OP, R (On the Application Of) v Secretary of State for Justice [2014] EWHC 1944 (Admin)

[2014] EWHC 1944 (Admin)Case No CO/207/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/06/2014
Before
LADY JUSTICE RAFFERTYMR JUSTICE COLLINS
Between
The Queen (on the Application of OP)ClaimantThe Secretary of State for JusticeDefendantCheltenham Magistrates’ CourtFirst Interested PartyCrown Prosecution ServiceSecond Interested PartyJust for Kids LawIntervener
Stephen Knafler QC and Felicity Williams (instructed by Hine Solicitors) for ClaimantChristopher Staker (instructed by Treasury Solicitors) for DefendantMichael Bowes QC and Joanne Cecil (instructed by Just for Kids Law) for the IntervenerHearing Hearing date: 11 th April 2014
Judgment
[1]The Claimant, a young man with a significant learning disability and Asperger’s Syndrome, awaits trial at Cheltenham Magistrates, Court for dishonestly receiving a motor vehicle on 8 October 2012. By September 2013 a consultant forensic psychiatrist and a consultant clinical psychologist had suggested use of an intermediary in court.On 14 October 2013 the Court ordered: “An intermediary shall be appointed to assist the defendant, subject to availability this should be a registered intermediary”.[2]In an e-mail of the same day HM Courts and Tribunals Service (“HMCTS”) confirmed to the Claimant’s solicitors that “the court will agree to the appointing of an intermediary” but added: “I note there was some discussion about whether or not it would be possible to appoint a registered intermediary, I was of the belief that defendant intermediaries were still not covered but I will contact them to clarify the position”.[3]The Defendant Ministry of Justice (“MoJ”) refused the Claimant access to a registered intermediary (“RI”). It is not in issue that the Claimant may have the services of a non-registered intermediary (“NRI”) but he seeks those of a RI.[4]In an e-mail to the Defendant of 22 October 2014 the Claimant’s representatives contended that the refusal and the supporting policy was unlawful and on 16 January 2013 issued this claim.

Background

[5]The Registered Intermediary Annual Survey 2010 includes: “The intermediary is perhaps best described as ‘a person who facilitates two way communication between the vulnerable witness and the other participants in the legal process, to ensure that their communication is as complete, accurate and coherent as possible’.[6]A RI works through the Witness Intermediary Scheme (“WIS”) run by the MoJ and is recruited, trained, registered and regulated by the MoJ. A NRI is described in “Registered and Non-Registered Intermediaries for Vulnerable Defence and Prosecution Witnesses: Guidance for HMCTS Staff (“HMCTS Guidance”)”as “private and unregulated”.[7]In the case of alleged or established victims and non-defendant witnesses, section 29 Youth Justice and Criminal Evidence Act 1999 (“YJCEA”) empowers a court to order intermediaries. The legislation excludes a defendant. No licence requirements are in place before individuals may describe themselves, or practise, as an intermediary. A criminal court may order that an intermediary be appointed to work with a defendant, victim, or witness. Two separate mechanisms, one for defendants, one, the WIS, for victims and witnesses, exist.[8]The WIS is not a professional framework as is for example the General Medical or General Dental Council but a mechanism giving effect to section 29 YJCEA. The WIS maintains a register of those intermediaries eligible to be matched with witnesses or victims so as to ensure the provision of experience and expertise at a suitable standard. The expression “RI” indicates an individual registered with “the Intermediary Registration Board” and appointed through the WIS.

Competing arguments

[9]The Claimant argues that the mechanism for appointing intermediaries for defendants is inferior to the WIS mechanism for victims and non-defendant witnesses, said to be better as imposing requirements, providing training and a matching service. The appointment of an intermediary for a defendant by a mechanism other than the WIS is thus said to be unlawful as unfair detrimental or prejudicial.[10]The Defendant submits that this argument is misconceived. This Claimant, like any defendant in any other appropriate case will have access to an intermediary. He argues that the Claimant identifies no specific prejudice in his criminal proceedings nor any caused to any defendant as a result of an intermediary appointed other than through WIS.[11]The Defendant submits that it is not unlawful for a similar type of benefit to be provided to different groups through different administrative mechanisms and that the fairness of the Claimant’s trial has not been shown to require that the intermediary be provided through the WIS.

