Rolf Harris participated in his most recent trial via live link due to his poor health and advanced age (86). While Mr Harris did not give evidence, His Honour Judge Alistair McCreath did envisage the continued use of live link throughout the trial.

“This is an elderly man, not in the best of health, who will be much more effectively able to participate in his trial by following it and giving evidence – if he elects to do so – than if he was here. That’s a pretty unusual set of circumstances. I have no difficulty in finding that they are exceptional.”

His Honour Judge Alistair McCreath was forced to invoke the inherent jurisdiction of the Court to make ad hoc modifications to the trial process to facilitate Mr Harris. The extent of that inherent jurisdiction has been questioned in light of Parliament’s express limitation of the availability of special measures to defendants (Ukpabio 1 WLR 72). A defendant could appear at trial via live link, but could only give evidence in person.

The position may have changed somewhat with the development of Article 6 ECHR jurisprudence, the introduction of the Equality Act 2010 and the proliferation of “active case management” by Judges in England and Wales, but Mr Harris’ case was believed to be a first by the Court.

In England and Wales a defendant may only give evidence via live link if they are under 18 and their evidence would be compromised by poor mental or social function, or if they are an adult who would be outright unable to participate effectively due to significantly impaired mental or social function.

If Mr Harris had given evidence via live link, the justification for taking that course would have been a concoction of human rights law, equality legislation, Criminal Procedure Rules, the inherent jurisdiction of the Court and some form of exceptionality argument.

Normally our special measures legislation is the same as in England and Wales. There has, however, been a divergence when it comes to physically disabled or disordered defendants. Section 19 of the Justice Act (Northern Ireland) 2011 inserted Part 2A into the Criminal Evidence (Northern Ireland) Order 1999, revising live links for vulnerable accused. The Department of Justice sought to “ vulnerable accused on the same footing as vulnerable witnesses”.

The provisions of Article 21A of the 1999 Order relating to the mental condition of the defendant are similar to those in England and Wales, but an entirely new subsection relating to physical condition is introduced. In fact, the threshold relating to physical disability and disorder is that the defendant’s evidence would be compromised, which is lower than the threshold for an adult witness with mental disorder (who must be unable to participate normally before a live link direction may be given) and the same as the more forgiving test relating to a mentally disadvantaged defendant under the age of 18.

This law came into force on the 5th of July 2011. Only the defendant may apply for a live link direction relating to themselves. If a defendant is in such physical condition that their ability to give evidence in court is compromised, and the Court determines that granting this special measure would be in the interests of justice, a live link direction may be made.