Joseph Biddle [2019] EWCA Crim 86
Summary
**R v Joseph Biddle [2019] EWCA Crim 86** concerns an appeal against conviction by a defendant who argued that the trial judge erred in limiting the availability of an intermediary and in giving a full adverse inference direction after he chose not to give evidence.
On 29 August 2017 at Worcester Crown Court, Mr Biddle pleaded guilty to sexual assault of a child under 13. On 1 March 2018 before Mr Recorder Butterworth he was convicted of rape of a child under 13. He was sentenced on 3 April 2018 to a total of six years’ detention. He was acquitted of a further count of sexual assault and no evidence was offered on a fourth count.
The complainant, who was 12 at the time of the indictment, alleged that on 5 November the appellant (then aged 17) had kissed her whilst lying on her bed at home and then had intercourse in her mother’s room. She had previously alleged that the appellant had touched her sexually on the canal tow path a day or two before. Her account was supported in part by witnesses who confirmed she and the appellant had been upstairs in her home for some time, by blood found on her duvet, and by mobile telephone footage filmed by a friend of the appellant at 20:38 on 5 November showing the appellant kissing the complainant on a bed. The appellant was arrested and interviewed on 14 December and denied that anything other than kissing had occurred. He adopted that account at trial.
The appellant had been diagnosed with Attention Deficit Hyperactivity Disorder and had a history of behavioural difficulties, alcohol and drug issues. A psychological report by Dr Gregory dated 7 November 2017 identified concerns about his ability to understand and evaluate verbally presented information and his slow processing speed, recommending that these matters be borne in mind to ensure a fair trial. In a report dated 2 January 2018, a Communicourt intermediary, Miss Patidar, recommended that the appellant required the services of an intermediary throughout the trial to appraise his communication skills continuously, provide strategies, keep the court updated, inform the defence of his level of understanding when making decisions, and use aids to explain key points to him.
At a short hearing on 19 February 2018, His Honour Judge Cartwright directed on the basis of a written application and the expert reports that an intermediary attend to assist the appellant throughout the trial. However, on 26 February the trial judge, Mr Recorder Butterworth, having considered the reports and counsel’s submissions, ruled that there was no need for an intermediary to attend the whole trial save for the purpose of assisting the appellant if he gave evidence. Miss Patidar did not return to court. The Registrar subsequently sought an explanation from Communicourt, who responded by setting out their policy and claiming they were directed an intermediary was not required, though they also said they advised defence counsel on the possibility of finding an intermediary elsewhere. Defence counsel made no attempt to find an alternative intermediary and made no application to adjourn to obtain one. The appellant decided not to give evidence.
On 28 February 2018 the recorder indicated he was minded to give an adverse inference direction pursuant to section 35 of the Criminal Justice and Public Order Act 1994. Ms Hancox for the defence invited him to consider whether he should give the direction in its usual full form. The recorder noted that the psychologist’s report did not indicate it was undesirable for the appellant to give evidence, that the case was not complex, that the appellant had dealt with the allegations fully in interview without any need for the appropriate adult or solicitor to intervene, that all recommendations about breaks had been adhered to with no suggestion of difficulty, that the absence of the instructing solicitor from trial suggested the appellant had coped, and that the appellant’s conduct demonstrated his understanding of the court’s process. He ruled that there was no sound ground to conclude the appellant’s physical or mental condition made it undesirable within the terms of section 35(1)(b) for him to give evidence, and ruled the adverse inference direction would be given in its standard form.
The appeal was advanced on two grounds. First, Mr Andrew Smith QC for the appellant argued that the judge should not have altered His Honour Judge Cartwright’s order for an intermediary to be present throughout the whole trial and in any event should have allowed an intermediary for the whole trial. He argued that Judge Cartwright’s decision was informed by a fully reasoned report and supported by a psychologist’s report, and that the recorder wrongly bore in mind the brevity of Judge Cartwright’s hearing, the cost of an intermediary throughout the trial, and the fact that the appellant coped well in interview. He submitted the recorder had misunderstood the role that the intermediary could play. Second, Mr Smith argued that the judge should not have directed the jury that an adverse inference could be drawn from the appellant’s failure to give evidence, contending that his decision was Wednesbury unreasonable as a result of the withdrawal of the intermediary. He maintained that it was common ground that Mr Biddle required the assistance of an intermediary to give effective evidence, that by the close of the prosecution case Communicourt was not going to provide one, and that the circumstances were similar to those contemplated in R v Burnett [2016] EWCA Crim 1941, where it would be undesirable for a defendant to give evidence where it would be unjust to draw an adverse inference because a defendant may not be able to do himself justice when giving evidence.
