Ukpabio, R. v

The statutory special-measures scheme in the Youth Justice and Criminal Evidence Act 1999 was complete. Before the later statutory amendment, it gave no residual common-law power to direct that an accused should give evidence by video link.

A defendant’s right to be present at trial is protected by common law and European Convention on Human Rights article 6, but is not absolute. Exceptionally, the court has power to permit a defendant to participate remotely where adequate participation can be secured. An erroneous refusal of that possibility does not render a conviction unsafe without resulting injustice or prejudice.

The appellant, a patient in a secure hospital, was convicted at Leeds Crown Court of inflicting grievous bodily harm after he headbutted a nurse during an incident concerning medication. He maintained that he acted to free himself from a painful and unlawful restraint hold.

He appealed against conviction. The principal permitted ground concerned rulings that the judge lacked power both to permit his evidence and to permit his wider participation at trial by video link. He also renewed an application for leave to appeal against the hospital order and restriction order imposed following conviction.

1. Appeal against conviction dismissed. The judge’s direction left the jury to decide the real factual issue: whether the appellant may have been subjected to the painful wrist or finger lock which he said caused him to headbutt the complainant. A fuller direction on self-defence caused no error.
2. The court upheld the ruling that it had no jurisdiction, under the law then applicable, to permit the appellant to give evidence by video link. The special-measures provisions of the Youth Justice and Criminal Evidence Act 1999 formed a complete statutory scheme and excluded an accused. The subsequent insertion of section 33A confirmed that statutory authority was required for an accused to give evidence remotely. The court followed R v Waltham Forest Youth Court [2004] EWHC 715 (Admin).
3. The judge was, however, wrong to hold that he lacked any power to permit the appellant’s wider participation at trial by video link. A defendant’s right to appear is protected by common law and article 6, but may be waived and is not absolute. In exceptional circumstances, remote participation may be appropriate where it adequately secures a defendant’s participation and the necessary facilities are available.
4. That error did not affect the conviction’s safety. The material before the trial judge did not justify remote participation, and nothing showed that the appellant’s attendance impaired his ability to instruct counsel. The presence of nursing security caused no unfair prejudice because the alleged violence and the appellant’s mental disorder were already central features of the case.
5. Renewed application for leave to appeal against sentence dismissed. The serious offence and medical evidence made a hospital order under section 37, with an indefinite restriction order under section 41 of the Mental Health Act 1983, the appropriate disposal.

• Court of Appeal (Criminal Division) — By [2007] EWCA Crim 2108, dismissed the appeal against conviction and dismissed the renewed application for leave to appeal against sentence.
• Crown Court at Leeds — Convicted the appellant of inflicting grievous bodily harm on 11 May 2006. On 14 July 2006, imposed a hospital order and an indefinite restriction order under the Mental Health Act 1983.