England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NEWCASTLE
HIS HONOUR JUDGE BATISTE
Case No. T20180102

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/10/2019

Lord Justice Hamblen :

Introduction

1. On 19 September 2018, in the Crown Court at Newcastle before HHJ Batiste, the appellant was convicted of two counts of abducting a child, contrary to s.2(1)(b) of the Child Abduction Act 1984 ("the Act") (counts 2 and 3). He appeals against conviction by leave of the single judge.
2. On 14 November 2018, before the same Court, a Community Order for 18 months was imposed with a rehabilitation activity requirement attached. A Restraining Order was also imposed and the appellant was ordered to pay the relevant Victim Surcharge.
3. His co-accused Philip Towart was similarly convicted on counts 2 and 3 and sentenced to an 18-month Community Order. He was acquitted by the jury on a charge of sexual assault (count 1).

Reporting Restrictions

4. The provisions of s.45 Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victims are under 18 years of age.
5. An order under s.45A (restricting reporting for the lifetime of the victim) was made in relation to the above-mentioned victims in proceedings in the Crown Court. We make an order in the same terms as that made in the Crown Court and the judgment shall be anonymised accordingly.

The Outline Facts

6. On 24 January 2018, during the school lunch break, C and S (both aged 13) voluntarily absented themselves from the Bede Academy in Blyth, South East Northumberland. They were in the company of two other girls, E and K. Having left the school building via the front gates, C telephoned Towart (then aged 18) whom she may have considered her boyfriend. The girls' decision to leave school was a spontaneous response to bullying within the school and the decision to call Towart was not pre-planned.
7. Towart met the girls at some nearby shops. He was in the company of the appellant (then aged 20). The group now comprised six individuals. They walked the relatively short distance to the Goose Fields and the adjoining wooded area known as The Heap. How precisely they made the journey, with whom leading whom and why, were central to the charge and the exploration of the facts at trial. At The Heap, the appellant walked away from the group, alone into the woods, but later returned to the group. Having been notified of her daughter's absence from school, S's mother found the group in the woods. She was angry and shouting. Towart and the appellant departed the scene and were arrested later that day.
8. It was not disputed that the actions of Towart and the appellant had placed them in breach of a prohibition contained in a Child Abduction Warning Notice (CAWN) each had been served two days prior on 22 January 2018. Their respective CAWNs had expressly prohibited them from having contact with C and S.
9. The Prosecution case was that once the girls had left the control of the school, Towart and the appellant agreed to meet them and once with them, Towart and the appellant were wholly or partly responsible for the decision to go to The Heap and were involved in leading and taking them to the Heap. It was agreed that Towart and the appellant were not responsible for causing the girls to leave the school premises.
10. As evidence of abduction, the prosecution relied in particular upon the following:

(i) The appellant went to meet the two victims after they had truanted from school.

(ii) The appellant invited them to his flat.

(iii) The appellant was armed with a scraper or chisel in case C's father saw him.

(iv) He was wearing three pairs of trousers and two jackets that he could use as a disguise when he met the victims.

(v) The appellant and Towart led the two victims to an isolated woodland area.

(vi) The appellant and Towart had been served with CAWNs relating to the victims three days prior to the offending; the CAWNs included a prohibition against being in their company.

11. The appellant's case was that he did not lead the girls to The Heap. He had walked away from the girls in order to get away from them and they had chosen to follow him.

