England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 October 2015

LORD JUSTICE TREACY:

1. This is an interlocutory appeal to this court pursuant to section 35(1) of the Criminal Procedure and Investigations Act 1996. The provisions of section 37 of the Act apply to these proceedings, so that there are restrictions on the reporting of these proceedings pending the outcome of the trial.
2. The applicant is the defendant in the proceedings below. The indictment against him includes two charges brought under the Terrorism Act 2006. In those circumstances, the judge at the Crown Court was obliged to hold a preparatory hearing by reason of section 29(1B) of the Act. The judge duly declared a preparatory hearing and made rulings on two issues, which are the subject of an application to this court, the judge below not having granted leave to appeal.
3. Although the trial should be relatively short and straightforward, the sort of issues which led this court to decline jurisdiction in R v Lawrence & Ors [2014] 1 Cr App R 5 do not arise in this case because, by reason of section 29(1B), a preparatory hearing must be held. Nonetheless, a consideration of the rulings made in this case will be necessary since section 35(1) of the Act provides that:

"An appeal shall lie to the Court of Appeal from any ruling of a judge under section 31(3), but only with the leave of the judge or of the Court of Appeal."

4. Section 31(3) provides that:

"A judge may make a ruling as to—

(a)any question as to the admissibility of evidence;

(b)any other question of law relating to the case.

... "

5. The essence of the case against this applicant is that he left the UK with others intending to travel to Syria in order to fight for the ISIS group. He was arrested in Turkey and returned to the United Kingdom. He had funded not only his own flights but also those of his travelling companions. On return to the UK, he was interviewed immediately by way of an urgent safety review. He was then transferred to Paddington Green Police Station and interviewed under PACE without a solicitor or appropriate adult being present. In the course of this he made admissions. He was subsequently interviewed with a solicitor present and made no comment to questions put.
6. The two issues which arise are:

(1) The judge's ruling about an intermediary. The judge ruled that there was no need for an intermediately to assist the defendant during the trial, save for when he gave evidence, if he chose to do so.

(2) The judge rejected the defence submission that PACE interviews of the defendant should be excluded on the basis that he was "mentally vulnerable" within the meaning of PACE Code C1.4 and Note 1G and had been interviewed without the presence of either a legal representative or an appropriate adult.

7. In relation to the question of an intermediary, the ground advanced is that the judge erred in failing to direct that an intermediary should be present throughout the whole of the trial. This, it was argued, would breach the applicant's right to a fair trial in contravention of Article 6 of ECHR because (a) the judge failed to give due weight to the expert evidence of two psychologists and an intermediary that the applicant needed support from an intermediary throughout the trial; and (b) having accepted that the applicant was in the category of borderline low average/extremely low average intelligence, the judge imposed an arbitrarily highly threshold before he could accept that an intermediary was required throughout the trial.
8. Before we come to those matters, we need to consider a jurisdictional issue. Section 31(1) empowers a judge to exercise any of the powers specified in the section. Section 31(3) defines the matters upon which a judge may make a ruling. The intermediary issue does not involve any question as to the admissibility of evidence within subsection (3)(a). The only provision under which it could come would be section 31(3)(b): "any other question of law relating to the case".
9. The applicant contends that if it were the court's conclusion that without an intermediary throughout the applicant could not properly follow the evidence in the trial, then there would be a breach of his entitlement to a fair trial under Article 6 ECHR and section 6 of the Human Rights Act 1998. A ruling in breach of section 6 would, says Mr McDonald, be a ruling of law and thus fall within section 31(3)(b).
10. We disagree. The scope of what falls within that subsection is restricted and depends on the nature of the issue which the ruling decided. We have considered R v H [2007] 2 Cr App R 6, where this issue was considered. H was analysed in R v VJA [2010] EWCA Crim 2742 by Aikens LJ. The court there held that the question at issue had to "go to the root of the case" and relate to something more specific than the question of whether the judge had misdirected himself thereby vitiating his decision. We adopt gratefully Aikens LJ's analysis at paragraph 37:

"We think that, for the purposes of the present application, the following principles can be derived from Regina v H. First, the purposes set out in section 7(1), for which a preparatory hearing may be ordered, should be interpreted broadly and generously."

