Criminal Justice Committee 11 June 2025
The bill provides for virtual attendance in criminal proceedings by making permanent the legislative underpinning that has been in place since 2020. The framework for virtual attendance is, admittedly, somewhat complex, which is inevitable given that it must account for the complexity and range of scenarios that arise day to day in the criminal justice system.
I am afraid that the amendments in this group would unpick that framework and shift the balance away from individual decision making case by case to an approach in which there is less flexibility and a greater role for blanket determinations and decision making, and powers of veto. I appreciate that that might not have been Ms McNeill’s intention, but I am sure that she and the committee will understand that I have to respond to the effect of the amendments according to their terms and the operational impact that they would have.
The amendments would erode—and, in some cases, eliminate—the ability of our courts to consider the full range of facts and circumstances of the cases that they hear in making decisions on virtual attendance. I therefore cannot support any of the amendments in the group.
Under the bill, the default position is that people attend court in person. In individual cases, the court can opt to disapply that default and direct individuals to attend court by virtual means, after taking into account what is in the interests of justice and any representations that are received from the parties. The exception to that would be proceedings in which the only party is a public official, such as police officers or prosecutors seeking warrants or court orders, where the default position is virtual attendance. Again, the court can disapply that default case by case and require physical attendance.
The bill gives the Lord Justice General the power to issue determinations to disapply the default for physical attendance in certain types of cases and in certain circumstances. Currently, there is an important limitation on that power: the Lord Justice General cannot issue determinations in relation to trials or for hearings at which the only party is a public official.
Amendments 33, 35 and 40 would remove that limitation and expand the scope of the Lord Justice General’s power to make determinations to any form of criminal proceedings. That would give the Lord Justice General the power to effectively set virtual attendance as the default for criminal trials, should he choose to do so. That would be a substantial expansion of the power and a significant departure from the current approach. I do not believe that the committee heard any evidence at stage 1 that would support such a change, nor did it make such a recommendation in its report.
In addition, I have not heard any support for the amendments that relate to guidance that is issued by the Lord Justice General. Amendment 37 would require courts to “comply with” such guidance rather than “have regard to” it. Amendment 39 would require that the guidance must set out when virtual attendance must “always apply” and when it must “never apply”.
Again, those amendments represent a departure from recognising that the courts will need to consider cases and circumstances on an individual basis in order to balance all relevant interests. After taking into account such information, it should ultimately be for a court to decide how individuals should appear before it at trial.
09:45Amendments 36 and 38 would further erode the court’s flexibility. Amendment 36 would, in some circumstances, create further procedure overall. When there had been a change in circumstances between the pre-trial hearing and the trial, with the result that a witness required to give evidence remotely, amendment 36 would mean that an additional hearing would have to be convened to allow parties to be heard on the matter. The existing drafting is more efficient, as it gives the court the ability to make a direction, which the other party could object to at trial if they so desired.
In relation to amendment 38, I do not agree that it is appropriate for complainers or the accused to be able to unilaterally veto the virtual attendance of another person, such as a police witness or a forensic scientist. Such matters are properly decisions for the court, which will balance the interests of those involved. The bill requires the court to hear representations from the parties and to consider whether such a direction would prejudice fairness or otherwise be contrary to the interests of justice.
Taken together, the amendments in this group would lead to a more prescriptive framework that would restrict the court’s ability to be agile and responsive, and to take into account individual circumstances and make informed decisions, when determining how individuals appear at court. For that reason, I cannot support any of the amendments in this group.
As Ms McNeill and colleagues will recall, the virtual custody court provisions have been paused until the issues have been fully resolved.