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Cite as: [2016] EW Misc B14 (CC)

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23rd May 2016

B e f o r e :

Mr Justice Green



Mr Gareth Evans QC & Ms Sharon Bahia appeared for the Crown
Mr Jo Sidhu QC & Mr Harbinder Singh Lally appeared for the First Defendant
Mr Douglas Day QC & Mr David Houldcroft appeared for the Second Defendant



Crown Copyright ©

    Ruling: The admissibility of the report of an intermediary as expert evidence

    Mr Justice Green :

    A. The issue

  1. The First Defendant, Mrs Julie Beards, wishes to adduce in evidence portions of a report prepared on 14th January 2016 by Ms Millie Burton ("the Report"). This report led to the appointment of an intermediary for the Defendant to assist her at trial. The Defendant is charged with rape and murder of her friend, Susan Whiting. She is charged jointly with her husband (as Second Defendant, Mr Steven Beards. In a nutshell, it is alleged that on or about 16th or 17th August 2015 Susan Whiting came for a "sleep over" with Julie Beards. Mrs Beards lives in a form of protected accommodation reserved for those with learning and/or physical disabilities. Julie Beards is aged 35 but has a learning difficulty and in some respects has the abilities of a child, possibly as low as 9. Her friend, Susan Whiting was 20 when she was murdered but also had a learning difficulty. The allegation is that at some time on 16th August Susan was stupefied with drugs and then later on raped and brutally murdered by a combination of strangling and being beaten around the head with a blunt instrument (almost certainly a hammer belonging to the Second Defendant). It is alleged that Julie Beards participated as a secondary party assisting her husband in the rape and murder.
  2. In January 2016 Ms Burton provided a report in which she recorded that she assessed Julie Beards as having a mild learning difficulty (classified as a person with an IQ of between 50 -70) and in certain educational respects a level of understanding similar to that of an infant or child of about 9 years old. There was no challenge to the Report by the Prosecution when a PTR and Ground Rules Hearing was held in late January 2016.
  3. In the course of this trial, the Prosecution case has, as a recurring and persistent theme, sought to portray the Defendant as an adult capable of forming an intent to participate in aiding and abetting a rape and a murder upon a joint enterprise basis. The Crown's case was advanced over two weeks of evidence. Witnesses attended on behalf of the Crown and were questioned as to her capabilities, including her ability to care for herself without assistance, her ability to attend a college (for those with special needs), her ability to hold adult conversations concerning adult topics, her sex life, her ability to use mobile phones and other digital technology, etc. It was put to her in cross-examination that the squeaky, child-like, voice that she spoke in was in effect exaggerated or a matter of choice for her. She was questioned to the effect that she fully understood questions posed to her by the police over the course of multiple interviews spread over the course of two days in August 2015 (when she did not have the assistance of an intermediary). She was also questioned upon the basis that she manipulated the police interview process by, for example, only introducing the possibility that she had herself also been drugged late on in the course of the fifth interview. She was also cross-examined upon the fact that she waited nearly 8 months before coming up with a carefully concocted (so the Prosecution contends) defence case statement upon the eve of the trial in which she admitted to assisting the Second Defendant in the concealment of the body and evidence due to fear of violence from him. The cross-examination of Julie Beards involved, as Mr Evans QC for the Prosecution put it, a 360 degree challenge to all aspects of her account and its veracity. In the course of protracted cross-examination of Julie Beards by the Crown various inconsistencies and changes or modifications in her story and position occurred in relation to certain key events.
  4. There were two core themes to the Prosecution line of attack. First, that her explanation that she had come upon her husband, the Second Defendant, at a point in time after he had raped and killed Susan and only helped him conceal the body through fear of reprisal from him, was false. Secondly, that she was an inveterate liar who had manipulated the investigatory process and continued to do so in Court through her answers to questions.
  5. The defence case, which is responsive, at least in substantial part, to the position adopted by the Crown, is that Julie Beards has had a life of being abused including violently and repeatedly by her husband. She has significant learning difficulties and a child-like mentality. She could not conceive of hurting her best friend Susan. Her disability had been recognised by the intermediary and was self-evident to those who had watched her being questioned in Court. It was also the defence case that Steven Beards had a sexual interest in vulnerable women with mental disability and he had a history of violence towards Julie including the use of drugs to stupefy her and the use of violence including strangling in the course of sex, and of rape. Julie Beards only came upon the aftermath. She is vulnerable and her answers to questions posed by the police and by cross-examining counsel in Court needed proper interpretation. Mr Sidhu QC, for Mrs Beards, submits that as part of its case the Crown has chosen not to adduce expert evidence as to Julie Beards' learning difficulties or other mental capabilities even though it was open to the Crown to do so and its line of cross-examination was inconsistent with the report of Ms Burton that it had hitherto accepted.
  6. In response to the Crown's case, the Defendant thus seeks to adduce those parts of Ms Burton's report which relate to her assessment of Julie Beards in January 2016 and the cognitive difficulties Julie would confront in answering questions in a stressful environment such as a Court. It is said that this material is important in enabling the jury to decipher and interpret and, therefore, assess and evaluate her answers.
  7. B. The position of the Defendant: Measures of adjustment taken in the course of the trial

