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COVID-19: Delays, video link hearings and custody time limits for children in the criminal courts

The outbreak of coronavirus presents an unprecedented challenge for the criminal justice system, with many courts shutting entirely and the use of technology being increasingly utilised for urgent hearings. As a result of the immediate and sudden impact of coronavirus, considerable confusion has arisen around which criminal proceedings are still going ahead and, in the case of those which are, in what format. In many instances, guidance is changing on a daily basis.

This legal update provides an overview of the current position in relation to children who face criminal proceedings during this time. A number of changes are introduced by the new Coronavirus Act 2020 (“the Act”) as well as various guidance including that on the HMCTS daily operational summary on courts and tribunals during the coronavirus (COVID-19) outbreak.

Which matters are being heard in the Youth Court?

As with proceedings in the adult Magistrates’ Court, the Youth Court is currently sitting to hear priority matters only.[1] Relevant priority matters for children include:

  • overnight custody cases from police stations (including breach of bail cases);
  • sensitive/high profile cases including children and vulnerable witnesses/victims;
  • other situations where a child is remanded into custody – including where a child is remanded to youth detention accommodation and local authority accommodation; and
  • applications to extend custody time limits.

All other ‘non-urgent’ cases are currently being adjourned. In the case of all defendants who are on bail, there is a standard adjournment of 28 days as an initial holding position, and 2 months or ‘until further notice’ for cases where there has been no remand, such as where there has been a summons or requisition issued.[2] The two month date may be earlier where other video/audio/digital methods can be introduced before that time.[3]

Video and telephone hearings

To enable hearings to continue  during this period, the Act temporarily modifies a number of pieces of existing legislation in order to expand the range of circumstances in which audio and video links may be used.

It allows for hearings to be conducted entirely by video and  / or telephone in certain circumstances and enables eligibility for attendance by live link to defendants who are on bail.

Schedule 23 of the Act temporarily amends Section 51 of the Criminal Justice Act 2003 to enable a court to direct any person to take part in ‘eligible criminal proceedings’ through a live video or audio link.

  1. Definitions

It is important to understand numerous terms used by the legislation in order to appreciate the changes made.

The definition of ‘live audio link’ is already provided in s.57A of the CDA 1998[4] and s.56 of the CJA 2003[5] and states it as an arrangement in which:

  • enables a person (P) to hear all other persons taking part in the hearing who are not in the same location as P, and
  • enables all other persons taking part in the hearing who are not in the same location as P to hear P.

S.57A of the CDA[6] and s.56 of the CJA[7] also define ‘live video link’ as an arrangement in which:

  • enables P to see and hear all other persons taking part in the hearing who are not in the same location as P, and
  • enables all other persons taking part in the hearing who are not in the same location as P to see and hear P.

The definition of ‘eligible criminal proceedings’ within the CJA includes, amongst other things: a summary trial; a trial on indictment; an appeal to the Crown Court; and any proceedings that are preliminary or incidental to such an appeal[8].

2.   Directions

It is then important to understand how the court can make such directions for the participation by a person in a hearing by audio or video link and the various limitations to these powers.

In order for the court to give a direction for a person to take part in proceedings through a live video or audio link, it must:

(a) be satisfied that it is in the interests of justice to do so[9], and

(b) give the parties to the proceedings an opportunity to make representations[10].

Importantly, where the defendant is a party to proceedings and either:

  • has not attained the age of 18, or
  • has attained the age of 18 since proceedings for the offence were begun and the court has decided to deal with the case as if they not attained that age,

then there is an additional requirement that the relevant youth offending team (YOT)[11] must be given the opportunity to make representations before a live-link direction is made,[12] thereby providing an additional safeguard to ensure that the interests of child defendants are protected where the use of technology is increased throughout this period.

Similar provision is made by Schedule 24 of the Act to broaden the use of live links in other criminal proceedings by amending the CDA 1998: Section 57B is amended so as to broaden the use of live-links in preliminary hearings; Section 57E is amended as regards sentencing hearings; and Section 57F is amended in relation to enforcement proceedings.[13] The same safeguards are imposed in relation to each, including the requirement for the relevant YOT to have the opportunity to make representations before live-links are used in each of the above types of proceedings where child defendants are involved.[14]

Although the use of live-links is expanded by the Act, there are also limitations imposed. Notably, a court may not refuse or revoke bail for a person at a preliminary hearing if:

  • any person takes part in the hearing – other than for the purpose of giving evidence – through a live audio link, and
  • P objects to the refusal or revocation.[15]

Contested bail proceedings are, therefore, unable to be heard via telephone hearing. However, a video link may be used.

In addition, 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 (including enquiring into conduct and imposing punishment)[16].

A Plea and Trial Preparation Hearing (PTPH) where a guilty plea is anticipated, therefore, could not proceed in this manner. However, a video link may be used.

The direction may be made of the court’s own motion or on the application of a party in the proceedings.[17] If a defendant is eager to have a hearing proceed as an audio or video hearing and has the facilities to do so, then it would be prudent to raise this with the court as soon as possible. A hearing may be held to determine whether a direction is to be given (or whether to revoke a direction). If a hearing is held, the court may require or permit a person to take part in that hearing through an audio or video link.[18]

In order to facilitate such hearings, the courts are increasing the use of BTMeetMe, Skype for Business and Cloud Video Platform (CVP) during the coronavirus outbreak. These are available to download online and free to use.[19]

Trial dates for children on remand and custody time limits (“CTL”)

As child custody cases are priority cases, they are continuing to be dealt with by the courts[20]. However, considerable concern has been raised surrounding cases with CTLs, therefore a protocol has been set in relation to the handling of these cases.

