[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hamberger, R. v [2017] EWCA Crim 273 (14 March 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/273.html Cite as: [2017] 4 WLR 77, [2017] EWCA Crim 273, [2017] Crim LR 708, 181 JP 449, [2017] WLR(D) 182, (2017) 181 JP 449, [2017] 2 Cr App R 9 |
[New search] [Context] [View without highlighting] [Printable RTF version] [View ICLR summary: [2017] WLR(D) 182] [Buy ICLR report: [2017] 4 WLR 77] [Help]
CRIMINAL DIVISION
Strand London, WC2A 2LL |
||
B e f o r e :
(SIR BRIAN LEVESON)
MR JUSTICE HOLROYDE
MR JUSTICE ANDREW BAKER
____________________
R E G I N A | ||
v | ||
MARTIN HAMBERGER |
____________________
WordWave International Limited Trading as DTI
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr T Nicholson appeared on behalf of the Crown
____________________
Crown Copyright ©
"It is accepted by all parties that Mr Hamberger has an acute cardiac condition. He underwent a triple heart bypass operation in 2007 and he suffers with angina and diabetes, diabetic neuropathy, high blood pressure, high cholesterol, chronic pancreatitis, diverticular disease and blindness in the right eye. He has been assessed as suffering a psychological reaction to his chronic physical ill health and depressive illness."
"I do find as a fact that he is suffering from a mental disorder based upon the evidence that I heard at the first hearing as to whether he was unfit or not but he is not for that reason unable to participate as a witness giving evidence in court.
The use of oral evidence would help him to participate more effectively (inaudible) as a witness whether by improving the quality of his evidence or otherwise and last but not least it is in the interest of justice were he to give evidence via a live link.
So, it would be open to the defence as an option to apply for such a measure. I am satisfied that that would be a stress relieving measure and it would assist in all the circumstances."
"(1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
(2) The court may, on the application of the accused, give a live link direction if it is satisfied
(a) that the conditions in subsection (4) or, as the case may be, subsection (5)are met in relation to the accused, and
(b) that it is in the interests of justice for the accused to give evidence through a live link.
(3) A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
(4)…
(5) Where the accused has attained the age of 18 at that time, the conditions are that
(a) he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function
(b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court, and
(c) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise)."
"Nothing in this Chapter affects -
(a) any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or (b) the operation of any rule of law relating to evidence in criminal proceedings."
"(1)Subject to subsections (2) and (3) below, in any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so (subject to sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999) on oath and be liable to cross-examination; but this section shall not affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf."
"(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a)any provision of this Chapter or any other statutory provision makes it admissible
(b)any rule of law preserved by section 118 makes it admissible
(c)all parties to the proceedings agree to it being admissible, or
(d)the court is satisfied that it is in the interests of justice for it to be admissible."
Section 116, so far as material, provides:
"(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a)oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter
(b)the person who made the statement (the relevant person) is identified to the court's satisfaction, and
(c)any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are ...
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition..."