The Court of Appeal considered an appeal against conviction based on the fact that the appellant had not had an intermediary despite one being required and that an adverse inference had then been drawn from the appellant’s failure to give evidence.
Mr Biddle, a vulnerable young man, was 17 at the time of the alleged serious sexual offences against children. A psychologist assessed him as needing extra support in his trial, and an intermediary assessment recommended the services of an intermediary for the whole trial. This was granted at a pre trial hearing, but the trial judge overruled that decision and refused to allow an intermediary for anything other than supporting the defendant to give evidence. The intermediary, provided by Communicourt, left court without assisting for the appellant’s evidence. It is against Communicourt’s policy to assist with evidence only unless they assess that this is all that is necessary. The appellant decided not to give evidence and the trial judge directed the jury that an adverse inference could be drawn from that decision. The appeal was brought on two grounds: the lack of an intermediary and the drawing of an adverse inference from the defendant’s decision not to give evidence.
The court held that the trial judge had been fully entitled to revisit the decision about whether an intermediary was required and that as the appellant seemed to have had no significant difficulty in giving his account to police officers or his legal representatives, the adverse inference direction was not Wednesbury unreasonable.
The Court of Appeal court criticised Communicourt’s policy not to assist with the defendant’s evidence only and the frustrations of the Court of Appeal in relation to defence intermediaries are apparent from this judgment. In our view, the solution would be to extend the registered intermediary scheme to defendants as was argued in R (on the Application of OP) v the Secretary of State for Justice  EWHC 1944 (Admin). Were there to be a regulated service at regulated rates of pay (such as with interpreters or registered intermediaries for witnesses) fewer vulnerable defendants would end up unsupported.
In our view, the observations by the Court of Appeal that the fact that the solicitors did not choose to attend the trial to assist counsel was evidence that the appellant had been capable of giving evidence were not justified: ‘The fact that her [sic] instructing solicitors did not send a representative to attend the trial each day tends to indicate they too were satisfied of the appellant’s ability to follow the trial.’ Given that such attendance is not legally aided, it would be a highly unusual course of action for solicitors to send a representative and it is concerning that the court have attached such significance to the decision. Equally surprising is the fact the court found that the trial judge had not addressed the relevant authorities or the Practice Direction, but made no criticism of either of those facts.