England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWINDON COUNTY COURT
(HER HONOUR JUDGE MARSHALL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st November 2012

Lord Justice Thorpe:

1. This is the father's appeal from the outcome of a trial before HHJ Marshall in the Swindon County Court, at the conclusion of which by her order she made findings of fact that the little girl of about 18 months of age had been subjected to non-accidental injury and concluded, more or less specifically, that the father was responsible for those injuries. Of course, the child was represented by the guardian, who had instructed Mr Ker-Reid, who took the position of neutrality, but not only were the local authority pointing the finger at the father, so too was the mother, with whom he had a relatively brief and relatively shallow association.
2. The father was represented below by Ms Storey-Rae, who at the conclusion filed an appellant's notice and skeleton argument. As this case has developed Mr Storey has come into lead her and Mr Tolson has come in to lead Ms Duthie, who appeared for the local authority below. Mr Ker-Reid has very responsibly questioned with the court the necessity for his attendance today and sought confirmation that that would be an unnecessary drain on public funds. He has submitted written observations which support the local authority's response.
3. The case is in many respects unusual, and it all turns upon whether the judge's handling of the problems created by the father's limited capacity did or did not amount to a breach of his Article 6 rights to a fair trial. That the father was of very low IQ and limited abilities were recognised from the start, and Dr North, a local psychologist, has prepared three reports directed to capacity.
4. The first report was relatively sanguine, expressing the view that he was competent both to instruct solicitors and to testify. His second report of 16 December endorsed the previous opinion that he was competent to testify but not competent to instruct solicitors. Accordingly, an approach was made to the Official Solicitor, who declined himself to represent the father but arranged for a local agent to take on the task, and that local solicitor identified Mr Taylor (who had considerable social work experience and who had also acted as a children's guardian) to act as his guardian ad litum.
5. There were two directions appointments after Dr North's second report which seemed not to have raised question marks, but a further report from Dr North was sought in circumstances which are recorded in paragraph 8 of the judgment below. As the judge put it on 15 March:

"An order was made that Dr North assess [father's] ability to give evidence. If [father] was assessed as capable, a narrative statement was to be filed by 30 March. If not, Dr North was to report and update his last report by 10 April."

6. Dr North addressed that task, decided that a narrative statement could not be filed and by his report made it very plain that the father's capacity to testify had deteriorated in consequence of mounting stress and anxiety. Dr North in his final report was relatively, but not absolutely, clear in his opinion that, whilst the father remained capable of giving evidence, he was to be regarded as a vulnerable witness due to his cognitive difficulties and his level of suggestibility. In order to help him to succeed in giving oral evidence Dr North suggested some preliminary familiarisation with the setting, but more importantly went on to set out in ten bullet points some pretty fundamental things that should be done if his competence was to be retained; particularly, the seventh bullet point stated:

"He should be offered a 'supporter' whilst he is in the witness box who can help him to understand any difficult questions and encourage him to provide accurate answers."

7. Then, below the bullet points, Dr North wrote:

Mr S becomes excessively anxious if he has to speak in front of other people. His anxiety level may lessen if he is made familiar with the court and the court processes. If his anxiety levels do not reduce it will be essential to provide him with additional facilities such as using a screen or a video link. If his anxiety levels are excessively high he will find it extremely difficult to provide evidence; this can be assisted by the provision of screen or video link."

And then, importantly, in the concluding paragraph:

"Mr S is a very vulnerable man and in order to help him to give oral evidence it will be essential that he be provided with an advocate or intermediary in order to help him to negotiate and understand the court processes and proceedings."

8. That important assessment had arrived on the eve on the first day of the trial (which was Monday 16 April), and so Ms Storey-Rae, the father's junior, applied to the judge for adjournment on the basis that she had her client, but neither the screen or video-link nor the intermediary. The judge made the practical point that there was no video-link facility for internal communication within her court, but she seems not to have focussed much then, or at any stage, on the alternative aid identified by Dr North, namely the screen. But we can see from the transcript, running to no less than 609 pages, the judge's reaction to this development. Ms Storey-Rae had said quite clearly:

"I do have a separate structure to my application for an adjournment, which is the report of Dr North."

