A District Judge’s decision not to grant an intermediary to a 14 year old boy with learning difficulties facing trial in the youth court was quashed by the High Court, who have ordered the appointment of an intermediary for the entirety of his trial.
The Divisional Court confirmed that a decision whether or not to grant an intermediary must be made on a case by case basis. Whilst there is reference to such appointments being “rare” in the Criminal Practice Directions, that does not equate with there being a high threshold for such appointments, at para 39:
“The District Judge’s reference to the bar being a high one is not obviously consistent with the application of careful scrutiny to the particular circumstances of the claimant in order to decide whether an intermediary was necessary.”
The judgment of Dame Sharp states that the reference to appointments being “rare” refers to all cases coming before courts, and therefore:
“In that context most cases will involve defendants who do not require the assistance of an intermediary. Therefore, the appointment of an intermediary will be rare. It does not follow that there is a high hurdle to overcome for the appointment of an intermediary if one is necessary for the effective participation of a defendant in the trial process.”
The case confirmed that the relevant principles are set out in the practice directions, and referred to those specific to intermediaries for child defendants (Criminal Practice Direction 3F.24-26). The judgment throughout emphasises the need for individualised assessment in each case. The decision in this instance is therefore clearly centered on the particular facts of this case, however, the court’s approach may be of assistance in a number of ways.
- The court confirmed the additional responsibilities the court owes to children (at para 11):
“Particular problems may arise in cases involving vulnerable young defendants and a court must be vigilant to consider how issues of concentration and understanding may affect such a defendant’s ability to participate in his trial. We note also that, where the defendant is under 18, the court is under a duty to “have regard to the welfare of the child or young person” pursuant to Section 44(1) of the Children and Young Persons Act 1933. This statutory duty essentially is mirrored by the provisions of Article 3(1) of the UN Convention on the Rights of the Child identifying the rights of the child as being a primary consideration for any court taking a step in respect of a child.”
- The court confirmed the need for a defendant to participate throughout the entirety of the trial, and not just the giving of evidence. Whilst it does not follow that this will lead to the appointment of an intermediary for the whole trial in every case, it is important that judges consider carefully whether or not an individual can participate throughout the process. The District Judge in this case had stated in her reasons that this was a “lawyers only” case, at para 42 the judgment provides:
“this is tantamount to saying that it will not matter if the claimant cannot or does not follow the proceedings. We consider that this proposition is not consistent with a fair trial of the claimant.”
“It is possible that the claimant will not have to contribute directly at any point during the prosecution case. But it cannot be said that this is inevitable. If he is not engaged with the proceedings, he will be unable to contribute should the need arise.”
At para 43:
“…in a case where the evidence demonstrates that the defendant lacks the capacity to participate unaided in the trial process, it is incumbent on the judge to explain how the court will enable the defendant effectively to participate in the proceedings despite that evidence.”
- Whilst deference will be given to a trial judge, it is appropriate for the High Court to quash decisions where the decision of the judge is “wrong and unsupportable by the material available to the judge” (para 36).
- A judge is clearly not bound to follow the recommendations of an expert. However, the High Court was critical of the lack of reasons given for failing to consider the expert opinion in this case, at para 43:
“Nor did she explain why she rejected the views of Ms Marron and Dr Hathaway. [The authors of the intermediary report and psychological assessment.] Those views are not mere assertions. They follow the findings of each in their assessment of the claimant.”
- Even though the youth court is a specialist jurisdiction, well accustomed to dealing with vulnerable individuals, that in of itself does not mean that it is not appropriate for other professionals such as intermediaries to assist, where the individual’s needs require it (para 38).
- Whilst the defendant’s conduct in interview may in some cases be a relevant factor, in this case the DJ was wrong to rely on the fact that the defendant gave a prepared statement in interview to show he did not need an intermediary. “What the prepared statement shows is that the claimant was able to give basic instructions in relation to the allegations. It does not demonstrate that he could engage satisfactorily in the trial process” (para 41).
Read the Judgment here: TI v Bromley Youth Court  EWHC 1204 (Admin).
This case emphasises the need for careful and thoughtful scrutiny of each defendant. The Practice Directions make it clear that intermediaries should not be granted without careful consideration, this case demonstrates that nor should they be denied without that same careful thought.