronavirus Act, be conducted wholly as video proceedings, unless the court directs otherwise. This provides protections to court users, as the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.

Section 57ZC provide for these proceedings to be broadcast to the public.

Offences

Sections 57ZD and 57ZE create new criminal offences in relation to the broadcasting and transmission of proceedings, identical to those inserted in the Courts Act 2003.

These are summary only offences, punishable with a fine not exceeding level 3 on the standard scale.