England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ HONE QC
T20107012

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/04/2013

Lord Justice Treacy:

The Offence

1. Jordan Dixon was convicted of murder on 12^th October 2010 at the Central Criminal Court. On 15^th October 2010 he was sentenced to detention at Her Majesty's pleasure, being aged 17½ at the time of the offence. The minimum term specified was 14 years less 277 days spent in custody on remand.
2. There were two co-accused, Ross Collender and Daniel Ransom, who were also convicted of murder and sentenced to life imprisonment. Each received a minimum term of 16 years less time spent in custody. Those two were slightly older than Jordan Dixon. There was a fourth person before the court, Sarah Davey, who was acquitted on a count of assisting an offender, namely Dixon, by having harboured him for about two months after the offence.
3. The full court has previously granted leave to appeal against conviction (in relation to grounds one and two as set out below), and sentence.
4. The Appellant and the two co-accused were part of a group which in the early hours of 1^st November 2009 became involved in a dispute with others in Sutton town centre, Surrey. Events began with part of a Halloween costume, a hat and wig, being taken from Allana Devine, the partner of the deceased, Ben Gardner, by the co-accused Collender.
5. Shortly afterwards the Appellant's group were near a mini cab office close to where Ms Devine lived. She asked for the return of her items, but was then abused verbally by the Appellant. She and her partner, Gardner, decided to confront the Appellant's group. Ms Devine went to pick up the witch's hat, which by then was lying in the road. As she did so the Appellant tried to kick it away. Ransom had removed his jacket, as if anticipating a fight. He kicked and stamped on the hat, then spat into it and threw it at Ms Devine. Collender punched Gardner on the side of the head causing him to fall to the ground. The Appellant then struck a blow to Gardner's head or chest, and Ransom proceeded to kick Gardner in the head as he was on the ground.
6. After the attack on Gardner the Appellant hit Devine in the face. CCTV which was shown at trial captured the incident. There was also eye witness evidence. Both these sources of evidence showed the Appellant and his group to be the aggressors.
7. Gardner had sustained a traumatic subarachnoid haemorrhage. He died shortly afterwards as a result of that. The medical evidence could not establish who had been responsible for the fatal blow.
8. Ransom and Collender were arrested soon after the incident. This Appellant, however, was not arrested until two months later, on 9^th January 2010, having stayed with Sarah Davey. He was well aware that the police wanted to see him in connection with the death of Mr Gardner. In the time prior to his arrest he had given an account of events, firstly to Sarah Davey shortly after the incident, and then to a man called Dufton.
9. Neither the Appellant nor his two co-accused gave evidence. The Crown's case was that the three were jointly liable for the murder and that they had intended really serious harm. The Crown asserted that the joint enterprise had begun with the snatching of the Halloween costume and had continued thereafter through the attack.
10. The Appellant's primary defence was that he had been acting in self defence. He relied on the account given to Ms Davey and Mr Dufton. This was to the effect that Collender had punched the victim, at which the victim had approached the Appellant and the Appellant had then punched him. He had only hit the victim because he thought that man was going to hit him.
11. In addition to that line of defence, it was also submitted (a) that the Appellant's actions could not be said to have contributed to the death, (b) that he was not acting in furtherance of a joint enterprise, (c) that he could not have foreseen that the co-accused intended to cause really serious harm and, (d) that he did not himself have that intent.

The adverse inference and pre-trial reports

12. In summing up the judge directed the jury that no adverse inference should be drawn from the fact that the Appellant did not answer questions in interview. However, he did direct the jury that it was open to them to draw an inference from his failure to give evidence. There had been legal argument about that issue and the judge had ruled that a direction pursuant to Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 was appropriate.
13. Admissions had been made about the Appellant in the following terms:

"10.4 Dixon was examined by a forensic medical examiner at 10:50pm on 9^th January. He indicated to the doctor that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) three years earlier, and suffered from learning difficulties and in particular dyslexia. He was deemed fit to be interviewed, providing that an appropriate adult was present to assist him and monitor his welfare in view of his learning difficulties, and further he indicated that he had difficulties reading and writing. Dixon was seen by another doctor at 11:49am on 10^th January.

10.5 Following two full recent assessments it was determined that: (a) Jordan Dixon has a full scale IQ of 68; (b) further, he has: (i) low non-verbal abilities, (ii) poor working memory, (iii) a lack of knowledge and concepts normally gained through education, (iv) a limited vocabulary and semantic knowledge, and (v) a severe stammer. (c) Jordan did not know what a "jury" "defence" "evidence" "oath" "alleged" meant; (d) people with learning difficulties are often compliant and easily led, (e) Jordan has language levels around the equivalent of a 7-8 year level."

