37.This section applies only in relation to criminal hearings and proceedings which do not fall within the confines of section 303G or 303H (see paragraphs 22 and 27 of these Notes).
38.Where this section applies, the default position is for physical attendance, but subsection (2)(a) provides that the Lord Justice General may make a determination disapplying any requirement (however expressed) that a person attend a court. However, subsection (2)(b) allows a court to override such determinations and direct in-person attendance in individual cases.
39.Subsection (3) provides further details about determinations made under subsection (2)(a). Paragraph (a) provides that such determinations may specify the persons, hearings or proceedings to which physical attendance is disapplied, or specify the circumstances in which a court may disapply physical attendance. For example, such a determination could provide that accused persons are to attend sentencing hearings by electronic means. A determination may also empower courts in individual cases to remove the requirement for in-person attendance. Paragraph (b) enables determinations to make different provision for different purposes and different areas, so they could be used to pilot virtual attendance in certain localities. The determination must also set out the reason why the Lord Justice General has decided to make it. Determinations may be varied or revoked, and must be made publicly available for so long as they have effect.
40.By virtue of subsection (4), the Lord Justice General may only make a determination under subsection (2)(a) when satisfied that disapplying the requirement for physical attendance would not prejudice the fairness of proceedings, or otherwise be contrary to the interests of justice.
41.Where a court directs physical attendance in an individual case through subsection (2)(b), subsection (5) provides that such directions may be issued on the motion of a party or of the court’s own accord, and may be revoked.
42.In the circumstances where a person is to attend a court hearing by electronic means following a determination made under subsection (2)(a), subsection (6) requires the court to ensure that parties know they can ask the court to make a direction under subsection (2)(b), and if a party makes that request the court must consider it before dealing with any other matter at the hearing. However, the court does not have to consider such a request before dealing with a decision to adjourn or a matter that an enactment requires that the court deal with before another hearing can practically be arranged.
43.Subsection (7) provides that this section does not affect any other basis upon which a person need not physically attend a court (see paragraph 25 of these Notes).
44.Subsection (8) confirms that references in this section to physically attending a court are to be construed in accordance with inserted section 303G(5) (see paragraph 26 of these Notes).
Interpretation Part 1: Criminal Justice Modernisation Inserted section 303J – Suspension of requirement for physical attendance in other criminal hearings or proceedings