Part 13: Procedures in courts and tribunals Section 198: Remote observation and recording of court and tribunal proceedings
This section makes provision for the remote observation of court and tribunal proceedings using audio and/or audio-visual transmissions. These measures (together with Section 197) replace the temporary and more limited modifications made by Schedule 25 to the Coronavirus Act 2020.
	Subsection (1) inserts into the Courts Act 2003 a new section 85A, which makes provision to enable the public to remotely observe proceedings by the direction of the judge in any court, tribunal or body exercising the judicial power of the State, with the exception of the Supreme Court and devolved courts or tribunals, in order to satisfy the principle of open justice.
	New section 85A(1) of the Courts Act 2003 defines the scope of the new section, which applies to proceedings in any "court" within the meaning of the Contempt of Court Act 1981. "Court" in the Contempt of Court Act 1981 (see section 19 of that Act) means "any court, tribunal or other body exercising the judicial power of the State". This is subject to the exceptions set out in new sections 85A(12) and (13).
	New section 85A(2) empowers the court to direct that proceedings are to be transmitted electronically for the purpose of enabling persons not taking part in the proceedings to watch or listen to the proceedings – but only if the proceedings are ones which are specified under new section 85A(8)(a).
	New section 85A(3) sets limits on the power to direct transmission, ensuring that it does not extend to directing any general broadcast of the proceedings (broadcasting of proceedings being the province of section 32 of the Crime and Courts Act 2013, which is unaffected by these provisions).
	The court may only direct transmissions either to designated livestreaming premises (defined in new section 85A(4)) or to individuals who have been given access only after first having identified themselves to the court (or to a person acting on behalf of the court).
	New section 85A(5) makes it clear that a direction for transmission of proceedings can include provision about the method of transmission (for example, to fit it to the particular platform used by the court for conducting proceedings by virtual means) and the persons who are permitted to watch or listen to it (so that, for example, if only certain people would be allowed to be present in court if the proceedings were being held in a courtroom in the normal way, only those people would be allowed to watch or listen to the transmission).
	New section 85A(6) makes it clear that a recording can be made by the court of a transmission of any proceedings which are conducted "virtually", to ensure that an appropriate record is kept for such proceedings in the same way as proceedings may be recorded when conducted in a courtroom in the normal way.
	New section 85A(7) makes it clear that a direction for transmission or recording can, as appropriate in the court’s discretion, relate to part of the proceedings rather than the whole, and be varied or revoked.
	New section 85A(8) enables the Lord Chancellor to make regulations to specify the proceedings in relation to which a direction for transmission may be made, any matters of which the court must be satisfied before making, or must take into account in making, any direction, and any provision for matters under new section 85A(5) which a direction must cover.
	New section 85A(10) provides that regulations under subsection (8) may only be made with the concurrence of the Lord Chief Justice, the Senior President of Tribunals, or both of them, as determined by the Lord Chancellor, and new section 85A(9) requires the Lord Chancellor first to have determined whether the function in subsection (10) of giving or withholding concurrence would most appropriately be performed by the Lord Chief Justice, the Senior President of Tribunals, or both of them.
	New section 85A(11) allows for greater flexibility in making clear that regulations may make different provision for different purposes (so that, for example, different factors would be taken into account by the court for particular types of proceedings).
	New section 85A(12) and (13) set out exceptions from the scope of application of new section 85A, making provision so that section 85A does not apply to the Supreme Court of the United Kingdom (subsection (12) and to devolved courts and tribunals (subsection (13)).
	Subsection (3) amends section 41 of the Criminal Justice Act 1925 to make it clear that section 41 does not apply to anything done in accordance with a direction made under the new section 85A; and so no offence is committed by any filming necessary to deliver the transmission pursuant to such a direction.
	Subsection (4) amends section 29 of the Criminal Justice (Northern Ireland) Act 1945 to make similar provision to that made by subsection (3) but with regard to UK tribunals in Northern Ireland.
	Subsection (5) makes a similar amendment to that of subsection (3) to section 9 of the Contempt of Court Act 1981, so that any sound recording necessary to deliver that transmission is not a contempt.
	Subsection (6) amends section 108(3) of the Courts Act 2003, which lists the secondary legislative powers under that Act which are subject to affirmative resolution procedure, to add to the list the power to make regulations under the new section 85A(8).
	Regulations under section 85A(8) are accordingly subject to affirmative resolution procedure (but see Section 200 for provision about procedure for the first set of regulations to be made under that power).
	Section 199: Offence of recording or transmission in relation to remote proceedings
	This section makes provision, corresponding broadly to the prohibitions in section 41 of the Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981, prohibiting unauthorised recording or transmission of an image or sound that has been transmitted to a person who is remotely attending court proceedings.
	Subsection (1) inserts a new section 85B into the Courts Act 2003, making provision prohibiting unauthorised recording or transmission in relation to such "remote proceedings", as both an offence and, alternatively, a contempt of court.
	New section 85B(1) of the Courts Act 2003 sets out the offence (which by virtue of new section 85B (8) is a summary-only offence for which the penalty is a fine not exceeding level 3 on the standard scale) of unauthorised recording or transmission of an image or sound covered by new section 85B(2) (an image or sound of proceedings which is received remotely) or new section 85B(3) (an image or sound of a person who is remotely attending proceedings).
	New section 85B(4) defines what is meant by remotely attending proceedings, to include remote participation in, or watching or listening to, proceedings. So, for example, making an unauthorised recording of a witness giving evidence by live link would be captured.
	New section 85B(5) defines an "unauthorised" recording or transmission as being one which is not authorised, either specifically or generally, either by the court conducting the proceedings in question, or by the Lord Chancellor.
	New section 85B(6) provides a defence for a person who, when making an unauthorised recording or transmission of an image or sound, was not in designated live-streaming premises (defined in new section 85B(7)) and did not know that the image or sound in question was one within new section 85B (2) or (3).
	New section 85B(9) provides for unauthorised recording or transmission to be a contempt as well as an offence, and makes provision to avoid double jeopardy, so that a person may not be punished by way of contempt for conduct for which that person has been convicted of an offence new section 85B(1), and vice versa.
	New section 85B(10) makes it clear that unauthorised recording or transmission is an offence or contempt regardless of whether the person in question intended the recording or transmission in question to be seen or heard by anyone else.
	New section 85B(11) and (12) set out exceptions from the scope of application of new section 85B in the same way as new section 85A(12) and (13) do for the scope of application of new section 85A, so that section 85B does not apply to the Supreme Court of the United Kingdom (subsection (11) and to devolved courts and tribunals (subsection (12)).
	New section 85B(13) defines specific terms used throughout the new section.