14. When the judge came to rule on the question of whether an adverse inference should be given, he had those admissions before him. In addition he had the report of Mary Auckland, a specialist speech language therapist, together with a report from Cheryl Berriman, a registered intermediary dated 8^th September 2010.
15. As a result of receiving those two reports at the start of the trial the judge had made the special measure of providing Ms Berriman's services as an intermediary for the Appellant during the trial.
16. Ms Auckland's report referred to a diagnosis by a consultant child and adolescent psychiatrist made in May 2010 that the Appellant suffered from "Hyperkinetic Conduct Disorder", i.e. a combination of ADHD: poor concentration, impulsivity and over activity, and Conduct Disorder: a triad of aggression, defiance and anti-social behaviour.
17. That same report showed a full scale IQ of 68. The report spoke of the Appellant as having poor attention and being easily distractible. It said he had severe difficulties in understanding spoken language, and that his expressive abilities were severely limited, especially when he moved from everyday social exchanges. The Appellant had a poor working memory, compromising his verbal comprehension and expressive language. He also suffered from a stammer which could render him unable to speak.
18. Ms Auckland's overall conclusion was that "his language abilities remain severely affected in that once away from everyday social exchange he has severe difficulty understanding or expressing himself. Jordan is likely to appear to understand or agree when he has not understood out of wish to appear cooperative in a difficult situation".
19. His poor education had contributed to a limited vocabulary. Overall he had low non-verbal abilities, poor working memory, a lack of knowledge and concepts normally gained through education, a limited vocabulary and semantic knowledge, and a stammer. The effect was that he "cannot understand any short quantity of verbal information, nor can he describe, explain or narrate adequately." Ms Auckland recommended that consideration should be given to an application for a registered intermediary to assist the Appellant at his trial.
20. Ms Berriman's report, which resulted in her being appointed to act as the intermediary, recommended use of an intermediary because of the Appellant's reduced language understanding and vocabulary, and because the stresses associated with a trial would heighten his vulnerability and communication difficulties. She said that he would be unable to follow information given at normal speed. He required time and repetition. He was likely to find difficulty in speaking in the witness box. For those reasons he required an intermediary.
21. The report also disclosed that he was unable to understand words requiring skills similar to those required when listening in court, but that once language was simplified and repeated, he was able to answer test questions.
22. He had said that if he thought he was going to stammer he would not say anything in response to a question. She stated that people with learning difficulties are often compliant and easily led, but during time spent with the Appellant he had been able to say that he did not understand and also to resist leading questions.
23. Nonetheless her opinion was that he would agree with what was being said if he did not understand, and that he would agree when anxious or under stress. In recommending that the Appellant should have the assistance of an intermediary at the trial and meetings associated with it in order to enable the Appellant to understand and participate, Ms Berriman made a series of recommendations.
24. Ms Berriman accompanied the Appellant during the trial, save on three half days when she was absent. We understand that those days were occasions on which either legal argument took place or the judge was summing the case up to the jury.
25. Those then were the materials available to the judge when he made his ruling on the issue of adverse inference.
26. The defence also had available to it in addition a report from a Dr Bobich, a consultant clinical psychologist. The defence made a conscious tactical decision not to use this report because it contained information which counsel judged would be unlikely to assist the Appellant's case. In particular there were references to an anti-social personality disorder and a history showing consistent irritability and aggression, and there were references to bizarre thinking processes which lead to anger and poor impulse control and to a lack of skills in dealing with anger. There was also reference to his being moody, hostile and unpredictable.
27. Amongst other things Dr Bobich's report assessed the Appellant's full score IQ at 71, putting him in the bottom 3% of the population. The Appellant had difficulty in thought processing and concentrating. He had a significantly greater than normal lack of attention and concentration, and he suffered from ADHD symptoms.
28. Dr Bobich's conclusions were that the Appellant was fit to plead, although there might be some limitations because of his intellectual and personality factors so that things should be presented to him slowly and in a simple way on account of his limited vocabulary and slow mental processing.
29. Dr Bobich said that the Appellant was able to give basic instructions, although he had doubts as to whether he could understand the whole picture. Examination under pressure might cause problems, and he could become challenging, suspicious, confused and deceitful.
30. His ability to comprehend was less than it appeared because of some his personality traits; he would try to maintain conversation to keep his confidence up in spite of misunderstanding the meaning of some words. That was consistent with behaviour of anti-social personality disordered people as they tend to give an impression of a competent person, but lacking any depth. It might be helpful if questions during the trial were put to him in a simple way because he would not understand any complex question or procedure. Indeed he might misinterpret such a question and receive it with suspicion.
31. We note that in addition to the account asserting self defence in the incident which the Appellant had put forward whilst he was on the run, he had been able in August 2010, some nine months after the incident, to give an intelligible account to Dr Bobich consistent with his claim of self defence.