The protocol provides that no CTL case should be adjourned without a future date and, during the period that the protocol is in operation, that date should either be for trial, mention or further remand. The case should be reviewed at this point to ensure the PTPH staged process is being complied with so that the case will be trial ready and capable of immediate listing when courts permit[21]. Other provisions made by the Protocol include:

  • Wherever possible, audio and video live links should be considered for defendants, witnesses, parties to the proceedings and the court in CTL trials.[22]
  • In listing trials, priority usually should be given to CTL trials over cases in which defendants are on bail, save for exceptional cases such as those involving a young witness under the age of ten[23].

As set out in section 22(3) Prosecution of Offences Act 1985, the court can only extend the custody time limit if it is satisfied:

  • (a) that the need for the extension is due to:
  • the illness or absence of the accused, a necessary witness, a judge or a magistrate;
  • a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused persons, or two or more offences; or
  • some other good and sufficient cause, AND
  • (b) in respect of any of the foregoing the prosecution has acted with all due diligence and expedition.

The Protocol states that the coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the custody time limit[24]. However, the Protocol does not override independent judicial discretion and every case must be decided on its own merits[25].

If a CTL extension is granted, the courts will extend the CTLs (and list the cases for mention) in the first instance to a date after 1 May 2020 (and thereafter to such dates as are agreed by all parties to this protocol).[26]

It is important to remember that a remand to local authority accommodation is a refusal of bail even where the child is going to reside at home with their parent or guardian. The relevant time limits for a remand in custody therefore apply in this situation, as well as in cases where a child is remanded to youth detention accommodation.

Commentary

In relation to each case lawyers will need to contact the court where the hearing is taking place and seek information in advance about what they need to do.

To join by audio or video, one will need a phone or a computer with internet access, a webcam and microphone. Users will need a quiet space where they will not be disturbed during the hearing.

It is unclear and concerning how matters will proceed if children and/or their parents do not have access to such facilities. The court must give the opportunity for parties and YOT to make representations before a direction is given so it is imperative any concerns are raised.

In relation to children on remand, if it appears their trial is going to be adjourned for a prolonged or unknown period (and especially if their CTL may be extended) liaising with the YOT about whether a renewed bail package is possible and making as robust a bail application as soon as possible will be imperative.

Lawyers representing children need to continuously assess whether their clients are able to effectively participate in the proceedings and must be aware that hearings conducted by video link are likely to impede their ability to do so, particularly given the high numbers of child defendants with communication difficulties.

The delays caused by Covid-19 are especially concerning for suspects and defendants who are approaching their 18th birthdays. Those who offend as children but are not convicted until they turn 18 miss out on the opportunity to benefit from the youth justice system. Many inequities arise including loss of anonymity, having to be sentenced to adult sentences and having the much longer rehabilitation periods associated with those sentences.

It is also of note that regardless of the length of the pandemic, the Act expires 2 years’ after it was passed and therefore, as it stands, these changes will be in place for the next 2 years unless the Act is amended.

Written by Hannah Williams and Simon Davis of 3 Temple Gardens in collaboration with the Youth Justice Legal Centre.

[1] Magistrates’ court cases coronavirus update: 16 April 2020:https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/879650/Ops_update_Mags__Court_16_April_2020.pdf

[2] Magistrates’ court cases coronavirus update: 16 April 2020

[3] Magistrates’ court cases coronavirus update: 16 April 2020

[4] Crime and Disorder Act 1998, Section 57A(5)

[5] Criminal Justice Act 2003, Section 56(2B)

[6] Crime and Disorder Act 1998, Section 57A(7)

[7] Criminal Justice Act 2003, Section 56(2D)

[8] Criminal Justice Act 2003, Section 51(2)

[9] Criminal Justice Act 2003, Section 51(4)(a)

[10] Criminal Justice Act 2003, Section 51(4)(b)

[11] The “relevant youth offending team” means the youth offending team (established under section 39 of the Crime and Disorder Act 1998) whose functions are exercisable in relation to the defendant concerned.

[12] Criminal Justice Act 2003, Section 51(4)(c)

[13] See para 3 of Sch 24 to the Coronavirus Act 2020

[14] See Crime Disorder Act 1998, Sections 57B(3)(c); 57E(2)(c); and 57F(2)(c)

[15] Crime and Disorder Act 1998, Section 57B(8)

[16] Crime and Disorder Act 1998, Section 57B(9)

[17] Criminal Justice Act 2003, Section 51(3)

[18] Criminal Justice Act 2003, Section 51(4H)

[19] HMCTS telephone and video hearings during coronavirus outbreak dated 18 March 2020 https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirus-outbreak

[20] Magistrates’ court cases coronavirus update: 16 April 2020

[21] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 7: https://www.cps.gov.uk/sites/default/files/documents/legal_guidance/Revised-Coronavirus-Protocol-for-CTL-cases-signed-07042020.pdf

[22] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 11

[23] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 10

[24] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 15

[25] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 5

[26] Coronavirus Crisis Protocol for the effective handling of custody time limit cases in the magistrates’ and the crown court, para 19