The legal framework

[12]Section 29 CJCEA provides:(1) A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).(2) The function of an intermediary is to communicate— (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.[13]Section 16(1) YJCEA excludes a defendant from the definition of a witness.[14]Section 104 Coroners and Justice Act 2009 (the “2009 Act”) provided for the examination of the accused through an intermediary, and inserted section 33BA of the YJCEA, not yet in force and providing for defendant intermediaries to be aligned with witness intermediaries under section 29 YJCEA. Section 104 reads where relevant:
“104 Examination of accused through intermediary (1) After section 33B of the Youth Justice and Criminal Evidence Act 1999 (c. 23) insert— “33BA Examination of accused through intermediary (1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence. (2) The court may, on the application of the accused, give a direction under subsection (3) if it is satisfied— (a) that the condition in subsection (5) is or, as the case may be, the conditions in subsection (6) are met in relation to the accused, and (b) that making the direction is necessary in order to ensure that the accused receives a fair trial. . .”

Supporting and background information

[15]By 2008 some 130 RIs had been trained to operate in court as well as to advise at investigatory and decision-making stages. On average between June and November 2010 requests for one such were 96 per month.[16]Provision for payment of RIs extends to those supporting defence witnesses but not defendants. NRIs are uncontroversially appointed in reliance upon the court’s inherent powers (R v SH [2003] EWCA Crim 1208 [CA 1-7]; SC v United Kingdom (2005) 40 EHRR 10; R (P) v West London Youth Court and another [2005] EWHC 2583 (Admin); [2006] 1 WLR 1219). There is no MoJ fund for this expenditure, it was formerly found from the regional budget for HMCTS and post-October 2013 is found from central funds.[17]HMCTS Guidance reads where relevant:
“There are currently no statutory powers in force to allow for the appointment of an intermediary for a defendant (given that s.104 of the 2009 Act is not yet in force); nonetheless, where the judiciary has used its inherent powers to grant the use of an intermediary for a defendant in the interests of a fair trial, arrangements are to be made for the appointment of an intermediary to assist them (sic)……… The WIS is only resourced to provide registered intermediaries in accordance with YJCEA and does not have the resources to support defendant requests for a registered intermediary for the duration of a trial ………. Where an intermediary is required for a defendant, the court should appoint a non-registered intermediary, and it is the responsibility of the court to commission and source an appropriate non-registered intermediary, and to make the necessary arrangements to administer payment.”
[18]The Registered Intermediary Procedural Guidance Manual (2012) (February 2012) includes:
“………the appointment by a court, in the exercise of its inherent jurisdiction, of an intermediary to work with a defendant in criminal proceedings takes place outside the scope of the WIS, and such an intermediary is therefore known as a “non-registered intermediary” ……provision of non-registered intermediaries is not the responsibility of the WIS, the Ministry of Justice or the National Policing Improvement Agency (“NPIA”) …….an intermediary provided through the WIS will be a registered intermediary, and the WIS does not match individuals who are not on the intermediary register; …….a registered intermediary may also act as a non-registered intermediary, but must make clear to the court the role that they (sic) are playing.”
[19]The Defendant points out that the WIS, which neither employs nor funds intermediaries, merely provides a service to police, Crown Prosecution Service (“CPS”) and defence representatives to source appropriate intermediaries for use with witnesses. There is no requirement for any of those bodies to use WIS though police and CPS routinely do. Indeed guidance to HMCTS staff recognises that a witness may sometimes be assisted by a NRI.[20]The Defendant argues that when without using WIS an intermediary is appointed for defendants, questions of suitability are for the defence legal representative. He advances what he calls rational reasons which explain why WIS no longer provides a matching service for defendants.

The present case

[21]We were confronted with voluminous paperwork designed to support wide-ranging arguments advanced for the Claimant. Very little of it proved necessary for us to reach a conclusion.[22]An useful starting point for our approach is the distinctions between an RI and a NRI.[23]RIs must be graduates or of equivalent qualification. An Intermediary Registration Board (IRB) oversees recruitment, training, assessment and professional compliance. Training is intensive and there are refresher courses and continuing professional support. All RIs must have completed a six-module training course at graduate level and a rigorous assessment and accreditation process. RIs must notify the IRB immediately of any criminal investigation or proceedings against them or of any other complaint or investigation into their conduct or competence as well as of any adverse Criminal Records Bureau disclosure check. They have a Code of Practice and a Code of Ethics.[24]WIS operates a national database including details of expertise. Complaints could lead to suspension from the register. The Witness Intermediary Team will match RIs to a case based on expertise and location.[25]The Quality Assurance Board (“QAB”) does what its title suggests, regulating and monitoring professional standards. Re-approval requires continued membership of an appropriate professional body with continuing professional development requirements and achieved continuing professional development. RIs must comply with the Data Protection Act 1998 and maintain personal indemnity insurance.[26]There are on the other hand no requirements at all in relation to NRIs. They are unregulated and there is no professional framework within which they are required to operate. Although two private agencies provide training it is not required by any supervising body.[27]The Claimant seeks to establish a risk of perceived unfairness in reliance on a number of negatives. The NRI may have received no or no adequate training, may not be regulated by any professional organisation, will not have been matched as would be an RI, may not have been trained in assessing a defendant so as to write a report for the court and the parties, and may not be familiar with the guidance manual, the code of ethics, and rules as to confidentiality.

