Neutral Citation Number: [2015] EWCA Crim 2192 
Case No: 201405676 A7 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Friday, 4 December 2015
 
B e f o r e:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR BRIAN LEVESON 

MR JUSTICE FOSKETT 
 
HIS HONOUR JUDGE MOSS QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION) 
 
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R E G I N A 

v 

LUKE CLARK 
 
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Mr K Thomas appeared on behalf of the Appellant 

Mr M Hooper appeared on behalf of the Crown 
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J U D G M E N T (Approved) 
1.	SIR BRIAN LEVESON, PQBD:  On 11 August 2014 at the Crown Court in Carlisle, this appellant pleaded guilty to one offence of affray and one offence of criminal damage arising out of the same incident.  Given the appellant's history of learning difficulties, sentence was postponed for the preparation of psychiatric reports.  So it was that on 10 November 2014 at the same court before His Honour Judge Peter Hughes QC, the appellant was sentenced to a hospital order pursuant to section 37 of the Mental Health Act 1983.  The judge also imposed a restriction order pursuant to section 41 of the Act indefinitely.  He now appeals against the restriction order by leave of the single judge.
2.	In order to understand how the matter comes to court, the circumstances can be summarised quite shortly.  The appellant is now 20 years of age with a history of learning difficulties.  At the material time he was living in supported accommodation in Carlisle, receiving some 55 hours of support per week, with sleep‑in staff every night.  His accommodation was run by a charity called United Response, which offers support to adults with learning difficulties and mental health issues.  He had lived in this accommodation since September 2013 without incident.  
3.	On 11 March 2014, he went into the staff room and asked to write in a book.  When told that it was for staff use only, he became agitated and began to lose his temper.  He was asked to leave but refused to do so.  When eventually he left the staff room, he slammed the door and was verbally abusive.  Ms Gill, an experienced care worker who knew the appellant well then locked the door behind him because she feared for her own safety.  After that, the appellant repeatedly kicked and hit the door whilst threatening to stab and kill her.  He pushed a knife with a blade some 5 or 6 inches long underneath the door.  In the meantime, he was sending texts to another member of staff, threatening that member of staff, saying that he was going to kill Ms Gill.  Ms Gill was herself convinced that had he succeeded in getting through the door, she would indeed have suffered serious injury.
4.	The police were called and the appellant was arrested and interviewed.  He declined to answer questions put to him.  The damage consisted of scratches to the outside of the door, with a crack in the veneer that appeared to have been caused by the knife.  Not surprisingly, he did not return to that accommodation, and thereafter he stayed elsewhere.  During the course of that summer he was detained pursuant to the provisions of section 3 of the Mental Health Act 1983 for treatment in a low secure forensic unit in Northgate Hospital in Morpeth where he underwent comprehensive assessment.
5.	Because his legal advisors were conscious that a hospital order might be contemplated, the appellant's solicitors arranged for two consultant psychiatrists to prepare reports upon him, section 37 requiring the provision of the written or oral evidence of two medical practitioners concerning his mental health state.  These doctors were Dr Julie Thorp, who provided reports dated 5 August 2014 and 16 October 2014, and Dr James Stoddart, who provided a report of 28 October 2014.  The doctors were specifically asked to address the question of restriction.  
6.	In her second report, Dr Thorp stated that the appellant presented with deficits in adaptive function and some symptoms suggestive of autism.  She described his mental state at that stage as settled, with no major management problems.  She gave further details of broad progress, although she described his mild learning disability as "a life‑long, enduring mental disorder" that would require further treatment and multidisciplinary work before his rehabilitation into the community.  She did not consider it necessary for the court to impose a restriction order, observing:
i.	"It must be demonstrated that, having regards to the nature of the offence, the antecedents of the offender, the risk of him committing further serious offences if set at large, there is a necessity to protect the public from serious harm.  I note the serious nature of the current alleged offences, although it is clear that Mr Clark does not have an extensive previous history of offending.  He has subsequently undergone treatment in hospital however, and his mental health remains stable.  It is thus my opinion that the court should not consider the additional imposition of a Restriction Order under Section 41 of the Mental Health Act 1983."

