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IN THE COURT OF APPEAL
CRIMINAL
DIVISION
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Royal Courts of Justice The Strand London WC2A 2LL
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1 March 2012 |
B e f o
r
e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MRS JUSTICE MACUR DBE
and
MR JUSTICE SAUNDERS
____________________
____________________
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
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____________________
Mr A Lewis appeared on behalf of the Applicant
Miss F Gerry appeared on behalf of the Crown
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HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
Thursday 1 March
2012
THE LORD CHIEF JUSTICE:
- This is an application for leave to appeal against conviction which has been
referred
to the full court by the
Registrar.
We grant leave.
- On 26 July 2011, in the Crown Court at Leicester, before His Honour Judge Head and a jury, the appellant was convicted of
rape.
- The facts can be briefly summarised. The complainant and the appellant had known each other for some time. She was aged 20 at the material time. She had a long-established history of alcohol and drug dependency. She worked as a prostitute and lived in a hostel.
- The appellant was 26 years old. He lived in a nearby hostel. He had major difficulties which included alcohol dependency, personality disorder and a learning disability. The extent and impact of these disabilities are at the heart of the appeal.
- On the evening of 1 November 2008, after they had both consumed alcohol, the two were walking together. Sexual intercourse took place between them in some bushes in a wooded area near the canal in Leicester. The complainant screamed. Her screams were heard by independent witnesses. The police were called. When they arrived the complainant was in obvious distress. She immediately alleged that she had been
raped.
- In interview the appellant's
response
was that the complainant had initiated sexual intercourse and had consented throughout. He was granted bail, but was subsequently
remanded
in custody in October 2009 when the complainant alleged that he had twice approached her in the street and threatened her in an attempt to persuade her to drop the
rape
charge. The jury which convicted him of
rape
acquitted him of two offences alleging witness intimidation arising from this allegation.
- The grounds of appeal are unusual. The conviction followed a carefully conducted trial and a characteristically fair and meticulous summing-up. The basis of the present appeal is that the trial should not have taken place at all. The argument arises in this way.
- The appellant is a man with complex psychiatric difficulties. These facts were known well before the trial began. Considerable efforts were made to investigate the extent of his multifactorial problems and the appropriate steps to address them in the context of the forthcoming trial of the
very
serious offence. The history showed that between 1998 and 2006 the appellant had made eight separate court appearances for a
variety
of different offences. Following indecent assaults on his mother when he was 15 years old, there was an indication that he had been found unfit to plead. However, the subsequent history of his previous convictions did not suggest, and does not suggest to us, either that his fitness to plead was
raised
as an issue, or, if it was, that he was found to be fit to plead on any other occasions.
- In March 2011 the issue of using an intermediary was
raised
before the judge. The judge examined whether he had any power to direct the necessary public funding for this purpose, or indeed whether there was any statutory provision then in force which
related
to the use of intermediaries for a defendant at trial. On the basis of the well-known decision of the Divisional Court in C
v
Sevenoaks Youth Court [2010] 1 All ER 735, the judge concluded that he was possessed of a common law power to give a direction which would enable the appellant to be provided with an intermediary, and accordingly he directed that one should be made available to assist. The direction was ineffective. No intermediary could be identified for whom funding would be available. The issue was taken up in June 2011 before Judge Hammond, another judge who sits in Leicester Crown Court. He was told that three intermediaries had been approached but that each felt unable to provide the necessary assistance. Judge Hammond, anxious to ensure the fairness of the forthcoming trial, took the
view
that if the problem
related
to the funding of an appropriate intermediary, he would give an indication of the importance he attached to the provision of an intermediary.
- In the meantime, both the prosecution and the defence stated that they would obtain further
reports
on the issue of the appellant's fitness to plead, although in the
result
the only further
report
was provided by the defence.
- In early June 2011 the
response
to Judge Hammond by the Ministry of Justice, through the Policy Officer for
Vulnerable
and Intimidated Witnesses, was that every attempt had been made to find a
registered
intermediary for the case, without success, that the provision of a non-
registered
intermediary was the
responsibility
of the solicitors acting for the appellant, and that they had been so informed on a number of earlier occasions.
