Biddle, R v [2019] EWCA Crim 86

[2019] EWCA 86 (Crim)

No: 2018 01454 C5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice Strand London, WC2A 2LL

Date Tuesday, 22 January 2019

B e f o r e:

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

LADY JUSTICE HALLETT

MRS JUSTICE CARR DBE

MR JUSTICE JULIAN KNOWLES

R E G I N A v

JOSEPH BIDDLE

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Mr Andrew D Smith QC appeared on behalf of the Appellant Mr Tom Little QC appeared on behalf of the Crown

J U D G M E N T (Draft for approval) THE VICE PRESIDENT:

Background

This appeal raises yet again the issue of the policy that has been applied by Communicourt to the provision of intermediaries for defendants at trial. Where an assessing intermediary advised that a defendant required an intermediary throughout the trial but the trial judge ordered that one was necessary solely for the giving of evidence, Communicourt would not "accept bookings for giving evidence only".

On 29th August 2017, at the Worcester Crown Court, the appellant pleaded guilty to count 2 (sexual assault of a child under 13). On 1st March 2018, before Mr Recorder Butterworth, the appellant was convicted of count 1 (rape of a child under 13). On 3rd April 2018 he was sentenced to a total of six years' detention.

The appellant was acquitted of count 3 on the original indictment (sexual assault of a child under

Between

BiddleDefendant

RCrown

[2]nor may the identity of any witness under age.

Facts

[3]she and the appellant had engaged in sexual intercourse on the canal tow path. She changed that account as far as location of the intercourse is concerned on

[4]13th December 2016. She then alleged that a day or two before 5th November she had been on the canal tow path when the appellant had kissed her, put his hands down her leggings and underwear, and touched her sexually. On 5th November she and the appellant had kissed whilst lying on her bed at home and then had intercourse in her mother's room.

[6]complainant. The kissing and the alleged act of intercourse were only minutes apart. defence at trial.

The use of an intermediary

[8]variable scores, suggesting both strengths and weaknesses in his IQ, but indicated concerns in his ability to understand and evaluate verbally presented information and process new information. The psychologist said he had a slow processing speed and may only be able to keep one piece of information in mind at one time. This was something the psychologist recommended the court bear in mind to ensure he had a fair trial. He made

[9]some recommendations as to how the appellant's needs could be addressed.

[10]understanding when making decisions" and to use aids to explain key points to him.

[11]an intermediary attend to assist the appellant throughout the trial.

[12]attend the whole trial, save for the purpose of assisting the appellant if he gave evidence.

[13]their policy but also claimed that they were ‘directed’ an intermediary was not required. However, they also claim that they advised defence counsel on the possibility of finding an intermediary elsewhere. This tends to support the proposition that the intermediary did not return in accordance with Communicourt’s policy.

[14]if the appellant chose to give evidence. He decided not to give evidence.

Ruling on adverse inference

[15]sound ground to justify the conclusion that the appellant's physical or mental condition made it undesirable, within the terms of section 35(1)(b) of the Act, for him to give

[16]evidence and ruled the adverse inference direction would be given in its standard form.

The law on the use of an intermediary

[17]decisions, including R v Rashid

[2017] EWCA Crim 2

;

[2017] 1 WLR 2449

[18]Unfortunately, Mr Recorder Butterworth and the Single Judge were not referred to the

[19]Practice Direction or to the decision in Rashid either by the appellant or the respondent. We were informed during the course of today’s hearing by Mr Andrew Smith QC, who now represents the appellant, that Ms Hancox did make a reference to the Criminal Practice Direction in her written application to Judge Cartwright.

[20]considering the provision of intermediaries for a defendant.

[21]justice by the use of intermediaries in appropriate cases. Having made that observation,

[22]however, at paragraph 29 the Court added this:

"That ... is far from saying that whenever the process would be improved by the availability of an intermediary, it is mandatory for an intermediary to be made available. It can, after all, sometimes be overlooked that as part of their general responsibilities judges are expected to deal with specific communication problems faced by any defendant or any individual witness (whether a witness for the prosecution or the defence) as part and parcel of their ordinary control of the judicial process. Where necessary, the processes have to be adapted to ensure that a particular individual is not disadvantaged as a result of personal difficulties, whatever form they may take. In short, the overall responsibility of the trial judge for the fairness of the trial has not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute."