7.	Dr Stoddart agreed with that assessment.  
8.	The judge was plainly concerned about this joint view, recognising, as was the case, that the appellant had very limited prior involvement with the courts: he had been reprimanded and cautioned each on one occasion as a 15‑year‑old and had no previous convictions.  He was particularly concerned about the gravity of the offence for which he fell to be sentenced, subsequently observing for the court that the protection provided by the provision of a restriction order and the necessary requirement for the permission of the Secretary of State to be obtained prior to leave was of importance given the circumstances of the incident while in the community.  
9.	Although neither psychiatrist supported the making of a restriction order, it is common ground that the decision in that regard is for the judge.  However, before such an order can be made, the provisions of section 41(2) must be complied with.  That provides:
i.	"A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court."

10.	It follows that the judge had to receive the oral evidence of one of the psychiatrists in any event.
11.	Arrangements were made for the hearing to be conducted in the appellant's absence for his own welfare.  No criticism is made of that, provided that he consented, which he did.  Unfortunately, the provision of a live link to the psychiatrists, both of whom worked in Newcastle, was thwarted by failure within the technology.  Having spent a considerable period of time endeavouring to set up the appropriate link, the court, with the consent of counsel, understandably took the course of receiving the evidence of Dr Stoddart by telephone.  That evidence was, in the event, unsworn.  
12.	Unfortunately, the court and counsel overlooked two recent decisions of this court, which hold clearly that evidence cannot be received by telephone in a criminal case, even by consent.  These decisions are R v Diane [2010] 2 Cr App R 1 and R v Hampson [2012] EWCA Crim 1807.  In the latter case, Sir John Thomas P (as he then was) said:
i.	"14. In the light of the decision in Diane, we consider that the power of the courts in criminal cases to receive evidence other than by a person being present to give oral evidence is regulated by statute. There are the statutory provisions that enable statements to be read. There are the statutory provisions that enable hearsay evidence to be adduced, either by consent or if statutory conditions are fulfilled. There are the bad character provisions, again, which provide either for specific conditions to be satisfied or consent to be given. It seems to us that if one looks at both the provisions in relation to bad character evidence and the provisions in relation to hearsay, if the submission of the Crown was correct, and evidence could be admitted if both parties consented, then it would not have been necessary to provide in the legislation for consent to be a means of putting either hearsay evidence or bad character evidence before the court.

ii.	15. Furthermore, the statutory provisions relating to video link cases, as is set out in the authorities referred to in Diane, make it very clear that the video link procedure can only be used where the statutory provisions provide for it.

iii.	16. It seems to us therefore that there is no power for a judge to permit, even by consent, evidence to be given by phone. [...]"