  8. A number of Ground Rules Hearings have been held in this case. The first before me was in January 2016 when the recommendations as to the appointment of an intermediary to assist Mrs Beards and as to certain special measures which should be adopted at trial in the Report were accepted without demur by all parties. A further Ground Rules Hearing was held at the outset of this trial. At this stage, the Court had an edited transcript of the police interview as evidence upon which to form a view as to Mrs Beards' abilities together with the advice of the intermediary who had subsequently been appointed to act during the trial, and the advice of counsel who acted for Mrs Beards. I directed a variety of measures such as the right for the Defendant to have a comfort ball to hold whilst in the dock and the right to have separate seating in the dock (she has a hip disability and requires pain relief) so she could concentrate better upon the evidence. Regular breaks were scheduled to further facilitate concentration. The intermediary sat with the Defendant and assisted her to read documents and to follow the evidence.
  9. A further Ground Rules Hearing was held immediately before the Defendant gave evidence in chief. Upon the basis of further advice from the intermediary the Defendant was questioned from outside the witness box, in the back row of counsel's benches, and the intermediary sat next to her, again assisting her to follow as necessary. Questions occurred in 30 minute slots with 15 minute breaks in between. An abbreviated Court sitting day (10.30-12.30; 1.30-3.00) was scheduled.
  10. I allowed Defence counsel an increased latitude to use leading questions in order to focus the Defendant upon certain discrete topics. In particular this related to the allegations of abuse and violence allegedly perpetrated against her by her husband in the period up to 2012, when a divorce petition was drafted which recorded the allegations, and which was (after a ruling) admitted as bad character evidence against the husband. The questions therefore comprised a mix of leading and open questions. Whilst I was conscious that the Defendant was, to some degree, suggestible, this nonetheless enabled her evidence to be elicited in a coherent manner. She was then cross-examined by counsel for the husband, in particular about the alleged violence and abuse by his client.
  11. Before the Defendant was cross-examined by Prosecuting counsel further debate occurred as to the parameters of the cross-examination. Having watched the Defendant carefully over the course of two days questioning I was of the view that she could answer questions and understand tolerably complex concepts, but with significant limitations. She tended to answer in one or two syllables. When she was under pressure she appeared to be suggestible. She was not always clear about event sequencing, etc. I formed the view that it would be unfair to the Prosecution if I restricted Mr Evans QC to open questions only. He had to be able to put his case which was that she was exaggerating her disability, that she had lied repeatedly and deliberately in police interviews, and that her defence case statement was a carefully crafted and manipulative attempt to explain and conceal her true involvement in the crimes. I directed, however, in line with the intermediary's recommendations that questions should be short, non-composite and where possible avoid tags. But, as I have already observed, I did not prevent leading questions.
  12. In reasonable measure, with the assistance of the intermediary who intervened where appropriate, the Defendant coped. It was undoubtedly highly stressful and unpleasant for her but she was in large measure able to understand and respond. There were, however, occasions when despite best efforts it became apparent that she was simply agreeing with questions put to her regardless of the truth of the answer and on one occasion when this happened Mr Evans QC, for the Prosecution, was the first to concede (in front of the jury) that the particular answers were, in effect, worthless even though ostensibly in his favour.
  13. The essence of the cross-examination focused upon the fact that the Defendant admitted lying to the police. In her police interviews, Julie Beards claimed that when she woke up on the morning of 17th August 2015 Susan Whiting had left the house already. However, subsequently, in a defence case statement served on the eve of trial, she said that when she woke up she went for a shower and when she came back she found her husband, Steven Beards, standing over Susan who was lying on a camp bed in the bedroom wrapped and tied up in a shower curtain and bound with a black bag over her head. She was dead. She accepted that she had lied about the presence of the body in the bungalow on a consistent basis to a number of people on account of her fear of Steven Beards and that she acted in accordance with his instructions. In cross-examination, as observed, the basis for this change of position was challenged as was her evidence that her fear of Steven Beards was genuine.
  14. In the course of questioning, Julie Beards' mental and physical state became an issue. It transpired, but only after the intermediary noticed that in a hot Court room the Defendant had suddenly chosen to wear a cardigan to cover her arms, that she was concealing that she had self-harmed in prison, overnight. Proceedings for the day were suspended. All of this was reported back to the prison. She was seen upon her return to prison that evening. An oral report was relayed back to the Court the next day and it was accepted by all that she was able to continue to give evidence. The Defendant when questioned about this incident in the course of re-examination said that she had tried to kill herself. This evidence was therefore before the jury.
  15. C. Main issues in dispute between Prosecution and Defence

