Section 86 of the bill as introduced makes provision in respect of the use of television links for the accused in criminal court cases. An important feature of the provisions is that, even when a case is of a nature that can be dealt with in this way, the court is required to consider whether it is in the interests of justice to do so. That ensures that the rights of the accused are fully protected in each individual case.
The group of amendments is largely technical. It arises as a result of consideration of the way in which the provisions were originally drafted and of further discussion with stakeholders.
Amendment 73 takes account of concerns expressed by stakeholders about the practical implications of convening ad hoc hearings—as distinct from the substantive hearing of a case—for the purpose of allowing the court to determine whether the substantive hearing of a case is to be dealt with using a TV link. The amendment makes it clear that the court can take the decision about the use of TV links before or during the substantive hearing of a case without the need to convene a separate ad hoc hearing.
Amendment 74 is consequential to amendment 73 and it reaffirms that the accused person can be required to participate, by TV link, in the part of the process that determines whether the substantive hearing is to take place by TV link, whether that part of the process occurs before or during a substantive hearing.
Amendments 75 to 78 follow on from amendments 73 and 74, remove the term “ad hoc hearing” from the bill, and make it clear that the provisions of the bill in respect of TV links apply during a substantive hearing of a case “or other proceedings”, which would include the part at which a decision on the use of TV links is taken.
Amendment 79 amends a provision in the bill as introduced that provides that the leading of evidence “as to a charge” is prohibited when the accused is participating by TV link. The effect of the amendment will be to specify that the prohibition applies only when the charge is on any indictment or complaint.
As a result of the amendment, there would be no absolute prohibition against the leading of evidence in other kinds of hearing—for example, one dealing with a breach of a community payback order—at which the person concerned is appearing by TV link. However, as in every other case, the court would still have to be satisfied, on a case-by-case basis, whether it is contrary to the interests of justice for evidence to be led while the accused is appearing by TV link.
Amendments 80 to 82 and 101 deal with the possible consequences of situations in which the court decides not to proceed to deal with the case before it using a TV link. It is anticipated that applications to have the accused appear by TV link will mostly be dealt with immediately before the calling of the substantive case. However, the court could refuse the application, and it will retain a power to revoke an application that it has previously granted. That might happen if, for instance, a technical issue arises with the TV link, or when further information comes to light during the substantive hearing that, in the view of the court, makes it no longer appropriate to proceed with a TV link.
It can be seen that practical difficulties might arise when the court decides not to proceed with the appearance of the accused by TV link. The accused may well need to be brought to court, which might not be readily achievable on the same day, so the postponement of the hearing could be necessary. When the accused is appearing from custody, any difficulty has to be balanced against the accused’s right to be brought promptly before the court. Amendment 80 therefore makes a general provision that, when a court has refused an application to deal with a case by TV link, it may postpone the substantive hearing to a later day, rather than necessarily the next day. The bill as introduced could have been read as providing that the court could postpone a hearing only until the next court day when an application was refused or revoked.
Amendment 81 will remove a now redundant provision from the bill.
Amendment 82 deals with the effect of postponement. When the accused is not in police custody and the postponement is until the next day, that day and any days on which the court is not sitting will not count towards any time limits in the case. However, the provision will not apply when the accused is in police custody and awaiting a court appearance.
The effect of that approach is that, when a postponement is necessary for an accused in custody, the accused still has a right to argue that the requirements—under section 18 of the bill and the European convention on human rights—to be brought promptly to court have not been complied with. For example, if an accused has to spend an extra night in custody solely because an unsuccessful attempt was made to present him for appearance by TV link and there was no back-up plan to bring him to court, it remains open to the accused to argue that it would in fact have been practicable to have brought him before the court in time. It would then be up to the court to decide whether the circumstances provide sufficient justification for the delay.
Amendment 101 amends section 18, which gives effect to the convention right to be brought promptly before a court on arrest for suspicion of having committed an offence. The section provides that an accused who is being held in custody must, wherever practicable, be “brought before”—to use the term in the bill—a court by the end of the court’s first sitting day after the arrest. The effect of amendment 101 will be to ensure that someone who appears from custody by TV link is to be regarded as having been “brought before” the court only when the court has made a determination that the substantive hearing is to be dealt with in that way. Therefore, if the court decides that it would not be appropriate to deal with a custody case by TV link, the obligation to bring the accused promptly before the court remains in place, which will generally mean that the accused will be physically brought to court. Together with amendment 82, that ensures that the rights of the accused in custody to a prompt hearing are protected.
I move amendment 73.
Amendment 73 agreed to.
Amendments 74 to 82 moved—[Michael Matheson]—and agreed to.
Section 86, as amended, agreed to.