The Grounds of Appeal in summary

32. There are three grounds of appeal advanced. In the past other matters have been raised, but a final position has been reached now so that the three matters raised before us supersede any earlier incarnation of grounds to appeal. The first ground is that given the Appellant's intellect and condition the judge should not have permitted the jury to draw an adverse inference from his failure to give evidence. Moreover, the judge's approach was legally faulty in that he had wrongly relied on R v Ensor [2010] 1 Cr App R 18. The correctness of that decision was called into question.
33. The second ground was that there was now fresh evidence available to the court in the form of two consultant clinical psychologists, Dr Sinead Marriott (instructed for the Appellant) and Professor Derek Perkins (initially instructed for the Crown). Those reports had been obtained in 2012 and provided material suggesting that the use of an adverse inference in the Appellant's case was now to be viewed as wrong and oppressive in the light of that fresh evidence.
34. The third ground is new in the sense that the Appellant does not have the leave of the court. It asserts that in the light of the fresh evidence from the two psychologists, this Appellant did not participate meaningfully in his trial. Moreover, the Practice Direction (Criminal Proceedings: Further Directions) 2007 1 WLR 1790 was not followed. For these reasons the Appellant is said not to have had a fair trial, thus rendering his conviction unsafe.
35. The Crown resists the appeal. Put shortly, it submits that the trial judge's ruling was correct, both circumstantially and legally; it resists the introduction of the proposed fresh evidence; it argues that in any event the fresh evidence does not materially add to what was known at trial; it also argues that the Appellant was able to participate in his trial; and finally submits that in any event even if the adverse inference direction should not have been given and/or that there were shortcomings in the conduct of the trial, in the circumstances the strength of the case against the Appellant should lead this court to conclude that the conviction remains a safe one.

The First Ground

36. Section 35(1)(b) of the 1994 Act provides an exception to the general rule that a jury may draw an adverse inference from the fact that a Defendant did not give evidence. The exception arises if:

"…(b) It appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence."

37. In ruling the judge said, consistently with authority, (a) that he could take into account conduct of the accused before and after the offence, (b) the fact that a physical or mental condition which may merely cause some difficulty in giving evidence is insufficient to satisfy the subsection, and (c) that whilst such difficulties should be taken into account in assessing the weight of a Defendant's evidence, they would not justify a comprehensive failure to give evidence.
38. The judge went on to observe that he was entitled to take into account the potential significance of the Defendant's evidence and said that in this case the significance of asserting self defence was "plain and obvious" even bearing in mind that the burden of disproving it remained on the Crown. The judge then made a reference to the case of Ensor where the Court of Appeal had considered a possible adverse effect on the Defendant's mental health. We pause to say that these two aspects of the judge's ruling have been criticised by Mr Bennathan, who did not appear at the trial. We will return to them.
39. The judge continued his ruling by referring to the granting of an intermediary to assist the Appellant both during the trial and if he chose to give evidence. The judge indicated that the intermediary would be able to intervene in the event of difficult, unfair or loaded questions. He said he had practical experience of the help which an intermediary could give to the court in ensuring a level playing field and avoiding unfair or over complicated questioning. The judge also said that a fair-minded jury would take account of a witness' physical and learning difficulties in assessing the weight of his evidence, and also that they would give sympathetic consideration to the matters in the admissions. He said that with appropriate judicial directions, a fair-minded jury would have paid very serious attention to the Appellant's problems in evaluating any evidence he gave.
40. He was satisfied that in the circumstances appropriate safeguards were in place and that it was desirable for the Appellant to have explained his defence from the witness box. He did not consider that it was unfair or undesirable for the Appellant to give evidence. Accordingly, he would permit the jury to consider an adverse inference.
41. Now we turn to the Appellant's criticisms. In Ensor at paragraph 27 Aikens LJ said:

"The physical or mental state has to be such that it is "undesirable for the accused to give evidence". That must mean that, because of the defendant's physical or mental state, if he gives evidence it will have a significantly adverse effect on him, such as to make it "undesirable" for him to give evidence."

42. Mr Bennathan submits that because the judge referred to Ensor he must have applied that test, and if he did it was the wrong test. He submitted that either Ensor was decided per incuriam, or the judge had misunderstood it as applying too narrow a test.
43. We disagree with the former submission. The sole issue in Ensor related to the question of whether giving evidence would have a significantly adverse effect on the Defendant's physical or mental state. In fact the trial judge had refused to admit in evidence a very late-served psychiatric report which had in any event suggested as no more than a possibility that giving evidence would adversely affect the mental health of the Defendant in that case.
44. Accordingly, this court had held that the judge had been entitled to refuse the defence application to adduce the psychiatric evidence and, that being so, there was nothing to prevent the judge from giving an adverse inference direction to the jury. The observations of Aikens LJ at paragraph 27 were not in fact part of the ratio of the case, and were entirely justified within the context of that case.
45. We do not consider that Section 35(1)(b) is to be confined to those cases where the giving of evidence would have an adverse effect on the health of a Defendant. Firstly, the language of the subsection is not so narrowly confined. In R v Cowan & Others [1996] 1 Cr App R 1 Lord Taylor CJ said at page 6E:

"We accept that apart from the mandatory exceptions in Section 35(1), it will be open to a court to decline to draw an adverse inference from silence at trial and for a judge to direct or advise a jury against drawing such inference if the circumstances of the case justify such a course. But in our view there would need either to be some evidential basis for doing so or some exceptional factors in the case making that a fair course to take. It must be stressed that the inferences permitted by the section are only such "as appear proper". The use of that phrase was no doubt intended to leave a broad discretion to a trial judge to decide in all the circumstances whether any proper inference is capable of being drawn by a jury."

We emphasise the phrase "in all the circumstances."