- On 13 July 2011 the issue was
reviewed
at Leicester Crown Court, again before Judge Hammond. Counsel for the appellant told the judge that it was agreed that the
real
problem was communication with the appellant, and that it was in that context that assistance was needed.
- On 19 July the case began before Judge Head. The question of the appellant's fitness to plead was closely examined. A substantial body of evidence was placed before the judge to enable him to
rule
not only on the application which
related
to his fitness to plead, but also to the question whether, if he was fit, the trial should be stayed as an abuse of process on the basis that it would be unfair for the appellant to be tried without the assistance of an intermediary. In
reality,
the evidence on these two distinct applications was essentially the same. To that extent, therefore, they were linked.
- The judge examined the written material. He heard the evidence of Dr Latham who gave oral testimony before him. The judge concluded that, although the appellant's capacity was significantly
reduced
by "genuine disabilities", there nevertheless
remained
"a sufficient
residue
of capacity [for him] to be fit to plead and stand trial". By the date of this
ruling
it had become apparent that, despite every effort, no intermediary could be found. Examining the second submission the judge asked himself whether, absent the participation of an intermediary, the appellant could
receive
a fair trial. He concluded that, although the situation was far from ideal, with a number of modifications to the ordinary process, the appellant would indeed be afforded a fair trial.
- The single ground of appeal is that, notwithstanding the care with which the judge approached these issues, and the provision of competent counsel and solicitors, the appellant was deprived of special measures in the form of an intermediary necessary to enable him to play a proper and effective part in the trial. We must narrate the facts in greater detail.
- Judge Head considered the evidence of Dr Latham with great care. He noted that, in
view
of the multifactorial features of the appellant's condition, it was not possible to be satisfied about the correct diagnostic label for the appellant's condition which, according to Dr Latham, was at that time stable. Dr Latham believed that the appellant understood the charges against him. He appreciated that
rape
involved sexual intercourse with a woman who did not consent. The essence of his account was that he had been invited to take part. Indeed, as the judge noted, during
various
different examinations throughout the process the appellant had
reiterated
that when making her complaint that sexual intercourse took place without her consent, the complainant had lied. For example, when one doctor asked him why he was in custody, the appellant
replied,
"She said I intimidated her, but I never did that". On this basis Dr Latham
reiterated,
and the judge concluded, that the appellant was well able to decide on his plea, that on the basis of his instructions a not guilty plea was appropriate, and that the appellant was also capable of understanding his
right,
limited as it now is, of challenge to jurors.
- As part of his analysis of the issue of fitness to plead, the judge considered the tape-
recording
of the 25 minute long interview between the police and the appellant. This is a crucial piece of material. As far as we can discover, neither Judge Head nor Judge Hammond had listened to the tape-
recording
at the time, pre-trial, when
various
discussions took place about the
value
that would be provided by an intermediary. Judge Head's observations about the
recording
are important. He was struck by the fact that the appellant's speech is "undoubtedly odd and at times difficult to follow until one is accustomed to it", but he noted that the answers given by the appellant were
relevant
and coherent. The judge used his detailed answers about the consumption of alcohol as an example. The interview
record
also indicated to Judge Head that the appellant was able to think "
relevantly
beyond the precise question asked" and that he was able to seek an explanation for things spoken in the interview which he did not understand, in particular, as the discussion between counsel and the court this morning indicated, the meaning of the word "ejaculate". He was able to challenge a suggestion made by the interviewing officer which was based on a misunderstanding by the officer of the facts. Accordingly, Judge Head came to the conclusion that, making every allowance for the peculiarity of the appellant's method of speaking, the answers given by him in the interview were "at the least appropriate and coherent".
- The judge then addressed the particular question of the concerns expressed by Dr Latham about the ability of the appellant to communicate both with his own lawyers and, if he elected to give evidence, when giving evidence. The judge was satisfied that the appellant was "by no means unable to communicate" with them. A consideration of the
record
of the police interview and the
various
account of events
recorded
in the course of a
variety
of different medical examinations led to the conclusion that the appellant had demonstrated "a substantial capacity to listen, to understand questions and to
reply
appropriately and
relevantly",
notwithstanding that the appellant was, as Dr Latham had explained, capable of seeking to "manipulate his disability to his own advantage in
relying
on it to evade giving answers".