  16. At the end of cross-examination spanning 5 days the position between the parties was stark. The Prosecution contended that she was shamming. The Defence says that her position is genuine. A key aspect of the task which the jury will have to confront (albeit by no means the whole part) is to assess her evidence which includes her answers to questions and in particular those where she was inconsistent or where she changed her story and the truthfulness of her explanation for her change of account in the late served defence case statement. The principal issues to which her answers are relevant include her state of mind (intent); whether she was under the sway and coercion of her husband and for this reason was terrified of him and complied with his demands to assist him to conceal the body; whether she lied to police as a result of this fear; whether her fear was (for her) real and rational or (as the Prosecution say) concocted. The Prosecution case, as crystallised at trial, is that Steven Beards raped and killed Susan; but Julie Beards, because of jealousy that Susan was not paying her (Julie) sufficient attention as a friend, encouraged and assisted Steven Beards to rape and kill Susan.
  17. D. Summary of Contents of Report

  18. I now set out an abbreviated summary of some of the main conclusions Ms Burton arrived at. Ms Burton was of the view that Julie Beards' understanding of language was such that she would be likely to struggle with retaining the detail of long or complex passages or information and that she would have difficulty answering certain tag questions and questions of a composite nature with multiple parts. In assessing Julie for her receptive vocabulary (i.e. knowing what words mean) the intermediary found that Julie had good understanding of certain complex words such as "diagnosis", "qualifications", and "medication". Ms Burton concluded that she would understand complex vocabulary that she was familiar with but would have difficulty with words or concepts she was unfamiliar with. Following the application of standard tests for reception of grammar the intermediary concluded that the Defendant struggled with a range of sentence types that a person aged over 14 would be able to understand. She concluded that her level of understanding was similar to that of a child of about 9 years old. The intermediary also considered the length of sentence that the Defendant could process and the risk of misunderstanding if too much information was given in one question. Ms Burton recommended that no more than 4 key words should be included in a single sentence. The report concluded that the Defendant's auditory working memory was similar to that of a child in infant school.
  19. The conclusions were arrived at following an 80 minute interview. Ms Burton did not attend the trial and was not therefore able to comment upon the actual performance of Julie during the course of the trial. The purpose for which the Report was proposed to be put was to assist the jury in interpreting the evidence that they had heard. It was to be made clear that no part of the report was intended to usurp the fact finding function of the jury.
  20. E. The test of admissibility

  21. Under CPR 33A.1 expert opinion evidence is admissible (and I summarise) if it is relevant to a matter in issue, it is necessary to provide to the court information which is likely to be outside the Court's own knowledge and experience and the witness is competent to give an opinion on the issue. I address below three issues: (i) whether Ms Burton is, properly, to be categorised as an expert; (ii) whether the expert opinions are on issues which are outside the jury's normal competence; and (iii) whether the evidence is relevant to issues in the case
  22. F. Is the intermediary an expert?

