Remote hearings and video link evidence
Traditionally, almost all court hearings were conducted in courtrooms with all participants being physically present. Witnesses were required to attend to give oral evidence except in limited circumstances. Video link evidence was permitted in limited circumstances in criminal cases under the Criminal Evidence Act 1992.
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 now allows for a much wider use of remote hearings than has been the case to date. It also extends the use of video link evidence in a number of criminal matters.
Remote hearings involve some or all of the participants logging in to an online platform where the case is otherwise conducted as it would physically in court. If the judges or barristers are not in the courtroom, they will not be wearing robes or wigs.
Remote hearings and video link evidence are not suitable for all types of case and protections have been provided to ensure that no one will be unfairly prejudiced by a remote hearing or video link evidence.
Remote hearings in civil cases
The Act allows the President of the relevant Court to designate categories of civil case for hearing remotely. In addition, a party can ask or the judge can decide to hear part or all of any case remotely. However, where a remote hearing is decided by a judge to be unfair to any of the parties or contrary to the interests of justice, the decision to hear it remotely will not apply.
Those taking part in remote hearings will continue to benefit from the same protections as if they were in physical attendance in court and the court will have the same powers.
It is an offence to frustrate the participation of any person in a remote hearing or to interfere with the technology being used. It is also an offence to make any recording of the proceedings.
Penalties include a maximum fine of €5,000, 12 months’ imprisonment or both, if convicted in the District Court, or a maximum fine of €50,000, 3 years’ imprisonment or both, if convicted in a higher court.
Video link evidence in criminal cases
If you are giving evidence by video link you don’t need to go into the courtroom. Instead you can sit in another room or venue and give your evidence by live video link. A television monitor is placed in the court, which transmits your image, and you have a screen in your room that transmits the image of what is happening in the courtroom.
In criminal proceedings, there are certain situations where video link evidence has been acceptable for a number of years. These include:
- If the proceedings involve a sexual or violent offence, the victim and any other witness may be allowed to give their evidence by live video link, if they are under 18 years of age, or for any other reason that the judge allows
- If the judge thinks it is necessary to protect the victim from further victimisation, the victim can give evidence by live video link
When a child gives evidence by live video link, the judge and the barristers do not wear wigs or gowns in court. The judge can decide to let an intermediary (for example, a social worker) ask the witness questions. The questions should be asked in a way that is appropriate for the age and mental ability of the witness.
From 14 September 2020, additional uses of video link evidence were introduced:
- The types of hearings permitted to be conducted by video link were widened to include arraignments (where an accused is asked to enter a plea), returns for trial, sentencing hearings and certain hearings in relation to extradition. Criminal trials are still conducted physically.
- These hearings also cover persons not in custody, allowing any accused person to attend by video link where the court so directs. A court can also decide that some applications may be heard by video link by default. The accused must either be legally represented, have obtained legal advice or have been given the opportunity to obtain legal advice before video link can be used.
- If hearing the evidence using video link is prejudicial to the accused or contrary to the interests of justice, or if adequate video link facilities are not available or otherwise inappropriate, the application will be dealt with in the traditional, physical manner.
- A witness, other than the accused, may also be allowed to give evidence remotely over video link in these criminal applications, even if they are not in the State.
Those taking part in such applications in criminal cases will continue to benefit from the same protections as if they were in physical attendance in court and the court will have the same powers.
Remote hearing of criminal appeals
The Court of Appeal and the Supreme Court now have the power to direct that any criminal appeal before it be held remotely. Again, where a remote hearing is unfair to any of the parties or contrary to the interests of justice, the decision to hear it remotely will not apply.
Similarly, it is an offence to interfere with the participation of any person in a remote appeal or to interfere with the technology being used. It is also an offence to make any recording of the proceedings.
Penalties include a maximum fine of €5,000, 12 months’ imprisonment or both, if convicted in the District Court or a maximum fine of €50,000, 3 years’ imprisonment or both, if convicted in a higher court.