46. In Billy Joe Friend (No.2) [2004] EWCA Crim 2661, the court having admitted fresh evidence showing that the Appellant had been suffering from ADHD at the time of his trial in 1996, which condition had not been appreciated at that time, quashed the conviction. The focus of the fresh evidence was not to the effect that the Appellant would be harmed physically or mentally by giving evidence, but that the extent of his condition was such that it was undesirable for him to give evidence because of his intellectual and cognitive deficits and his ADHD. The court said that it was clear that had the judge known the true position, he would not have ruled in favour of drawing any adverse inference.
47. We must stress straight away that in that case because the condition had not been recognised, there was no question of any intermediary being appointed or other adaptation in the court process so as to enable the jury to understand the Defendant's problems. The relevance of that case, however, is that the court was prepared to look beyond a "damage to health" test under Section 35(1)(b).
48. In R (DPP) v Kavanagh [2005] EWHC 820 (Admin) Stanley Burnton J referred to the court's "wide discretion" in deciding on the issue to which subsection (1)(b) refers. That decision was cited with approval in Ensor.
49. In R v Tabbakh [2009] EWCA Crim 464 the trial judge had rejected a Section 35(1)(b) submission based on three possible adverse effects if evidence were to be given. Firstly, a risk that the Defendant would not do himself justice because he might be unable to retain control of himself. Secondly, a risk that he might not remember sufficiently parts of his evidence; and thirdly, a risk that the stress of giving evidence might result in self harm.
50. The court commented that the judge had to consider those three elements of the case together. In agreeing with the judge's reasons for rejecting the submission that no adverse inference direction should be given, the court did not reject the first two on the basis that they did not amount to some adverse effect upon the health of the Appellant. At paragraph 9 Hughes LJ said:

"The test posed by Section 35(1)(b) requires to be answered according to the physical or mental condition of the accused. Its terms make that clear. It does not however follow that in answering the very broad question whether it appears to the court to be undesirable for the defendant to give evidence that all the circumstances of the case do not fall to be taken into account."

51. At paragraph 11 the court continued:

"We agree with the broad conclusion of Stanley Burnton J…in [Kavanagh]….The question posed by Section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such as to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many, if not most, difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact – in a Crown Court trial by the jury. The purpose of Section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence."

52. We adopt those observations as representing the correct approach. It seems clear to us that the authorities do not support the submission that Section 35(1)(b) should be confined to cases where a Defendant will suffer an adverse impact upon his health or condition. A rather wider approach as indicated in Tabbakh is appropriate. There is likely to arise in the future a variety of circumstances, unrelated to damage to health, in which it would not be just, (and thus it would be undesirable), to permit the possibility of an inference being drawn. As already stated, we do not read Ensor as stating anything to the contrary when properly understood.
53. We have also considered R v Gledhill [2007] EWCA Crim 1183 and R v Charisma [2009] EWCA Crim 2345. Both decisions predate Ensor and are consistent with our view of Section 35(1)(b).
54. Returning to the judge's ruling, the judge did not base himself on Ensor, to which he merely referred in passing. His ruling was based on wider considerations which appear to us to be appropriate. In that context, it was also submitted to us that the judge was wrong to take account of the significance of the evidence which this Appellant could give. That point was also taken in Tabbakh where counsel argued that it was irrelevant whether the evidence was significant or important. The court did not accept that argument and said that the trial judge's approach of concluding that the area in which that Defendant could give evidence was a fact he was entitled to take into consideration was correct. Similarly, we reject the identical criticism made in this case.
55. In our judgment this judge was entitled to look beyond the expert material put before him including the Appellant's behaviour after the event, the fact that an intermediary had been in place, the anticipated approach of a fair-minded jury, and the nature of the account to be given by the Appellant. The Appellant had in fact given an account consistent with self defence to his co-accused, Ms Davey, and to a male friend. The judge had the Auckland and Berriman reports which proceeded on the basis that, despite the Appellant's difficulties, a trial could proceed with the appointment of an intermediary. The judge had his own experience of a previous trial or trials with an intermediary to draw upon, and he had the admissions made.
56. In addition, no question of the fitness of this Appellant to plead had been raised with him. The tests to be applied in that respect in the light of R v Pritchard [1836] 7 C&B 303 include whether a defendant has sufficient intellect to give evidence. That, of course, is a very different matter from whether it is "undesirable" for a defendant to give evidence.
57. The question for us is whether the judge was wrong to give an adverse inference direction. It is recognised that the question for the judge is a broad one with a wide margin of appreciation. In our judgment, the judge's approach and assessment of the situation resulted in a decision to which he was entitled to come. We are not persuaded that the decision was incorrect. Accordingly, the first ground of appeal must fail. We record in this respect that we received some wider arguments from Mr Bennathan suggesting that the statute should be applied more generously in the case of those who are young or who have mental difficulties. We are unpersuaded by any submissions inviting a blanket approach. In each case the decision must be made on the facts of the case before the judge.
58. We recognise that in the light of R v Walls [2011] EWCA Crim 443, and in particular the observations of Thomas LJ at paragraph 37 on the need to be vigilant to prevent an accused too readily being found unfit to plead, there is potential for an increase in the numbers of those seeking to rely on the exception provided by Section 35 (1)(b). It is in this area that greater use of intermediaries is likely to occur in addressing practical problems of communication and understanding.