  23. Mr Evans QC submitted that only a psychiatrist or a psychologist could act as an expert in a case such as the present. He submitted further that Ms Burton's employer had denied that she was an expert and Ms Burton in her Report had also stated that she was not giving expert evidence. He submitted in addition that it was unheard of for an intermediary to give expert evidence. His conclusion was that Ms Burton was not an expert and that her evidence was inadmissible.
  24. I disagree with this analysis and the conclusion.
  25. Whether a person is an expert is a matter for the Court based upon a proper analysis of the evidence. It is certainly not an issue which can be pre-judged by an individual's employer. Whether an individual is an expert within CPR 33 is fact and context specific. It depends upon the individual's professional skill and experience in the context of the particular issue that the evidence is said to be relevant to in the proceedings and it also takes into account whether the opinion evidence in question is outside of the jury's assumed knowledge and experience.
  26. In the present case, the issue is the ability of the jury to understand and evaluate answers given by Mrs Beards who is a person with the disabilities that I have already referred to. The issue for the jury occurs both in the context of her police interviews when no intermediary was present and her answers in Court both when questioned in chief and in cross-examination. The expertise required is as to the complications and risks attached to particular types of questions and, further, the risk of the Defendant answering questions in an inaccurate and misleading manner because of the type of question posed in the context of her particular level of disability.
  27. The competence of a professional (whether an intermediary or some other qualified person) to provide expert evidence will depend upon the nature and extent of the witness' disability. For instance, quite different expertise might be needed to deal with a person with a mild learning disorder relative to a person with classic autism or Aspergers Syndrome. Toolkit No 4 on The Advocates Gateway "Planning to question someone with a Learning Disability" (November 2015) makes the obvious point that "no two persons with a learning difficulty will have exactly the same profile of strengths and weaknesses". The Toolkit emphasises that assessments must be "specific to the individual". Further (see paragraph 2.4) "…communication difficulties can be subtle and not immediately obvious".
  28. Mrs Beards has "mild learning difficulties". The Toolkit explains that a person with mild learning difficulties will have an IQ of 50-70. They are often living independently but "many have problems and need support with abstract concepts and ideas such as time, duration and distance…and planning and frequency of ideas". It is also stated that for such a person certain types of question carry with them a "high risk of being misunderstood or producing unreliable answers". It is said that such a person may have weak processing skills and may be "prone to suggestion and compliance" and may have limited insight and ability to identify emotions and intentions behind both their own actions and the speech and actions of others.
  29. The difficulties associated with a person with such a learning difficulty may be exacerbated by the stress and anxiety of dealing with a Court process. In the present case the Defendant gave evidence over the course of 5 days (after having sat in the dock for 2 weeks listening to the Prosecution case) and manifestly found the experience distressing and difficult. The Toolkit emphasises the risk that a witness might feel "…the urge to provide any answer, simply to bring questioning to an end".
  30. I should add that on the basis of expertise garnered during the trial all of the above risks have, to some degree, eventuated. In particular, and because Julie Beards is a complex mix of ability and disability, there is in my judgment a real risk that a jury might not, unless given guidance, properly decipher or interpret her answers to questions put by the police and in Court with the risk that her evidence may be misunderstood and mis-evaluated.
  31. In this context I am clear that Ms Burton is properly to be categorised as an expert. She has from a review of her Report and CV, qualifications and extensive experience in all relevant aspects of communication with individuals with special needs and in their assessment both generally and in Court proceedings. This experience includes the difficulties faced by those with mild learning difficulties to respond accurately to particular types of question in stressful circumstances. Her expertise is a good match for Julie Beards' disability and the risks to be alert to during questions.