11. We pause to say that the references to sections 7 and 9 in this passage relate to serious fraud cases but are mirrored in sections 29 and 31 of the 1996 Act by provisions which are relevant to the present case.

12.

"Secondly, the orders that a judge may make 'as part of' a preparatory hearing proper are limited to the specific matters set out in section 9. Thirdly, the judge should make an order under section 9(3) only if he reasonably considers that to make such a ruling would also serve a useful trial purpose within one of the purposes set out in section 7(1). Fourthly, the scope of what falls within section 9(3)(c) ie. 'any other question of law relating to the case', is restricted. Whether a ruling falls within that provision depends on the nature of the issue which the order or ruling decides. Fifthly, section 9(3)(c) does not cover rulings on disclosure 'as such and without more'. The 'question of law relating to the case' must relate to something more specific than the question of whether the judge misdirected himself and so vitiated his decision. The questions of law have to go 'to the root of the case' of which Lord Mance gave some examples. Lastly, the Court of Appeal's jurisdiction to give leave to appeal under section 9(11) in respect of a determination made by the judge under section 9(3)(c) is limited to the types of question of law that fall within section 9(3)(c)."

12. Counsel's skeleton sought to rely on the decision of this court in R v SH [2003] EWCA Crim 1208, which of course precedes both H and VJA. Counsel contended that it showed that on an appeal relating to special measures required for a defendant who had a low IQ, the court accepted that it had jurisdiction to hear the appeal.
13. In that respect, he was in error. The court in VJA clearly held that it had no jurisdiction since it was clear that there was no valid preparatory hearing. What the court went on to say in SH about the need for adequate measures to enable an accused to follow the evidence and have a fair trial merely represented the court's obiter views, which it hoped would be of some assistance to the trial judge. The authority of SH does not assist the applicant in the way counsel contended for.
14. We do not consider that a ruling as to the provision of an intermediary is something which goes to the root of the case, even if tangentially it can be characterised as an issue of law. As the speeches in H make clear, many matters can be so characterised but that does not of itself bring them within the provisions as to preparatory hearings. As was recognised in H, a judge may make a ruling in the course of a preparatory hearing which falls outside the ambit of section 31(3) powers. The judge here stated as much and we think this was such a case. Accordingly, we hold that we do not have jurisdiction to entertain an appeal on this ground and refuse leave upon it.
15. For the sake of completeness, we record that the judge's reasons on this issue were comprehensive. He analysed with care the reports and live evidence given by Dr Hathaway, a Chartered Clinical Psychologist; Dr O'Mahony, a Chartered Forensic Psychologist; and an intermediary, Ms Smethurst. All of those officers were called on behalf of the applicant at a voir dire. Dr Lock, a Consultant Forensic Psychiatrist, gave evidence for the Crown. Dr Lock was of the view that no intermediary was required at all. The defence witnesses supported the use of an intermediary for the whole trial but acknowledged that different stages of a trial might give rise to different considerations.
16. In addition to that expert evidence, the judge watched video recordings of the applicant's interviews under caution. He took care in so doing not to substitute his own assessment for that of the experts but was clearly entitled to view the material. He took into account evidence as to the applicant's educational history and his age, now 19. He had regard to IQ assessments and after analysing the evidence given on this topic found that the applicant fell within the range of borderline low average/extremely low average (an IQ of 70 to 79). He noted that the applicant did not have a mental disorder or learning disability in Mental Health Act terms. He went on to consider whether there had been any specific evidence of difficulty in giving instructions. He noted the service of the defence statement and the absence of suggestion that the applicant was anything other than fit to plead, part of the test for which is the ability to engage with lawyers and make a proper defence.
17. he judge also went on to consider whether there was any evidence of significant impairment of intelligence and social functioning as referred to in section 16 of the Youth Justice and Criminal Evidence Act 1999, but said that on the evidence he had heard this added nothing to the question of learning disability.
18. The judge well understood that he had a power at common law to grant an intermediary to the applicant pending the bringing into force of section 33BA of the 1999 Act. However, his assessment, based on all the evidence, was that an intermediary was unnecessary for the whole of the trial process. He recognised, based on the evidence that he had heard, that because concerns about a potential for a degree of suggestibility under cross-examination existed it would be prudent to grant an intermediary in the event that the applicant gave evidence. Even in this, he considered that he was granting a degree of latitude to the defence.
