Live Links

• Introduction
• Law
• Practice
• Practice: participants outside the jurisdiction

Introduction

Witnesses may sometimes give evidence via live links as a special measure. There are also provisions in sections 51 to 56 of the Criminal Justice Act 2003 (CJA 2003) which can allow or require those taking part in criminal proceedings to do so using live links where it is in the interests of justice to do so. The CJA 2003 powers can allow a witness to give evidence via live link even when special measures are not available to them, although the two are not mutually exclusive (i.e. an application for a person to give evidence via live link as a special measure does not preclude an application for them to give evidence via a live link under the CJA 2003, and vice versa).

This guidance concerns how prosecutors should approach applications for live link directions under the CJA 2003, either when making applications or when considering applications by the defence or third parties. In respect of live links as a special measure, see the Special Measures legal guidance. In this guidance, references to section numbers are references to sections in the CJA 2003 unless otherwise stated. Those provisions were significantly amended as of 28 June 2022, and the guidance below covers the law as of this date. Separate powers are available in respect of extradition proceedings under sections 206A to 206C of the Extradition Act 2003.

The Lord Chief Justice has issued Live Links in Criminal Courts Guidance (LCJ’s Guidance) under section 51(5) CJA 2003. Prosecutors considering an application for a live link under the CJA 2003 should be familiar with this guidance.

Law

Availability of live link directions

Under section 51(1) CJA 2003, a court may permit or require a person to take part in proceedings through a live audio link or a live video link (see section 56(1) CJA 2003 for the precise definitions of these terms; they are collectively referred to as ‘live links’ in this guidance).

Live links are available in a wide range of criminal proceedings. Section 51(3) CJA 2003 contains a list of such proceedings, which includes, amongst others, pre-trial hearings, trials and sentencing in the magistrates’ court or Crown Court, and appeals to the Crown Court or Court of Appeal. Parties may also be permitted or required to take part via live link in a hearing to determine whether to give, vary or rescind a live link direction in respect of a future hearing (section 52(8) CJA 2003).

A live link direction may only be made in respect of those taking part in the proceedings, which includes legal representatives, witnesses and defendants, but not members of the public or journalists (LCJ’s Guidance, paragraph 3). It also includes judges (section 56(1A) CJA 2003). For witnesses, ‘taking part’ is not restricted to giving evidence, but includes taking part in proceedings for a purpose preliminary or incidental to giving evidence (section 56(1B) CJA 2003).

A live link direction may be made in respect of some or all of the persons taking part in proceedings, and a direction applicable to a particular person may be made in respect of a particular aspect of the proceedings, such as giving evidence (section 52(1) CJA 2003).

A live link direction may be made in respect of a jury, but only if all members of the jury are to take part via video while present at the same place (section 51(2) CJA 2003). Such a direction is likely to be very rare (LCJ’s Guidance, paragraph 17).

Making, varying or rescinding a live link direction

The court may make, vary or rescind a live link direction of its own volition or an application by a party to the proceedings. A party may only apply to vary or rescind a direction if there has been a material change of circumstances since the direction was given or last varied (section 52(1) and (6) CJA 2003).

The court may only make a live link direction if (section 51(4) CJA 2003):

1. Satisfied that it would be in the interests of justice (see below, under Assessing the interests of justice); and
2. The parties to the proceedings (and, where the defendant is under 18, the relevant youth offending team) have been given the opportunity to make representations.

The same requirements apply to a decision to vary a direction so as to allow a person to take part in proceedings via live link or to alter or remove a person’s ability to do so, or a decision to rescind a direction (section 52(3) and (4) CJA 2003).

If the court refuses an application to make, vary or rescind a live link direction, it must give its reasons in open court (section 52(7) CJA 2003).

A person who takes part in proceedings in accordance with a live link direction is treated as present in court for the purposes of those proceedings and is treated as complying with any requirement for them to attend court or to surrender to the custody of the court (section 52A(1) and (2) CJA 2003).

Where evidence is given by live link before a jury, the judge may give the jury such direction as thought necessary to ensure that the jury gives the same weight to the evidence as if it had been given in the courtroom (section 54 CJA 2003).