  32. I should say something about the limits of what qua expert Ms Burton can opine upon. Ms Burton cannot, of course, give evidence on Julie Beards' actual performance during the police interview or in answering questions in Court. She has not witnessed any of this and, in any event, considerable caution would be needed to ensure that any opinion an intermediary gave about such matters did not trespass into usurping the function of the jury in acting as the trier of fact. This is not, however, a risk which arises in the present case.
  33. It is helpful in order to put the issue into context to give one illustration of how Julie answered questions in a demonstrably misleading way. Mr Douglas Day QC, on behalf of the husband, cross-examined Julie Beards on the allegations she made against the husband in 2012 and included as part of a draft Divorce Petition. He put to her in cross-examination a series of questions in relation to the allegations recorded in those documents to the effect that she had not complained to anyone at the time and the inference was that the allegations she was now making were inaccurate or incomplete or false. In fact, as contemporaneous and unchallenged documents establish, she did complain at the time to her aunt, to a friend and to a solicitor and the allegations were recorded and particularised in a letter that she countersigned. However, when questioned about this, she agreed with the cross-examiner that she had not made any contemporaneous complaint. Her memory was defective. More generally, her ability to sequence events was sometimes good but on other occasions poor. On occasion she seemed simply to bow to the pressure of leading propositional questions advanced by a person in authority and she acted in a compliant manner. I repeat that upon occasions she faired much better but crucially the performance was inconsistent. The expert skill here is in making the jury alert to the risks of simply taking at face value answers given to questions. The example I have given was an easy one for counsel to identify and correct. But other answers given by Julie were far more ambivalent, ambiguous and hard to interpret. It is for this reason that I have come to the conclusion that Ms Burton can be treated as an expert in this respect,
  34. I deal now briefly with Mr Evans QC's other objections.
  35. First, the fact that Ms Burton's employer did not categorise her as an expert is beside the point to the exercise which the Court must, for itself and objectively, perform. When an intermediary provides a report to a Court or provides assistance during a trial that person is acting independently and owes a duty to the Court to assist and it will not be open to an employer to forbid or prevent that person in the fulfilment of the duty to the Court from providing appropriate evidence.
  36. Second, persons other than psychologists and psychiatrists may give expert opinion provided they have, according to the ordinary tests, the appropriate expertise in relation to the witness in question and to the issues arising in the proceedings. To conclude otherwise would serve to tie a court's hands when making an assessment about the qualifications of some other type of professional to perform this expert task.
  37. Third, the presence of a solicitor and/or an appropriate adult in a police interview (whilst undeniably important as safeguards) is not tantamount to the presence of an intermediary during that interview. Intermediaries have different skills and qualification and training to appropriate adults. It has not been suggested that the solicitor or appropriate adult did in fact have the qualifications of a standard intermediary.
  38. Fourth, the fact that in her report Ms Burton stated that she was not an expert is correct in that the initial purpose of the Report was to assist the Court in taking case management decisions. But it does not preclude that person being capable in principle of being categorised as an expert provided the test is applied at a later stage in proceedings. I note in this regard that Toolkit 16 ("Intermediaries: Step by Step" – 6 March 2015) explains in paragraph 2.5 that intermediaries are not instructed as expert witnesses and "thus" cannot give an opinion on the accuracy of evidence. This is true at the stage at which relevant case management decisions are taken when it is not contemplated that the Report will go to the jury. But, whether the intermediary is capable of being an expert and giving evidence to the jury is a separate issue requiring discrete consideration. It seems to me that this is where the confusion lies.
  39. G. Are these issues within the normal competence of the jury?