- Having examined all the available evidence the judge concluded that, notwithstanding genuine difficulties, a sufficient
residue
of capacity
remained
for the appellant to be
regarded
as fit to plead and to stand trial. This conclusion is not the subject of any criticism.
- Nevertheless, it
remained
the submission that the trial of the appellant, which would follow the conclusion that he was fit to plead and to stand trial, would be an unfair one because of the absence of an appropriate intermediary to provide the appellant with assistance. The judge examined this issue distinctly from his conclusion in
relation
to fitness to plead. He said that he would grasp the nettle. He would not examine the question of whose fault or
responsibility
it was that there was no intermediary. He
recognised
that the situation was far from ideal. He said (and this is
reflective
of an examination of the evidence):
"My impression of this defendant and his abilities has changed and matured during my involvement in this case. It has now been informed by my hearing the police interview tape,
reading
a bundle of
reports,
including Mr Hendy's, and hearing Dr Latham."
- The judge
referred
to authority which suggested that trials should not be stayed where an asserted unfairness can be met by the trial process, and also to the emphasis in the authorities on the exceptionality of an order for a stay. He
referred
to the court's decision in TP (
R
on the application of)
v
West London Youth Court & (1) Crown Prosecution Service (2) Secretary of State for the Home Department (Interested Party) [2005] EWHC 2583 Admin, propounding the test:
"Taking into account the steps that can be taken in the youth court will the claimant be able effectively to participate in his trial?"
Judge Head underlined the use in that quotation of the word "effectively". He examined "a complete
raft
of procedural modifications to the ordinary trial process" which would be appropriate in the situation which now obtained. These included short periods of evidence, followed by twenty minute breaks to enable the appellant to
relax
and his counsel to summarise the evidence for him and to take further instructions. The evidence would be adduced by means of
very
simply phrased questions. Witnesses would be asked to express their answers in short sentences. The tape-
recordings
of the interview should be played, partly to accustom the jury to the appellant's patterns of speech, and also to give the clearest possible indication of his defence to the charge. For this purpose it was an agreed fact before the jury that "Anthony
Cox
has complex learning difficulties. He could understand simple language and pay attention for short periods". This was a carefully crafted admission to ensure that proper allowances would be made for the difficulties facing the appellant without creating any
risk
that the jury might
reflect
on the evidence in the context of the question of whether or not the appellant was potentially dangerous.
- The judge concluded that the interests of justice
required
him to maintain a close control over the questioning, to intervene where any possible unfairness might arise, and to ensure that the appellant was not unduly stressed by the proceedings. He would have to be "
rather
more interventionalist" than normal. He would play "part of the
role
which an intermediary, if available, would otherwise have played". He
recognised
the continuing obligation on him to monitor his "initial conclusion" on these issues. He plainly did so. He gave his
reasoned
ruling
before closing speeches at trial in the light of events that had happened following his
ruling.
- Summarising the judge's approach to this issue, Mr Lewis, who
represented
the appellant at trial and before us today, in a
vivid
phrase suggested that the judge's conclusion was that "the pursuit of the perfect must not become the enemy of the good, or at least the good enough". In short, Judge Head distinguished between the best practice and an acceptable sufficiency.
- We are grateful to Mr Lewis for his forthright and candid approach to the issues
raised
in his ground of appeal. He has struck precisely the difficult balance to be drawn between his obligations to the appellant and his
responsibilities
to the court. In his written submissions he says that the measures put in place by Judge Head appeared to work to a large extent. The appellant was able to follow most of the evidence for twenty-minute periods. The appellant was able to provide simple instructions. Constant meetings with him seemed to
reduce
his anxiety. The judge intervened when the appellant appeared distressed or distracted in the dock, and, as he promised, the judge did his best to fulfil some of the functions which an intermediary would have fulfilled. Indeed, Mr Lewis concluded his written perfected grounds of appeal by frankly stating that he was unable to identify a point where the measures taken by the judge did not work.
