68.By virtue of this section, an image of physical evidence is, unless the court otherwise directs, to be treated for evidential purposes in criminal proceedings as if it were the physical evidence itself. For the purposes of this section, it does not matter whether or not the physical evidence is still in existence. For example, an image of a weapon can be produced in court in place of the physical item, and receive equal evidentiary status for the purpose of the proceedings. However, if the court is not satisfied by the use of such an image in place of the physical evidence, it remains open to the court to otherwise direct that the original item be produced. This section does not apply to documents within the meaning of paragraph 8 of schedule 8 of the 1995 Act.
69.The court may only issue a direction that an image of physical evidence is not to be treated as if it were the physical evidence itself where, on the application of a party to the proceedings, it is satisfied that treating the image in such a manner would prejudice the fairness of the proceedings.
70.Section 279B(3) sets out the timescales within which (subject to subsection (4)) any applications for such directions must be made:
	In summary proceedings, applications must be made no later than 28 days after the date the image is disclosed to the party making the application. If the image is not disclosed to the party making the application, then the application may be made at any time (as per subsection (5)(a)).
	In proceedings on petition or indictment (solemn proceedings), where the application is made by the prosecutor, the application must be made no later than 28 days after written notice is given by the accused in accordance with section 78(4)(a). Where the application is made by the accused in respect of an image included in the list of productions lodged in accordance with section 66(5), the application must be made no later than 28 days after the date the indictment is served. If written notice is not given in respect of the image by the accused or, as the case may be, the image is not included in the list of productions lodged in accordance with section 66(5), then the application may be made at any time prior to the image being led as evidence in proceedings (as per subsection (5)(b)).
71.Section 279B(4) provides that where the timescales for an application for a direction under subsection (3) are not met, the court can permit an application to proceed where it considers that the application was made as soon as was reasonably practicable.
72.Section 279B(6) confirms that where a court issues a direction under section 279B(1) in proceedings on petition or indictment (solemn proceedings), the court may permit the physical evidence to be produced in evidence, notwithstanding the fact that it was not included on any list lodged by the parties and that notice required by sections 67(5) and 78(4) of the 1995 Act has not been given. For example, if the court directs that an image of a weapon cannot be produced in court in place of the physical item following an application by the accused, the court may permit the weapon itself to be produced in evidence, even though it was not included on the list of productions.
73.Section 279B(7) provides that applications for directions under section 279B(2) are not preliminary issues for the purpose of section 79(2)(b) of the 1995 Act. However, the applications can still be considered by the court at the first diet (see paragraph 65 of these Notes).
Interpretation Part 1: Criminal Justice Modernisation Inserted section 279B – Images of physical evidence