The amended Criminal Practice Directions 2015 give guidance to the courts and users about how to effectively and appropriately make use of live links and telephone facilities. The new section 3N contains guidance on how and when live links should be used for hearings and provides specific guidance for defendants aged under 18.1
The third amendment to the Criminal Practice Directions 2015 came into force on 31 January 2017.
The new section is intended to assist the courts in actively managing cases by making full use of the technology that is available to them, in line with recommendations made in Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings (2015).
The new guidance states that it will generally be appropriate for the ‘youth’ to appear in person at court. Cases must be dealt with on an individual basis, and include consultation with the parties and the Youth Offending Team. The guidance is not prescriptive about which hearings may be be held by live-link: it states that hearings that may be appropriate include onward remand hearings at which there is no bail application and case management hearings, particularly if the ‘youth’ is already serving a custodial sentence (CPD 3N.13).
The guidance says that it will ‘rarely’ be appropriate to sentence a ‘youth’ over a live link. Four possible instances where it may be appropriate to do so are set out CPD 3N.14.
Arrangements must be made in advance of any live-link hearing for the youth offending worker to be either at the secure establishment where the young person is being held or for them to have ‘sufficient access to the youth via the live link booth before and after the hearing’ (CPD 3N.15).
Live links can provide benefits to child defendants, for example, the use of a live link could save a child from travelling long distances to court. However, there are also many concerns surrounding this technology and lawyers should carefully consider whether a live link would be beneficial or not for their client on a case-by case basis.
The Youth Justice Board (YJB) published their position statement on children appearing by court via video link in April 2016. The statement made clear that the YJB did not consider live links to be suitable for trial, sentencing or appeal hearings involving children.
The following issues have been raised in relation to the use of live links for hearings involving child defendants (non-exhaustive):
- Equipment and facilities may not be ‘fit for purpose’;
- Use of live links may lead to children not receiving proper advice or support during hearings and limit their ability to provide instructions to their lawyer;
- Speech, language or communication needs are likely to represent a significant barrier to children effectively participating in, and engaging with, court processes, and this is particularly the case where hearings are conducted over video link;
- A young defendant may feel more comfortable talking face-to-face rather than over a video link;
- Face-to-face contact is important in order to establish rapport and make subtle human judgements which can affect the outcome of a hearing;
- Judges and others may be unconsciously biased by seeing a defendant in a custodial or prison setting.
Further provisions in relation to live links have been proposed in the Prisons and Courts Bill 2017, schedule 4. The Bill had its second reading on 20 March 2017.