The Evidence at Trial

12. For the prosecution C gave evidence that she had met Towart through a friend some three weeks prior to 24 January 2018. They had met a few times and were in regular contact through text message. She also gave evidence concerning the allegation of sexual assault the subject of count 1 charged against Towart on which he was acquitted by the jury.
13. On 24 January 2018, she, along with E, K and S, decided to leave school because people had been talking about her. Once she had left school, she called Towart; earlier that day she had heard he might kill himself. She told him she had left school. She mentioned they were near The Broadway and he said he was nearby and so they arranged to meet. Until making that call, she had not intended to meet him and did not know he was in the company of the appellant.
14. She had a conversation with Towart, he showed her a weapon he had in his belt in case he saw her dad.
15. The group then walked around Blyth for an hour or an hour and a half. She did not know where they were going; she just followed Towart and the appellant. Towart and the appellant were mostly in front of them and led them to The Heap. When they were in the wooded area, Towart picked up a metal pole and began hitting a tree, he said, "This will be your dad", as if the tree was her father.
16. In the wooded area, Towart sat on a fallen tree. The appellant walked off further into the forest. He was about 20 metres away and S went to see what he was doing. He was away from the group for about five minutes. The group were by the fallen tree for some twenty minutes until S's mother arrived.
17. In cross-examination on behalf of the appellant, she agreed she had been to The Heap before and demonstrated the route taken on a plan. She maintained it was Towart and the appellant's idea to go to The Heap. She only recalled the appellant asking Towart how old the girls were; she did not remember him saying anything else.
18. S (video interview played) gave evidence that the girls had left school as they were being bullied by older children. C had called her boyfriend, Towart and arranged to meet him. The girls met with Towart and the appellant at The Broadway. The appellant had suggested the group go to his flat but the girls refused. K decided they should go to The Heap. The group walked there with Towart and the appellant leading the way. The walk took some fifteen or twenty minutes. The appellant had a wallpaper scraper with him and gave it to Towart. Towart used it to hit a tree and said, "C, this is for your dad."
19. In the wooded area, the appellant picked up a pole and used it to hit a tree. He then left the group for some five minutes and she and K went to look for him. He was changing his trousers and his appearance. The appellant told them he wore three pairs of trousers so he could change them if someone saw him and he also had two jackets.
20. In cross-examination she stated it had been E's idea for C to call Towart and confirmed it was K's idea to go to The Heap; K had thought it was a good place to hide whilst they were not in school. She conceded she could not recall if the appellant had invited the girls to his flat on that day.
21. V, S's mother, gave evidence that she was aware her daughter had previously associated with Towart and the appellant. She was aware the police were intending to serve a warning notice on Towart and the appellant prohibiting them from contact with her daughter. She gave evidence of her efforts to locate her daughter after she had been reported missing from school on 24 January 2018.
22. E was part of the group of girls on the relevant day. She had left school with C and S. C had called Towart; E did not hear the conversation. Towart and the appellant met them at The Broadway. Towart and the appellant suggested they walk down back alleys so they would not be found. They all arrived at a wooded area at the same time. In the woods, Towart took a screwdriver from a bag and started stabbing a tree; he threatened C's father and the witness' mother. Towart and the appellant picked up large pieces of metal and said they were going to hit the police; she (the witness) wanted to leave but did not want to leave her friends on their own.
23. In cross-examination she stated it had been C, Towart and the appellant who had decided they should use back alleys to get to the wooded area. She agreed that she could have left at any time but stayed as she was worried about the other girls.
24. L, C's mother, confirmed she had not given her daughter permission to have any contact with Towart or the appellant.
25. Police Constable Preston, whose statement was read, gave evidence that he had served two CAWNs on the appellant on 22 January 2018. The CAWNs related to C and S.
26. Sergeant Mulligan, the officer in the case, gave evidence relating to the service of the CAWNs. He adduced evidence of the appellant's police interview and confirmed Towart had an appropriate adult when interviewed.
27. In cross-examination he stated that he could not see any barriers to communication with the appellant and no appropriate adult was summoned to accompany him. He was not aware that the school the appellant had attended was for people with special educational needs. He agreed that had the appellant been 17 at the time of his interview, it would have been a mandatory requirement for him to have an appropriate adult present.
28. For the Defence, the appellant gave evidence concerning the service of the CAWN. It was read to him and he was warned to keep away from C and S.
29. On the relevant day, he and Towart, his friend of many years, had walked to The Broadway; he had been planning to go to Blyth beach. He had been wearing three pairs of tracksuit bottoms as it was very cold; he would usually wear two pairs in any event (indeed, he said he was wearing two pairs in the witness box). On their way to The Broadway Towart received a call. As they got to The Broadway, he saw the girls. He tried to avoid them but they followed. He walked up the street as he wished to avoid C's family as they had been to his house and threatened him. He asked Towart what they were going to do. He did not speak to the girls until they were near the wooded area. They all arrived at the wooded area at the same time. He was unhappy with the situation, and that the girls had not left him and Towart alone, and just wanted to get off to Blyth beach with Towart as planned. Once in the woods, he walked away from the group to take an incoming phone call; S and K followed him. When he walked back to the group S's mother appeared and began shouting at them.
30. In cross-examination he stated he did not run away when he saw the girls as he hardly ever ran and was a little hungover. He was walking away and thought if he went into the woods the girls would not be able to find him.
31. He denied leading the girls into the woods and did not go there to avoid the police or C's father. He denied using the chisel or a metal pole to hit a tree in the woods.
32. He confirmed his solicitor had advised him to give no comment in police interview.
33. Towart gave evidence that he had been served with a CAWN relating to C and S warning he keep away from them. He had not understood very much of the CAWN.
34. On 24 January 2018, C had called him and told him that she was being bullied. She told him to meet her at The Broadway. She told him she was with S, K and E. He said, "Do you want me to really get in trouble?" He agreed with her that he would meet her for only five minutes.
35. He met her at The Broadway. It had been the appellant who said where they were going to (The Heap). The girls had said they did not want to get caught out of school and so they went through the back alleys. He had been to the woods before with the appellant.
36. He denied picking up any metal pole or issuing any threats towards the girls' parents. The appellant had handed him a chisel while they were in the street and he returned it to the appellant when they were in the woods.
37. He had not said or done anything to prevent the girls leaving the woods.
38. In cross-examination by prosecution counsel he stated the appellant had been armed with a chisel in case he met C's dad on the street. The girls saw the chisel as the appellant passed it to him (Towart). He stated the appellant had been wearing three pairs of tracksuit bottoms as a disguise in case the police saw them with the girls.