9. The judge then debated with Ms Storey-Rae the content of Dr North's report, making the practical points as to the facilities and what was meant by an intermediary in the context of either criminal or family proceedings. The judge made the familiar point "well, we will all try, counsel and myself, to make it easy for the witness", but in the end it is impossible to spell out anywhere in the transcript the judge giving a ruling on the application or saying much beyond that she was minded to, as it were, get on with the case, see how it went and possibly return to the issue at a later stage in the light of the father's performance.
10. It seems to me that there were considerable risks in responding thus to Ms Storey-Rae. Indeed it seems to me a high risk judicial management. The father did testify, but, before he did, an unsatisfactory makeshift was engineered whereby Mr Taylor, who was after all the guardian ad litum, found himself trying to undertake, additionally, the role of being intermediary. He had no previous experience of that role unlike Dr North. He had some brief guidance I think from Dr North, but not only was he not a registered practitioner but he was attempting the responsibility for the first time and, fundamentally dangerous, trying to fulfil two functions at the same time; functions that were not mutually complementary and which were liable to take him into conflict between Role A and Role B.
11. So with that unsatisfactory makeshift, the father gave evidence in chief for nearly two hours on the 17^th and for 30 minutes on the 18^th to complete evidence in chief. He was cross-examined for one-and-a-half hours on the 18^th, and on the 19^th he returned to the witness box for 30 minutes in order to try and deal with a point that had arisen. It is evident from this that the totality of his witness box experience was some three-and-a-half hours. It is also evident that he was testifying on three occasions, comparatively late in the day, on one occasion until 5.15 in the afternoon; on another until 4.24; times when, as the judge was reminded by Ms Storey-Rae, he was likely to be particularly tired and particularly vulnerable.
12. At the conclusion of his evidence Mr Taylor registered with the judge how uncomfortable he felt at the end of his endeavour to provide intermediary services. He said, by way of self-criticism, that he felt that he had failed the father. It seems that on the 19^th, in a curious way, a consensus emerged at the Bar that Dr North would come to court to testify on issues of capacity on the following Monday. That was on an application by Ms Storey-Rae to abort the proceedings on the grounds that Mr S had not been properly protected, and accordingly his Article 6 rights had not been safeguarded.
13. So the consensus that seemed to emerge between the Bar and the judge was that Dr North would give his expert evidence on capacity issues on Monday, counsel would make their submissions on those issues on Tuesday, and then, if Ms Storey-Rae failed in her application, counsel's submissions on the wider issues would be given on Wednesday.
14. Dr North in his evidence on Monday made it quite plain that he regarded the father's capacity to testify as having fluctuated during the course of the trial but that overall he lacked capacity to testify since he had not received the essential protective measures. Ms Duthie sensibly cross-examined on the basis that really the judge was the best to assess his performance, because, although she lacked Dr North's expertise, Dr North lacked the essential evidence, namely hearing the father in the box. But the judge ultimately again seems rather to have parked Ms Storey-Rae's application rather than have decided it, saying:

"Yes all right, I am going to wait for the transcript now to make a decision in relation to this issue and I will be hearing your submissions on the substantive matters on Wednesday now."

15. So the case proceeded and the judge, having heard submissions on the substantive evidence, delivered her judgment. Crucial passages in the judgment which go to the issue of capacity are to be found in early paragraphs. Having recited the background, she said at paragraph 9:

"[Father] remains without capacity to litigate, and that matter is not in issue. Dr North assessed [father] as capable of giving evidence, but due to his cognitive difficulties and his level of suggestibility, set out a number of recommendations that would assist him. I will return to the matter of [father's] ability to give evidence and the level of support required later in my judgment."

16. That return is in paragraph 14, where the judge said:

"The matter of the support required to assist [father], and the need to ensure fairness and equality of arms on his part such that he would not be disadvantaged by being deprived of what was necessary to enable him to give his best evidence, required to be given careful consideration. I considered Dr North's report […] One of those recommendations is that he should be offered a 'supporter' while in the witness box […]. Dr North cautioned that unless special considerations are employed the evidence he gives may be unreliable. I also consider Dr North's detailed assessment of [father's] function as set out in his earlier reports.

15. Taking all of this information into account, it appeared that the main difficulties for [father] were his cognitive functioning and his anxiety levels which if elevated were likely to impact adversely on his cognitive ability, and it was therefore appropriate that all necessary steps should be taken to make matters as relaxed and easy as possible for him to give his evidence. I was not persuaded that Dr North considered that a registered intermediary was essential to the specific process of [father] giving evidence. I identified that all advocates were aware of Dr North's recommendations and directed that they were to assist [father] in this regard. I took into account that [he was familiar with the practice et cetera]."

