Message from the Lord Chief Justice – Remote Attendance by Advocates in the Crown Court
On 14 February 2022, the Lord Chief Justice issued new guidance to Advocates regarding the use of remote attendance in Crown Court proceedings.
The Guidance, whilst not prescriptive, hopes to “assist in promoting consistency and predictability of approach to the question of remote attendance in the Crown Court,” whilst recognising the need for flexibility on a case by case, court by court, basis. The key takeaways are:
- Any hearing in which a witness is to give evidence (in person or remotely), will normally require those conducting the advocacy (either cross examination or examination in chief) to be present in Court;
- If the defendant is required to give evidence, the defence advocate should usually be physically resent in Court
- PTPH’s normally require in person attendance of both prosecution and defence advocate unless there has been effective engagement, a conference with defendant and all relevant preparatory work (in keeping with Better Case Management) has been done prior to the PTPH
- Hearings involving legal argument only will generally be suitable for remote attendance by all advocate
- Sentencing hearings will require consideration on a case-by-case basis, taking into account factors including whether the defendant is physically in Court, the seriousness of the charge, the intention of victims or family to attend, the public interest, and other factors
Many practitioners will welcome the Guidance, as a clear document to refer to when making requests to the Court for remote attendance. The Guidance recognises that where a defendant physically attends Court it is “normally” appropriate for his/ her advocate to also be physically present. It is difficult to see in what situation it would be appropriate for a defendant to attend Court without his/her advocate. Arguably so much of our roles as lawyers requires physical proximity so that a proper assessment can be made as to welfare, and to limit confusion/misunderstanding. This is of course particularly the case where the defendant is a child or a young person. Whilst greater flexibility as to the use of remote hearings is in some ways a welcome advancement and some young defendants might find it helpful at times, we should be cautious about when and how often we utilise this technology. Child defendants, many of whom have communication difficulties, often struggle to understand what is happening in Court and effectively participate in legal proceedings. These problems are exacerbated when children have to communicate with their lawyer remotely or appear via video link. When making decisions regarding remote attendance practitioners should bear in mind the rights of children to participate in their legal proceedings and, specifically, the right of the child to be heard in the context of criminal justice proceedings, both of which are enshrined by the UN Convention on the Rights of the Child.
 UN Committee on the Rights of the Child (2009) General Comment No. 12: The right of the child to be heard CRC/C/GC/12, Paragraphs 57 to 64
Written by Ella Jefferson, Solicitor, Bindmans LLP