The application to adduce fresh evidence

59. Before we turn to consider grounds two and three, it is convenient to deal with the application to admit the evidence of Dr Marriott and Professor Perkins. We decided to receive the evidence of these two witnesses de bene esse.
60. Dr Marriott's report is dated 1^st October 2012. She measured Jordan Dixon's full scale IQ as 55. That would put him in the lowest 0.1% of the population and falls into the Extremely Low range. Dr Marriott could not explain a full scale IQ measurement of 68 recorded by a consultant child and adolescent psychiatrist in May 2010. As to the figure of 71 measured by Dr Bobich a little later in 2010, Dr Marriott said that his figures were based on a somewhat unusual test with a narrower range. It was possible that her results were a slight underestimate of Dixon's current level of functioning, but overall she was confident that it was a valid estimate of his cognitive ability.
61. She described Dixon's suggestibility as being significantly above average. She considered that Dixon had symptoms consistent with ADHD, and commented that there had been some improvement. He was asserting that he had understood little of the court proceedings and was critical of the intermediary. She said that the Appellant appeared to her to have difficulties of recollection, but accepted that prior to trial he had given a better account of the incident to Dr Bobich. She said he had learnt nothing from the trial process, but when cross-examined, acknowledged that he demonstrated adequate understanding of how a conviction for murder could arise. He understood the essential elements of the offence, and understood self defence as a defence. He was able to give a layman's definition of joint enterprise, and to make the point that what had happened on the night was not pre-planned.
62. Dr Marriott's view was that the Appellant's difficulties meant that he would not have been able to participate with his legal team in the preparation of his defence, follow proceedings, or retain the evidence against him and point out errors to his lawyers in order to mount a defence. There was thus, in her view, no effective participation by the Appellant in the trial. Nor would any special measures have made sufficient difference to enable him to have a fair trial. In short, his condition was such that he could not be accommodated within the trial process. In this she differed from Professor Perkins. Her concern was not that he would be damaged by the experience, but that he could not do himself justice in giving evidence, even with an intermediary.
63. In answer to the court she said that a full IQ of 55 would be at the bottom end of the significant impairment range, whereas a full IQ of 68 would be at the upper end of that range, and would represent the lowest 1 to 2% of the population. Below 55 one would enter the realms of severe impairment.
64. She said that the Appellant had a combination of difficulties: ADHD with impulsivity; a low IQ independent of ADHD; a high level of suggestibility and compliance again independent of ADHD; and a stammer. It was the combination of those various difficulties which led her to the view that no measures could have been taken to enable the Appellant to participate in the trial.
65. Dr Marriott agreed, however, that her concerns were of a type whereby it was impossible to predict what would happen in practice. The only way actually to tell would be to go ahead and see what happened. The result might turn out to be better or worse than expected. She accepted that an intermediary could remind a witness to take their time and not to blurt matters out. Indeed she accepted that intermediaries had successfully enabled ADHD sufferers with other difficulties to give evidence satisfactorily. She accepted that the court and an intermediary could control problems of suggestibility and compliance, and that the intermediary could help with language and the difficulties posed by a low IQ. Notwithstanding those matters, she maintained her position that a person in the position of the Appellant, even with assistance, could not do himself justice.
66. Professor Derek Perkins, another consultant clinical psychologist, (report dated 15^th November 2012), did not significantly disagree with Dr Marriott's assessment of the various difficulties from which the Appellant suffers and their potential effects. His only reservation related to the stammer, whose adverse effect upon the Appellant had not been consistently shown. It had to be recognised that a person with the Appellant's difficulties might appear to suffer deficits which could result from his condition, or which could represent strategies adopted for other reasons.
67. Professor Perkins was not convinced that the Appellant could not give evidence provided he had assistance with his difficulties. In his view, a jury would make appropriate allowances for them if they were explained, and with the help of an intermediary, he might well be able to give an account. In his view, with knowledge of the Appellant's difficulties, a sufficiently robust process could be established to enable the Appellant's account to be given in evidence.
68. That in summary represents the position of the two experts on whom the Appellant now seeks to rely. Both relied to a significant extent upon a witness statement provided by Ms Berriman, the intermediary, dated 22^nd July 2011, some nine or ten months after the trial. That witness statement raises some criticisms of the conduct of the trial and the Appellant's participation in it. However, despite enquiry by the court on more than one occasion, Mr Bennathan QC made plain that he did not wish to seek to adduce Ms Berriman's statement as fresh evidence for consideration by the court. To the extent then that the reports of Dr Marriott and Professor Perkins were based on what Ms Berriman's statement said, it seemed to us they had to be discounted. Both witnesses, however, said that they had formed their views on wider materials than Ms Berriman.
69. Applying ourselves to Section 23 of the Criminal Appeal Act 1968, there is no doubt that this evidence is capable of belief and would have been admissible in the proceedings below. However, we focus, as the Crown did in submissions, upon the question of whether the evidence may afford a ground for allowing the appeal, and whether there is a reasonable failure for not adducing the evidence at trial. Those questions are of course subject to the overall question as to whether it is necessary or expedient in the interests of justice to admit the evidence.
70. We remind ourselves of the observations in R v Erskine [2009] 2 Cr App R 29. At paragraph 39 the court commented that the trial process would be subverted, save exceptionally, if a Defendant was allowed to advance on appeal a defence and/or evidence which could and should have been but was not deployed at trial. Unless there is some reasonable and persuasive explanation for not adducing the evidence at trial, it is highly unlikely that the interests of justice test would be satisfied.
71. It seems to us, focusing on the issues of adverse inference and effective participation which are the subject matter of grounds two and three, that the fresh material relied on does not add anything of substance to what was before the court of trial. The features identified by Dr Marriott of ADHD with impulsivity, low IQ, suggestibility and compliance, and stammer were known to those who assessed the Appellant prior to trial and to his legal advisors. In this sense the case is in contrast to that of Billy Joe Friend (No.2), where the condition of ADHD had not been recognised at all at the original trial.
72. The Appellant asserts that the new evidence sufficiently changes the background as to be material. Put another way, the issue raised is not a new one, but it has been dealt with more thoroughly and with a greater degree of expertise.
73. We take the view that this proffered evidence in truth represents an amplification of materials which were before the court below. The condition and associated problems were known at the time of trial, and the type of material now put forward could reasonably have been available then. A tactical decision was made not to adduce certain aspects of the material available to the defence at trial for fear that it might cast a spotlight on character traits of the Appellant which would be unhelpful to his defence.
74. In our judgment, the only potentially significant part of the new material is the measurement of the full scale IQ. This is lower than Dr Bobich's measurement. An explanation can be provided for that, but there is no explanation of a similar IQ level found in testing in May 2010. Although the fresh evidence points to a lower IQ figure than those figures, it remains within the same general range as the higher figures, albeit at the bottom of that range. We also note the divergence of opinion between Dr Marriott and Professor Perkins, even in the light of that lower IQ reading, as to whether the Appellant was capable of participating in the trial with the assistance of an intermediary. Professor Perkins' view is consistent with those who considered the matter at the time of trial: Dr Marriott is in a minority of one.
75. In the circumstances we do not consider that the evidence would afford a ground for allowing the appeal. In addition, we are satisfied that it would not be in the interests of justice to receive the evidence, particularly when such evidence could have been sought and used at trial, and when the proposed evidence represents a renewed and amplified attempt to rely on conditions which were known at the time of trial and considered by other experts and the Appellant's then legal team.
76. This is not one of those exceptional cases envisaged in R v Erskine. We decline to admit the proposed fresh evidence. By way of postscript, we record that earlier in the process of this appeal the Appellant had sought to rely on fresh evidence from different experts including Dr Bobich, addressing similar issues. By the time the appeal came on, those experts had been superseded by Dr Marriott and Professor Perkins. That fact, however, serves to underline that the fresh evidence finally relied on merely represents an amplification of material available earlier.

