Section 51 of the Criminal Justice Act 2003 enables the court to allow witnesses (other than the defendant) in the United Kingdom to give evidence by live link if the court is satisfied that giving evidence in this way is in the interests of the efficient or effective administration of justice.
Section 51 was piloted in 5 Crown Court centres and was restricted to serious sexual offences. The Criminal Justice Act 2003 (Commencement No. 24 and Transitional Provisions) Order 2010 extended live links to all witnesses in all cases for all criminal offences in all courts and came into force on 26 April 2010. The witness does not have to be a special 'category' of witness (for instance vulnerable or intimidated as defined by the Youth Justice and Criminal Evidence Act 1999 [YJCEA]).
"Live link" is defined in section 56(2) and will usually mean a closed circuit television link, but could apply to any secure technology with the same effect such as video conferencing facilities or the internet.
Live links will be particularly helpful for witnesses with limited availability, such as professional witnesses, or those with mobility issues who do not qualify for live links under the 'special measures' provisions of the YJCEA. It may also assist in cases involving police officers who have to travel some distance to a Crown Court (in rural areas, for example).
It is for prosecutors to decide whether an application for a live link is appropriate, taking into account all the circumstances of the case. The legislation allows for evidence to be given by live link from any suitable facility and is not limited to those in a court building. If the link is from somewhere other than a court building prosecutors should factor in sufficient time for the requisite IT equipment to be installed.
Matters to consider when deciding to apply
A court may only authorise the use of a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of a live link - for example, a witness may be able to give evidence from a court in a different part of the United Kingdom rather than have to travel to the trial court (subsection (4)[a]).
Section 51(6) sets out the matters that the court must consider when deciding whether to authorise the use of a live link (subsection (6)). These are:
- the availability of the witness;
- the need for the witness to attend in person;
- the importance of the witness's evidence to the proceedings;
- the views of the witness;
- the suitability of the facilities at the place where the witness would give evidence through a live link;
- whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.
Section 52 provides that where a direction for a live link has been given that witness must give all their evidence through a live link. This makes it clear that any cross-examination of the witness is also to be given by live link, although the court can rescind a direction if it seems to be in the interests of justice to do so.
An application for a direction to be rescinded can only be made if there has been a material change in circumstances since the decision was made. For example, a direction might be rescinded where problems with the live link technology arise after a direction has been given.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court.
Making the application
Applications for live links should be made in writing to the court on the form attached at Annex A and in accordance with Parts 2 and 29 of the Criminal Procedure Rules. The application should not be 'badged' with the CPS logo as it is not a CPS form but is one prescribed by the relevant Practice Direction.
The application should be made as soon as reasonably practicable, and in any event not more than 14 days after the defendant pleads not guilty. The application must be served on the court and the defence. The time limit can be extended upon application to the court providing an explanation is given.
Applications made by the defence for one of their witnesses (other than the defendant) to give evidence through a live link should include the name, address and date of birth of the witness or as many of those details as are known to the accused when the application is made.
The roles and responsibilities of the various cjs agencies in applying for, and operating, section 51 live links are covered in the Office for Criminal Justice and Reform ('OCJR') live links protocol.
A list of suitable court sites with live link facilities has been compiled by Her Majesty's Courts and Tribunals Service (HMCTS) and can be accessed at OCJR Live Link Protocol.