The Judge's Rulings

39. During the trial the Judge made two rulings that are challenged on the appeal.
40. First, he made a ruling on the CAWN.
41. The defence submitted it would be prejudicial for the jury to be given a copy of the CAWN. Evidence of the existence of the CAWN could not be excluded but the production of the document for the jury served no purpose. There was a risk the jury could wrongly consider the issue in the case to be a breach of the notice.
42. The Judge ruled the jury would be appropriately directed.
43. Secondly, he made a ruling on a defence application to admit evidence from the report of an intermediary.
44. The defence applied to adduce evidence from the report of an intermediary as to the appellant's learning difficulties. The report was prepared in support of an application for an intermediary being appointed for the duration of the trial. The defence sought to adduce a summary from the report detailing the problems the intermediary felt the appellant suffered from in circumstances where the application for an intermediary for the whole trial had been refused and the intermediary had declined to act if it was for the appellant's evidence only. The appellant sought to adduce the evidence to enable cross-examination of the officer in the case as to why no appropriate adult was present when the appellant was interviewed and to provide the jury with assistance when assessing the appellant's evidence (as an agreed fact).
45. The Judge considered, although an intermediary was capable of being an expert witness, the report was not prepared for the purpose of giving evidence and it was likely the witness would not be able to attend to give evidence. Towart had the benefit of an intermediary during the course of giving evidence; the appellant did not. The reason for Towart being granted an intermediary, global dyspraxia, was not before the jury and so the Judge ruled it would be unfair to permit details of the appellant's difficulties to go before the jury. Further, there was no proper reason for the intermediary's findings to be admitted under the hearsay provisions. We note that whilst it is true that no application had been made by Towart for his difficulties justifying the use of an intermediary to be put before the jury, the judge's concern over 'balance' was not raised with his (Towart's) counsel. The (very brief) argument and ruling about the appellant's position took place in the absence of, and without input from, Towart's counsel.