[23]observed:

"The first is founded in general support, reassurance and calm interpretation of unfolding events. The second requires skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant's evidence."

[24]available to all defendants for the duration of their trials".

[25]an intermediary to assist a defendant during the trial, save for when he gave evidence. Although the Court found it had no jurisdiction to hear the ground based on the

[26]intermediary, Treacy LJ addressed the merits at paragraph 21. He stated:

"As OP ... shows, there was no illogicality in restricting the use of the intermediary to a particular part of the trial ... The judge was also entitled to consider whether there was a need for an intermediary throughout, as opposed to whether one was merely desirable in a generalised sense."

The appellant Rashid took the point again on his full appeal against conviction. Lord Thomas

[27]CJ analysed the law and the background, and at paragraphs 80 and 81 stated:

"In considering what is needed in a particular case, a court must also take into account the fact that an advocate, whether a solicitor or barrister, will have undergone specific training and must have satisfied himself or herself before continuing to act for the defendant or in continuing to prosecute the case, that the training and experience of that advocate enabled him or her to conduct a case in accordance with proper professional competence. Such competence includes the ability to ask questions without using tag questions, by using short and simple sentences, by using easy to understand language, by ensuring that questions and sentences were grammatically simple, by using open ended prompts to elicit further information and by avoiding the use of tone of voice to imply an answer. These are all essential requirements for advocacy whether in examining or cross-examining witnesses or in taking instructions. An advocate would in this court's view be in serious dereliction of duty to the court, quite apart from a breach of professional duty, to continue with any case if the advocate could not properly carry out these basic tasks. A judge must therefore make the assessment of what type of assistance is required on the basis that that proper level of professional competence from an advocate is available."

He added at paragraphs 82-84:

[28]"In the present case, as is no doubt the position in all but the rarest of cases, the advocates were, as an ordinary part of their duties as competent advocates, able to do what was needed so that the defendant was fully able to participate in every aspect of the trial (when no intermediary was present) until the defendant gave evidence. In the event that one of the advocates asked a question that was too complex or tagged, then the judge as part of the usual trial management by any judge would have intervened to correct the error.

[30]There could be no doubt that the order made by the judge for an intermediary during the giving of the defendant's evidence was, for the reasons we have explained, the most common form of order in what, amongst the considerable volume of cases dealt with in the criminal courts, is the rare case where the threshold of disability is crossed such that an intermediary is required when the defendant gives his evidence. For the reasons we have given, cases in which an order will be made for an intermediary to be present for the whole trial will be very rare."

[31]advocates instructed that they have undergone the necessary training. Grounds of appeal Conviction

Grounds of appeal

[1]The judge should not have altered the order for an intermediary to be present throughout the whole trial as made by His Honour Judge Cartwright and in any event should have allowed an intermediary for the whole trial.

[2]The judge should not have directed the jury that an adverse inference could be drawn, pursuant to section 35 of the CJPOA, from the appellant's failure to give evidence. His decision to do so was Wednesbury unreasonable as a result of the withdrawal of the intermediary.

Ground 1

[34]Rashid and to persuade us that the Rashid principles do not apply. He conceded that Mr Recorder Butterworth was entitled to revisit the issue of the requirement for an intermediary of his own volition, but argued that he should have paid greater heed to the decision of his predecessor and greater heed to the recommendations of the experts. Mr Smith challenged the Recorder's reasoning. He argued that the Recorder wrongly bore in mind, first, the length of the hearing before HH Judge Cartwright (two minutes), second, the cost of an intermediary throughout the trial; and third, the fact that the appellant coped well in interview. Mr Smith also maintained that the Recorder had misunderstood the role that the intermediary could play. whatever cost was involved. whilst he gave his evidence.

[37]views about the potential assistance to be provided by an intermediary in this way:

"It does not seem to me that there is any need or indeed anything to be gained by there being someone sat next to him and for there to be an intermediary during the course of the whole trial ... It is often misunderstood both by intermediaries and others that they are not there to support a defendant, they are there simply to assist with communication issues."