  40. If on the proven facts a jury is able to form its own opinion on the issue in dispute then the issue is not one for expert opinion: R v Turner (1974) 60 Cr App R 80 per Lawton LJ at page [841]. In relation to cases involving a degree of mental impairment the Court of Appeal has held that if a person's IQ is over 70 (a borderline learning disability) then the experiences of such a person are likely to fall within the experience of a normal jury: See R v Masih [1986] Crim LR 395; and R v Henry [2005] EWCA Cri 1681. In R v Antwar [2004] EWCA Crim 2709 per Clarke LJ at para [46] the Court admitted evidence of suggestibility in a person with a moderate developing into a mild learning disability (which is defined as an IQ of 50-70).
  41. It may be dangerous to make quick and easy assumptions based upon IQ as laying down hard and fast evidential thresholds. The modern literature suggests that IQ scores have to be construed and understood in context. In the present case the Defendant has been classified as having a mild learning disability (which in any event puts her on the right side of admissibility since it implies an IQ of 50 - 70) but she has also been described as having certain cognitive and communication skills equivalent to an infant school child and a child of 9.
  42. In my judgment, based upon the above guidance from case law, but also upon the Burton report and my own observations of the Defendant over the course of five days giving evidence, I am quite clear that the task of interpreting her evidence is one which would be significantly improved by the admission of this evidence. The Defendant presents with complexities of assessment which are in my judgment beyond the normal experiences of a jury.
  43. More generally judges and advocates have woken up in recent years to the need to be acutely conscious to the real risk posed to the integrity of the trial process by failing adequately to respond to the needs of vulnerable witnesses. We now recognise the complexities associated with the process of communication in a Court setting; there can be no doubt but that an intermediary whose professional skills are properly matched with a witness' particular vulnerability may be capable, in principle, of guiding a jury in the art of deciphering answers to questions, which skill is not something which a jury will necessarily possess as routine or common place. I put it in this way to avoid the possibility that the expert is permitted to usurp the legitimate fact finding function of the jury. The expertise lies in the provision of tools and guides to interpretation by the jury; not re-interpreting for the jury what the witness really meant when she had actually said something different.
  44. H. What sorts of issues might the expert evidence be relevant to?

