Courts have new powers to allow remote observation of hearings

From today, courts and tribunals have new powers to allow reporters and other members of the public to observe hearings remotely, under new s.85A of the Courts Act 2003 and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022. The Lord Chief Justice and the Senior President of Tribunals have issued practice guidance to the judiciary on the new powers.

These provisions replace the temporary provisions under the Coronavirus Act 2020, which enabled courts and tribunals to direct the broadcasting of proceedings that were conducted as "wholly video" or "wholly audio" proceedings, but gave no similar powers in respect of in-person or hybrid hearings. That gave rise to some uncertainty as to the extent to which individuals who were interested in proceedings (such as client representatives) could be given remote access where the proceedings were not being conducted wholly remotely.

These new regulations put an end to any uncertainty, making it clear that the court can authorise an electronic transmission to allow individuals to observe a hearing, whether the hearing is otherwise being conducted wholly in-person, wholly remotely, or a hybrid.

Unless the transmission is to designated live-streaming premises (such as an overflow courtroom), individuals who wish to observe a hearing through a remote link will have to identify themselves to the court and will generally have to provide their email address.

Remote observers must be warned that they must not record or transmit any images or audio of the proceedings. The new s.85B of the Courts Act 2003 makes this a summary offence as well as a contempt of court, with a maximum sentence of two years’ imprisonment.

Before making a direction for electronic transmission of the hearing, the court must be satisfied that it would be in the interests of justice and that it would not create an unreasonable administrative burden. There are various factors the court must take into account in deciding whether to make a direction:

• the need for the administration of justice to be, as far as possible, open and transparent;
• the timing of any request or application to the court or tribunal to make a direction, and its impact on the business of the court or tribunal;
• the extent to which the technical, human and other resources necessary to facilitate effective remote observation are or can be made available;
• any limitation imposed by or under any enactment on the persons who are entitled to be present at the proceedings;
• any issues which might arise if persons who are outside the United Kingdom are among those watching or listening to the transmission;
• any impact which the making or withholding of such a direction, or the terms of the direction, might have upon— (i) the content or quality of the evidence to be put before the court or tribunal; (ii) public understanding of the law and the administration of justice; (iii) the ability of the public, including the media, to observe and scrutinise the proceedings; (iv) the safety and right to privacy of any person involved with the proceedings.