No: 2006/3759/D2 
Neutral Citation Number: [2007] EWCA Crim 2108
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Monday, 30 July 2007
 
B e f o r e:
THE VICE PRESIDENT 
(LORD JUSTICE LATHAM)
MR JUSTICE OPENSHAW 
 
MR JUSTICE KING 
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R E G I N A 

v 

ROLAND UKPABIO
 
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Mr P Fleming appeared on behalf of the Appellant
Mr S Phillips appeared on behalf of the Crown 
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J U D G M E N T
1.	THE VICE PRESIDENT:  On 11th May 2006 in the Crown Court at Leeds, before His Honour Judge Kent‑Jones, the appellant was convicted of inflicting grievous bodily harm.  On 14th July 2006 he was ordered to be detained at Rampton Secure Hospital under a hospital order accompanied by a restriction order under section 41 of the Mental Health Act 1983 which was to be indefinite in length.  He appeals against conviction with limited leave of the single judge.  
2.	The circumstances giving rise to the charge were that the appellant was, at the time, a resident in the secure unit at Newton Lodge Hospital in Wakefield.  He had been diagnosed as a paranoid schizophrenic in the mid‑1990s.  In December 2003 a Dr Berry was the psychiatrist involved with the appellant's care and control.  On 13th December 2003, when the complainant was one of the nurses on duty, Dr Berry had made a decision to change the appellant's medication.  That was liable to and did give rise to objection on the appellant's behalf and there was some discussion between Dr Berry, the appellant and a female nurse in relation to that change of medication.
3.	As a result of the expectation that the appellant might object, nursing staff, including the complainant, were positioned outside the room in case assistance was needed.  The appellant left the room.  Following that there was contact between the nursing staff (including the complainant) and the appellant in which the appellant headbutted the complainant who suffered, after falling against a wall, a broken cheekbone.  
4.	When he was first interviewed the appellant maintained that he could not remember the incident at all.  He could not remember the headbutt or what the complainant was doing.  He pretended that he could not remember who the complainant was.
5.	The Crown's case was that when the appellant left the room the complainant and another nurse approached him and attempted to usher him back into the room in order to administer the medication.  He became agitated and that was when he headbutted the complainant.  Their case was that they had merely held him by the arms and no more.  
6.	The appellant in his evidence at trial accepted headbutting the complainant.  He said that he had been placed by the complainant in an unlawful, painful, aggressive restraint hold, causing serious pain to his wrist.  He denied that he had given anyone any justification for imposing aggressive restraint upon him at all.
7.	The defence called, in addition to the appellant, a doctor whose evidence was to the effect that in her view even on the evidence given by the nurses (including the complainant) they had unjustifiably attempted to restrain him or to manoeuvre him back into the room.  The jury convicted him.  
8.	The ground of appeal upon which leave was refused in relation to conviction was that the judge had failed properly to deal with the issue of self‑defence in the circumstances of the issues before the jury.  In fact the judge gave a full and careful direction as to self‑defence which was more than was necessary for the purposes of the issues before the jury as the judge eventually himself accepted, because the judge said this at page 12 of his summing‑up: 
"He does not say he butted him to free himself from this restraint, the taking hold of the arms and the guiding back in.  He does not say that he believed it was necessary to butt to get free from that form of arm holding and guiding, be it in fact lawful or unlawful, according to all that we have heard.  He does not say that.  What he does say, quite simply, is the reason that he butted Mr Blake was to free himself from the very painful finger or wrist lock which he said was being put on him by Mr Blake, and increasingly and becoming excruciatingly more painful.  That, he says, is why he did it.  That was the trigger for the butt causing, in one way or another, the injury to the face, according to the defendant and in that respect, that sort of lock, none of the nurses, nor Dr Berry, say that such a painful lock like that would have been necessary or legitimate in the circumstances."
Not surprisingly the judge indicated the true issue for the jury was to determine whether or not the appellant may have been correct in his account as to how it came about that he headbutted the complainant.  In our judgment that was a perfectly proper way of putting the matter before the jury and there is nothing in that ground of appeal.
9.	The ground of appeal upon which the single judge gave leave arose out of two rulings which were given by the judge prior to trial on 3rd March 2006.  The two applications were, first, that the appellant should be able to give his evidence by video link, and the second, that the trial should be conducted on the basis that the appellant should participate in the trial process by video link.  The judge concluded that he had no power to accede to either of those applications and the burden of the appeal before us today is that the judge was wrong so to rule.  
10.	The first of the two applications is one which raises the same issue essentially as was determined by the Divisional Court in R v Waltham Forest Youth Court [2004] 2 Cr.App.R 21, [2004] EWHC 715 (Admin).  In that case the claimant in judicial review proceedings had challenged a decision in the youth court refusing her application that there should be a special measures direction pursuant to the provisions of the Youth Justice and Criminal Evidence Act 1999, Chapter 1, enabling her to give her evidence by video link, she being in fear of one of her co‑defendants.  The court in its judgment held that there was no power to make a special measures direction under the framework of the 1999 Act in relation to an accused's evidence.  It was said that it was Parliament's clear intention to exclude the defendant from those provisions and there was no residual common law power for the judge so to order.  
11.	The section in question in those proceedings was section 16 of that Act which provided as follows.  Subsection (1):
"For the purposes of this Chapter, a witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section‑ 
(a) if under the age of 17 at the time of the hearing, or 
(b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within subsection (2)." 
It is not necessary for the purposes of this judgment to detail any further provisions of that section.
12.	The simple argument before the court was that as the section made it plain that the accused was not eligible for assistance by virtue of the section, it must have been Parliament's intention that the provisions should not apply to a defendant.  That was a view which was approved by this court in R v H (Special Measures) The Times, April 15th 2003 (obiter).  The position so far as defendants are concerned has however been the subject of an amendment to those statutory provisions as a result of section 47 of the Police and Justice Act 2006 which has inserted into the 1999 Act section 33A which now enables any person who is an accused to whom the section applies to apply that his evidence can be given by video link.  The two main categories of accused who are given that entitlement are, by section 33A(4), an accused under the age of 18 and, by section 33A(5) in relation to persons who have attained the age of 18, those who suffer from a mental disorder and are for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court and the use of a live link would enable them to participate more effectively in the proceedings as a witness, whether by improving the quality of their evidence or otherwise.
13.	Mr Fleming on behalf of the appellant submits that the decision of the Divisional Court in the Waltham Forest case is one which we should not follow, bearing in mind in particular that the decision was expressly doubted by Baroness Hale in R v Camberwell Green Youth Court [2005] 2 Cr.App.R 1.  It should be said that the decision under appeal in that case did not raise the issue with which we are concerned, and none of their Lordships with whom Baroness Hale sat adverted to this issue.  
14.	Having considered those submissions we can see no justification for concluding that the special measures provisions in the 1999 Act do not provide the complete statutory scheme by which evidence can be given by video link and which, apart from those statutory provisions, cannot be given by video link.  In other words, the provisions are based on the premise that otherwise evidence to a court should be given by a witness present in court subject to such protective measures short of video link which the court considers to be appropriate to provide such protection as is necessary in order to ensure that the witness is able to give evidence properly and fully and in particular without fear.  The amendments to the 1999 Act are a recognition of this principle.  They would not have been necessary otherwise.
15.	Accordingly, we are of the view that the judge was correct to rule that the court had no jurisdiction to direct that the evidence of the appellant could be given by video link.  That aspect therefore of his challenge to the ruling must fail.  
16.	The position, however, as to participation by the appellant by video link is in our view different.  It must be remembered that a defendant has a right to appear before a court and that is protected not only by the common law but by Article 6 of the European Convention on Human Rights.  But that is not an absolute right.  In particular it can be waived or alternatively there may be circumstance in which it is necessary, in order to ensure an orderly trial, for the defendant to be absent for all or part of a trial.  That was recognised as long ago as the case of R v Smellie 14 Cr.App.R 128.  
17.	The position, in our view, is accordingly that there may well be circumstances in which conversely it may be appropriate that a defendant on his own application should not be present in court for all or part of a trial, provided that his participation in the trial can be adequately secured by, if the relevant equipment is available, his being in touch by video link or in some other way.  In other words, there may be circumstances, exceptionally, where that might be a sensible method of ensuring participation for a defendant who would otherwise not be able to participate properly in all or some of the trial process.  Accordingly, the judge was wrong in the present case to conclude that he had no jurisdiction or power to order that the appellant could avail himself of video link facilities.  However, having considered the material put before the judge at the time of the application it is abundantly plain that there was nothing in that material which could conceivably have justified him acceding to the application being made to him at that time.  
18.	We then turn to consider whether the trial process suggests that in some way the fact that the appellant was not able to avail himself of video link facilities because of the rulings of the judge affects the safety of the conviction.  Although a medical report has been put before the court to suggest that the appellant may have had some difficulty in the trial by reason of his being either drowsy or in other ways not attending fully to the proceedings, there is nothing to suggest that that produced any form injustice to him in the sense of preventing him from giving appropriate instructions to his counsel or to others during the course of the trial itself.  It is in some way suggested that there was prejudice to him by reason of the fact that he was not able to participate by video link because the consequence was that there had to be security by way of nurses in the court room.  That is commonplace in any trial where there are difficulties with a defendant either by reason of the risk of his behaving aggressively or being an escape risk. We acknowledge that in some circumstances this may be potentially prejudicial to a defendant.  In the present case we simply fail to understand how it could be thought to be in any way prejudicial to this defendant.  The whole premise of the case was that he was in fact a potentially violent man with a mental disorder.  That was what the trial was all about.  Accordingly, the fact that there were precautions which merely confirmed that fact cannot conceivably justify the conclusion that there was any prejudice to him which produced an unsafe verdict at the end of the day.  Accordingly, so far as the appeal against conviction is concerned, we dismiss it.  
19.	Turning to sentence, the appeal against sentence has been renewed, it also having been refused by the single judge.  There is nothing in the application for leave to appeal against sentence.  The inevitable consequence of the verdict of the jury was that an order should be made in this case by the court.  It was a serious offence.  To have failed to mark it by an appropriate disposal would have been inappropriate and the appropriate disposal on the medical evidence was quite clearly a hospital order under section 37 with a restriction order under section 41.  It was entirely the right disposal and the application for leave to appeal against sentence is dismissed.