19. The judge's conclusion, however, as to the remainder of the trial was that an intermediary was not required, and that he could deal effectively with the position of the applicant by exercising powers of trial management and taking account of recommendations made to him as to how those stages could be managed. He indicated an intention to keep the matter under constant and anxious review.
20. Although Mr McDonald has extensively reviewed the evidence in his written materials and has criticised the judge in the way indicated in his grounds, we are not persuaded that any arguable point arises. The judge, it seems to us, considered all relevant matters arising from the evidence and weighed them alongside other materials. As OP v Secretary of State for Justice [2014] EWHC 1944 (Admin) shows, there was no illogicality in restricting the use of the intermediary to a particular part of the trial where the applicant's vulnerability might be greater. This is a trial where the Crown's evidence is clear and relatively straightforward, with the only major issue being the applicant's state of mind when he purchased airline tickets. The Crown's case is unlikely to develop in a dynamic, difficult or unexpected way. The judge was also entitled to consider whether there was a need for an intermediary throughout, as opposed to whether one was merely desirable in a generalised sense.
21. Quite apart from the jurisdictional point already discussed, we are satisfied that the judge's ruling was not arguably wrong or irrational.
22. We next turn to the second ground of appeal relating to the admissibility of the applicant's answers in interview. The grounds advanced in relation to the applicant's first PACE interview are that the judge erred in failing to exclude the evidence of that interview. In particular, (a) having accepted that the applicant was in the category of borderline low average/extremely low average intelligence, it is contended that the judge was wrong to rule that he was not mentally vulnerable and that therefore no appropriate adult was necessary; and (b) in the light of all the evidence, including the expert evidence and an accepted breach of Code C of PACE, the judge's decision that the confession was reliable was unreasonable and clearly wrong.
23. In so submitting, Mr McDonald drew attention to section 76(2)(b) of PACE, which places a burden on the Crown to satisfy the judge to the criminal standard that the confession was not obtained in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession made in consequence thereof. The judge, having found that burden satisfied, also considered section 78 before admitting the evidence.
24. Mr McDonald, for the applicant, submitted that he was "mentally vulnerable" within the meaning of PACE Code C1.4 and Note 1G. He had been interviewed without either a legal representative or an appropriate adult and in the light of evidence which the judge had heard from the experts who had also given evidence in relation to the intermediary issue, the evidence of interview should have been excluded. In total the judge heard from some 12 witnesses. They did not include the applicant or the solicitor who later attended at the police station.
25. The judge found that a Police Sergeant Elliot had breached the PACE Codes by failing to give the applicant a written copy of his rights. She had, however, read them to him beforehand and the judge was satisfied that the applicant had been told of his rights on more than one occasion. He found that there was no evidence that the applicant had been mentally vulnerable at that time and that in any event the breach of the Code was insignificant. He took account of the fact that the applicant had been assessed as fit for interview by a doctor whilst in custody, although he accepted that the applicant might have been tired. As we have stated, in addition the judge had viewed the relevant video or videos of the interview.
26. Unlike the preceding issue, we do not think that there is any jurisdictional problem in relation to this ground. The judge was obliged to hold a preparatory hearing. The question of the interviews was an issue of the admissibility of the evidence. Indeed, without the evidence of the admissions said to have been made in interview, the Crown had little or no case against this applicant, so that the issue raised went to the very heart of the case. The essential question for us is whether the judge's ruling was wrong or clearly unreasonable.
27. The core of the defence argument before the judge was that the applicant's cognitive functioning was so substantially impaired that he was "mentally vulnerable" within the meaning of PACE Code 1.4. That provides that:

"If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered ... in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code."

Such a person would not normally be interviewed in the absence of an appropriate adult. No such person, nor indeed a solicitor, was present at the relevant interview. Note 1G provides that:

"'Mentally vulnerable' applies to any detainee who, because of their mental state or capacity may not understand the significance of what is said, of questions or of their replies."