The Grounds of Appeal

46. The grounds of appeal are:

1. The evidence at trial was not capable of leading to the safe conclusion that the appellant had "taken" either child, "so as to keep [her] out of the lawful control of any person entitled to lawful control of the child" under s.2 of the Act.

2. The Judge erred in permitting the Crown to adduce evidence relating to the service and breach of the CAWN and the provision of the actual CAWN to the jury. Such evidence was not probative of the real issues in the proceedings (taking, detaining; removing or keeping).

3. The fairness of the trial was undermined as the appellant was denied the assistance of an intermediary at trial:

(i) No ground rules hearing took place.

(ii) Special measures recommended by the intermediary were not adopted.

(iii) No evidence was admitted that would help the jury to understand the nature of the appellant's communication and learning difficulties.

(iv) No time limits were imposed on cross-examination.

(v) Cross-examination involved repetitious use of complicated, compound questions.

Ground 1

47. Section 2 of the Act (as amended by section 108(4) of and Schedule 12, paragraph 38(1) to the Children Act 1989), provides, so far as relevant:

"(1) Subject to subsection (3) below, a person, other than one mentioned in subsection (2) below commits an offence if, without lawful authority or reasonable excuse, he takes or detains a child under the age of 16—

(a) so as to remove him from the lawful control of any person having lawful control of the child; or

(b) so as to keep him out of the lawful control of any person entitled to lawful control of the child"

48. The Indictment in the present case acknowledged that by playing truant, each of the complainants had moved outside of the lawful control of the school (which was in loco parentis) and accordingly, the charge involved "taking" a child "so as to keep" them from lawful custody.
49. Section 3 of the Act provides a definition of "taking":

"For the purposes of this Part of this Act—

a person shall be regarded as taking a child if he causes or induces the child to accompany him or any other person or causes the child to be taken…"

50. Mr Comb on behalf of the appellant submits that the evidence in the case simply did not make out this element of the offence. Further and in the alternative, the jury were insufficiently directed as to the meaning of "cause" in this context, so that conviction on a de minimis basis was a real risk.
51. The causal requirement of section 3 of the Act has been considered in various authorities, in particular R v A [2000] 1 WLR 1879 and Shepherd v The Crown Court Sitting at Newcastle upon Tyne (ex p DPP) [2017] EWHC 2566 (Admin).
52. As stated in R v A at p1884:

"Section 3(a) does not expressly provide that the person concerned must solely cause the child to accompany him. As the judge observed, an event or state of affairs may have many causes. If an event or state of affairs A is caused by B, C and D, it can, in our judgment, fairly be said that each of B, C and D causes A. Section 3(a) does not provide that the person shall be regarded as taking a child if he is the sole cause of the child accompanying him. It simply provides that he shall be so regarded if he causes the child to do so. As in the above example, there may, as it appears to us, be other causes. In particular, one of those other causes may be and is often likely to be the child's own decision or state of mind."

53. As explained in Shepherd at [15]

"In R v A [2000] 1 Cr App R 418 the court held that a defendant's acts do not need to be the sole cause of the child being taken or detained. It is sufficient if the defendant's acts are an effective cause. It would not be a defence that a child's decision or preference might be another cause of the taking or detaining."

54. Mr Comb submits that the authorities show that the concept of causation imports a requirement that the defendant does or says something, which is an effective cause, and which is not de minimis. On the evidence in the present proceedings, he submits that this requirement is simply not satisfied and that the actions of the appellant in meeting C and S amounted to no more than a bare breach of the CAWN he had received.
55. In our judgment there was evidence upon which the jury could conclude that the appellant's actions were an effective cause of C and S accompanying him, as the Judge ruled when he refused an application to dismiss the case against the appellant on the grounds that there was no case to answer.
56. That evidence – some of which was disputed, but the resolution of such disputes was of course a matter for the jury – included the following:

(i) The appellant and Towart had been served with CAWNs relating to the C and S only 3 days before the offence, which included a prohibition against being in their company.

