With effect from 28 June 2022, a new framework governing remote access by non-participants to proceedings was introduced by the Police, Crime, Sentencing and Courts Act 2022 – introducing new sections 85A and 85B into the Courts Act 2003 – and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022.
This framework – which applies to all courts and tribunals – is explained in the Practice Guidance issued by the Lord Chief Justice and the Senior President of Tribunals on 28 June 2022. It applies whether the court is sitting in person, but enabling remote observation, or if the court is, itself, sitting remotely. In broad terms, its effect is to:
- provide judges with the power to make directions to enable members of the public to observe proceedings remotely (by video or audio);
- set down a series of considerations for judges to apply when deciding whether to make such a direction;
- make it (by the Courts Act 2003 s85B) a criminal offence to make an unauthorised recording during any such remote observation.
In respect of the Court of Protection, the introduction of the new framework places matters on a clearer statutory footing than previously; whilst judges of the court had grappled with the problem of recording of remote observations (see Re TA (recording of hearings; communication with court office) [2021] EWCOP 3), they had been doing so in circumstances where the powers to prevent recording had to be derived somewhat indirectly.
It is likely that the Remote Hearings Guidance issued by the Vice-President, Hayden J, in March 2020 will be updated in due course to address the provisions of this new framework, not least as the provisions of the template order attached to that guidance now require updating to reflect that there is no need now to injunct observers from making unauthorised recordings, as this is covered by the offence under Courts Act s85B.
It should be noted that, in the Court of Protection, this new framework alongside, rather than replacing, the provisions of the Transparency Practice Direction. The Transparency PD provides the mechanism by which the court decides whether the matter should be held in public, and subject to what limitations as to identification of P. The new framework (and guidance) provides the mechanism by which non-participants may be given remote access to the hearing, whether that hearing is being held in person or online/by telephone.
Court of Protection Handbook 