The Court of Appeal has given guidance to judges on the circumstances in which they can remotely attend a hearing after a sentencing judge did so without forewarning counsel.

Hearing an appeal on a fraud sentence, Lady Justice Andrews, with whom Mrs Justice McGowan and Mr Justice Hilliard agreed, quashed Frederic Priestley’s sentence of 35 months’ imprisonment and substituted a sentence of 24 months. In a written judgment, the judges said a feature of the case 'gave rise to some concern’. At Priestley’s sentencing hearing he, prosecution and defence counsel, court staff, and members of the press and public were present in the courtroom but the recorder appeared remotely by video link.

‘Although there was an explanation for this unorthodox arrangement – we understand that the recorder was unable to travel to court for medical reasons – counsel were never provided with it,’ the judgment said. ‘The explanation only came to light after enquiries were made by the Presiding Judge at our instigation after the hearing of the appeal. The parties were not forewarned, and in effect counsel were presented with a fait accompli.’

The CoA noted it became aware the recorder had not been physically in court only when ‘certain exchanges’ on the transcript showed the recorder was unable to see the defendant.

Though it formed no part of Priestley’s appeal, Andrews said: ‘It is a matter of concern to us that the appropriate process was not followed, even though there was a good reason for the recorder not attending court in person. We therefore consider that it would be helpful to draw attention to the relevant statutory provisions and to give some guidance for the future.’

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The judgment noted though it is not unlawful for the judge to appear remotely, the circumstances in which it would be appropriate for a judge to impose a custodial sentence remotely are likely to be rare’.

The latest guidance ‘stresses that the use of live links must serve the interests of justice. Administrative convenience alone is insufficient’.

If a judge must appear remotely, their resident judge should be consulted in advance so alternative options can be explored and counsel should be informed to be ‘afforded an express opportunity’ to make representations about it. The judgment states: ‘The responsibility lies with the judge to ensure that counsel is told. This is not just a matter of courtesy. It is a mandatory statutory requirement that the parties should be given the opportunity to make representations, and it is difficult to make representations without knowing why a live link is being proposed.’

If a judge does appear remotely, a short ruling explaining why should be given and uploaded onto the digitial case system. ‘It is particularly important for the judge to address the question whether they can participate effectively in the hearing, and to explain why the interests of justice are served by taking this exceptional course.’