28. In considering this issue, the judge heard from Dr Hathaway, Dr O'Mahony and Dr Lock, as well as a variety of police officers who had dealt with the applicant. Various points were taken. They included assertions of bad faith on the part of the police, which were ruled out by the judge, and which are not pursued before us for the purposes of this application. A point was raised as to the expertise of Dr Lock, a psychiatrist, and his ability therefore to give an admissible opinion in relation to IQ. In evidence, Dr O'Mahony accepted that Dr Lock could give a clinical assessment.
29. Importantly, as is it seems to us, the judge expressly held that the essential question in Dr Lock's case related to the weight to be given to his evidence. In that respect, what the judge said was echoed in a submission made by Mr McDonald this morning. We are not persuaded that there is anything in this discrete point.
30. We now propose to concentrate on two specific matters raised by counsel. The judge was critical as to the assessment of the applicant's IQ by the defence experts, which for reasons given he described as undisciplined. He thought that their position had changed so that eventually the applicant's IQ was put at a higher level than they had originally assessed. Having examined the evidence in detail and given reasons, the judge concluded that it would be arbitrary to put an absolute limit of 70 as the appropriate overall IQ score, as was ultimately suggested by the defence experts. He said, as indeed one of them had, that index scores were better expressed as a range. He also said that Dr O'Mahony's Verbal Comprehension index score in the range 66-77 was the most relevant.
31. Having considered both the defence evidence and that from Dr Lock, the Crown's expert, who put the applicant's IQ at a score of 80 to 90, the judge declined to make a precise finding as to the IQ score.
32. He went on, however, to say that the IQ score could not determine his decision on the wider concept of mental vulnerability. Having noted that no-one suggested that the applicant had a learning disability in Mental Health Act terms, the judge decided to approach his decision by reference to three aspects of the pre-interview procedures which had been focussed on in the course of argument. These were the giving of PACE rights, the question of fitness for interview, and the caution.
33. The judge reviewed the evidence in each of these areas and after ruling out answers which he held amounted to speculation, stated that he was sure that the applicant was told his rights in circumstances where there was no evidence that he was mentally vulnerable in the sense defined by the Code at the relevant time. He also found that the applicant was fit to be interviewed and additionally held that despite a degree of infelicity in the administration of the caution, the applicant understood it.
34. The judge also examined the content of the interview itself. Dr O'Mahony had been asked to consider it for signs of suggestibility but had found no such signs. He said that apart from some minor points the applicant's answers were reliable. In particular, he had no concerns about a lengthy passage where one of the central admissions is made. The judge therefore rejected arguments as to suggestibility in the course of the interview.
35. Looking at the matter in the round, the judge said that he was sure that the applicant was not mentally vulnerable within the meaning of the Code, so that no appropriate adult was required. For these reasons, the judge said that the Crown had discharged its burden under section 76(1B) and held that there was no unfairness which should result in an exclusion of the interview under section 78.
36. This morning, Mr McDonald has argued that the evidence that the confession was unreliable was strong and that with the burden being on the Crown to prove reliability, the judge should have excluded the interview.
37. We do not accept the contention made that because the judge, in ruling on the intermediary point had found that the applicant had the IQ level referred to, it necessarily followed that he fell within the Code definition of "mentally vulnerable". We have considered counsel's lengthy written submissions, as well as briefer oral submissions made today. It seems to us, without discourtesy to Mr McDonald, that in truth they amount to little more than disagreement with the judge's conclusions and an assertion that the judge should have accepted the evidence of the defence experts at its most favourable to the applicant, or indeed that the judge should have adopted arguments made below by Mr McDonald.
38. In our view, Mr McDonald's approach did not sufficiently acknowledge the need for a consideration of the evidence in the round in circumstances where the judge was critical of some of the defence expert evidence and where there was evidence to the contrary. Moreover, the submissions made do not recognise the need to show that the judge's conclusions were wrong. For our part, we consider that the judge's ruling was properly reasoned, took account of relevant matters, had in mind the correct legal test and resulted in a conclusion that was eminently sustainable. In those circumstances, there is no arguable point arising and we decline to give leave on this second issue.
39. Accordingly, the consequence of our conclusions is that this application must be dismissed on both grounds.