The procedure relating to live links is governed by the Criminal Procedure Rules 3.35 to 3.39. It includes the following:

• The court may give, vary or rescind a live link direction at a hearing, in public or in private, or without a hearing. Rule 3.35 contains further general provisions about the exercise of the court’s powers.
• Applications for live link directions should be made in writing as soon as reasonably practicable. The relevant form for applying for a direction is available from the GOV.UK website. Rule 3.36 contains provisions about the content of applications for live link directions.
• Applications to vary or rescind a live link direction must also be made in writing, as soon as reasonably practicable after the applicant becomes aware of the grounds for doing so, and must explain the material change in circumstances since the direction was given. Rule 3.37 contains further provisions about the content of such applications.
• Rule 3.38 contains provisions about applications that contain information that the applicant thinks ought not to be revealed to another party.
• Any representations in response to an application to make, vary or rescind a live link direction must be served no more than 10 business days after service of the application. Rule 3.39 contains further provisions about such representations.

Practice

Prosecutors may wish to make applications in respect of witnesses and may also have to deal with defence applications in respect of witnesses or defendants.

The headings below address:

1. How to approach the question of whether to apply for a live link direction or oppose a defence application;
2. How to assess the interests of justice, which is the principal consideration for prosecutors when making the decision whether to apply for/oppose an application, and for the court when deciding whether to make a direction; and
3. Practical considerations for organising a live link once a direction has been made.

Deciding whether to make/oppose an application

Prosecutors should decide whether to make an application for a live link direction or oppose a defence application based on the interests of justice test that the court will consider when deciding whether to make a direction. Accordingly, prosecutors should only make an application where they consider that a direction would be in the interests of justice, and should only oppose a defence application where they consider that a direction would not be in the interests of justice.

Particular factors to be considered in assessing the interests of justice are discussed below, under Assessing the interests of justice. Prosecutors should address all relevant factors when making or opposing an application.

When considering whether to make an application for a witness, prosecutors should have particular regard to the wishes of the witness, whether those wishes are to appear in person or via live link.

Assessing the interests of justice

General considerations

In deciding whether to make, vary or rescind a live link direction, the court must consider (section 51(5) and (6) and section 52(5) CJA 2003):

• The LCJ’s Guidance (which has detailed guidance on when it will or will not be in the interests of justice to make a live link direction at paragraphs 7 to 16); and
• All the circumstances of the case, in particular:

1.  
   1. The availability of the person to whom the direction would relate;
   2. Any need for that person to attend in person;
   3. The views of that person;
   4. The suitability of the facilities at the place where that person would take part in the proceedings in accordance with the direction;
   5. Whether that person would be able to take part in the proceedings effectively;
   6. For a direction relating to a witness: the importance of the witness’s evidence to the proceedings, and whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence; and
   7. The arrangements that would or could be put in place for members of the public to see or hear the proceedings involving a live link (the open justice principle entails that a person participating in a public hearing by live link must be, as nearly as possible, equally audible and, if applicable, equally visible to the public as if that person were physically present, see Criminal Procedure Rule 6.2(1) and the Criminal Practice Direction 5.5.2.).

In respect of persons under 18, section 44(1) of the Children and Young Persons Act 1933 provides that “every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person”.

Examples of situations in which a live link might not be appropriate include where:

• It would disadvantage the person taking part by live link or others taking part in the proceedings, for example, due to disability, mental health or communication needs;
• Interpretation is required for the person taking part by live link and cannot be effectively provided over the live link; or
• There are no suitable facilities available (see the LCJ’s Guidance, paragraph 7.)

Witnesses

Prosecutors should have particular regard to the wishes of the witness, whether those wishes are to appear in person or via live link.

Other considerations in respect of witnesses may include:

• Any mobility issues the witness has;
• Whether the witness has limited availability, which may be particularly relevant to professional witnesses;
• The degree of inconvenience attendance at court would cause to the witness or others, for example, if attendance in person would require a carer to leave the person they care for or if a doctor would have to take a day off work;
• Whether the witness would have to travel a long way to court (for particular considerations that arise in respect of overseas witnesses, see below under Practice: participants outside the United Kingdom); and
• In respect of expert witnesses, it may be desirable for them to attend court, for example to enable conferences with counsel to take place.

