Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 190 (AAC)

Fecha: 29-Ene-2024

Equality of arms

Equality of arms

43.

The importance of the principle of parity inter partes in matters of forensic science is almost as old as modern science itself. This aspect of procedural fairness was given judicial recognition by Lord Mansfield CJ in Folkes v Chadd (1782) 3 Doug 157 at [159]:

“in matters of science the reasoning of men of science can only be answered by men of science”.

44.

MHA 1983 also makes express provision for the exercise of a patient’s right to independent medical advice in section 76 MHA 1983 (see paragraph [31] above), as well as providing in section 129 MHA 1983 for criminal sanctions for those who obstruct the exercise of those rights (see paragraph [31] above).

45.

In Matytsina v Russia [2014] ECHR 334 the European Court of Human Rights considered this issue in the context of the Article 6 right to a fair trial, and concluded in similar terms:

“…the Court agrees with the Government that the “equality of arms” principle enshrined in Article 6§1 does not require that the defence should have exactly the same powers as the prosecution when it comes to collecting evidence. The ways in which the defence and the prosecution may participate in the collection of evidence are often different… However, what is important is that those differences do not place the defence at a net disadvantage vis-à-vis the prosecution. The rules on taking evidence and producing it at the trial should not make it impossible for the defence to exercise the rights guaranteed by Article 6 of the Convention. In Khodorkovskiy and Lebedev v Russia (no.2), [nos. 11082/06 and 13772/05), §731, 25 July 2013] the Court stressed as follows:

“[I]t may be hard to challenge a report by an expert without the assistance of another expert in the relevant field. Thus, the mere right of the defence to ask the court to commission another expert examination does not suffice. To realise that right effectively the defence must have the same opportunity to introduce their own ‘expert evidence’.””

46.

In the context of MHA 1983 this principle has particular importance because the statutory criteria to continued detention of patients set out in section 72(1)(b) (see paragraph [31] above) relate to clinical matters: diagnosis, prognosis, nature and degree, necessity of medical treatment, and whether such treatment is available in the hospital where the patient is detained.