  45. It is helpful to start with some recent guidance on this issue, which supports the conclusions that I have already come to which is that the intermediaries report may be relevant to issues in the case (See paragraphs [14] and [20] above). Recent authority illustrates the admissibility and relevance of expert evidence which relates to the ability of the jury to interpret the answers given to question by a defendant and it also illustrates circumstances when the evidence of an intermediary is admitted into evidence as a guide to assist the jury to interpret and understand answers given in evidence.
  46. I start with the admissibility in principle of evidence as a guide to the interpretation (i.e. irrespective of whether it is given by an intermediary) of a witnesses answers, i.e. expert evidence of an interpretative nature.
  47. In R v Thompson [2014] EWCA Crim 836 the CACD was confronted with an appeal in a case involving, inter alia, sexual touching of complainants by the appellant, a male who was involved in taking young boys on trips and acting as a football coach. The allegations included that the defendant touched boys whilst washing and drying them. In response to questions put in cross examination the appellant often appeared evasive and refused eye contact; he quarrelled with counsel and picked arguments about small and essentially irrelevant detail. An issue during the appeal was the admissibility of two new psychologist's reports who both diagnosed the appellant with Aspergers Syndrome. Neither expert witnessed the performance of the appellant when he gave evidence nor based their conclusions upon transcripts of the police interviews. They prepared their reports having simply applied the standard tests (the Cambridge Lifespan Aspergers Syndrome Service, and, the Module 4 Autism Diagnostic Observations Module (See Judgment paragraphs [16] and [18])). Their reports described autism and its typical characteristics. For instance in one report the appellant was described as socially naive and a person who would have been unaware that suspicions would have been raised in the minds of others as to the inappropriateness of his behaviour, e.g. in bathing and drying children.
  48. The Court of Appeal admitted the evidence under section 23 Criminal Appeal Act 1968. The Court then concluded that it could have been relevant to three counts on the indictment. First the count alleging inappropriate washing and drying where the Court said that had the jury known that he had Aspergers they might have construed his conduct as that of a person who was "... rule bound and somewhat obsessive about personal hygiene [and] who might be sensitive to any expression of the boys resistance." (Judgment paragraph [31]). Second, the count alleging the smacking of a boys erect penis in circumstances where the action might have been to punish the boy rather than obtain sexual gratification. Third, and perhaps most relevant for present purposes, in relation to the way in which the jury received and understood the appellants evidence. In paragraph [33] the Court stated as follows in the context of a case where the Prosecution alleged that the appellant was calculated and devious and where the defence argued that he was naive and misunderstood:
  49. "33. Thirdly, we have noted the tendency of the appellant, during his evidence before the Reading jury, to pick arguments with the prosecutor over comparatively trivial detail, while failing, unless re-directed, to confront the underlying and critical question (paragraph 21 above). In our opinion, the expert evidence would have been of value to the jury in determining whether, on the one hand, the appellant was evading the question or, on the other, that he was, as a result of his unusual traits, reluctant to be deflected from his pre-occupation with matters of detail. We have noted also (at paragraph 24) the questionable explanation given by the appellant for his internet search. Both in assessing the content of his evidence and the manner in which it was delivered, it seems to us that the expert evidence would have been informative. We have given full consideration to Mr Price's argument that during the Aylesbury trial the appellant demonstrated himself to be a calculating witness, quite capable of trimming his evidence to suit the case then being presented to the jury. However, even if Mr Price is right, and we are not sure that he is, we cannot conclude that his criticisms of the appellant's evidence establish that he was undoubtedly lying to the Reading jury about the lack of sexual motivation for his actions towards the complainants SF and ZB."
  50. Later, in paragraphs [34] the Court summed up the issue by concluding that the expert evidence "...was very much concerned with the issue of interpretation of the appellant's alleged conduct, partly admitted ad partly denied. It was to that issue that the expert evidence was primarily though not exclusively relevant. We cannot conclude that the decisions made by the jury ... would undoubtedly have survived their consideration of the new evidence...".
  51. In the present case it was submitted to me that it was an entirely novel step to admit the evidence of an intermediary. I next deal with a recent illustration of a case where such evidence was admitted.
  52. In R v Boxer [2014] EWCA Crim 1684 the CACD was concerned with the report of an intermediary which had been placed before the jury. The Court was confronted with an appeal upon the basis, inter alia, that an ABE interview of a complainant who was a 46 year old man with the mental age of a child of 7 or 8 should have been excluded upon the basis that that the questioning was conducted unfairly and that it should have been excluded under section 78 PACE. The appellant was charged with sexual assault. No intermediary was present during the ABE interview. The Court rejected the appeal and observed that whilst there was no requirement for an intermediary to be present during an ABE interview, in an appropriate case, the absence of such a person could be relevant to an argument that the evidence was unsafe under section 78 PACE (cf Judgment paragraph [23]). The Court also observed (ibid paragraph [24]) that the intermediary had given evidence to the Court as to her assessment of the complainant "… which explained in detail his difficulties and the shortcomings of his evidence including shortcomings relating to his understanding of tag question and so forth. It is clear that the jury had the full picture". It is implicit that the Court approved of the fact that the intermediary gave this sort of interpretative evidence and considered that it enabled the jury to have the "full" picture and was, indeed, important and a factor which otherwise mitigated the errors and defects which the Court found existed in the ABE interview.
  53. The evidence in this case, as I have explained elsewhere, provides to the jury a tool with which to interpret and decipher the Defendants answers. As such the relevance is generic and goes to all of the substantive evidential issues in the case and whether she was suggestible and compliant in the face of a violent husband.
  54. But I would not shrink from concluding that it goes also to assist the jury to understand her mental state and her intentions and whether, given what they know about her, she was capable of forming the intent to participate in a brutal and horrific series of crimes as a secondary party.
  55. I. The form in which the evidence is to be tendered.