And then she ends:

"I declined to adjourn the case at this point but stated I would keep matters under review, and if it became clear that an intermediary was required, I would revisit that decision."

17. Later in her judgment she commented on the father's evidence, in paragraph 37, and on dealing with Dr North and noticing the absence of video-link facilities, but not dealing specifically with the question of screening. As to the father's evidence, she simply said that effectively his oral testimony was consistent with denials that he had given to all previous interrogators. She dealt specifically with his evidence on the crucial points in the history, and that leads me directly to the submissions of counsel.
18. Mr Storey was throughout emphatic that this was a case in which the evidence demonstrated that the court had to take the greatest care to ensure that special protective measures were there, without which the father would simply have had no equality of arms and no capacity to deal with the very grave matters that were put against him. He developed the point that throughout it was possible to trace that, rather than things proceeding satisfactorily on the judge's let's see how we get on management, effectively they had lurched from bad to worse all the way through and, accordingly, at the conclusion the judge was plainly wrong not to have ruled upon and indeed not to have granted the application by Ms Storey-Rae which was supported by the evidence of Dr North.
19. Mr Tolson, in an attractive response, said firstly that Dr North's final report, his third report, was equivocal on nuance, that there was throughout no worsening of the situation. We had only to examine the transcript of the father's evidence in chief and in cross-examination to see how effectively he had dealt with the challenge. Finally he submitted that this was really a pointless appeal because, as the judge observed, the father had simply given evidence in which he had consistently maintained denial. He had not made any concession. The judge had not relied on his evidence in any way in order to reach her conclusion, and, accordingly, it was something of a theoretical complaint advanced by Mr Storey.
20. In reply Mr Storey emphasised that the failure of the judge to rule on the 13 April amounted to a denial of the father's right to challenge the judge by way of appeal. He says as to Mr Tolson's third point, that actual prejudice to the father is a completely irrelevant question. His right to Article 6 protection is absolute, and, as Mr Storey put it in his third point of reply:

"We simply do not know how much better the father would have done in the witness box had he had the support to which he was plainly entitled."

21. By way of conclusion, I would like to express my appreciation of the burden borne by HHJ Marshall, who is the designated judge in a busy care centre. She has a responsibility for containing delay in these county court cases. Although this case was not particularly urgent, it was necessary to ensure completion at the earliest viable date. Had she acceded to Ms Storey-Rae's application, the consequence would have been months of delay. So I would wish to be in every way supportive of the judge's general duty to manage all cases to achieve targets. I only observe that that general duty cannot in any circumstance override the duty to ensure that any litigant in her court receives a fair trial and is guaranteed what support is necessary to compensate for disability. It is easy to be critical with the advantage of hindsight, but I do think that the judge fell into error in not ruling specifically on Ms Storey Rae's application of 13 April. I think she fell into error in adopting the "let's see how we get on" management policy. As I have already observed, it seems to me a dangerous policy because, by not grasping the nettle, it risks having to adjourn not at the optimum moment before the trial is launched, but at a very late stage, when things have run off the rails and then there is simply further wastage of court time.
22. I also think that she was wrong to take the evidence and to endeavour to assess the expert contribution of Dr North when the case was over and done, and then to rule on the issue of capacity. It seems to me that to defer the ruling beyond the evidence of Dr North and the submissions that followed and to set it in her final judgment was less than ideal. Finally, I consider that her justification for the course that she had adopted throughout the trial is unpersuasive in that it fails to grapple with core expert evidence from Dr North as to what was essential and to explain why a simple protective measure, like the provision of a screen, had simply not been put in place. Some steps were taken to ease the mother's contribution by ensuring sight lines that did not bring her into direct eye contact with the father. It seems to me almost worse to take steps to assist the mother, who had no particular disability, and not to do more for the father.
23. Whilst it is never attractive to order a retrial of any fact finding investigation, I conclude that we have no alternative, and that is the consequence of finding a breach of Article 6 rights.

Lord Justice Rimer:

24. I agree.

Mrs Justice Baron:

25. So do I.

Order: Appeal allowed