The Second Ground

77. The second ground is put forward on the basis of the fresh evidence just discussed. In the light of those new reports, it was argued that whatever conclusion the court came to on the judge's original ruling as to an adverse inference, a consideration of the fresh evidence would show that the ruling was wrong. In the light of our decision not to receive the fresh evidence, this ground cannot succeed.

The Third Ground

78. The third ground asserts that the Appellant did not participate meaningfully in his trial. In part this is based on the fresh evidence which we have decided not to receive, but there are freestanding matters upon which this ground is based. We give leave.
79. Complaint is made that there were serious shortcomings in the way that the Appellant's difficulties were handled at trial. The consequence of this was that no sufficient steps were taken to enable the Appellant adequately to participate. Accordingly, it is argued that the Appellant did not have a fair trial.
80. Mr Bennathan's complaints, in the absence of reliance on Dr Marriott, are that the guidance given in the Practice Direction (Criminal Proceedings: Further Directions) 2007 1 WLR 1790 was not followed. That Practice Direction gives directions for the treatment of vulnerable defendants. This Appellant plainly comes within that definition. Mr Bennathan argues that there was a failure to take all possible steps to assist this vulnerable defendant to understand and participate in the proceedings. In particular, the trial process was not, as should have happened, adapted to meet those ends.
81. He asserts that the Practice Direction was not placed before the judge or referred to during the trial. The Crown is not in a position to contradict this. Although it is clear that the judge had previous experience of a trial or trials involving an intermediary, and although it is accepted that he explained to the jury the role of the intermediary in this case, it is argued that insufficient was done to enable this Appellant to participate.
82. Specific criticisms are made. There was undoubtedly no pre-trial meeting or hearing involving the judge, counsel and the intermediary to assess the position and to lay down ground rules for the hearing. In addition, although breaks were taken in the morning and afternoon sessions of the trial, at no stage were any additional breaks taken at the request of the intermediary. That too is accepted by the Crown. Moreover, it is asserted that there was no adjustment to the language normally used in court to accommodate the difficulties under which the Appellant laboured. The Crown does not dispute that.
83. The Crown accepts that there were shortcomings and that more could have been done to accommodate the Appellant's difficulties, but contends that despite those shortcomings, the Appellant was able meaningfully to participate in the trial.
84. In those circumstances it seems to us that the criticisms raised by Mr Bennathan have some justification. The essential question for us is what effect those shortcomings had on the fairness of the trial.
85. In SC v United Kingdom [2005] 40 EHRR 10 the European Court required in the case of a vulnerable defendant that proper allowance was made for their difficulties to ensure effective participation in the trial process. (See paragraph 35).
86. At paragraph 29 the European Court considered what was meant by "effective participation". It stated:

"The Court accepts the government's argument that Article 6(1) does not require that a child on trial for a criminal offence should understand or be capable of understanding every point of law or evidential detail. Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which occur in the courtroom: this is why the Convention, in Article 6(3)(c), emphasises the importance of the right to legal representation. However, "effective participation" in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence."