Separately from the provisions of the CJA 2003, live links may be available to prosecution witnesses as a special measure under section 24 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) (see the Special Measures legal guidance ). Prosecutors should apply for live links under the CJA 2003 and/or the YJCEA 1999 according to the reason for the application. For example, if the application is because the witness is in fear, the application should be made under the YJCEA 1999; if the application is because the witness would have difficulty in attending the trial court due to physical disability, the application should be made under the CJA 2003; if both are applicable, both applications can be made.

Defendants

When assessing whether it is appropriate for a defendant to appear via live link, it is relevant to consider the nature of the hearing and the circumstances in which the request is made, in addition to the general considerations relevant to the interests of justice set out above.

In respect of the nature of the hearing:

• Preliminary hearings: these may be particularly suitable for attendance by live link (LCJ’s guidance, paragraph 8).
• Sentencing hearings: factors to consider include the potential penalty; ensuring that explanations of sentence can be given satisfactorily for all participants and for the public; and, the preferences of the maker of any Victim Personal Statement which is to be read (LCJ’s guidance, paragraph 9). There will be limited circumstances in which it is appropriate for a youth to be sentenced over a live link (LCJ’s guidance, paragraph 11, which suggests what these circumstances could be).

• Trials: in Ukpabio [2007] EWCA Crim 2108 the Court of Appeal stated (at paragraph 17):

  “there may well be circumstances in which conversely it may be appropriate that a defendant on his own application should not be present in court for all or part of a trial, provided that his participation in the trial can be adequately secured by, if the relevant equipment is available, his being in touch by video link or in some other way. In other words, there may be circumstances, exceptionally, where that might be a sensible method of ensuring participation for a defendant who would otherwise not be able to participate properly in all or some of the trial process.”

In respect of the circumstances:

• The court must have regard to whether the defendant will be represented and what other assistance will be available to the defendant, such as an intermediary (CrimPR 3.35(5)).
• Live link applications should be opposed for a defendant who has refused to attend court or who has absconded.

Prosecutors should also note that special measures are not available to defendants, and instead a live link direction under the CJA 2003 could be used to allow a defendant to give evidence via live link. This is supported by the court’s obligation to take every reasonable step to facilitate the participation of the defendant at trial (CrimPR 3.8(3)). However, as with any witness, the starting point is that evidence is given in court in person.

Advocates

Prosecution and defence advocates may wish to appear via live link, and prosecution advocates may request instructions from prosecutors on whether they can do this for particular hearings. Prosecutors should refer to the LCJ’s guidance, paragraphs 11 and 12.

Prosecutors should ensure that prosecution advocates follow the LCJ’s Guidance and have regard to any impact on victims and witnesses when they seek to appear via live links.

Practical considerations

The legislation is not prescriptive as to where the link may be from. Accordingly, although the link may often be from another court, a police station or an approved remote site, this is not required.

Similarly, the legislation is not prescriptive as to how live links should be implemented. Accordingly, although there may be a platform preferred by the court (e.g. HMCTS’s Cloud Video Platform), it is possible to use platforms not specially created for court proceedings (e.g. Teams or Zoom).

However, the legislation does require the court to consider the suitability of the facilities at the place where the link is from, the ability of the person using the link to take part in the proceedings effectively and the arrangements that could be put in place for members of the public to see or hear the proceedings (see above, under General considerations).

Even if a lack of suitable facilities means that it is not possible for a witness to give evidence, for example, from their home, there may still be an advantage in applying for a live link direction for them to give evidence from a location closer to them than the trial court, such as another court. For example, this may avoid a witness with mobility issues having to travel a long distance.