(ii) The appellant nevertheless went to meet C and S after they had truanted from school.

(iii) He invited them to his flat.

(iv) He armed himself with a chisel in case C's father saw.

(v) He was wearing 3 pairs of trousers and two jackets that he could use as a disguise in case the police saw him.

(vi) He and Towart said that they should go to the woodland area by back alleys so that they should not be found.

(vii) He and Towart walked in front, decided where they were going and led the group to an isolated woodland area.

(viii) He changed his appearance when in the woodland area.

57. We accordingly reject Mr Comb's submission that the evidence in the case could not establish that the appellant took the girls to the woodland area. A reasonable jury properly directed could find themselves sure that he did.
58. As to Mr Comb's submissions in relation to the directions given, the Judge directed the jury as follows:

"Firstly, are you sure that the defendant you are considering intentionally or recklessly took the child you are considering? If, "Yes", then go to question 2; if, "No", then the verdict on that count against that defendant is not guilty. Question 2: are you sure that the child is under the age of 16? If, "Yes", then go to question 3; if, "No", then your verdict is not guilty. Again, there's no issue with regard to age in this case. The children were 13. Nobody disputes that.

Question 3: are you sure that the effect or objective consequence of the taking was to keep the child out of the lawful control of any person entitled to have lawful control of the child? If, "Yes," then the verdict is guilty; if, "No", then the verdict is not guilty, and, again, ladies and gentlemen, what I'm trying to do here is to give you some further information about the charge. It may sound quite technical but it's what needs to be considered.

So, with regard to question 1, of course you have to consider whether the child was taken. Did they take the child? So what does "taking" or "took" mean? Taking a child in these circumstances includes if a person causes or induces a child to accompany him or any other person or causes the child to be taken.

It is a matter for you whether on the facts of this case the defendant you are considering has taken the child that you are considering. A child can be removed from lawful custody without necessarily being taken to another place. It may be sufficient if the child is (inaudible) into some unauthorised activity induced by the defendant. It is not necessary for the defendant's conduct to be the sole cause of the taking as long as it was more than merely peripheral. Do you understand what I mean, ladies and gentlemen? It is not a defence that another cause of the taking may be the child's own decision or state of mind. The consent of the child to be taken does not provide any defence. All right?

I also, as part of question 1, included the words, "intentionally or recklessly", and I just want to give a little more of a definition of what that means, ladies and gentlemen. To satisfy the requirements of question 1, the prosecution must prove the defendant you're considering intended to take the child or was reckless that the child would be taken. Now, "intention", intending is obvious. I don't need to explain any more. What does "reckless" mean in the circumstances? For these purposes, "reckless" means that by his actions he was aware that there was a risk that the child would be taken and took that risk when it was unreasonable to do so in the circumstances that were known to him. Again, I recognise that (inaudible) but I'm afraid I have to follow the definition, as I said before.

And then I've dealt with the effects or objective consequences of taking which is part of the third question that you're being asked. You'll see that those words are used in the third question. I'm just trying to define those for you. It is not a defence that the defendant did not intend to interfere with the lawful control of the mother (inaudible) in (inaudible) case or whether it was the parents-- the person with lawful control. The question is whether objectively, looking at it objectively, the effect of the defendant's behaviour was to take the child out of the lawful control of any person who at the time had lawful control of the child."

59. In relation to causation, the Judge accordingly directed the jury that the appellant's conduct need not be the sole cause, it is sufficient if it was a cause and a "more than merely peripheral" cause.
60. Such a direction is in accordance with authority.
61. In R v A the judge had directed the jury on causation in the following terms:

"Thirdly, you must be sure that the defendant took [the girl] — that is, that he caused [the girl] to accompany him. Now members of the jury, a number of different acts can each, together, cause a particular result. That is common sense. You do not have to be satisfied that the defendant's action was the sole, or even the main, cause of [the girl] accompanying him to London — just that his actions were a cause of her doing so; something more than merely peripheral or inconsequential."

62. The Court approved that direction, stating as follows:

"In our judgment the judge was right to hold that the question for the jury was whether the acts of the appellant were a cause of the girl accompanying him. He was also right to hold that the alleged cause must be something more than, as he put it, "peripheral or inconsequential". Another way of putting it would be to say that the act or acts of the appellant must be an effective cause of the child accompanying him."

63. Mr Comb made a further submission that the Judge should have directed the jury that the additional requirement, expressed as "so as to… keep" in s2(1)(a) of the Act imports a mens rea requirement, as stated by Simon Brown LJ in the Divisional Court decision in R (Owens) v Governor of Holloway Prison [2000] 1 Cr App R 195. He also referred us to Rook and Ward on Sexual Offences (5^th edition) at 9.45.
64. This, however, is contrary to the approach taken in the earlier Court of Appeal decisions in Mousir [1987] Crim LR 561 and R v Leather [1994] 98 Cr App 179, neither of which appears to have been cited to the Divisional Court in Owens. As stated in Mousir, the words "so as to remove or keep from the lawful control of any person" within the meaning of section 2(1) involve a question of objective fact. It is concerned with the objective consequence of the taking or detaining, and not with the subjective purpose of the accused in doing what he did.
65. The state of the law as to the mens rea requirement in the light of Owens, Mousir and Leather was addressed by the Divisional Court in Foster. The Court summarised the position as follows at [27]:

"What, then, is the state of the law as to the mens rea requirement? For my part, I would conclude that the mens rea of the offence of abduction under section 2 is an intentional or reckless taking or detention of a child under the age of sixteen, the effect or objective consequence of which is to remove or to keep that child within the meaning of section 2(1)(a) or (b). With great respect to the court in Owens, it does not seem to me that the applicant's argument upon the construction of section 2 could or should have survived the judgment of the Court of Appeal Criminal Division in Mousir and Leather. It does not appear to me to have been necessary to require an intention to remove the child from the lawful custody of another, or to keep the child against the entitlement of the grandmother, to arrive at the same result had a prosecution proceeded. The offence is not committed if the defendant has lawful authority or a reasonable excuse for taking or detaining the child."

66. In the present case the Judge directed the jury in accordance with this guidance. That is also the guidance given, by reference to Foster, in both Archbold 2019 at 19-398 and Blackstone 2019 at B2.116.
67. The mens rea requirement was correctly addressed by the Judge's first question which asked: "are you sure that the defendant you are considering intentionally or recklessly took the child you are considering". There was no further mens rea requirement that needed to be addressed.
68. In relation to s2(1)(b) the Judge correctly invited the jury to consider the following question:

"are you sure that the effect or objective consequence of the taking was to keep the child out of the lawful control of any person entitled to have lawful control of the child".

69. We accordingly reject Mr Comb's submission that there was any misdirection in this case.

Ground 2 - The Role Played by the CAWNs at Trial

70. At trial, the prosecution was permitted to adduce evidence concerning the service of CAWNs on the appellant, in respect of C and S, to provide the jury with copies of the notice and additionally call live evidence about the service of the notice. Mr Comb submits that this decision was wrong in principle where the existence of the notice was of marginal relevance as background and was not probative of the real issues.
71. The relevance of a CAWN to proceedings under s.2 of the Act arose for consideration in Shepherd, where Treacy LJ said:

"14. I begin by observing that breach of a child abduction warning notice of itself does not constitute an offence. The relevance of service of such a document is in showing that the defence of lawful authority or reasonable excuse is not available. It serves to show that a person served with such a notice would be aware that non-compliance would render him liable to arrest and possible prosecution for an offence contrary to s.2 of the 1984 Act. This was common ground between the parties."

72. In the present case Mr Comb submits that since there was never any suggestion that the appellant had either a lawful reason or reasonable excuse for being with either of the children, the Judge should have accepted the defence submission that the CAWNs were not relevant, or only marginally relevant and should not be introduced into evidence.
73. Mr Comb further complains that not only were the CAWNs introduced into evidence but:

(i) The jury were invited by the prosecution to regard those documents as important.