13.	It seems to us, therefore, that the judge, although he considered that he was receiving oral evidence from Dr Stoddart, was not in the event doing so lawfully according to these authorities.  First, the evidence was not given by way of a video link; secondly, it was not in any event sworn.  Thus the judge proceeded unwittingly to make an order without the jurisdiction to do so.  Having said that, had he received the evidence of Dr Stoddart orally in court, he would have had the power to make that order notwithstanding that neither doctor supported it.  
14.	In the circumstances, the court must now consider the position afresh, and, to that end, further reports (both provided in October 2015) have been obtained from Dr Thorp and Dr Stoddart.  Both have re‑examined the appellant and have noted that there have been no similar incidents of the type which led to the prosecution in the period which has elapsed since the original sentence, although there have been incidents which have required careful handling within the hospital setting.  Both argue that it is sufficient to control the future behaviour of this appellant if he is subject only to a hospital order without restriction, on the basis that either the responsible clinician or a Mental Health Review Tribunal would be in a position to impose a community treatment order such as to provide appropriate protection for the appellant, and indeed the community, should he be released from the section 3 order.  They further argue that his rehabilitation will be assisted by the fact that leave will be more readily available to him, subject to the views of the responsible clinician, on the basis that the Secretary of State will not have to consent if there is no restriction.
15.	We have considered this material with care and have had the advantage of hearing from both Dr Thorp and Dr Stoddart on a video link expounding their reasons for the conclusion that they have reached.  We agree with it and, in the circumstances, the restriction order, considered afresh but still within the powers of this court to make, will be quashed.
16.	It would be inappropriate to leave this case without taking the opportunity to discuss the wider issues involved in the receipt of evidence.  Para 2.2 CrimPR defines "live link" as "an arrangement by which a person can see and hear, and be seen and heard by, the court when that person is not in court".  While this definition applies not only to the telephone live links that the courts have used over many years, it will also apply to technological innovations such as internet‑based live links.  It does not, however, cover use on a telephone.  
17.	As Sir John Thomas identified, the circumstances in which defendants and witnesses may give evidence in criminal courts by live link, whether as a special measure or otherwise are prescribed by statute.  The legislative landscape regarding such links has evolved in a piecemeal manner and is not, as a result, as consistent or comprehensive as it might be.  Thus, a court may give a special measures direction under section 24 of the Youth Justice and Criminal Evidence Act 1999 to enable eligible witnesses to give evidence by live link; similarly, if a witness is outside the United Kingdom, leave may be granted pursuant to section 32 of the Criminal Justice Act 1988.  Except where eligible for a special measures direction under section 33A of the Youth Justice and Criminal Evidence Act 1999, however, there is no provision in that Act permitting a defendant to give evidence by live link.  
18.	The matter more generally is identified by section 51 of the Criminal Justice Act 2003, which provides that a witness may give evidence by live link in certain criminal proceedings where the court is satisfied that this course is in the interests of the efficient administration of justice.  The criminal proceedings to which this power applies, as specified in section 51(2) of the 2003 Act, include a summary trial, a trial on indictment, an appeal to the Court of Appeal Criminal Division and a hearing before a Magistrates' Court or the Crown Court which "is held after the defendant has entered a plea of guilty".  While the latter definition of criminal proceedings appears to be directed at a Newton hearing, it would also apply (most likely by accident rather than design) to circumstances such as those pertaining in the instant case at a sentencing hearing that takes place following a guilty plea where a registered medical practitioner is required to give oral evidence because the court is contemplating the imposition of a restriction order.  However, had this appellant been convicted after a trial, live link would not have been available.  I say nothing about the position in other circumstances where, by reason of the way in which the legislation is framed, a live link would not be available.  
19.	That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgment, befit a modern system of criminal justice.  It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.  
20.	There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide.  One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home.  There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.  
21.	When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge).  Times have changed; technology has improved and is continually improving.  The courts now regularly receive evidence by live link where the statute permits.  
22.	In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence.  Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them.  They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology.  That, however, is a matter for Parliament, but, in our judgment, it is a step which requires very serious consideration.  
23.	Having said that, this appeal is allowed and the restriction order quashed. 
24.	MR THOMAS:  My Lord, I rise with some trepidation.  The doctors have specifically asked me to raise as to where their fees are coming from for the last order, the situation being that the court directed them to do the recent reports each of 1 October.  They say that in fact the Court of Appeal Office has refused to pay them.  The Legal Aid Board never authorised either of the latest reports.  I have been telephoned directly on several occasions by the doctors with regard to that, and I said I would raise it.
25.	SIR BRIAN LEVESON, PQBD:  There is no justification for either of these doctors doing this work without appropriate remuneration, albeit perhaps at the legal aid rates.  We shall direct the Registrar of Criminal Appeals to make the appropriate enquiries in order to ensure that these fees are met in some way. 
26.	MR THOMAS:  They will be very obliged, and thank you for letting me raise it, my Lord.