- Mr Lewis drew attention to one difficulty: the question of whether the appellant should give evidence, where he had the assistance of an experienced solicitor who understood the appellant better than most. He told us that the absence of an intermediary played a part in the decision by the appellant not to give evidence, although it was not the only
reason
for not calling him to give evidence on his own behalf. We can see a number of sound
reasons
why the decision was taken that the appellant should not give such evidence.
- It is clear that the judge summed up the appellant's exculpatory account given in his second police interview as if it were evidence. He
resisted
suggestions by the Crown that the jury should be
reminded
that it was not evidence. In the context of the decision by the appellant not to give evidence, although the judge gave the jury the appropriate direction in
relation
to the possibility of drawing inferences against him for that
reason,
he carefully
reminded
the jury of the submissions made to them by Mr Lewis based on the appellant's difficulties, as summarised in the agreed facts.
- For the purposes of this appeal we have
read
all the medical and the other evidence, and the transcript of Dr Latham's evidence. In the short oral submissions we have heard today, Mr Lewis drew to our attention particular features of Dr Latham's evidence. We have also listened to the tape-
recording
of the appellant's interview with the police and his exculpatory accounts of the
relevant
events. We shall not
repeat
all the findings made by Judge Head. The appellant's manner of speech is unusual. To understand him it is necessary to concentrate closely on what he is saying. Even allowing for the stress of the situation in which the appellant found himself at the time, that is being interviewed by the police in the context of an allegation of
rape,
we were struck and, having
read
the evidence, somewhat surprised by the extent of his ability to comprehend the questions -- sometimes not short and simple, and sometimes quite long and complex -- and to provide appropriate answers, that is appropriate to the questions and consistent with his assertion that when sexual intercourse took place the complainant was a willing participant. So, for example, in the interview he asserted that the complainant had told him to take down his trousers. He first of all claimed that he had not heard her screams and then said that afterwards she "started
roaring".
He explained that he was drunk. The interview was also marked by the absence of any significant interventions to assist him by the appropriate adult who was present to offer assistance if it was needed.
- The use of intermediaries is one of the special measures created by the Youth Justice and
Criminal
Evidence Act 1999. It is worth underlining that, like many of the special measures provisions, it is a discretionary measure -- one which may be taken if the judge at trial making the appropriate judgment on the evidence decides that its use would be appropriate. For present purposes we shall assume that if necessary an intermediary should be made available for a defendant. However, as the current edition of Blackstone's
Criminal
Practice suggests "experience has shown that one of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of question are likely to cause misunderstanding and thus averted". Although it is clear from section 29 of the 1999 Act which creates the discretion to use intermediaries as a special measure, that an intermediary can also assist a witness to communicate by explaining questions and answers, again as Blackstone
records,
this "happens
rarely
in practice". Questions, therefore, are usually put directly to the witness. The intermediary's function is actively to intervene when miscommunication may or is likely to have occurred or to be occurring.
- We immediately acknowledge the
valuable
contribution made to the administration of justice by the use of intermediaries in appropriate cases. We
recognise
that there are occasions when the use of an intermediary would improve the trial process. That, however, 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. When 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.
- In the context of a defendant with communication problems, when every sensible step taken to identify an available intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, which in a case like the present would
represent
a gross unfairness to the complainant, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial an unfair trial. It would, in fact, be a most unusual case for a defendant who is fit to plead to be found to be so disadvantaged by his condition that a properly brought prosecution would have to be stayed. That would be an unjust outcome where, on the face of the evidence, a genuine complaint has properly been brought against the defendant. If the question were to arise, this court would have to
re-examine
whether the principles
relating
to fitness to plead may
require
reconsideration.
- We have closely examined the evidence in this trial. In our judgment from start to finish Judge Head conducted the proceedings with appropriate and necessary caution. Having examined all the material, we are in the
result satisfied that the appellant's conviction followed a fair trial. Accordingly, this appeal will be dismissed.
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