What Nigerian Courts can take from UK Corona Virus Act

The Corona Virus Act 2020 received Royal Assent on the 25th of March 2020.The Act among other things provided for an amendment on how proceedings should be conducted in court.

Basically, it made provisions for parties and witnesses in court proceedings to appear by live link rather than in person.

The Chief Justice of Nigeria has issued a directive that the courts be shut down because of Covid-19.That has been complied with and the big question at this point is “For How long ?” taking into consideration the uncertainty of the pandemic.

As the pandemic bites harder with uncertainty as to when it will cease, the courts in Nigeria will be forced to open at some point to avoid a complete collapse of the justice system.

In view of that, Nigerian Courts should begin now to explore the possibility of partially opening the courts as soon as possible regardless of whether the pandemic continues or not. In doing so, cue can be taken from the UK Corona Virus Act.

Section 53-57 of the Act expanded the availability of live links in Criminal proceedings and hearings. It also provided for public participation in proceedings conducted by video or audio.

The schedule to the sections (schedule 23,23,25,26 and 27Northern Island) contains the temporary modifications of the key Criminal Law Acts namely;

a. The Criminal Justice Act 2003

b. The Criminal Appeal Act 1968

c. The Criminal Justice Act 1988

It also contains temporary modifications to the:

a. Criminal and Disorder Act 1998

b. Extradition Act 2003

c. Police and Criminal Evidence Act 1984

d. Prosecution of offence Act 2005

e. Serious organized crime and police Act 2005.

Temporary modifications contained in schedule 25 were also made in

a. The Courts Act 2003 and

b. The Tribunal, courts and Enforcement Act 2007

A BASIC SUMMARY AND UNDERSTANDING OF THE MODIFICATIONS

The modifications provide that

A person may, if the court so directs, take part in eligible criminal proceedings through

a. a live audio link, or

b. a live video link

Below is a verbatim reproduction of the basic provisions of the Act in respect to usinf live audio or video link

A direction under this section may be given for a judge or justice to take part in eligible criminal proceedings through a live audio link or a live video link but no direction under this section may be given for any member of the jury to take part in eligible criminal proceedings through a live audio or live video link.

But the court may not give a direction for a person to take part in eligible criminal proceedings through a live audio link or a live video link unless— (a) the court is satisfied that it is in the interests of justice for the person concerned to take part in the proceedings in accordance with the direction through the live audio link or through the live video link, (b) the parties to the proceedings have been given the opportunity to make representations, and (c) the relevant youth offending team has been given the opportunity to make representations, if it is a case where the defendant is a party to the proceedings and either— (i) the defendant has not attained the age of 18 years, or (ii) the defendant has attained the age of 18 years since proceedings for the offence were begun, and the court has decided to continue to deal with the case as if he or she had not attained that age.”

The power conferred by this section includes power to give— (a) a direction that is applicable to several, or all, of the persons taking part in particular eligible criminal proceedings; (b) a direction that is applicable to a particular person in respect of only some aspects of particular eligible criminal proceedings (such as giving evidence or attending the proceedings when not giving evidence); (c) a direction for a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link. (4B) The power of the court to give a direction under this section is subject to Schedule 3A (prohibitions and limitations on use of live links) This Schedule is provided in bold letters below. (4C) The court may vary a live link direction under this section; and the provisions of this Part that apply to the giving of such a direction also apply to the variation of such a direction.

If a court gives a live link direction under this section for a person to take part in particular proceedings by giving evidence through a live audio link or a live video link, the person may not give evidence except in accordance with the direction. (4E) The court may rescind a live link direction under this section at any time before or during the eligible criminal proceedings to which it relates (but this does not affect the court’s power to give a further live link direction in relation to the proceedings). (4F) A live link direction under this section may not be rescinded unless— (a) the court is satisfied that it is in the interests of justice for the direction to be rescinded, (b) the parties to the proceedings have been given the opportunity to make representations, (c) the relevant youth offending team has been given the opportunity to make representations, if it is a case where the defendant is a party to the proceedings and either— (i) the defendant has not attained the age of 18 years, or (ii) the defendant has attained the age of 18 years since proceedings for the offence were begun, and the court has decided to continue to deal with the case as if he or she had not attained that age. (4G) A live link direction under this section may be varied or rescinded by the court of its own motion or on an application by a party; but such an application may not be made unless there has been a material change of circumstances since the direction was given. (4H) If a hearing takes place in relation to the giving or rescinding of a live link direction under this section, the court may require or permit a person to take part in that hearing through— (a) a live audio link, or (b) a live video link.”

Those circumstances include in particular— (a) in the case of a direction relating to a witness— (i) the importance of the witness’s evidence to the proceedings; (ii) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence; (b) in the case of a direction relating to any participant in the proceedings— (i) the availability of the person; (ii) the need for the person to attend in person; (iii) the views of the person; (iv) the suitability of the facilities at the place where the person would take part in the proceedings in accordance with the direction; (v) whether the person will be able to take part in the proceedings effectively if he or she takes part in accordance with the direction.”