  56. The intermediary has, the Court is informed, been prohibited from giving evidence by her employer. This proposition has not been challenged. It would have been possible to have summonsed her. However, given the state and stage of the trial and the delays that would have been caused I have concluded that the admission of the summary, as hearsay, should be admitted in written form. I consider this to be fair. Mr Evans QC for the Prosecution has cooperated with Mr Sidhu QC for the Defendant as to the content of the summary of the Report and it contains material which ensures that the summary is balanced in the sense that it contains Ms Burton's views both for and against the Defendant. I can actually detect no unfairness to the Prosecution in it being admitted in this way, not the least because (as I observe elsewhere) it is not as if the Prosecution have their own report ready and waiting which challenges Ms Burton's conclusions or can even now pinpoint specific issues in the Report with which they disagree. And it will in any event be open to the Prosecution to comment upon the report in closing submissions if it is considered appropriate. I will give an appropriate warning to the Jury about the limitations of the report and a hearsay warning which will alert them to the fact that the summary is not an agreed document which has been sworn and that the author has not attended court to give evidence on oath.
  57. J. Inclusion in the Jury Bundle

  58. Mr Evans QC, for the Prosecution, also objected to the summary being inserted into the Jury Bundle. I have allowed it to be included as a matter of what I perceive to be sensible case management. The Summary is quite long. It has been read to the Jury but its real value is as a guide when the Jury come to assess the evidence during their deliberations, for instance as an adjunct to the numerous and lengthy police interviews which are in their bundles. The summary is also quite detailed and nuanced and it is only really understood when read slowly and thoroughly and I am clear that if it had simply been read to the jury and left there, then it would have lost the vast majority of its real utility and hence relevance. It is not like the other expert evidence, which was essentially unchallenged and led to easily memorised facts, e.g. that the drug Zoplicone had been found in Susan's body, or that there was the victims DNA on a hammer belonging to the Second Defendant. The summary is being inserted into the Jury Bundles with a clear explanation that it is not an agreed fact or document; but it is part of the Defence case. Its limitations as a document are also clearly set out in the summary itself and I do not consider that there is any risk of it being misunderstood or its importance unduly elevated by being in written form and included in the Jury Bundle.
  59. K. Fairness

  60. Finally it was submitted by Mr Evans QC, for the Prosecution, that it was unfair (to the Prosecution) to permit evidence to be adduced and the Prosecution would, if it were admitted, consider whether to apply to adduce their own expert evidence. In the event no such application was made. But in any event I have difficulties with the proposition.
  61. First, the Prosecution accepted the Burton Report in January 2016 as the basis for the appointment of an intermediary and acceptance of Ms Burton's recommendation as to how the Defendant's vulnerability could be properly protected during the trial. I do not treat the Report provided in January 2016 as precluding the Prosecution from adopting the stance that it has done in the course of the trial. There is no question of abuse of process which would otherwise tie the Prosecution's hands and prevent the Prosecution at trial challenging the witness' ability in a manner which is inconsistent with that of the Report. The Report was prepared for case management purposes and it sufficed for that end. It was not, at that stage, served or admitted as expert evidence to be adduced in the course of the trial. A good deal of preparatory and investigatory water passed beneath the bridge between the date of the Report and the commencement of the trial and the Prosecution was entitled to respond to those developments. Nonetheless, it remains the case that Ms Burton was treated as having skill and professional experience in an area which was relevant to the trial and this, at the least, provides a bedrock or starting point for a subsequent analysis of the professional expertise of the intermediary.
  62. Second, it was the Prosecution's decision at trial to run a case inconsistent with the conclusions of Ms Burton. It was this that had led to the present application. In the course of the Prosecution case it was open to them to call as an expert a psychologist or psychiatrist to give evidence which could have contradicted Ms Burton's conclusion, but it chose not to do so. That was of course a legitimate tactical decision upon its part.
  63. Third, in the circumstances, it was nigh on inevitable that the Defendant would seek to counter the Prosecution case and an obvious candidate for the Defendant's attentions was the Report of Ms Burton. The application to adduce the report thus flowed naturally from the manner in which the Prosecution advanced its case.
  64. Fourth, the Prosecution have not put up any draft or even final expert's report or opinion as a basis for challenging Ms Burton's conclusion. The suggestion that they wished to instruct their own expert to conduct a more formal assessment of the Defendant was entirely speculative. There is no present basis for suggesting that Ms Burton's assessment within the limited and defined parameters in which it is expressed is in any way incorrect. This might not be surprising given that Ms Burton's conclusion flowed from the application of standard tests.
  65. Fifth, in the circumstances, there is no unfairness to the Prosecution in them not being allowed to adduce their own expert, their case having been closed.
  66. L. Conclusion

  67. For all the above reasons the Report of Ms Burton is admitted as expert evidence in the form discussed above.

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