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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||19 July 2011
B e f o r e :
MR JUSTICE MITTING
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Miss J Feely (instructed by Sheridan Bowles) appeared on behalf of the Claimant
The Defendant did not appear and was not represented
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- MR JUSTICE MITTING: The claimant faces charges of theft and arson arising out of an incident which occurred on 3 July 2010 when some polystyrene blocks were taken from fenced premises and set on fire in an adjoining area. The allegation is that the claimant participated in the stealing of the blocks and in setting them on fire.
- He was arrested on 5 August 2010 and interviewed on the same day. He denied stealing the blocks. He said he had seen other people take them and throw them over the fence. Once they were there, he started to play and fight with the blocks with others. He then realised that someone had started a fire. Everybody was shouting and screaming. He was excited, but then panicked and ran away. He denied adding blocks to the fire. He only accepted playing with them.
- Accordingly, if his account is true, or at least if it cannot be rejected to the criminal standard as untrue, then he has a defence to both charges.
- He has been diagnosed as suffering from ADHD. In a sensible and careful report prepared by Brendan O'Mahony, a chartered psychiatrist of 20 March 2011, the diagnosis is confirmed and difficulties which the claimant might experience at his trial are identified. In the opinion of the author, the claimant "does have the ability to communicate his evidence to the court", but "would benefit from having access to a registered intermediary while providing his evidence to the court to enable him to give his best evidence and receive a fair trial". The reason for that is that he struggles when complex vocabulary is used. That causes him to feel frustrated and, for example, not to answer questions that are being asked of him, but to concentrate on those previously asked and so perhaps to appear not to be engaging properly with proper questions.
- The purpose of the intermediary would be to draw to the attention of the court the fact that such difficulty had occurred, or the possibility that it might. On any reasonable understanding of Mr O'Mahony's opinion, this claimant would undoubtedly benefit from the assistance of a registered intermediary.
- There is no statutory provision for assisting defendants to give instructions or to give evidence as there is for witnesses, but the common law has evolved a balancing set of protective measures for defendants who may have difficulty in presenting their case fully and properly before the court. This was established in R v H  EWCA Crim 1209. There is a right, which may in certain circumstances amount to a duty, to appoint a registered intermediary to assist the defendant to follow the proceedings and give evidence if without assistance he would not be able to have a fair trial.
- The justices refused to allow the claimant to have the assistance of a registered intermediary. In giving their reasons, they noted Mr O'Mahony's opinion that the claimant did have the ability to communicate his evidence to the court. They concluded that:
"This report does not show [the claimant] to have any greater difficulties in this than many other youths who appear before the court."
- I have some difficulty in understanding how the justices were able to reach that view. I do not see how without the assistance of an intermediary, or at least some other person alert to the claimant's difficulties, the court would necessarily realise that the claimant was put in unusual difficulty by complex questions and might react in the manner that I have indicated by not answering the question because he was thinking about earlier questions. Such a reaction by a defendant could lead a court wrongly to conclude that he was dissembling or prevaricating because he had no answer to the proper questions that were being put. A registered intermediary could help him to overcome those difficulties, could ensure that the questions asked of him were simple and that he had adequate time to respond, and could alert the court to the difficulties which he faced in answering them.
- It seems to me that without those precautions being taken, the risk that this claimant would not receive a fair trial would be real. There is no argument about cost as far as I know. The only factor in play is the ability of the claimant to receive a fair trial. The reasons given by the justices for rejecting the assistance of a registered intermediary are, in my view, inadequate. The inadequacy amounts to irrationality.
- Accordingly, I quash the decision to refuse to allow the claimant to have the benefit of a registered intermediary and direct that that decision is taken again afresh by the court. I can see no reason why the justices who take the decision afresh should either include or not include those who made the original decision.
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