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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R, R. v  EWCA Crim 1870 (21 October 2015)
Cite as:  EWCA Crim 1870
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London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
HIS HONOUR JUDGE AUBREY QC
(SITTING AS A JUDGE OF THE CACD)
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Mr M McDonald appeared on behalf of the Applicant
Mr M Weekes appeared on behalf of the Crown
Crown Copyright ©
LORD JUSTICE TREACY:
"An appeal shall lie to the Court of Appeal from any ruling of a judge under section 31(3), but only with the leave of the judge or of the Court of Appeal."
"A judge may make a ruling as to—
(a)any question as to the admissibility of evidence;
(b)any other question of law relating to the case.
(1) The judge's ruling about an intermediary. The judge ruled that there was no need for an intermediately to assist the defendant during the trial, save for when he gave evidence, if he chose to do so.
(2) The judge rejected the defence submission that PACE interviews of the defendant should be excluded on the basis that he was "mentally vulnerable" within the meaning of PACE Code C1.4 and Note 1G and had been interviewed without the presence of either a legal representative or an appropriate adult.
"We think that, for the purposes of the present application, the following principles can be derived from Regina v H. First, the purposes set out in section 7(1), for which a preparatory hearing may be ordered, should be interpreted broadly and generously."
"Secondly, the orders that a judge may make 'as part of' a preparatory hearing proper are limited to the specific matters set out in section 9. Thirdly, the judge should make an order under section 9(3) only if he reasonably considers that to make such a ruling would also serve a useful trial purpose within one of the purposes set out in section 7(1). Fourthly, the scope of what falls within section 9(3)(c) ie. 'any other question of law relating to the case', is restricted. Whether a ruling falls within that provision depends on the nature of the issue which the order or ruling decides. Fifthly, section 9(3)(c) does not cover rulings on disclosure 'as such and without more'. The 'question of law relating to the case' must relate to something more specific than the question of whether the judge misdirected himself and so vitiated his decision. The questions of law have to go 'to the root of the case' of which Lord Mance gave some examples. Lastly, the Court of Appeal's jurisdiction to give leave to appeal under section 9(11) in respect of a determination made by the judge under section 9(3)(c) is limited to the types of question of law that fall within section 9(3)(c)."
"If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered ... in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code."
Such a person would not normally be interviewed in the absence of an appropriate adult. No such person, nor indeed a solicitor, was present at the relevant interview. Note 1G provides that:
"'Mentally vulnerable' applies to any detainee who, because of their mental state or capacity may not understand the significance of what is said, of questions or of their replies."