“SCHEDULE 3A PROHIBITIONS AND LIMITATIONS ON USE OF LIVE LINKS

Conduct of proceedings wholly as audio proceedings 1

(1) Eligible criminal proceedings may be conducted wholly as audio proceedings only if the proceedings meet one of the following conditions. (2) Condition A: the proceedings are preliminary or incidental to a criminal appeal to the Crown Court. (3) Condition B: the proceedings are preliminary or incidental to an appeal to the criminal division of the Court of Appeal. (4) Condition C: the proceedings are preliminary or incidental to a reference to the Court of Appeal by the Attorney General under Part 4 of the Criminal Justice Act 1988. (5) Condition D: the proceedings are preliminary or incidental to the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995. (6) Condition E: the proceedings are a hearing following conviction held for the purpose of making a decision about whether to impose or vary conditions of bail in respect of the person convicted. (7) Condition F:— (a) the proceedings are a hearing following conviction held for the purpose of deciding whether to grant or continue bail in respect of the person convicted, and (b) either— (i) section 4 of the Bail Act 1976 does not apply to the person, or (ii) the making of the decision is not disputed (including where the court is minded to refuse or revoke bail of its own motion). (8) But proceedings which meet any of those conditions may not be conducted wholly as audio proceedings if the court is minded to deal with a person for contempt of court (including enquiring into conduct and imposing punishment) at the proceedings. Conduct of proceedings wholly as video proceedings 2 (1) Eligible criminal proceedings may be conducted wholly as video proceedings only if the proceedings meet one of the following conditions. (2) Condition A: the proceedings are— (a) an appeal to the Crown Court which is an appeal only against sentence, (b) an appeal to the Crown Court arising out of a summary trial— (i) which is an appeal arising out of a summary trial which was itself conducted wholly as video proceedings, and (ii) which the parties agree may be conducted wholly as video proceedings, or (c) preliminary or incidental to any criminal appeal to the Crown Court. (3) Condition B: the proceedings are preliminary or incidental to an appeal to the criminal division of the Court of Appeal. (4) Condition C: the proceedings are preliminary or incidental to a reference to the Court of Appeal by the Attorney General under Part 4 of the Criminal Justice Act 1988. (5) Condition D: the proceedings are preliminary or incidental to the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995. (6) Condition E: the proceedings are preliminary or incidental to a hearing before the Court of Appeal under section 80 of this Act. (7) Condition F: the proceedings are a hearing following conviction held for the purpose of making a decision about bail in respect of the person convicted. (8) Condition G:— (a) the proceedings are a summary trial in a magistrates’ court, (b) a written procedure notice has been served on the defendant but the offence is not being tried in accordance with section 16A of the Magistrates’ Courts Act 1980, and (c) the parties agree to the proceedings being conducted wholly as video proceedings. (9) Condition H: the proceedings are a hearing under section 142(1) or (2) of the Magistrates’ Courts Act 1980 or under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000.

PUBLIC PARTICIPATION IN PROCEEDINGS CONDUCTED BY VIDEO OR AUDIO

85A Enabling the public to see and hear proceedings (1) If the court directs that proceedings are to be conducted wholly as video proceedings, the court— (a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings; (b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings. (2) If the court directs that proceedings are to be conducted wholly as audio proceedings, the court— (a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to hear the proceedings; (b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio record of the proceedings. (3) A direction under this section may relate to the whole, or to part, of the proceedings concerned. 85B Offences of recording or transmission in relation to broadcasting (1) It is an offence for a person to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image or sound which is being broadcast in accordance with a direction under section 85A. (2) It is an offence for a person to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image of, or sound made by, another person while the other person is viewing or listening to a broadcast made in accordance with a direction under section 85A. (3) It is a defence for a person charged with an offence under subsection (1) or (2) to prove that, at the time of the actual or attempted recording or transmission of the image or sound concerned— (a) he or she was not in designated live-streaming premises, and (b) he or she did not know, and could not reasonably have known, that the image or sound was— (i) being broadcast in accordance with a direction under section 85A (in the case of an offence under subsection (1)), or (ii) an image of, or sound made by, another person while viewing or listening to a broadcast made in accordance with a direction under section 85A (in the case of an offence under subsection (2)). (4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (5) For the purposes of this section it does not matter whether a person making, or attempting to make, a recording or transmission intends the recording or transmission, or anything comprised in it, to be seen or heard by any other person. (6) For the purposes of this section a recording or transmission is “unauthorised” unless it is— (a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor. 85C Offences of recording or transmitting participation through live link (1) It is an offence for a person to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image or sound which is being transmitted through a live video link or transmitted through a live audio link. (2) It is an offence for a person (P) to make, or attempt to make— (a) an unauthorised recording, or (b) an unauthorised transmission, of an image of, or sound made by, any person (whether P or another person) while that person is participating in court proceedings through a live video link or a live audio link. (3) It is a defence for a person charged with an offence under subsection (1) or (2) to prove that, at the time of the actual or attempted recording or transmission, he or she did not know, and could not reasonably have known, that the image or sound concerned— (a) was being transmitted through a live video link or through a live audio link (in the case of an offence under subsection (1)), or (b) was an image of, or sound made by, a person while that person was participating in court proceedings through a live video link or a live audio link (in the case of an offence under subsection (2)). (4) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale. (5) For the purposes of this section it does not matter whether a person making, or attempting to make, a recording or transmission intends the recording or transmission, or anything comprised in it, to be seen or heard by any other person. (6) For the purposes of this section a recording or transmission is “unauthorised” unless it is— (a) authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (b) authorised (generally or specifically) by the Lord Chancellor.

Heads of Courts in Nigeria are empowered in Nigeria to from time to time issue practice directions.Pursuant to those powers,they can direct accordingly as a matter of urgency for the inclusion of live links in the proceedings of the various courts for the purpose of keeping the courts going at this trying times.

This i believe will continue to be part of our court system even after the Corona Virus pandemic

Anthony Atata