The Vice President of the Court of Appeal, Lady Justice Hallett, giving the judgment of the court, noted that the appeal raised yet again the issue of the policy applied by Communicourt to the provision of intermediaries for defendants. She set out the relevant authorities, including R(C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), R v Cox [2012] EWCA Crim 549, R(OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin), R v R [2015] EWCA Crim 1870, and R v Rashid [2017] EWCA Crim 2. The court emphasised that in Rashid Lord Thomas CJ had stated that an advocate must have the training and experience to ask questions in a manner appropriate for vulnerable individuals, that a judge must make the assessment of what assistance is required on the basis that that proper level of professional competence from an advocate is available, and that cases in which an order will be made for an intermediary to be present for the whole trial will be very rare. Those principles had been endorsed in the Criminal Practice Direction in force since April 2016. The court noted that unfortunately Mr Recorder Butterworth and the Single Judge had not been referred to the Practice Direction or to the decision in Rashid by either party.
On ground one, the court held that Mr Recorder Butterworth was fully entitled to revisit the issue and to take a different view from Judge Cartwright. The recorder was not bound by the intermediary’s recommendation or by Judge Cartwright’s ruling. The issue was whether the recorder’s decision was wrong and outwith the broad discretion and judgment available to him. The court noted that before making his decision the recorder heard evidence and argument, discovered that the intermediary had not read the appellant’s interview and was unable to point to any part of the trial apart from giving evidence when it would be necessary to communicate with him through an intermediary, that the appellant was represented by a competent advocate, that the trial was relatively short, that the principal prosecution witness gave evidence with the assistance of an intermediary so questions were phrased appropriately, that breaks were taken as necessary, that defence counsel made no request for further time or suggested her lay client had difficulty following and participating, that she made no reference to such difficulties in the grounds of appeal, that the fact her instructing solicitors did not send a representative each day indicated they were satisfied of the appellant’s ability to follow the trial with her assistance, that the issue was straightforward, and that the appellant himself had never suggested he had difficulties. The court held that whilst the recorder was not taken to the relevant authorities or Practice Direction, he applied the principles correctly, gave full reasons, and was best placed to make the decision. The court accepted that other judges may have reached a different conclusion, but agreed that this case did not come close to one of those very rare cases referred to in Rashid or in the Practice Direction. Accordingly, the court found no substance in the ground.
Before turning to the second ground, the court added observations on Communicourt’s policy as at the time of trial. The court noted that Communicourt’s policy stated that if the assessing intermediary was of the view that the defendant would not fully understand the prosecution case and be able to instruct his or her legal team without an intermediary, Communicourt would not accept a booking which was only for the point of giving evidence. The court held that it is not for Communicourt to dictate the duration of the need for an intermediary. The principles as set out in Rashid and the Practice Direction are clear: the intermediary can make a recommendation but ultimately it is for the trial judge to decide, and only in a very rare case will an intermediary be required for the duration of the trial. The court held that Communicourt’s policy turned that test on its head and suggested that if a defendant requires an intermediary for giving evidence, it is only in a rare case that he or she will not require an intermediary for the duration of the trial. The court stated that Communicourt’s policy of only providing an intermediary for the giving of evidence alone if the assessing intermediary so recommends was wrong and should be revisited, and that if the company accepts instructions to assess a possibly vulnerable defendant they should also accept they will abide by the trial judge’s directions.
On ground two, the court held that whilst some judges may have decided not to give the adverse direction where the judge had ruled the defendant should have the services of an intermediary to give evidence and one was not available, that was not the test to be applied. Section 35(1)(b) of the 1994 Act provides an exception where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence. The judge has a wide margin of judgment and discretion and it does not follow from the fact that an accused has a physical or mental condition that it is necessarily undesirable within the meaning of the subsection for him to give evidence. The trial judge must consider all the material including expert opinion, albeit he or she is not bound by it. The court noted that the recorder considered all the material including the appellant’s ability to respond to questioning by police on a straightforward issue he undoubtedly understood. The court held that had there been material to suggest a causative link between the absence of an intermediary to assist the appellant to give evidence and the decision not to give evidence, no doubt the recorder would have borne that very much in mind, but there was nothing before him or before the court to indicate such a link. The court assumed that had there been any link privilege would have been waived and this would have been at the forefront of counsel’s submissions. The court repeated that the appellant seems to have had no significant difficulty in giving his account to police or to his legal representatives, and nothing suggested he failed to follow the complainant’s evidence. All parties knew that if the appellant chose to give evidence the recorder was determined to follow the intermediary’s recommendations and ensure he was able to give a full and fair account. The court held that the decision to give an adverse inference direction was not Wednesbury unreasonable.
In short, the appeal was dismissed, the court holding that the trial judge properly exercised his discretion both in limiting the availability of an intermediary to the giving of evidence and in giving a full adverse inference direction, and that Communicourt’s policy of declining to provide an intermediary solely for giving evidence where its assessment recommended otherwise was wrong.
On 29 August 2017 at Worcester Crown Court, Mr Biddle pleaded guilty to sexual assault of a child under 13. On 1 March 2018 before Mr Recorder Butterworth he was convicted of rape of a child under 13. He was sentenced on 3 April 2018 to a total of six years’ detention. He was acquitted of a further count of sexual assault and no evidence was offered on a fourth count.
The complainant, who was 12 at the time of the indictment, alleged that on 5 November the appellant (then aged 17) had kissed her whilst lying on her bed at home and then had intercourse in her mother’s room. She had previously alleged that the appellant had touched her sexually on the canal tow path a day or two before. Her account was supported in part by witnesses who confirmed she and the appellant had been upstairs in her home for some time, by blood found on her duvet, and by mobile telephone footage filmed by a friend of the appellant at 20:38 on 5 November showing the appellant kissing the complainant on a bed. The appellant was arrested and interviewed on 14 December and denied that anything other than kissing had occurred. He adopted that account at trial.
The appellant had been diagnosed with Attention Deficit Hyperactivity Disorder and had a history of behavioural difficulties, alcohol and drug issues. A psychological report by Dr Gregory dated 7 November 2017 identified concerns about his ability to understand and evaluate verbally presented information and his slow processing speed, recommending that these matters be borne in mind to ensure a fair trial. In a report dated 2 January 2018, a Communicourt intermediary, Miss Patidar, recommended that the appellant required the services of an intermediary throughout the trial to appraise his communication skills continuously, provide strategies, keep the court updated, inform the defence of his level of understanding when making decisions, and use aids to explain key points to him.
At a short hearing on 19 February 2018, His Honour Judge Cartwright directed on the basis of a written application and the expert reports that an intermediary attend to assist the appellant throughout the trial. However, on 26 February the trial judge, Mr Recorder Butterworth, having considered the reports and counsel’s submissions, ruled that there was no need for an intermediary to attend the whole trial save for the purpose of assisting the appellant if he gave evidence. Miss Patidar did not return to court. The Registrar subsequently sought an explanation from Communicourt, who responded by setting out their policy and claiming they were directed an intermediary was not required, though they also said they advised defence counsel on the possibility of finding an intermediary elsewhere. Defence counsel made no attempt to find an alternative intermediary and made no application to adjourn to obtain one. The appellant decided not to give evidence.
On 28 February 2018 the recorder indicated he was minded to give an adverse inference direction pursuant to section 35 of the Criminal Justice and Public Order Act 1994. Ms Hancox for the defence invited him to consider whether he should give the direction in its usual full form. The recorder noted that the psychologist’s report did not indicate it was undesirable for the appellant to give evidence, that the case was not complex, that the appellant had dealt with the allegations fully in interview without any need for the appropriate adult or solicitor to intervene, that all recommendations about breaks had been adhered to with no suggestion of difficulty, that the absence of the instructing solicitor from trial suggested the appellant had coped, and that the appellant’s conduct demonstrated his understanding of the court’s process. He ruled that there was no sound ground to conclude the appellant’s physical or mental condition made it undesirable within the terms of section 35(1)(b) for him to give evidence, and ruled the adverse inference direction would be given in its standard form.
The appeal was advanced on two grounds. First, Mr Andrew Smith QC for the appellant argued that the judge should not have altered His Honour Judge Cartwright’s order for an intermediary to be present throughout the whole trial and in any event should have allowed an intermediary for the whole trial. He argued that Judge Cartwright’s decision was informed by a fully reasoned report and supported by a psychologist’s report, and that the recorder wrongly bore in mind the brevity of Judge Cartwright’s hearing, the cost of an intermediary throughout the trial, and the fact that the appellant coped well in interview. He submitted the recorder had misunderstood the role that the intermediary could play. Second, Mr Smith argued that the judge should not have directed the jury that an adverse inference could be drawn from the appellant’s failure to give evidence, contending that his decision was Wednesbury unreasonable as a result of the withdrawal of the intermediary. He maintained that it was common ground that Mr Biddle required the assistance of an intermediary to give effective evidence, that by the close of the prosecution case Communicourt was not going to provide one, and that the circumstances were similar to those contemplated in R v Burnett [2016] EWCA Crim 1941, where it would be undesirable for a defendant to give evidence where it would be unjust to draw an adverse inference because a defendant may not be able to do himself justice when giving evidence.
The Vice President of the Court of Appeal, Lady Justice Hallett, giving the judgment of the court, noted that the appeal raised yet again the issue of the policy applied by Communicourt to the provision of intermediaries for defendants. She set out the relevant authorities, including R(C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), R v Cox [2012] EWCA Crim 549, R(OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin), R v R [2015] EWCA Crim 1870, and R v Rashid [2017] EWCA Crim 2. The court emphasised that in Rashid Lord Thomas CJ had stated that an advocate must have the training and experience to ask questions in a manner appropriate for vulnerable individuals, that a judge must make the assessment of what assistance is required on the basis that that proper level of professional competence from an advocate is available, and that cases in which an order will be made for an intermediary to be present for the whole trial will be very rare. Those principles had been endorsed in the Criminal Practice Direction in force since April 2016. The court noted that unfortunately Mr Recorder Butterworth and the Single Judge had not been referred to the Practice Direction or to the decision in Rashid by either party.
On ground one, the court held that Mr Recorder Butterworth was fully entitled to revisit the issue and to take a different view from Judge Cartwright. The recorder was not bound by the intermediary’s recommendation or by Judge Cartwright’s ruling. The issue was whether the recorder’s decision was wrong and outwith the broad discretion and judgment available to him. The court noted that before making his decision the recorder heard evidence and argument, discovered that the intermediary had not read the appellant’s interview and was unable to point to any part of the trial apart from giving evidence when it would be necessary to communicate with him through an intermediary, that the appellant was represented by a competent advocate, that the trial was relatively short, that the principal prosecution witness gave evidence with the assistance of an intermediary so questions were phrased appropriately, that breaks were taken as necessary, that defence counsel made no request for further time or suggested her lay client had difficulty following and participating, that she made no reference to such difficulties in the grounds of appeal, that the fact her instructing solicitors did not send a representative each day indicated they were satisfied of the appellant’s ability to follow the trial with her assistance, that the issue was straightforward, and that the appellant himself had never suggested he had difficulties. The court held that whilst the recorder was not taken to the relevant authorities or Practice Direction, he applied the principles correctly, gave full reasons, and was best placed to make the decision. The court accepted that other judges may have reached a different conclusion, but agreed that this case did not come close to one of those very rare cases referred to in Rashid or in the Practice Direction. Accordingly, the court found no substance in the ground.
Before turning to the second ground, the court added observations on Communicourt’s policy as at the time of trial. The court noted that Communicourt’s policy stated that if the assessing intermediary was of the view that the defendant would not fully understand the prosecution case and be able to instruct his or her legal team without an intermediary, Communicourt would not accept a booking which was only for the point of giving evidence. The court held that it is not for Communicourt to dictate the duration of the need for an intermediary. The principles as set out in Rashid and the Practice Direction are clear: the intermediary can make a recommendation but ultimately it is for the trial judge to decide, and only in a very rare case will an intermediary be required for the duration of the trial. The court held that Communicourt’s policy turned that test on its head and suggested that if a defendant requires an intermediary for giving evidence, it is only in a rare case that he or she will not require an intermediary for the duration of the trial. The court stated that Communicourt’s policy of only providing an intermediary for the giving of evidence alone if the assessing intermediary so recommends was wrong and should be revisited, and that if the company accepts instructions to assess a possibly vulnerable defendant they should also accept they will abide by the trial judge’s directions.
On ground two, the court held that whilst some judges may have decided not to give the adverse direction where the judge had ruled the defendant should have the services of an intermediary to give evidence and one was not available, that was not the test to be applied. Section 35(1)(b) of the 1994 Act provides an exception where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence. The judge has a wide margin of judgment and discretion and it does not follow from the fact that an accused has a physical or mental condition that it is necessarily undesirable within the meaning of the subsection for him to give evidence. The trial judge must consider all the material including expert opinion, albeit he or she is not bound by it. The court noted that the recorder considered all the material including the appellant’s ability to respond to questioning by police on a straightforward issue he undoubtedly understood. The court held that had there been material to suggest a causative link between the absence of an intermediary to assist the appellant to give evidence and the decision not to give evidence, no doubt the recorder would have borne that very much in mind, but there was nothing before him or before the court to indicate such a link. The court assumed that had there been any link privilege would have been waived and this would have been at the forefront of counsel’s submissions. The court repeated that the appellant seems to have had no significant difficulty in giving his account to police or to his legal representatives, and nothing suggested he failed to follow the complainant’s evidence. All parties knew that if the appellant chose to give evidence the recorder was determined to follow the intermediary’s recommendations and ensure he was able to give a full and fair account. The court held that the decision to give an adverse inference direction was not Wednesbury unreasonable.
In short, the appeal was dismissed, the court holding that the trial judge properly exercised his discretion both in limiting the availability of an intermediary to the giving of evidence and in giving a full adverse inference direction, and that Communicourt’s policy of declining to provide an intermediary solely for giving evidence where its assessment recommended otherwise was wrong.