87. This approach has been followed by our Divisional Court in C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin).
88. In this case, privilege having been waived, the court has been made aware of the actions of the Appellant's legal team at trial. It is clear that the solicitor instructed paid very many visits to the Appellant whilst he was on remand. There were more than thirty such visits and two detailed proofs of evidence were taken. Counsel had clear and detailed instructions. The Appellant's case was that he had acted in self defence, a concept which he was able to understand and explain. It is clear, not only from counsel's account, but from accounts given to others, that the Appellant was able to describe what he said had occurred on the night.
89. The evidence in the case was relatively straightforward. The events leading to and comprising the fatal assault had all been captured on CCTV. This was played and replayed, sometimes frame by frame, and with the aid of photographic stills provided to the jury during the trial. As far as this Appellant's case was concerned, there was only one prosecution witness who needed to be cross examined. The Appellant's co-defendants did not implicate him, nor did they give evidence. The trial therefore hinged very much on what could be seen on the CCTV. What could be seen took place over a very short timeframe. When repeatedly viewed, the action was not hard to discern. The impression of all members of the court was that what was captured on the CCTV placed the primary defence of this Appellant of self defence in considerable difficulty.
90. It is clear that the defendant was able to give an account of the events, to give instructions that he had acted in self defence, and that he understood in layman's terms what the concept of joint enterprise involved. We are satisfied that this was therefore a relatively simple case, whose essentials this Appellant had grasped.
91. It is clear that those who represented the Appellant were satisfied that he understood the situation and there is no criticism of the way in which they interacted with the Appellant during the course of the trial in ensuring that he understood in general terms how the case was proceeding. They were undoubtedly alive to the Appellant's disabilities and the need for him to participate properly in the trial. They speak of the assiduous way in which Ms Berriman fulfilled her duties.
92. Although Ms Berriman in a witness statement created some months after the trial was critical of certain aspects relating to the Appellant's participation, as we have noted Mr Bennathan did not seek to rely on that statement as fresh evidence. It may be that he was well advised not to do so. Ms Berriman had provided a report to the judge whilst the jury was in retirement which supplemented her pre-trial report. It undoubtedly raised issues relating to the Appellant's communication skills and behaviour, but did not in terms suggest that he had not been able effectively to participate in the trial. Moreover, at no stage during the case did Ms Berriman complain either to the judge or to the Appellant's then legal team that the procedures were such as to nullify the Appellant's participation in the trial.
93. We note that Ms Berriman was a registered intermediary and a speech and language therapist with impressive and relevant qualifications. The absence of contemporaneous complaint or representation by her, coupled with the observations of trial counsel, undermine Mr Bennathan's submission that the shortcomings in the procedures adopted meant that the Appellant did not have a fair trial.
94. It is apparent to us that Ms Berriman did give positive assistance to the Appellant during the trial. She maintained a visual record to enable the Appellant to follow the evidence; she wrote simple sentences for him; and she held twice daily meetings with the Appellant outside court to summarise past and future events in the trial; she assisted him with a vocabulary folder to explain more difficult concepts; and she was eventually able to explain satisfactorily to him what the role of the jury was. These positive steps taken fit with the impression of trial counsel as to Ms Berriman's assiduity.
95. We have considered all the arguments and materials placed before us. As already stated, we find that there were shortcomings in the way this trial was conducted. However, our ultimate conclusion is that the Appellant was nonetheless able to participate meaningfully in the trial. He had a grasp of the essential issues. The evidence was not complicated. It was before the court in a readily comprehensible form, namely the repeatedly played CCTV. The Appellant was able to convey his defence to his legal team. He understood sufficiently that his potential involvement went beyond his own actions. The absence of a ground rules hearing prior to trial with the judge did not make the trial unfair, although failure to take this step was regrettable.
96. Steps were taken by the intermediary to provide real assistance to the Appellant in explaining to him what was happening and simplifying the court process. The absence of a request for additional breaks does not of itself show unfairness. Ms Berriman had prior to trial recommended a single break per session, which is what in fact occurred. It was rightly pointed out that a break in the proceedings, for whatever reason, can serve a dual purpose. We are persuaded that there was a failure to modify the language used during the hearing. This was a regrettable failure, but we find that it did not materially affect the fairness of proceedings because of the actions taken by Ms Berriman to ensure that the Appellant could follow in simpler terms what was going on.
97. We are not left with the impression that the trial judge took an active role throughout the proceedings to ensure that this vulnerable Appellant was actively participating in the proceedings. It seems to us important that judges should recognise that they have such a responsibility in cases of this type. We draw attention to the Practice Direction and also to the recent publication (March 2011) Raising the Bar, a report by a working group of the Advocacy Training Council of the Bar of England and Wales. However, we are satisfied that the combined attentions of trial counsel and Ms Berriman sufficed to enable participation by this Appellant in his trial.
98. Accordingly, notwithstanding the submissions made by Mr Bennathan, we are satisfied that sufficient was done to enable effective participation. Accordingly, this third ground of appeal must fail notwithstanding the criticisms which we have found to be valid.
99. It follows, therefore, that none of the grounds of appeal finally pursued have succeeded, and thus the appeal against conviction is dismissed.
100. Mr Bennathan also submitted that the judge did not sufficiently explain to the jury the difficulties under which the Appellant laboured. In particular, he had not gone into detail about ADHD, the effect of the Appellant's low IQ and his difficulties with suggestibility and compliance. In short, the admissions which were provided to the jury about the Appellant's condition did not go far enough.
101. These complaints have not at any stage constituted a freestanding ground of appeal. Mr Bennathan put them forward for our consideration in the event that we were to conclude that one of his grounds was sufficiently made out as to call for a consideration of the safety of the conviction. As will be seen, we are not in that position. However, we think it right to comment in relation to those criticisms that they have to be seen in the context of the way in which the case was conducted. The Appellant's legal team were alive to his difficulties and had sought to meet them by the appointment of an intermediary and by placing agreed admissions before the jury. We are satisfied that although those admissions did not go into the full detail in which they might have been developed, that course was taken for tactical reasons by counsel conducting the case. Counsel were concerned that if they put before the court the full extent of the information available to them, it might be counterproductive. They were therefore at pains to limit the information laid before the court, striking a balance between achieving an understanding of their client's position and the potential downside of revealing the full picture to the jury.
102. In those circumstances we would not have been persuaded in relation to criticisms of the way the matter was left in summing up. It was a reflection of the way the case had been conducted, and no criticism has been made of the course adopted by counsel.

