Cox, R v

This is an application for leave to appeal against conviction which has been referred to the full court by the Registrar. We grant leave.

On 26 July 2011, in the Crown Court at Leicester, before His Honour Judge Head and a jury, the appellant was convicted of rape.

The facts can be briefly summarised. The complainant and the appellant had known each other for some time. She was aged 20 at the material time. She had a long-established history of alcohol and drug dependency. She worked as a prostitute and lived in a hostel.

The appellant was 26 years old. He lived in a nearby hostel. He had major difficulties which included alcohol dependency, personality disorder and a learning disability. The extent and impact of these disabilities are at the heart of the appeal.

On the evening of 1 November 2008, after they had both consumed alcohol, the two were walking together. Sexual intercourse took place between them in some bushes in a wooded area near the canal in Leicester. The complainant screamed. Her screams were heard by independent witnesses. The police were called. When they arrived the complainant was in obvious distress. She immediately alleged that she had been raped.

In interview the appellant's response was that the complainant had initiated sexual intercourse and had consented throughout. He was granted bail, but was subsequently remanded in custody in October 2009 when the complainant alleged that he had twice approached her in the street and threatened her in an attempt to persuade her to drop the rape charge. The jury which convicted him of rape acquitted him of two offences alleging witness intimidation arising from this allegation.

The grounds of appeal are unusual. The conviction followed a carefully conducted trial and a characteristically fair and meticulous summing-up. The basis of the present appeal is that the trial should not have taken place at all. The argument arises in this way.

The appellant is a man with complex psychiatric difficulties. These facts were known well before the trial began. Considerable efforts were made to investigate the extent of his multifactorial problems and the appropriate steps to address them in the context of the forthcoming trial of the very serious offence. The history showed that between 1998 and 2006 the appellant had made eight separate court appearances for a variety of different offences. Following indecent assaults on his mother when he was 15 years old, there was an indication that he had been found unfit to plead. However, the subsequent history of his previous convictions did not suggest, and does not suggest to us, either that his fitness to plead was raised as an issue, or, if it was, that he was found to be fit to plead on any other occasions.

In March 2011 the issue of using an intermediary was raised before the judge. The judge examined whether he had any power to direct the necessary public funding for this purpose, or indeed whether there was any statutory provision then in force which related to the use of intermediaries for a defendant at trial. On the basis of the well-known decision of the Divisional Court in C v Sevenoaks Youth Court [2010] 1 All ER 735, the judge concluded that he was possessed of a common law power to give a direction which would enable the appellant to be provided with an intermediary, and accordingly he directed that one should be made available to assist. The direction was ineffective. No intermediary could be identified for whom funding would be available. The issue was taken up in June 2011 before Judge Hammond, another judge who sits in Leicester Crown Court. He was told that three intermediaries had been approached but that each felt unable to provide the necessary assistance. Judge Hammond, anxious to ensure the fairness of the forthcoming trial, took the view that if the problem related to the funding of an appropriate intermediary, he would give an indication of the importance he attached to the provision of an intermediary.

In the meantime, both the prosecution and the defence stated that they would obtain further reports on the issue of the appellant's fitness to plead, although in the result the only further report was provided by the defence.

In early June 2011 the response to Judge Hammond by the Ministry of Justice, through the Policy Officer for Vulnerable and Intimidated Witnesses, was that every attempt had been made to find a registered intermediary for the case, without success, that the provision of a non-registered intermediary was the responsibility of the solicitors acting for the appellant, and that they had been so informed on a number of earlier occasions.

On 13 July 2011 the issue was reviewed at Leicester Crown Court, again before Judge Hammond. Counsel for the appellant told the judge that it was agreed that the real problem was communication with the appellant, and that it was in that context that assistance was needed.

On 19 July the case began before Judge Head. The question of the appellant's fitness to plead was closely examined. A substantial body of evidence was placed before the judge to enable him to rule not only on the application which related to his fitness to plead, but also to the question whether, if he was fit, the trial should be stayed as an abuse of process on the basis that it would be unfair for the appellant to be tried without the assistance of an intermediary. In reality, the evidence on these two distinct applications was essentially the same. To that extent, therefore, they were linked.

The judge examined the written material. He heard the evidence of Dr Latham who gave oral testimony before him. The judge concluded that, although the appellant's capacity was significantly reduced by "genuine disabilities", there nevertheless remained "a sufficient residue of capacity [for him] to be fit to plead and stand trial". By the date of this ruling it had become apparent that, despite every effort, no intermediary could be found. Examining the second submission the judge asked himself whether, absent the participation of an intermediary, the appellant could receive a fair trial. He concluded that, although the situation was far from ideal, with a number of modifications to the ordinary process, the appellant would indeed be afforded a fair trial.