Mr Smith disagreed with this assessment, because the intermediary had suggested her role would go much further than assisting with communication issues when the appellant gave evidence.

[38]transcripts of the proceedings.

Ground 2: adverse inference

[39]Communicourt was not going to provide an intermediary to support the appellant in giving evidence. Mr Smith argued that the reality was that an application to adjourn the trial at that stage would have been of no practical effect, it being such a short trial, and that is probably why one was not made.

[41]his earlier ruling and acceptance that one was required to assist communication.

[42]defendant may not be able to do himself justice when giving evidence". He insisted this appellant, absent an intermediary, could not do himself justice. It was therefore

[43]undesirable (in the terms of the section) for him to have given evidence. Mr Smith did not suggest that there was any material before the court or before the recorder to suggest that there was a link between the absence of the intermediary and the decision not to give evidence, but he claimed it was a relevant factor and it was one that was raised by Ms Hancox to an extent when she invited the Recorder not to give a direction ‘in its full form’.

[44]standing alone or taken cumulatively with ground 2. Our conclusions Ground 1

Our conclusions

[45]The issue was straightforward: after the kissing on the bed did sexual intercourse occur? The appellant himself has never suggested he had any difficulties in understanding that issue or participating in the trial.

[47]decision and he was best placed to make it. Given the short nature of the trial and Judge Cartwright's ruling but a week earlier, we accept that other judges may have reached a different conclusion. But we also agree with Mr Little that this case does not come close to one of those very rare cases referred to by Lord Thomas CJ in Rashid or in the Practice Direction. Accordingly, we found no substance in that ground.

[48]in January 2018. In the email from the general manager, he stated:

[49]"On the rare occurrence that someone has the specific difficulties that would only require an intermediary at the point of giving evidence, we would recommend that they had intermediary assistance only at that stage of their trial. This is not the case of Mr Biddle as outlined in the intermediary report."

He attached the company's policy entitled 'Decision making in respect of intermediary

[50]appointments for defendants'. At paragraph 8 the company states:

"Decisions about when an intermediary is required need to be made on a case-by-case basis. If the assessing intermediary is of the view that the defendant would not fully understand the prosecution case and be able to instruct his/her legal team without the use of an intermediary, Communicourt will not accept a booking which is only for the point of giving evidence."

We do not know whether that policy still exists in January 2019, but to our knowledge it was still in operation in October 2018 and affected the conduct of another trial in Nottingham.

[51]Communicourt's stated policy of only providing an intermediary for the giving of evidence alone if the assessing intermediary so recommends is wrong and should be revisited. If the company accepts instructions to assess a possibly vulnerable defendant, they should

[52]also accept they will abide by the trial judge's directions.

Ground 2

[53]jury may draw an adverse inference from the failure to give evidence if:

"…(b) It appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."

The judge has a wide margin of judgment and discretion, as was made clear in Dixon

[2013] EWCA Crim 465

;

[2014] 1 WLR 525

. It does not follow from the fact that an accused has a physical or mental condition that it is necessarily ‘undesirable’ within the meaning of the subsection for him to give evidence. The trial judge must consider all the material before him or her including the expert opinion, albeit he or she is not bound by it. In this case, the recorder considered all the material before him including the appellant’s ability to respond to questioning by police on a straightforward issue he undoubtedly understood.

[54]given. Furthermore, we would have been told. We repeat that the appellant seems to have had no significant difficulty in giving his account to police officers or (we assume) to his legal representatives, and nothing suggests that he failed to follow what the complainant had said in her evidence. All parties knew that if the appellant chose to give evidence the recorder was determined to follow the intermediary’s recommendations and ensure that he was able to give a full and fair account

of himself, so that tag questions, overlong and overcomplicated questions would be

[55]avoided, and he would be given proper breaks. Accordingly, despite his very best efforts, Mr Smith has not come close to establishing to our satisfaction that the decision to give an adverse inference direction was Wednesbury unreasonable. For those reasons, the appeal must be dismissed. We are indebted to both Mr Smith and Mr Little for the quality of their submissions. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk