England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
His Honour Judge Katz QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2017

Lord Thomas of Cwmgiedd, CJ:

1. On 13 November 2015, the applicant was convicted at the Crown Court at Woolwich before HHJ Katz QC and a jury of two offences under s.5 of the Terrorism Act 2006, having earlier pleaded guilty to a count of fraud. He was sentenced to a total of five years' imprisonment. His application for leave to appeal against sentence was considered by this court, along with other cases and is reported under the name R v Kahar, reported at [2016] EWCA Crim 568. That application was refused as being without merit; the court concluded that the sentence was generously merciful to the applicant (see paragraphs 110-128 of the judgment).
2. His appeal against conviction has been referred by the Registrar to the Full Court. The grounds related to his capacity to understand questions at the police interview and, for similar reasons, not only questions at trial, but also the way the trial proceeded. The trial judge had permitted him to have an intermediary during his evidence, but he contended he needed an intermediary not only when he gave evidence, but also during the whole of the trial. It is therefore necessary to set out a summary of his educational attainment.

The factual background

His educational attainment: GCSEs and Middlesex University

3. The applicant is a British national, born 29 March 1996. He was 18 years old at the time of the offence.
4. He attended Alperton Comprehensive School from 2008 to 2012. When at that school, he passed 5 GCSEs (English Grade C, Mathematics Grade E, Geography Grade F, Religious Studies Grade D, Design and Technology G) He also obtained a BTech level 2 extended certificate in applied science. There was evidence in the school reports of the applicant's untruthfulness and lack of interest in learning. The Head Teacher of the school who was only vaguely familiar with the applicant gave evidence in relation to the school records which noted that on entry to the school he had needed support; he had not however required outside support.
5. He then went to Ealing College in 2012-2013 where he passed 6 GCSEs (Mathematics Grade C, Business Studies E, Physics Grade D, Chemistry Grade E, Biology Grade D and English Grade D)
6. He then went to Uxbridge College between 2013 and 2014 where he achieved the grade of unclassified at AS level Biology, Physics and Sociology.
7. He applied to Middlesex University to study electronic engineering with a certificate fraudulently altered to show the applicant's name. He was admitted on the basis of that false certificate.
8. The applicant became a student at Middlesex University in October 2014 and took out a student loan for £6,000. The senior lecturer in design engineering had provided two statements, one taken by the prosecution and one by the defence. He was not called. He had taught the applicant one class a week. The applicant had been quiet and was a weak and very poor student. The senior lecturer's assessment of the course work submitted by the applicant was that it would be "a pass" or of "a very poor standard". The applicant had understood some of what he had been taught, but not other parts. He had missed 4 of the 12 classes. There was nothing that suggested that the applicant needed additional academic support. He had got a low pass in mathematics. He was one of the weakest two or three students in the class of 17.

The facts relating to the allegations of terrorism

9. In or around November 2014 the applicant met Ibrahim Amouri, whom he knew from school, at the Wembley Mosque. Ibrahim introduced him to Khalid Abdul-Rahman and Swaleh Mohamed; the four were socialising regularly towards the end of 2014.
10. Various social media accounts in the applicant's name were used to view videos that glorified the violent activity of the terrorist organisation, the so called Islamic State (IS), and to post favourable comments beneath them. He maintained that his friends used his laptop, and that he was unaware of their activity.
11. On 25 February 2015 the applicant used the funds provided by his student loan to buy plane tickets to Morocco for his three friends and for Deqo Osman, who was married to Swaleh. On 26 February 2015 the applicant and his four companions flew to Morocco together.
12. While in Morocco the applicant changed his name on Facebook to Muhammad Al-Hazwani, and made a post stating that he wanted to give up his "life of comfort to a life of severe trials so that I may achieve a share of the hereafter seriously."
13. On 28 February 2015 the applicant talked with his father via Facebook, and falsely told him that he had gone on holiday in Morocco. On 3 March 2015 the group flew to Istanbul, and subsequently travelled by coach to Gazientep on the border between Turkey and Syria. Once there the applicant and his friends stayed at a safe house.
14. The applicant maintained that he was assured that they were travelling to an Islamic State, that is, a republic where they could follow Sharia law and avoid temptation and a bad life – his friends had been involved in drugs before they became religious. He claimed that he did not really know what IS actually was, and did not believe they were travelling to fight. When he watched the news and conveyed his doubts that Syria was safe, his friends told him that the news was made up.
15. On the applicant's account, while at the safe house in Gazientep his friends began behaving differently to how they had behaved before, and he started to disbelieve them. He also heard conversations from others indicating that Syria was not safe, and that people were going there to fight. His account was that he decided to return to the UK.
16. He therefore returned to Istanbul and on his father's advice attended the British embassy, where he was arrested by the Turkish police. He was put on a flight home on 31 March 2015, and was arrested by British police at Luton airport when he arrived at 11:00.

The police interviews

17. The applicant was then taken to and questioned at Paddington Green police station. The custody officer, Sergeant Elliott, opened a custody record and told him of his rights and entitlements, including the right to have somebody told of his arrest at that time, and the right to legal advice, both of which he declined. Sergeant Elliott acknowledged that while she read to him the leaflet entitled "Detained person's rights", she ought to have given him a copy to read as required by Code C, but failed to do so.
18. Sergeant Elliott did not consider the applicant to be mentally vulnerable within the relevant PACE Code of Practice and judged that no appropriate adult was required for the interview that followed. In her evidence, she stated

"I was able to engage with him. I was able to talk to the young man. He was not withdrawn. He was cooperating with me and answering my questions."

19. The applicant was subsequently given a medical examination by the police force Medical Examiner, Dr Lane, to determine his fitness for interview. Dr Lane found him to be open, talkative and communicative. Despite the natural tiredness of having just completed a flight, he deemed the applicant fit for interview, and decided that no appropriate adult was required.
20. In his first interview, which began at 15:49 and lasted just under two hours, the applicant made a number of statements that harmed the case he subsequently sought to present at trial, including describing IS as an "army" and saying he was going to join it. The prosecution contended that this amounted to a confession that he was going to Syria to fight for IS.
21. Following this interview the applicant changed his mind about wanting legal advice. A solicitor was called and arrived at 21:04. The applicant was then in conference with the solicitor from 21:59 to 23:19. The solicitor did not suggest any need for an appropriate adult. The interview was postponed until the following day.
22. In his subsequent interview on the following day, 1 April 2015, a solicitor was present. The applicant gave each question the answer, "no comment".

The preparatory hearing and the trial

23. It was the prosecution case that the applicant had become radicalised by his friends and it was their intention to travel to Syria and fight for IS. The acts alleged under s.5 were booking and paying for the flights for himself and his four friends. It was the applicant's case that he had acted under the influence of his friends and was unaware of the nature of IS or what they were doing in Syria. He maintained that his intention had simply been to go to Syria and live peacefully.

The ruling by the judge on the interview and the provision of an intermediary

24. The trial was fixed to begin on 5 October 2015. The applicant made two applications:

i) He sought to have his confession at his first interview ruled inadmissible as unreliable, arguing that he was mentally vulnerable as his cognitive functioning was substantially impaired and required an appropriate adult to be present.

ii) He sought to have an intermediary for the entirety of the trial.

25. The judge determined these applications at the preparatory hearing required for terrorism offences by s.29(1B) of the Criminal Procedure and Investigations Act inserted into that Act by s.16 of the Terrorism Act 2006. Although the hearing was estimated to last 2 days, it took substantially longer. It should not have done. As the judge was to observe, there had been a serious breach of the Criminal Procedure Rules as the experts had not met to determine what was agreed and what was not agreed. As the judge rightly made clear in his ruling, the approach of the experts was undisciplined. They strayed well beyond matters set out in their reports. During the course of the hearing, the judge conducted a voir dire which included watching the video recordings of the interviews, and in addition to hearing the expert evidence, he also heard evidence from the police officers. The applicant did not give evidence.
26. The judge gave two rulings:

i) On Wednesday, 7 October 2015 he held that an intermediary was only required if and when the applicant gave evidence. He set out his reasons in a clear and concise written ruling on 9 October 2015 to which we refer in more detail at paragraph 62 below.

ii) On Monday, 12 October 2015 he ruled the interview admissible and set out his reasons in a written ruling on 14 October 2015 to which we refer in more detail at paragraph 55 below.

The interlocutory appeal on 21 October 2015

27. On 21 October 2015, this court (Treacy LJ, Kenneth Parker J and HHJ David Aubrey QC) heard an application for permission to appeal against the rulings under s.35(1) of the Criminal Procedure and Investigations Act 1996. In their judgment reported under the name of R v R at [2015] EWCA Crim 1870 the court, in dismissing the appeals, held that:

i) The judge's ruling on the admissibility of the interview was properly reasoned, took account of the relevant matters, had in mind the correct legal test and resulted in a conclusion that was eminently sustainable.

ii) Although the court did not have jurisdiction to hear an appeal from the case management decision of the judge on the use of the intermediary, it did not disagree with the judge's decision.

28. The trial began before the jury on 26 October 2015 and concluded on 13 November 2015 when the applicant was convicted.

The grounds of appeal for the present application for leave to appeal

29. The grounds of appeal are set out in an excessively lengthy 31 page document. Unfortunately, prolix and unfocussed documents are becoming an increasing problem which needs to be addressed by effective measures to ensure that grounds of appeal are set out within a proper compass.
30. The grounds can be summarised in a few lines:

i) The judge should have excluded the interview as the appellant was mentally vulnerable within the meaning of the PACE code C1.4 and Note 1 G and an appropriate adult or legal representative should have been present during the interview.

ii) The judge should on the basis of the evidence have directed that an intermediary should be present for the applicant throughout the whole trial and not simply during the time the applicant gave evidence.

iii) The judge should have excluded the evidence of Dr Lock, consultant psychiatrist called by the Crown, as he was not qualified to give evidence in relation to the applicant's mental capacity.

31. Before considering the grounds of the appeal, it is necessary to set out the expert evidence as it was common to the three grounds of appeal.

The expert evidence

Dr Hathaway

32. A clinical psychologist, Dr Karen Hathaway, was instructed on behalf of the applicant. She examined the applicant on 17 April 2015. She wrote two reports dated 20 April and 8 June 2015.
33. Following a psychometric assessment of the applicant's cognitive functioning, she assessed his full scale IQ as 55, falling just inside the borderline range of intellectual functioning. This was much lower than would be expected for the general population and would indicate significant learning difficulties. His verbal comprehension index was assessed as 70. He was found to have impaired functioning on the Working Memory Index. However, Dr Hathaway warned that the applicant suffered from an undiagnosed eye condition, which may have exaggerated the results of the psychometric assessment.
34. Dr Hathaway also raised concerns about his suggestibility and compliance, noting a concerning tendency to yield to leading questions and to change his answers in response to negative feedback. She also concluded that the applicant presented "as more able than he actually is." This gave cause for concern about the police interview and would make him vulnerable when giving evidence in court.
35. In her evidence on the voir dire and before the jury Dr Hathaway adjusted her estimate of the applicant's IQ, particularly in light of his status as a university student and his potential visual problem, altering it to a score of 65 to 70. She also took issue with the conclusion of Dr Lock, the forensic psychiatrist instructed by the prosecution, in assigning a higher IQ score without conducting any tests of his own.
36. She maintained that the applicant had only passed the GCSEs at a re-sitting after he had undergone private tuition. The applicant had a low cognitive function and would struggle to understand the evidence at trial and needed an intermediary. He had a tendency to go along with what he did not understand. He would struggle with large quantities of information being provided at any one time.
37. In her report of 8 June 2015, Dr Hathaway stated that the applicant would be unable to participate in the trial unless he was supported by an intermediary, though she acknowledged in her evidence that there might be different considerations at different stages of the trial.

Dr O'Mahony

38. The applicant also instructed a forensic psychologist, Dr Brendan O'Mahony, who was in independent practice and a registered intermediary who has sat on the Ministry of Justice panel for the recruitment of registered intermediaries. Dr O'Mahony examined the applicant on 24 August 2015. Based on two interviews conducted with the applicant, and the contents of Dr Hathaway's report, Dr O'Mahony concluded that an appropriate adult should have been present at the police interviews. Although the applicant was fit to stand trial, he considered an intermediary assessment should be undertaken.
39. Analysis of the first police interview showed that the applicant was generally able to assert himself appropriately. However, there were a number of examples of miscommunication that could have been corrected by an appropriate adult.
40. Although he agreed with Dr Hathaway that the applicant presented as more able than he actually was, Dr O'Mahony concluded that any tendency to yield to leading questions was not a significant issue in the first police interview. His answers were generally reliable, particularly his free narrative.
41. In his evidence on the voir dire he explained in answer to a question from the judge that IQ was better expressed as a range. He agreed with Dr Hathaway's adjusted opinion that the range was 65-70. The verbal comprehension index score was better expressed as 66-77. He also supported the use of an intermediary.

Dr Lock

42. The prosecution instructed a forensic psychiatrist in private practice, Dr Martin Lock. In the light of the third ground of the appeal, it is necessary to summarise his experience before summarising his evidence. Dr Lock had begun his hospital work in psychiatry in 1989. His experience included a six month attachment at a medium secure unit for patients with learning disabilities. After being a consultant at Three Bridges Regional Secure Unit of the Ealing Hammersmith and Fulham NHS Trust from 1998 to 2002, he had been a medical member of the Mental Health Review Tribunal (now First Tier Tribunal) since 2003 and was in private practice. His evidence was that as the medical member of the Tribunal he dealt all the time with people of limited intellectual functioning and was well used to assessing IQ reports from psychologists.
43. He saw the applicant on 15 September 2015 and wrote two reports respectively dated 18 and 28 September 2015. He concluded that the intellectual assessment carried out by Dr Hathaway was a significant underestimate of the applicant's true IQ. Dr Lock placed particular emphasis on his apparent progress on the university course at Middlesex University.
44. Dr Lock also considered the report of Dr O'Mahony, and concluded that the "accurate and pithy explanations [by the applicant] of what various terms meant" was incompatible with someone having an IQ of 55.
45. Dr Lock did not perform psychometric tests of his own. He noted that as a psychiatrist rather than a psychologist, he was not trained to do so. However, examining all the evidence in the round, including his interviews with the applicant, the previous assessments, his educational history and the statements of his family and the senior lecturer, he concluded that the true IQ of the applicant was likely to be well above 70 but below 100. He would put it in the range 80-85.
46. Dr Lock also concluded that the applicant was not under any form of disability during the first police interview; no appropriate adult was necessary. The applicant did not appear to make admissions he would not otherwise have done if an appropriate adult had been present. However, Dr Lock's expert report did not directly address the question of mental vulnerability. He also concluded that the applicant was fit to stand trial. He recorded that he had been told by the applicant that he had so far understood everything that had happened. Every effort should be made to ensure that he understood everything, but no intermediary was required.
47. Dr Lock's evidence on the voir dire and at the trial was that the applicant was not significantly impaired. This went to the question of mental vulnerability. Looking at the recording of the police interview, there was no evidence of suggestibility, compliance or acquiescence. His evidence on the voir dire was that the applicant's IQ was likely to be between 80 and 90. Assessment of IQ was narrower than an assessment of cognitive functioning. When he had interviewed the applicant he had generally understood the questions and when he had not, he had asked for clarification.

Alex Smethurst

48. The applicant also instructed Alex Smethurst, an intermediary for Triangle, an organisation that provides intermediaries. She had obtained degrees in forensic psychology in 2013-4. She concluded in a report dated 24 August 2015, based on Dr Hathaway's assessment of the applicant's IQ as 55, that the applicant had a range of difficulties affecting concentration and communication, including an inability to process complex sentences, a limited understanding of non-literal concepts and suggestibility. As a result an intermediary would be likely to improve the quality of the evidence he gave, and should be present for the duration of the trial, to assist the applicant when meeting with his defence team and reviewing the day's evidence.
49. Her report set out suggestions on communicating and questioning - the avoidance of tag questions, using short sentences, using easy to understand language, ensuring that questions and sentences were grammatically simple, using open ended prompts to elicit further information and avoiding the use of tone of voice to imply an answer.

The evidence at trial relating to mental vulnerability

50. At the trial, it was contended on behalf of the applicant that the jury should not take what was said in the interview into account. It was said to be unreliable, as the applicant was mentally vulnerable and the police had taken advantage of this. The jury were directed by the judge therefore that they had to be sure that any admissions made in the interview were made voluntarily and were reliable. Dr O'Mahony did not give evidence for the applicant, only Dr Hathaway. Dr Lock gave evidence for the prosecution.
51. In the light of the experience at the preparatory hearing the judge rightly directed that Dr Lock and Dr Hathaway prepare a short note for the jury on the issues upon which they were to give evidence so that the issues were properly focussed for the jury. In that note, they agreed what was meant by cognitive function and mental vulnerability; that IQ tests were a measure of intelligence which was part of cognitive functioning but the test would not comprehensively asses all cognitive functions.
52. The note also briefly summarised their respective cases on whether the applicant was mentally vulnerable. Dr Hathaway's position was that his IQ was 70, and Dr Lock's view was that this was about 80. Dr Hathaway considered that an appropriate adult should have been present as his mental capacity was such that he might not have understood the significance of what was being put to him. Dr Lock's position was that there was no need for an appropriate adult, as the applicant was not intellectually impaired and did not have any condition which would result in him not understanding what was put to him. Their evidence to the jury amplified their positions. It was concisely summed up to the jury.
53. The jury also heard evidence in relation to the applicant's condition from the police officers and Dr Lane, the police force Medical Examiner to whom we have referred at paragraph 19.

Ground 1: Failure to exclude the interview

The submission of the applicant

54. It was the submission of the applicant that the confession should have been excluded under s.76 (2)(b) of PACE as the circumstances existing at the time made it unfair to admit it. The matters relied on were (i) the low IQ and mental vulnerability of the applicant; (ii) the failure of the police officers to appreciate his mental vulnerability within PACE Code C1.4 and Note 1G; (iii) the failure to have an appropriate adult present; (iv) the applicant's tiredness and poor cognitive functioning making it difficult for him to understand the questions; (v) the failure of the custody sergeant to ensure that the applicant understood his rights; (vi) the breaches of PACE Code C and D.

The judge's ruling at the preparatory hearing

55. The judge in the clear and well-reasoned ruling to which we have briefly referred at paragraph 26.ii) first rejected the contention made on behalf of the applicant that there had been bad faith on the part of the police. There was nothing in the point; the police had acted entirely honestly.
56. The judge set out his views on the expert evidence, recording his disquiet that neither Dr Hathaway nor Dr O'Mahoney had told the court at the outset of the evidence that the IQ score of 55 had been abandoned.
57. His decision turned on whether the prosecution had made him sure that the applicant was not mentally vulnerable, taking into account the opinion evidence in relation to cognitive functioning and which included IQ as an important component. The custody sergeant had not given the applicant the written leaflet about his rights as she should have done, but the breach was insignificant. The judge was satisfied that the applicant's rights were fully explained to him, as was the central allegation against him, that he had gone to train and fight with terrorists – namely IS. He could not have been in any doubt as to what was alleged against him. There was no evidence he was mentally vulnerable at the time. The judge accepted the evidence of Dr Lane that the applicant was fit for interview. On the evidence, he was sure the applicant understood the caution. After a review of all the evidence including viewing the video tapes of the interviews, he was satisfied that the applicant understood both the significance of what was said and the questions themselves. The judge was sure that the applicant was not mentally vulnerable and no appropriate adult was required. As to the discretion to exclude the evidence, he had concluded that there was no unfairness in admitting the interview.

Our conclusion

58. As we have set out at paragraph 27, this court had already determined the issue of admissibility of the interview on the interlocutory appeal brought by the applicant. It was not open to the applicant to re-open that issue as the question of the admissibility had been determined by this court. The applicant's advocate, having made the decision to contest the correctness of the ruling on admissibility by way of the interlocutory appeal from the ruling at the preparatory hearing, took a course that was open to him. The decision of this court on the interlocutory appeal determined the issue of admissibility. That is the end of the matter.
59. If the evidence was admissible in law and the judge was right in the exercise of his discretion in allowing it to be admitted, as this court had then determined, then it was evidence admissible before the jury. It was for the jury to determine, in the light of all the evidence called before the jury, whether the admissions were voluntary and reliable; and if so, it was for the jury to decide what weight to attach to them. There is no complaint about the judge's direction to the jury; nor could there be to the judge's admirable clear summing-up. We therefore refuse leave on this ground.
60. We should record that in any event, our view is that the decision of this court on admissibility was plainly correct. The judge had conducted the voir dire with great thoroughness and had produced a ruling that was amply justified and cogently reasoned. If the matter had not been determined already by this court on the interlocutory appeal, we would have reached the same conclusion for the same reasons.

Ground 2: An intermediary should have been available throughout the trial

61. Although this court considered the issue in relation to the intermediary in the earlier appeal, there was no jurisdiction finally to determine the issue, as the court explained at paragraphs 8-15 of the judgment reported at [2015] EWCA Crim 1870. The court expressed its view at paragraphs 16-22 that no arguable point was raised in relation to the contention that an intermediary should be provided for the whole of the trial. As the court had held it had no jurisdiction, its view is not binding though as we set out at paragraph 79, it reinforces our view that there is a clear distinction between cases where an intermediary is needed during the defendant's evidence and where the intermediary is needed for the whole trial. We have considered and determined the matter entirely afresh. We agree with the view that no arguable point arises.

The ruling by the judge

62. As we have mentioned at paragraph 26.i), the judge ruled that an intermediary was only required during the time the applicant gave his evidence. The applicant was 19. The judge set out the evidence of the applicant's education which we have summarised at paragraphs 4 to 8 above.
63. In making his assessment, the judge assumed that the IQ score was not as high as Dr Lock had said, but was 70-79, within the range of borderline low average. There was agreement that the IQ score was not ultimately determinative, although it was an important part of the assessment of cognitive function. All the experts agreed that the applicant did not have a learning disorder nor a learning disability within the terms of the Mental Health legislation. Therefore, under Crim PD 3D. 1 the applicant did not qualify for special measures under that heading. The judge had specific regard to Crim PD 3D. 2 (as then in force):

"However, many other people giving evidence in a criminal case, whether as a witness or defendant, may require assistance: the court is required to take 'every reasonable step' to encourage and facilitate the attendance of witnesses and to facilitate the participation of any person, including the defendant (Rule 3.8(4)(a) and (b)). This includes enabling a witness or defendant to give their best evidence, and enabling a defendant to comprehend the proceedings and engage fully with his or her defence. The pre-trial and trial process should, so far as necessary, be adapted to meet those ends. Regard should be had to the welfare of a young defendant as required by section 44 of the Children and Young Persons Act 1933, and generally to Parts 1 and 3 of the Criminal Procedure Rules (the overriding objective and the court's powers of case management)."

He concluded there was no evidence of specific difficulty in taking instructions from the applicant. As to Crim PR part 18, there was no significant impairment of intelligence and social functioning.

64. The judge considered that he could deal with the recommendations set out in the report of Ms Smethurst which we have fully summarised at paragraph 49 by trial management rather than having an intermediary sit in the dock whilst the prosecution called their evidence. Having seen the police interviews and watched the applicant during the preparatory hearing and considered the whole of the evidence, he had no concerns that required the use of an intermediary whilst the prosecution was calling its evidence.
65. However, as the applicant might have a degree of suggestibility, he decided to be perhaps overgenerous and hold that, when the applicant came to give evidence, he would meet the test for the examination of a defendant through an intermediary in what were the provisions of s.33BA of the Youth Justice and Criminal Evidence Act 1999 (as inserted by the Coroners and Justice Act 2009), if and when those provisions came into force.

The contentions of the applicant

66. At the core of the submissions made on behalf of the applicant to us was the submission that the judge had been wrong to reject the evidence of the experts - the two psychologists and the intermediary. He should not have substituted his own views for those of the experts. He was wrong to have placed weight on his own observations from the video of the applicant being interviewed.
67. It was also submitted that it was illogical for the judge to have provided for an intermediary whilst the applicant was giving evidence, but not for an intermediary during the rest of the trial, particularly in the circumstances of the present case where the applicant had a borderline low or extremely low intelligence. His position was directly comparable to that of a person who did not speak English and required an interpreter to be able to understand what was happening in a language which was foreign to him.
68. The courts had been wrong to restrict the use of an intermediary for a defendant. The better view had been expressed by The Law Commission in their Report Unfitness to Plead (Law Com No 354), January 2016.

The approach to appointing an intermediary in this case

69. The statutory power to appoint an intermediary for a defendant giving evidence under s.33BA of the Youth Justice and Criminal Evidence Act 1999 (to which the judge referred in his judgment as set out at paragraph 65 above) is still not yet in force. The power of a judge is therefore governed by the inherent power of the court at common law.
70. The judge was in our view correct in analysing the need for an intermediary at the different stages of a trial and was right in his decision that an intermediary was only required during the time the applicant was giving evidence, overgenerous though (as the judge recognised) that might be.

The judge's assessment of the mental capacity of the applicant

71. The judge first determined the level of mental capacity of the applicant. In our view he was plainly entitled to determine that on all the evidence before him, including the applicant's educational background, his own observations of the applicant and the video of the interview. He was not in any way bound to accept the conclusion of the experts, even if that had been agreed. We therefore reject as misconceived the submissions of the applicant's advocate that the judge had to make his decision solely on the basis of expert evidence and could not use his own observations in relation to the applicant or the other evidence, including the applicant's educational attainment. In any event in this case, the experts were not agreed. As we explain at paragraphs 89 and 90, the contention that Dr Lock was not competent to give evidence was a hopeless point. The judge therefore had to attach such weight to the evidence of all the experts as he judged appropriate. His findings on the whole of the evidence were findings that were plainly open to him; his conclusions were cogently reasoned and supported by the evidence. The criticism made of them is totally without merit.

The assessment of the needs of the applicant

72. Having determined the mental capacity of the applicant, the judge then considered what the applicant needed at different stages of the trial. What was set out in that part of the report of Ms Smethurst which we have fully summarised at paragraph 49 was a helpful guide to him. Although the judge made a reference to Crim PD 3F (which specifically covered intermediaries), he did not base any part of his decision on it. That section of the Practice Direction as now in force contains significant amendments made in March 2016.

The inherent power of the court

73. In circumstances where that amended Practice Direction was not in force at the time of the trial and the judge did not base his decision on the version then in force, it is necessary for us to determine the position as it was under the inherent powers of the court to assist the defendant give best quality evidence, participate in his trial and and receive a fair trial. In the overwhelming majority of cases, competent legal representation and good trial management will provide this. There may be rare cases where what is provided by competent legal representation and good trial management is insufficient because of the defendant's mental or other disability. What may then be required is an intermediary. The courts have, through their decisions developed under their inherent powers, the ability to provide an intermediary where such an intermediary is necessary. It has proved a valuable development of procedural law. The courts are greatly indebted to intermediaries and to those, particularly through their research, who have laid the groundwork for this development of the procedural law by the courts in a manner that has been so beneficial.
74. The case law that sets out the basic power of the court to appoint an intermediary for a defendant is helpfully set out in the judgment of Openshaw J in R (C) v Sevenoaks Youth Court [2009] EWHC 3088 Admin at paragraph 12-18) where he concluded:

"..there is nothing in the Waltham Justices case, whether it be rightly or wrongly decided, which prevents the court from appointing an intermediary for a defendant pursuant to its common law powers, and accordingly the justice's clerk was, in my judgment, in error, to think that the Waltham Justices case required him to deny the services of an intermediary to C."

75. The use of that power has been considered in relation to defendants principally in two cases, in addition to the observations in the interlocutory appeal in this case. The first case was R v Cox [2012] EWCA Crim 549, [2012] 2 Cr App R 6 at paragraphs 28-30 where in the circumstances of that case no intermediary had been provided. After referring to the discretionary nature of the powers both under statute and under the courts' inherent jurisdiction and after acknowledging the valuable contribution that intermediaries can make, the court continued by saying at [29].

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

The need to distinguish between two types of assistance required

76. In the second case, R (OP) v Ministry of Justice [2014] EWHC 1944 (Admin), the Magistrates' Court had ordered that the defendant who had a significant learning disability and Asperger's syndrome should be provided with an intermediary who should be a Registered Intermediary if available. The Ministry of Justice would not provide a Registered Intermediary through the Witness Intermediary Scheme it operated for Registered Intermediaries; it thought that what was being ordered was an intermediary for the whole trial. The Divisional Court (Rafferty LJ and Collins J) held that what was needed when the defendant gave evidence was a Registered Intermediary, but such an intermediary was not needed during the whole of the trial. Rafferty LJ in giving the judgment of the Divisional Court helpfully distinguished two distinct needs during a trial:

"34 …The first is founded in general support, reassurance and calm interpretation of unfolding events. The second requires skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant's evidence.

35 The first is a task readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial. In play are understandable emotions: uncertainty, perhaps a sense of territorial disadvantage, nervousness and agitation.

36 The second requires developed skills of the type contemplated by inclusion in the [Witness Intermediary] Scheme. The most pressing need for the help of an intermediary self-evidently bites at the point of maximum strain, that is when an accused should he do so elects to give an account of himself by entering the witness box and submitting to cross-examination."

77. She concluded at paragraph 41:

"We are not persuaded that it is essential a [Registered Intermediary] be available to all defendants for the duration of their trials. In many instances the provision of help centred upon the cast of mind and life experience we have described are likely to prove sufficient. The pinch point is at the giving of evidence when in our view it is unarguable that an individual in jeopardy should be put in the best position to do himself justice."

78. The Law Commission in their Report Unfitness to Plead (Law Com No 354), January 2016, agreed at paragraph 2.48 with the distinction made by Rafferty LJ. The Commission accepted that the type of person described in paragraph 35 of her judgment would not require an intermediary, but considered that an intermediary would be required for the whole trial for defendants who had various identified disabilities such as dissociative identity disorder or a significant learning disability combined with, for example, extremely limited working memory or Attention Deficit Hyperactivity Disorder: see paragraphs 2.49 – 2.54.
79. In our view, the court in OP was right in stating that there are plainly two distinct types of assistance which may be required. Courts after determining the mental capacity of the defendant must therefore distinguish between them in determining what is necessary for the particular defendant. This has been the view of judges of great experience in the cases to which we have referred and it was the view of the differently constituted court that heard the interlocutory appeal in this case (reported at [2015] EWCA Crim 1870 under the name of R v R). That view was reflected by Parliament in 2009 when it inserted s.33BA into the Youth Justice and Criminal Evidence Act, as it provided for an intermediary only for the evidence of the defendant.

The duties of the competent advocate and of the court

80. In considering what is needed in a particular case, a court must also take into account the fact that an advocate, whether a solicitor or barrister, will have undergone specific training and must have satisfied himself or herself before continuing to act for the defendant or in continuing to prosecute the case, that the training and experience of that advocate enabled him or her to conduct a case in accordance with proper professional competence. Such competence includes the ability to ask questions without using tag questions, by using short and simple sentences, by using easy to understand language, by ensuring that questions and sentences were grammatically simple, by using open ended prompts to elicit further information and by avoiding the use of tone of voice to imply an answer. These are all essential requirements for advocacy whether in examining or cross-examining witnesses or in taking instructions. An advocate would in this court's view be in serious dereliction of duty to the court, quite apart from a breach of professional duty, to continue with any case if the advocate could not properly carry out these basic tasks.
81. A judge must therefore make the assessment of what type of assistance is required on the basis that that proper level of professional competence from an advocate is available. There is no suggestion whatsoever in the present case that either the applicant's advocate, or the advocate for the prosecution, lacked such competence; indeed they self-evidently displayed such competence. If it transpired that either advocate lacked that competence, providing an intermediary for the defendant for the whole trial is not the remedy, as it is simply imposing significant extra costs on the administration of criminal justice that should be provided by competent advocacy. The remedy is to inform those responsible for instructing the advocate respectively for the Crown Prosecution Service or for the defence, or if the defence advocate has no one responsible for instructing that advocate, the legal aid authorities who bear the ultimate and real responsibility for ensuring that it will only authorise a representation order for those actually competent to conduct the case in question.
82. In the present case, as is no doubt the position in all but the rarest case, the advocates were, as an ordinary part of their duties as competent advocates, able to do what was needed so that the applicant was fully able to participate in every aspect of the trial (when no intermediary was present) until the applicant gave evidence. In the event that one of the advocates asked a question that was too complex or tagged, then the judge as part of the usual trial management by any judge would have intervened to correct the error.

The decision by the judge on the need for and role of the intermediary

83. Thus when exercising the inherent powers of the court at common law, the judge in October 2015 made an assessment of the extent of the disability or impairment of the applicant, and proceeded to exercise his power on the basis of the distinction set out in OP between the different type of assistance that might be required. In our judgment he considered all the relevant matters, including the scarcity of intermediaries and of other resources, and came to a conclusion that was unimpeachably correct in determining that an intermediary was only required when the applicant gave evidence.
84. There can be no doubt that the order made by the judge for an intermediary during the giving of the applicant's evidence was, for the reasons we have explained, the most common form of order in what, amongst the considerable volume of cases dealt with in the criminal courts, is the rare case where the threshold of disability is crossed such that an intermediary is required when the defendant gives his evidence. For the reasons we have given, cases in which an order will be made for an intermediary to be present for the whole trial will be very rare.
85. The judge said that he would keep the position under review. It is clear that during the course of the trial there was nothing that showed his decision was wrong. We were told the applicant gave his evidence fluently and the intermediary intervened three times. There was nothing whatsoever which showed that an intermediary was required at any other time.
86. Thus we conclude that there is no merit in this ground of appeal. The court on the interlocutory appeal did not regard the decision on this issue as arguably wrong. We take the same view. It therefore follows that leave to appeal should be refused.

The amendment to the practice direction in April 2016

87. As we have mentioned, the Criminal Practice Direction was amended in April 2016. It sets out the procedure to be followed which reflects the position at common law before the Direction was made.

"3F.11 Statutory provisions providing for defendants to be assisted by an intermediary when giving evidence (where necessary to ensure a fair trial) are not in force (because s.104 Coroners and Justice Act 2009, which would insert ss. 33BA and 33BB into the YJCEA 1999, has yet to be commenced).

3F. 12 The court may direct the appointment of an intermediary to assist a defendant in reliance on its inherent powers (C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin)). There is however no presumption that a defendant will be so assisted and, even where an intermediary would improve the trial process, appointment is not mandatory (R v Cox [2012] EWCA Crim 549). The court should adapt the trial process to address a defendant's communication needs (R v Cox [2012] EWCA Crim 549) and will rarely exercise its inherent powers to direct appointment of an intermediary.

3F.13 The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant giving evidence or for the entire trial. Terms of appointment are for the court and there is no illogicality in restricting the appointment to the defendant's evidence (R v R [2015] EWCA Crim 1870), when the 'most pressing need' arises (OP v Secretary of State for Justice [2014] EWHC 1944 (Admin)). Directions to appoint an intermediary for a defendant's evidence will thus be rare, but for the entire trial extremely rare.

3F.14 An application for an intermediary to assist a defendant must be made in accordance with Part 18 of the Criminal Procedure Rules. In addition, where an intermediary report is available (see 3F.4 above), it should be provided with the application.

3F.15 ...

3F.16 Arrangements for funding of intermediaries for defendants depend on the stage of the appointment process. Where the defendant is publicly funded, an application should be made to the Legal Aid Agency for prior authority to fund a pre-trial assessment. If the application is refused, an application may be made to the court to use its inherent powers to direct a pre-trial assessment and funding thereof. Where the court uses its inherent powers to direct assistance by an intermediary (during evidence or for the entire trial), court staff are responsible for arranging for payment from central funds."

88. If the Practice Direction had been in force at the time, and if the judge had followed it, he would have been acting in full accordance with the inherent powers of the court. There would therefore have been no difference in his approach or the result of the application for an intermediary.

Ground 3: Evidence of Dr Lock should have been excluded

89. As the judge recorded in his ruling on the need for an intermediary, counsel for the applicant intended to submit that Dr Lock as a psychiatrist rather than a psychologist could not give admissible evidence on IQ. Dr O'Mahoney did not support this submission; counsel did not therefore pursue the point on that application, but did, as the ruling on the admissibility sets out, seek to revive the contention that not merely was Dr Lock unable to give evidence on IQ but also on cognitive functioning. This submission included a contention that psychiatrists could not give evidence on such matters and in any event Dr Lock did not have the experience necessary to make such an assessment.
90. As the judge recorded, this was not a submission that had any evidential basis as Dr O'Mahoney had refused to support it. It was therefore a submission that should not have been pursued before the judge. It certainly should not have formed the basis of a ground of appeal, as it is a hopeless point without any merit. It was wrong in any event to attack the experience of Dr Lock; he plainly had the necessary experience. We accordingly refuse leave on this ground.

Conclusion

91. We have carefully considered the whole of the evidence, including the evidence before the jury on which they assessed the voluntary nature and reliability of the admissions which the prosecution contended amounted to a confession. In our judgement the evidence plainly entitled the jury to conclude that the admissions were made voluntarily and were reliable. Moreover, there is absolutely nothing to suggest that the applicant was unable to participate in full in his trial, and understand all that took place. The judge had plainly been entitled to conclude on the evidence prior to the trial that the applicant did not need an intermediary whilst the prosecution evidence was called. He had an intermediary when giving his evidence; that, as the judge said, may have been over-generous. There is nothing in what subsequently occurred that shows that an intermediary was needed at any other time.
92. The conviction is safe. The application is refused.