The single ground of appeal is that, notwithstanding the care with which the judge approached these issues, and the provision of competent counsel and solicitors, the appellant was deprived of special measures in the form of an intermediary necessary to enable him to play a proper and effective part in the trial. We must narrate the facts in greater detail.

Judge Head considered the evidence of Dr Latham with great care. He noted that, in view of the multifactorial features of the appellant's condition, it was not possible to be satisfied about the correct diagnostic label for the appellant's condition which, according to Dr Latham, was at that time stable. Dr Latham believed that the appellant understood the charges against him. He appreciated that rape involved sexual intercourse with a woman who did not consent. The essence of his account was that he had been invited to take part. Indeed, as the judge noted, during various different examinations throughout the process the appellant had reiterated that when making her complaint that sexual intercourse took place without her consent, the complainant had lied. For example, when one doctor asked him why he was in custody, the appellant replied, "She said I intimidated her, but I never did that". On this basis Dr Latham reiterated, and the judge concluded, that the appellant was well able to decide on his plea, that on the basis of his instructions a not guilty plea was appropriate, and that the appellant was also capable of understanding his right, limited as it now is, of challenge to jurors.

As part of his analysis of the issue of fitness to plead, the judge considered the tape-recording of the 25 minute long interview between the police and the appellant. This is a crucial piece of material. As far as we can discover, neither Judge Head nor Judge Hammond had listened to the tape-recording at the time, pre-trial, when various discussions took place about the value that would be provided by an intermediary. Judge Head's observations about the recording are important. He was struck by the fact that the appellant's speech is "undoubtedly odd and at times difficult to follow until one is accustomed to it", but he noted that the answers given by the appellant were relevant and coherent. The judge used his detailed answers about the consumption of alcohol as an example. The interview record also indicated to Judge Head that the appellant was able to think "relevantly beyond the precise question asked" and that he was able to seek an explanation for things spoken in the interview which he did not understand, in particular, as the discussion between counsel and the court this morning indicated, the meaning of the word "ejaculate". He was able to challenge a suggestion made by the interviewing officer which was based on a misunderstanding by the officer of the facts. Accordingly, Judge Head came to the conclusion that, making every allowance for the peculiarity of the appellant's method of speaking, the answers given by him in the interview were "at the least appropriate and coherent".

The judge then addressed the particular question of the concerns expressed by Dr Latham about the ability of the appellant to communicate both with his own lawyers and, if he elected to give evidence, when giving evidence. The judge was satisfied that the appellant was "by no means unable to communicate" with them. A consideration of the record of the police interview and the various account of events recorded in the course of a variety of different medical examinations led to the conclusion that the appellant had demonstrated "a substantial capacity to listen, to understand questions and to reply appropriately and relevantly", notwithstanding that the appellant was, as Dr Latham had explained, capable of seeking to "manipulate his disability to his own advantage in relying on it to evade giving answers".

Having examined all the available evidence the judge concluded that, notwithstanding genuine difficulties, a sufficient residue of capacity remained for the appellant to be regarded as fit to plead and to stand trial. This conclusion is not the subject of any criticism.

Nevertheless, it remained the submission that the trial of the appellant, which would follow the conclusion that he was fit to plead and to stand trial, would be an unfair one because of the absence of an appropriate intermediary to provide the appellant with assistance. The judge examined this issue distinctly from his conclusion in relation to fitness to plead. He said that he would grasp the nettle. He would not examine the question of whose fault or responsibility it was that there was no intermediary. He recognised that the situation was far from ideal. He said (and this is reflective of an examination of the evidence):

The judge referred to authority which suggested that trials should not be stayed where an asserted unfairness can be met by the trial process, and also to the emphasis in the authorities on the exceptionality of an order for a stay. He referred to the court's decision in TP (R on the application of) v West London Youth Court & (1) Crown Prosecution Service (2) Secretary of State for the Home Department (Interested Party) [2005] EWHC 2583 Admin, propounding the test:

The judge concluded that the interests of justice required him to maintain a close control over the questioning, to intervene where any possible unfairness might arise, and to ensure that the appellant was not unduly stressed by the proceedings. He would have to be "rather more interventionalist" than normal. He would play "part of the role which an intermediary, if available, would otherwise have played". He recognised the continuing obligation on him to monitor his "initial conclusion" on these issues. He plainly did so. He gave his reasoned ruling before closing speeches at trial in the light of events that had happened following his ruling.

Summarising the judge's approach to this issue, Mr Lewis, who represented the appellant at trial and before us today, in a vivid phrase suggested that the judge's conclusion was that "the pursuit of the perfect must not become the enemy of the good, or at least the good enough". In short, Judge Head distinguished between the best practice and an acceptable sufficiency.

