This week I observed a case at Basildon Magistrates Court where an application was made for the defendant, who was over the age of 18, to give evidence via live link. The trial had previously been adjourned when the defendant had an epileptic fit in court and proceedings were unable to continue. The application was refused.
When can a defendant give evidence via live link?
Section 33A of the Youth Justice and Criminal Act 1999 provides that the court can allow a defendant to give evidence by live link if the defendant is:
Under the age of 18 and the defendant's ability to participate effectively as a witness giving oral evidence is compromised by his or her level of intellectual ability or social functioning; or
Suffers from a mental disorder or some other significant impairment of intelligence and social functioning, and cannot participate effectively as a witness for that reason.
The use of a live link must be in the interests of justice and enable the defendant to participate more effectively.
In SC v United Kingdom (60598/00)  1 FCR 346, the European Court of Human Rights held in the trial of an 11-year-old boy who did not understand that consequences of a conviction, that his article 6 right to a fair trial had been breached. The court held that:
"The right of an accused to effective participation in his or her criminal trial, generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings."
When can a witness give evidence via live link?
The rules surrounding when a witness can give evidence via live link are much broader. If a witness is eligible for the assistance of a special measures direction, the court can allow a witness to give evidence by live link.
Under section 16 of the Youth Justice and Criminal Evidence Act 1999, a witness is eligible for special measures if the witness:
Is under the age of 18; or
Has a mental disorder, or a significant impairment of intelligence or social functioning; or
Has a physical disability or disorder and the court considers that the completeness, coherence and accuracy of the evidence is likely to be diminished because of those circumstances.
Witnesses are also able to give evidence if:
They are outside the United Kingdom (section 32 of the Criminal Justice Act 1988).
If evidence is likely to be diminished because of fear or distress in connection with giving evidence (section 17 of the Youth Justice and Criminal Evidence Act 1999).
The witness is a complainant in respect of a sexual offence (section 17 of the Youth Justice and Criminal Evidence Act 1999).
Although there are measures to allow defendants to give live link evidence, there is a disparity between the treatment of vulnerable witnesses and vulnerable defendants. The conditions for eligibility for the use of live link are much more restrictive for the accused than for witnesses.
In the case of the defendant who suffered from epilepsy at Basildon Magistrates Court, had he been a witness, he would have been eligible for special measures under section 16 above. This is because, despite its impact on the ability of someone to follow proceedings, it is classified as a physical disability. As a defendant, the accused was not eligible.