Where the live link is not from a location which is typically used for this purpose, prosecutors should factor in time for the necessary facilities to be put in place. Other practical considerations are set out in the LCJ’s Guidance:

22. Live links should be tested before the court hearing starts. Witnesses should be given an opportunity to practise using the live link. For anyone who has not used a live link before (such as a witness) it may be appropriate for the link to be tested before the day of the hearing to ensure that it works at both ends (and, if not, that any problem can be remedied or else the live link direction can be revoked).
23. Steps should be taken to ensure that anyone participating remotely is able to follow the proceedings (so, for example, they can see any video presentation and they have access to any written material that is necessary). If a witness is to give evidence remotely, the advocates must, in advance, consider what material they are likely to ask the witness to consider so that can be made available in the remote location. Where the witness wishes to take an oath, rather than affirm, it will also be necessary to ensure that the applicable holy book is available to them. The words of the oath/affirmation will also need to be made available to them (or else that the oath/affirmation is administered via the live link by a member of court staff).

A witness may be accompanied by another person while giving evidence, but if so the application must name that person and explain why it is appropriate for the witness to be accompanied, including the witness’s own views (CrimPR 3.36(2)(h)). Depending upon the type of case, it may be helpful to have an officer from the investigation team present at the remote site to help witnesses with photos, plans etc.

Practice: participants outside the jurisdiction

Section 52(1)(c) CJA 2003 explicitly provides that the power to make a live link direction is available in respect of persons outside of England and Wales, including those outside of the UK. Prosecutors may wish to use this to allow a prosecution witness to give evidence from abroad. Prosecutors may also have to consider defence applications to allow a defendant or witness to participate from abroad.

The headings below address:

1. How to approach the question of whether to apply for a live link direction or oppose a defence application in respect of a participant outside the jurisdiction, which involves consideration of the interests of justice and whether it will be possible to arrange a live link from a foreign jurisdiction even if a direction were made;
2. Assessing the interests of justice in respect of a participant outside the jurisdiction; and,
3. Legal and logistical issues affecting whether it will be possible to implement a live link from a foreign jurisdiction;
4. Practical considerations for organising a live link once a direction has been made; and
5. Specific issues in respect of defendants outside of the jurisdiction.

Deciding whether to make/oppose an application: participants outside the jurisdiction

As with any application for live links under the CJA 2003, prosecutors should start by considering the interests of justice.

However, before making an application prosecutors must also consider whether, even if a live link direction were made by a domestic court, it would be possible to implement a live link from the foreign jurisdiction in question. There are legal and logistical aspects to this, which are considered further below under Implementing a live link from a foreign jurisdiction.

Both these issues will involve liaising with the authorities in the foreign jurisdiction – this should be done by CPS International Liaison Prosecutors. Accordingly, even where it is thought that a live link would be in the interests of justice, prosecutors should never seek to arrange a live link in a foreign jurisdiction without consulting with that jurisdiction’s authorities. To do so could impact the success of the application, as an application must address the issue of “any permission needed from a court or other authority in a place outside the United Kingdom from where, if the direction were given, the participant would take part by live link” (CrimPR 3.36(2)(v)). Further, to do so could be illegal in the foreign jurisdiction.

Assessing the interests of justice: participants outside the jurisdiction

This will require consideration of the same factors as for other applications (see above, under Assessing the interests of justice), taking into account how they apply in the particular circumstances; for example, the inability or unwillingness of a witness to travel may be a more significant factor.

Particular interests of justice considerations arise in respect of defendants, see below, under Defendants outside of the jurisdiction.

Implementing a live link from a foreign jurisdiction

Informal assistance

Law enforcement authorities should not make arrangements for a live link from a foreign jurisdiction without first consulting the relevant authorities for that jurisdiction.

Prosecutors should first consider whether a live link can be arranged informally via police-to-police processes or whether it requires a formal mutual legal assistance (MLA) request i.e. a letter of request (LOR). Prosecutors must adhere to any legal or procedural requirements applicable in the overseas country where the person is located. Even where a country permits a live link to be arranged and conducted via informal channels, a direct approach to a voluntary witness by the police, CPS or court may not be permitted. Prosecutors should engage with Liaison Prosecutors or contact CPS International to establish the requirements of the country concerned. Prosecutors may ask officers to engage with the Joint International Crime Centre (JICC) for assistance with establishing police-to-police contact through the foreign law enforcement community. Where permitted, informal processes via police cooperation may take time to arrange.

