Clark, R. v

In criminal proceedings, a court has no power to receive evidence by telephone, even with the parties’ consent. The statutory scheme governing live-link evidence must be observed. A restriction order under Mental Health Act 1983 section 41 is invalid unless the condition in section 41(2), requiring oral evidence from a qualifying medical practitioner, is lawfully met. The condition is jurisdictional. Where it was not met, the appellate court may determine the restriction issue afresh on proper evidence and quash the order if restriction is not necessary.

The appellant pleaded guilty at Carlisle Crown Court to affray and criminal damage arising from threats and damage at supported accommodation. The sentencing judge made a hospital order under Mental Health Act 1983 section 37 and an indefinite restriction order under section 41, although both psychiatrists opposed restriction.

One psychiatrist gave unsworn evidence by telephone after a proposed live link failed. The appellant appealed the restriction order. The central issues were whether that telephone evidence satisfied section 41(2), and whether a restriction order should be made afresh in light of updated psychiatric evidence.

1. Appeal allowed. The restriction order was quashed. The hospital order was unaffected.
2. Although the decision whether to impose a restriction order was for the sentencing judge, section 41(2) of the Mental Health Act 1983 required at least one qualifying registered medical practitioner to give oral evidence before the court. The psychiatrist’s evidence was received by telephone and was also unsworn.
3. Following R v Diane [2010] 2 Cr App R 1 and R v Hampson [2012] EWCA Crim 1807, telephone evidence could not lawfully be received in a criminal case, even by consent. The statutory provisions governing evidence by live link, hearsay and other exceptional forms of evidence controlled the court’s power. Telephone evidence was not a live link within the relevant definition.
4. Consequently, the sentencing judge lacked jurisdiction to make the restriction order. Had lawful oral evidence been received, the judge could have imposed restriction despite the psychiatrists’ views.
5. The Court of Appeal considered the issue afresh. Both psychiatrists had re-examined the appellant, and both considered that a hospital order without restriction would adequately manage the risk and better assist rehabilitation. The court accepted that evidence and quashed the restriction order.

The court also observed, without deciding the appeal on that basis, that the piecemeal statutory regime for live-link evidence contained anomalies. It invited serious parliamentary consideration of a general rule-making power for criminal evidence received through developing technology.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the restriction order: [2015] EWCA Crim 2192.
• Crown Court at Carlisle: Following guilty pleas, made a hospital order under section 37 and an indefinite restriction order under section 41 of the Mental Health Act 1983.