The Act Commentary on Sections Schedule 11: Schedule to be inserted into the Protection of Children Act 1978 Section 45: Attendance by accused at certain preliminary or sentencing hearings
369.Section 45 substitutes for the existing section 57 of the Crime and Disorder Act 1998 a new Part 3A consisting of new sections 57A to 57E. The existing section 57 allows courts to direct that a defendant in custody should appear at preliminary hearings over a live link from prison. The new Part 3A extends the provision to allow live links also to be used, provided the defendant consents, in sentencing hearings and in preliminary hearings where the defendant is at a police station (whether in police detention or in answer to bail).
370.The new section 57A sets out provisions common to sections 57B to 57E. Subsection (2) of new section 57A provides that an accused is to be treated as present when he attends via a live link. Subsection (3) sets out relevant definitions. A “live link” means that that the accused must be able to see and hear, and be seen and heard by, the court. While “live link” will typically refer to giving evidence over a closed circuit television link, the definition is drafted sufficiently widely to apply to any technology with the same effect. “Custody” will typically refer to prison or secure psychiatric accommodation, but also includes secure juvenile accommodation. The section states that custody does not include police detention, which is defined as having the same meaning as in PACE (but new section 57C makes separate provision for the use of live links where a defendant is in police detention).
371.The new section 57B provides that the Crown Court or a magistrates’ court may direct an offender who is expected to be in custody during a preliminary hearing to attend that hearing by way of link: section 57B(1) and (2). The defendant need not be physically present at court for a live link direction to be given: the court may give a live link direction either on the papers or immediately before a hearing with the defendant present over live link. Subsection (5) provides that, before giving or rescinding a live link direction, the court must give the parties the opportunity to make representations.
372.If a magistrates’ court decides not to give a live link direction where it has power to do so, it must state its reasons in open court and record the reasons in the register of its proceedings (subsection (6)).
373.The new section 57C provides that a magistrates’ court may direct the accused to attend a preliminary hearing over a live link from a police station. This applies both to defendants who are detained at the police station (subsection (3)), and to defendants who have been bailed to return to the police station for a live link appearance in connection with the offence (“live link bail”) (subsection (4)). Subsection (7) contains an express requirement for the defendant’s consent to be given before the court makes a live link direction. An accused answering to live link bail is to be treated as having surrendered to custody of the court from the time when it makes a live link direction in respect of him (subsection (10)).
374.New section 57D provides that where the accused attends a preliminary hearing over a live link and he is convicted in the course of it, and the court proposes to proceed immediately to sentence, the accused may continue to attend over the link provided that he agrees and the court is satisfied that it is not contrary to the interests of justice.
375.Subsection (3) provides that, where a preliminary hearing over a live link continues as a sentencing hearing under subsection (2), the offender can give oral evidence over the live link only if he has specifically agreed to give evidence in that way and the court is satisfied that it is not contrary to the interests of justice.
376.The new section 57E provides that, where it is likely that an offender who has been convicted by a court of an offence will be held in custody during a sentencing hearing or hearings, the court may, of its own motion or following an application from either party, direct that the offender attend over a live link, provided that he agrees and the court is satisfied that it is not contrary to the interests of justice (subsection (5)).
377.The court may, if it is in the interests of justice to do so, rescind a live link direction, either of its own motion or on the application of either party (subsection (6)).
378.Subsection (7) provides that the offender can only give oral evidence over the live link under this section if he has specifically agreed to do so and the court is satisfied that it is not contrary to the interests of justice.
379.If the court refuses an application for, or rescinds, a live link direction under section 57E, it must state its reasons in open court and, in the magistrates’ courts, record the reasons in the register of its proceedings (subsection (8)).