The Defendant’s developed response

[28]The Defendant’s starting point is that the Claimant does not suggest that suitably qualified intermediaries are unavailable outside the scope of the WIS. Private organisations offering intermediaries to work with defendants include Triangle, and Communicourt whose website asserts “Our intermediaries are among the best in theprofession”. He submits there is simply no evidence to suggest that current arrangements have been inadequate to ensure justice is done.[29]That the Defendant MoJ provided intermediaries to defendants in the past does not mean it is legally obliged to do so now. The reasons for no longer doing so are explained in the witness statement of Ben Connah which reads where relevant:
“The WIS was never intended to provide intermediaries further to an order of the court made under its inherent powers……the express purpose of the WIS was to match intermediaries to give effect to…..Section 29…….even when a Section 29 direction is made there is no requirement for the intermediary to be sourced through the WIS. The WIS did from time to time match intermediaries to defendants from the inception of the WIS until September 2011. At the time matching requests for defendants was only intended on an ad hoc basis and was not part of the core functions of the WIS………… Between August 2009 and August 2011 97 requests for an intermediary for a defendant were successfully matched….Of these 83 requests were for the full duration of the trial, 10 …were for the assessment only while 4…were for evidence giving during the trial only. In the 87…that went to trial 43 defendants gave evidence …….Although the number of requests for intermediaries to assist defendants was comparatively low the time that an intermediary was engaged on each of those assignments was significant. In the vast majority of cases the court had ordered an intermediary for the duration of the trial; some of those trials were estimated least 1 day with others estimated to last up to 40 days and beyond. Comparatively a request for an intermediary for a witness other than the accused usually commits a RI for 1 or 2 days covering an assessment followed by and ABE interview and giving evidence in court or an assessment followed by evidence in court if the ABE has not been undertaken. “It was for this reason given the risk that the WIS might mot properly be able to perform its stated functions owing to the potential unavailability of RIs that the MoJ decided in summer 2011 not to continue matching intermediaries to defendants. ……….. Giving defendants access to the WIS as a matter of course and without proper and full consideration of the impact………risks……a disproportionately negative effect on the service for vulnerable witnesses. Our experience from ..2009 - ..2011 showed that most …requests were for …….defendants for the duration of the trial. The resource implications for recruiting additional RIs…….is yet to be costed …….the MoJ is considering ways in which provision of intermediaries for …defendants might be formalised. ………this includes consideration of the practical consequence of bringing S104 CJA 2009 into force”
[30]The Defendant relies upon R v Cox [2012] EWCA Crim 549 in which the Court of Appeal said; “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, and it will always be for the court to adapt the processes to ensure that an individual is not disadvantaged.”[31]The IRB and QAB whilst in existence to ensure that intermediaries matched to WIS meet an acceptable standard nevertheless have neither statutory basis nor coercive disciplinary powers. The only sanctions available to them are a formal warning, suspension or removal from the register. Private organisations are free to set up their own quality assurance mechanisms and could decline to propose an intermediary for further work if found inadequate. The Claimant fails, he suggests, to identify what safeguards under WIS would not exist in the case of a NRI and does not explain how a fair trial would be prevented in his case.[32]As to inequality of arms the Defendant submits that the Claimant does not explain how providing a NRI would prevent him giving his best possible evidence.