Formal assistance

A Senior District Crown Prosecutor should have oversight of any communication with another jurisdiction, including approving any LOR to be sent. The LOR should include as much information as possible, including:

• All known relevant contact details of the witness, including name, address, telephone number and email, date and place of birth, nationality, passport number, languages spoken and parents’ names. If the person is a foreign national, include any national identity numbers known.
• The proposed date and time (with reference to the relevant time zone referred to) and, if not taking place in a court overseas, the proposed location from which the person will be providing evidence.
• Any relevant technical details of the live link.
• Where the attendance of UK officers is considered beneficial to assist the person, the names of the officers (and if appropriate the prosecutor) to be involved, and the reasons for such a request.
• Any information about the person’s liability to prosecution for giving false evidence. Note that statements made on oath by a person outside the UK and given in evidence through a live link are treated as having been made in the proceedings in which it is given and section 1 of the Perjury Act 1911 will apply (section 52A(5) CJA 2003).
• Confirmation of who will bear the cost of the live link.

See the International guidance for more information on MLA and issuing LORs. Further support is available from local International Casework Leads and Liaison Prosecutors. Prosecutors should be aware of the level of authorisation required for MLA and LORs.

Unwilling witnesses

Consideration must be given to whether the overseas witness is willing or unwilling to participate in the proceedings. Where the witness is unwilling, most countries will require an MLA request to permit the use of coercive measures to compel the witness to give evidence. Prosecutors should ascertain, via the Liaison Prosecutor or International Division, whether or not the jurisdiction concerned recognises live links, as this may have a bearing on whether a witness can be compelled to attend court.

If a live link will require an unwilling witness to be compelled by the authorities in the overseas country, prosecutors should assess the public interest and any risks to the witness, such as whether the refusal to testify is a criminal offence in the overseas country. Prosecutors must consider whether, in these circumstances, it is appropriate to continue with the MLA request. Prosecutors should note that a request to compel a witness may affect the risks involved in a MLA request, which may in turn affect the level of authorisation required, see the Referral of Cases legal guidance.

Cost and resources

The use of live links may prove expensive, especially video live links, and there may be additional costs and resource implications, such as if officers need to travel to the overseas country to present exhibits to the person or for witness care purposes. Officers’ travel costs will be borne by the police.

As well as being expensive, live links can present difficult logistical issues that will require significant resources for both the UK and the requested country. Some countries may rarely, if ever, make use of live links in criminal proceedings and may not have the necessary equipment. Where countries need assistance in terms of equipment or technical support to set up a live link to the UK, it is vital that the prosecutor considers these issues at an early stage as it is likely that the request to set up a live link will take many months of planning.

Before making an application for a live link direction in respect of a witness overseas, prosecutors should consider:

• Whether it is necessary to rely on the evidence of that witness.
• Whether there are alternative ways of adducing the relevant evidence which will not require a witness to appear via live link or in person, for example, evidence by another witness within the jurisdiction, admissions, a hearsay application etc.
• The costs and resources involved as balanced against the costs of flights, visas and accommodation for the witness travelling to England or Wales. If long haul flights are required, it is likely that a live link will be the most cost-effective option.

Practical considerations: participants outside the jurisdiction

Prosecutors should bear in mind the general considerations discussed above, under Practical considerations. However, there are further practical considerations that may arise in respect of participants outside the jurisdiction.

Prosecutors should be wary about making informal arrangements for persons overseas to participate on a personal device from a location not authorised by the overseas authority e.g. from the person’s home or a hotel room. Informal arrangements carry a risk of the integrity of the proceedings being compromised (given someone could be in the room influencing the evidence that is being given/not given). Informal arrangements may also be contrary to international agreements or the domestic law of the overseas country where the person is located. There is also a need to ensure that safeguards are in place in accordance with our obligations in respect of witness/victim care and speaking to witnesses at court. Prosecuting advocates at court may be required to intervene if the court of its own motion or following defence representations begins to consider such informal arrangements.

The domestic court may impose a condition that the witness should give evidence in the presence of a specified person. This person can answer any questions put by the trial judge as to the circumstances in which the evidence is given.