We are grateful to Mr Lewis for his forthright and candid approach to the issues raised in his ground of appeal. He has struck precisely the difficult balance to be drawn between his obligations to the appellant and his responsibilities to the court. In his written submissions he says that the measures put in place by Judge Head appeared to work to a large extent. The appellant was able to follow most of the evidence for twenty-minute periods. The appellant was able to provide simple instructions. Constant meetings with him seemed to reduce his anxiety. The judge intervened when the appellant appeared distressed or distracted in the dock, and, as he promised, the judge did his best to fulfil some of the functions which an intermediary would have fulfilled. Indeed, Mr Lewis concluded his written perfected grounds of appeal by frankly stating that he was unable to identify a point where the measures taken by the judge did not work.

Mr Lewis drew attention to one difficulty: the question of whether the appellant should give evidence, where he had the assistance of an experienced solicitor who understood the appellant better than most. He told us that the absence of an intermediary played a part in the decision by the appellant not to give evidence, although it was not the only reason for not calling him to give evidence on his own behalf. We can see a number of sound reasons why the decision was taken that the appellant should not give such evidence.

It is clear that the judge summed up the appellant's exculpatory account given in his second police interview as if it were evidence. He resisted suggestions by the Crown that the jury should be reminded that it was not evidence. In the context of the decision by the appellant not to give evidence, although the judge gave the jury the appropriate direction in relation to the possibility of drawing inferences against him for that reason, he carefully reminded the jury of the submissions made to them by Mr Lewis based on the appellant's difficulties, as summarised in the agreed facts.

For the purposes of this appeal we have read all the medical and the other evidence, and the transcript of Dr Latham's evidence. In the short oral submissions we have heard today, Mr Lewis drew to our attention particular features of Dr Latham's evidence. We have also listened to the tape-recording of the appellant's interview with the police and his exculpatory accounts of the relevant events. We shall not repeat all the findings made by Judge Head. The appellant's manner of speech is unusual. To understand him it is necessary to concentrate closely on what he is saying. Even allowing for the stress of the situation in which the appellant found himself at the time, that is being interviewed by the police in the context of an allegation of rape, we were struck and, having read the evidence, somewhat surprised by the extent of his ability to comprehend the questions -- sometimes not short and simple, and sometimes quite long and complex -- and to provide appropriate answers, that is appropriate to the questions and consistent with his assertion that when sexual intercourse took place the complainant was a willing participant. So, for example, in the interview he asserted that the complainant had told him to take down his trousers. He first of all claimed that he had not heard her screams and then said that afterwards she "started roaring". He explained that he was drunk. The interview was also marked by the absence of any significant interventions to assist him by the appropriate adult who was present to offer assistance if it was needed.

The use of intermediaries is one of the special measures created by the Youth Justice and Criminal Evidence Act 1999. It is worth underlining that, like many of the special measures provisions, it is a discretionary measure -- one which may be taken if the judge at trial making the appropriate judgment on the evidence decides that its use would be appropriate. For present purposes we shall assume that if necessary an intermediary should be made available for a defendant. However, as the current edition of Blackstone's Criminal Practice suggests "experience has shown that one of the most useful functions of intermediaries is to assist the trial judge and counsel in establishing what types of question are likely to cause misunderstanding and thus averted". Although it is clear from section 29 of the 1999 Act which creates the discretion to use intermediaries as a special measure, that an intermediary can also assist a witness to communicate by explaining questions and answers, again as Blackstone records, this "happens rarely in practice". Questions, therefore, are usually put directly to the witness. The intermediary's function is actively to intervene when miscommunication may or is likely to have occurred or to be occurring.

We immediately acknowledge the valuable contribution made to the administration of justice by the use of intermediaries in appropriate cases. We recognise that there are occasions when the use of an intermediary would improve the trial process. That, however, is far from saying that whenever the process would be improved by the availability of an intermediary, it is mandatory for an intermediary to be made available. It can, after all, sometimes be overlooked that as part of their general responsibilities judges are expected to deal with specific communication problems faced by any defendant or any individual witness (whether a witness for the prosecution or the defence) as part and parcel of their ordinary control of the judicial process. When necessary, the processes have to be adapted to ensure that a particular individual is not disadvantaged as a result of personal difficulties, whatever form they may take. In short, the overall responsibility of the trial judge for the fairness of the trial has not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute.

In the context of a defendant with communication problems, when every sensible step taken to identify an available intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, which in a case like the present would represent a gross unfairness to the complainant, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial an unfair trial. It would, in fact, be a most unusual case for a defendant who is fit to plead to be found to be so disadvantaged by his condition that a properly brought prosecution would have to be stayed. That would be an unjust outcome where, on the face of the evidence, a genuine complaint has properly been brought against the defendant. If the question were to arise, this court would have to re-examine whether the principles relating to fitness to plead may require reconsideration.

We have closely examined the evidence in this trial. In our judgment from start to finish Judge Head conducted the proceedings with appropriate and necessary caution. Having examined all the material, we are in the result satisfied that the appellant's conviction followed a fair trial. Accordingly, this appeal will be dismissed.