Discussion and conclusion

[33]In R v GP, 20 July 2012, the Recorder of Leeds having recited the definition to which we refer supra said:
“The use of the intermediary is so that ‘Access to justice is improved for those who are the most vulnerable members of society – children who need to be communicated with in developmentally appropriate ways and those with physical disabilities and mental disorders which adversely affect their communication.’ (2010 Survey).”
[34]This definition illustrates what lies at the core of this claim, that is that there are likely to be two roles during a trial for which an intermediary is fitted. 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.[35]The first is a task readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial. In play are understandable emotions: uncertainty, perhaps a sense of territorial disadvantage, nervousness and agitation.[36]The second requires developed skills of the type contemplated by inclusion in the WIS scheme. The most pressing need for the help of an intermediary self-evidently bites at the point of maximum strain, that is when an accused should he do so elects to give an account of himself by entering the witness box and submitting to cross-examination.[37]This facility was available to a defendant until 2011. The rationale for the change reducing the protection afforded is explained by Mr Connah as we have set out above: figures showed that requests for intermediaries risked reducing the pool of individuals available to meet the needs of witnesses.[38]The difficulties the Defendant faces are two. First, the individual in jeopardy during a criminal trial is he who answers the charges, in contrast to those who attend as witnesses. This is the stage of proceedings at which section 33BA is directed, as is clear from the narrative, “Examination of accused through intermediary.”[39]It is thus misconceived to submit, as did the Defendant, that the Claimant’s argument if successful would require the appointment of a RI for the duration of the trial. The protection at which it is directed is explicit and restricted.[40]Second, the rationale set out by Mr Connah reveals the basis upon which the Defendant made the decision to exclude a defendant from provision of a RI through WIS. He said that in the two years leading up to the change of stance, of 97 requests for an intermediary 83 were for the duration of the trial and the Defendant’s anxiety was that there might result a dilution of the pool available to help witnesses. He said:
“It was for this reason given the risk that the WIS might not properly be able to perform its stated functions owing to the potential unavailability of RIs that the MoJ decided in summer 2011 not to continue matching intermediaries to defendants. ………..”
[41]We are not persuaded that it is essential a RI be available to all defendants for the duration of their trials. In many instances the provision of help centred upon the cast of mind and life experience we have described are likely to prove sufficient. The pinch point is at the giving of evidence when in our view it is unarguable that an individual in jeopardy should be put in the best position to do himself justice.[42]That the Claimant sought a RI for the duration of the trial is not conclusive. The court is entitled to direct that one should be available in the restricted terms of section 33BA, that is for the purposes of his evidence only.[43]It follows that the Defendant failed to consider the terms of section 33BA when formulating the prompt for his restriction of the assistance available to a defendant.[44]The Defendant argued that there is no unfairness in the procedure he has adopted. However, in R (Refugee Legal Centre) v SoS for the HD [2004] EWCA Civ 1481 Sedley LJ said:
“….no system can be risk free. But the risk of unfairness must be reduced to an acceptable minimum. Potential unfairness is susceptible to one of two forms of control which the law provides. One is……..appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice ………The choice of an acceptable system is in the first instance a matter for the executive ……..but it is not entitled to sacrifice fairness on the altar of speed and expediency; and whether it has done so is a question of law for the courts.”
[45]In R (S) v Waltham Forest Youth Court & Ors [2004] EWHC 715 (Admin) the court said:
“The District Judge was plainly right to hold that he had no power to make a ‘special measures’ direction ………in relation to the Claimant's evidence. It was Parliament's clear intention to exclude defendants from those provisions. Moreover, it cannot be said that the terms of the statute are incompatible with Article 6 of the European Convention on Human Rights, since it does not in any way derogate from the powers and safeguards already in place under the provisions of domestic law: see s.19. It is concerned not to restrict the rights of defendants but to augment the protection available for other witnesses. In any event, there remains the obligation to ensure a fair trial and, in particular, to see that a defendant does not suffer injustice through inequality of arms.”
[46]We are not reassured that an arguable inequality of arms has not been revealed by a review of the legal framework and supporting information in this case. In any event there is either a risk of unfairness or at its lowest a perceived risk of unfairness. At the point, should he elect so to do, at which he goes into the witness box, the system in place should offer the Claimant the best opportunity to do himself justice.[47]A moment’s reflection shows why. Leaving aside the jeopardy in which he is and which crystallises at that point, the scheme as currently operated would allow a witness for the Crown to be supported by a RI matched by the WIS but the defendant against whom he gave evidence denied one under the same scheme. The intelligent observer would be puzzled by why that were so.[48]Following the substantive hearing on 11th April 2014, on 16th May 2014 this court ordered: i) This claim be allowed and the decision of the Defendant refusing to provide a Registered Intermediary as requested by the District Judge confirmed in a letter of 6 November 2013 is set aside. ii) The Defendant must reconsider whether to provide a Registered Intermediary for the Claimant as his trial on the basis that such intermediary is provided solely for the purpose of assisting the Claimant giving evidence (if he does) to the court. iii) The full reasons for this decision will be given in due course. Suffice to say that any such intermediary can only be provided for the purpose of assisting a defendant to give evidence and the Defendant must carefully consider whether to refuse to give equal provision for a prosecution witness and the defendant in enabling evidence to be given satisfactorily is justifiable.[49]We direct that the Defendant reconsider his decision.

Cited in 5 later judgments