Sentence

103. The Appellant along with his two co-defendants was sentenced to life imprisonment following the convictions for murder. In the Appellant's case the minimum term was set at 14 years. The co-defendants' minimum terms were 16 years. It was agreed between the prosecution and the defence that the appropriate starting point in the Appellant's case was 12 years. In relation to the other two defendants, the starting point was 15 years. The difference arose because the Appellant was 17 at the time of the offence, whereas the other two defendants were over 18.
104. The judge considered the aggravating and mitigating factors. The aggravating factors were that this was a group attack in a public place; the use of a shod foot as a weapon and the consumption of alcohol and drugs. He identified as mitigating factors the defendants' respective ages, and he had in mind that the prosecution had only set out to prove an intention to cause really serious bodily harm rather than an intention to kill. This is a specified mitigating factor in Schedule 21 of the Criminal Justice Act 2003.
105. Balancing the mitigating and aggravating factors the judge then reached a minimum term of 14 years in the case of the Appellant. We consider that the judge was entitled to increase the minimum term above the starting point of 12 years. Of particular significance was that this attack took place in a public place in the early hours of the morning when there were a large number of people in the vicinity who would have witnessed at least part of it.
106. We think that the argument of the Appellant does have merit in that there does not seem to be any clear justification for increasing the minimum term period in the Appellant's case by two years while only increasing the minimum period of the co-defendants by one year. We have seen the video of the incident, and we are quite satisfied that this attack is correctly described as a joint enterprise in which each participant has equal responsibility for the tragic death which followed. The judge did say when giving his reasons for reaching the minimum term that the Appellant was the leader in the abuse which preceded the attack. The judge also pointed out that after the fatal attack, the Appellant struck the woman who had been with Ben Gardner. On the other hand the blow struck by the Appellant was the least likely of the three blows to have caused the death.
107. The judge did consider to what extent, if any, the Appellant's learning difficulties may have contributed to the commission of the offence. He concluded that in the light of what could be seen on the CCTV of the events and what happened after, the Appellant was well aware of what he was doing. The judge also said that in reaching that conclusion he had relied on his observations of the Appellant's demeanour in court during the case. In the light of the information that we have as to the nature of the Appellant's disabilities, it may not have been appropriate to read anything into the Appellant's behaviour in court, although we are not entirely clear what particular behaviour the judge had in mind. However, having viewed the CCTV for ourselves, we are satisfied that the judge was entitled to reach the conclusion from that alone that the Appellant was fully aware of what he was doing.
108. While we are satisfied that in the Appellant's case a small increase in the minimum term was justified, we do not consider that the matters identified by the judge justified the extent of the increase. Whilst the 12 year starting point reflected his age at the time of the attack, when considering any increase in it, the judge should again have taken into account his age and level of maturity. This was truly a joint enterprise and we do not consider that the Appellant should have been singled out by a greater increase in the minimum term than his co-defendants.
109. Accordingly, we reduce the minimum term that the Appellant must serve before he is eligible for parole to one of 13 years. Time spent on remand prior to conviction will count towards sentence in the normal way. To this extent we allow the appeal against sentence.