In some countries, it may be possible to facilitate live link from a British Consulate, Embassy or High Commission. Prosecutors should check whether this is permitted in the relevant country or whether there is a requirement to conduct the live link from a court room. The use of a British Consulate, Embassy or High Commission in this way is not a right either for British citizens or foreign nationals but is at the discretion of the Head/Deputy Head of Mission. Even where permitted by the Head/Deputy Head of Mission, prosecutors may still be required to notify, seek permission from, or comply with any other requirements imposed by the overseas authority.

It is crucial that those who are assisting with the live link, whether FCDO staff, overseas law enforcement, or hotel/conference facility organisers, are aware of the flexibility that is required in witness evidence in the courts in England and Wales. The fact that adjournments and delays may occur must be explained.

A fixed time slot for the witness evidence must be obtained. When making an application to the court in England and Wales for a live link with a person abroad, prosecutors should remember that:

• In many countries the person will be summoned by the foreign judicial authority to their court to give evidence at a specific date and time;
• If the foreign jurisdiction requires the witness to give evidence from a court room, the foreign judge will usually be required to be present throughout the link;
• Some countries may not allow the witness to be spoken to by the prosecution team before giving evidence;
• There may be a marked time difference between the UK and the overseas country; and
• There may be routine non-working days or religious holidays in the overseas country that may affect when the person overseas can participate in court proceedings in England and Wales. Where relevant, prosecutors should consider religious observances when assisting the courts in England and Wales to fix hearings and agree a batting order for witnesses overseas.

Prosecutors should also consider:

• Whether an officer needs to travel to be present with the person (to assist with evidence) or whether there is the need to engage local officers to assist if there are any issues over the security of the person or concerns about who else will be present when they are giving evidence.
• Whether support services are required (especially for young or vulnerable witnesses) and how and by whom this support will be provided.
• If the person needs to have access to trial materials whilst giving evidence (e.g. a jury bundle).
• If an expert witness should be available for conferences with counsel and/or to listen to other witness evidence and therefore a live link may not be appropriate.
• If the person wishes to swear or affirm when giving evidence and whether the correct wording/holy book is available.
• Any requirements for interpreters or the translation of documents and the arrangements for the procurement of the same.

The live link must be tested in advance of the evidence being given.

Defendants outside of the jurisdiction

A distinction may be drawn between a defendant’s participation in a hearing via live link for purposes other than giving evidence, and participation which involves the giving of evidence by the defendant. Some countries impose an absolute bar on the use of live link to enable a defendant to give evidence, whilst others may consider a request for a defendant to participate in a hearing for a purpose other than giving evidence, for the purpose of giving evidence, or both. A direct approach to a defendant by the police or court is unlikely to be permitted and in most cases a LOR drafted by the court (as a judicial authority) on behalf of the defence will be required. The prosecutor must draw to the court’s attention the need to confirm the legal position in the overseas country.

Where a defendant makes an application to appear via live link from overseas, prosecutors must consider any legal or procedural requirements relating to the relevant country, considering carefully all the circumstances of the case. Defence applications must be opposed where it is not considered appropriate for a defendant to participate from overseas. Relevant considerations include:

• The nature of the relevant hearing.
• Are extradition proceedings outstanding or contemplated? Note that the position on extradition should be neither confirmed nor denied and prosecutors should contact the Extradition Unit for advice regarding any such disclosure.
• Is there an outstanding domestic warrant for the defendant?
• Is the defendant voluntarily absent from the jurisdiction and, if so, why? For example, has the defendant absconded?
• Is the prosecution objecting to bail? A decision to revoke bail cannot be put into effect if the defendant attends by live link.
• The likely sentence on conviction and the ability of the court to enforce sentence if the defendant attends the proceedings by live link.
• Is it desirable for the defendant to attend future court hearings in person and, if so, is it clear how this will be accomplished? For instance, have the defence explained how and when the defendant will return to the UK?

Where the court makes a direction for a defendant to participate in proceedings via live link from outside England and Wales and a LOR is required, it would not normally be issued by the prosecutor but by the court on the defendant’s behalf. If asked to assist, prosecutors must carefully consider whether it is appropriate for the prosecution to issue a LOR.