(ii) Live evidence was called about the services of the CAWNs, even though it was agreed evidence.

(iii) The officer who served the CAWNs gave opinion evidence that the appellant had understood the warning, an opinion that he was unqualified to express and where it had been expressly agreed that no such evidence would be led.

(iv) The admission of the CAWNs was used to lay the foundation for the cross-examination of the appellant to the effect that he did not run away from or otherwise evade the girls and should have done so. That approach was likely to stimulate in the jury an erroneous perception that the appellant was under a positive duty to take evasive action that his failure to do so was probative of guilt. Any such perception would likely be reinforced when the learned trial Judge returned to the same theme at the conclusion of the appellant's evidence.

74. It is contended that this had a highly prejudicial impact and jeopardised the fairness of the trial, all the more so given the matters set out under Ground 3.
75. The Crown submits that the use made of the CAWNs was proper, proportionate and in accordance with the authority of Shepherd. In particular:

(i) A written admission as to the service of the CAWNs would not have been sufficient to prove the state of mind and understanding of the appellant as to the prohibitions in contacting the victims at the time of the offence. The detail of the CAWN was relevant.

(ii) The CAWN went to prove the deliberate acts by the appellant, meeting (even by accident as claimed by the appellant and not removing himself) and remaining with the complainants.

(iii) The way in which the CAWNs were served on the appellant went directly to the appellant's ability to comprehend/communicate. The evidence of Sergeant Mulligan explained to the jury the steps taken to make sure, as far as was possible, that the appellant understood the nature and extent of the notice.

76. In our judgment the admission of the CAWNs was pre-eminently a matter for the trial judge to consider and determine. It was clearly relevant background for the reasons set out by the Crown, and the detail of the CAWN did matter, as the Crown submits. Whilst the detail might have been dealt with by admissions, there was no agreement to that effect and so the CAWNs themselves were put before the jury.
77. As the Judge stated in his ruling, if and in so far as there was any risk that the jury could wrongly consider the issue in the case to be a breach of the notice, the jury would be appropriately directed, and they were accordingly directed as follows:

"So what is the relevance of these notices? I make it clear that simply breaching the terms of the notices does not prove the offences with which the defendants are charged. The relevance of the notices is that they show the defendants had been made aware that the parents of C and S do not consent to the girls being with the defendants. It may also have some relevance to the state of mind of the defendants, given that they have been warned by the police not to be in contact with these two girls, but, as I say, I make it clear that simply a breach of the terms of those notices does not prove this offence. Do you understand?"

78. As to whether there was any inappropriate use made of the CAWNs in evidence, the fairness of the cross examination in relation to the CAWNs is an issue which arises under Ground 3. In this regard it is to be noted that the Crown was relying on the CAWNs as evidence relating to the appellant's ability to comprehend and communicate.
79. Finally, one aspect of the use of CAWNs which has caused the Court some concern is the differentiation it draws between the position of C and S, the subject of the CAWNs and of the abduction offences with which the appellant and Towart were charged, and E and K. In terms of the abduction offences the actions of the appellant and Towart relied upon towards C and S are the same as occurred in relation to E and K, but there was no charge of abduction in relation to E and K. There is a danger that this may have led the jury to attribute more importance to the CAWNs than they merited.

Ground 3 - The approach to the appellant's communication difficulties

80. The defence instructed an intermediary who provided a report which identified that the appellant presented with significant communication difficulties.
81. These difficulties were summarised as follows at para 4.2 of the report:

"Mr Pringle presents with significant communication difficulties:

His ability to attend to and process verbally-presented information is significantly limited, reducing the amount of verbal information he is able to comprehend at the first attempt;

His ability to respond appropriately to complex and leading question types is highly unreliable;

His understanding of word meanings and non-literal language is significantly limited;

He presents with dysfunctional reading skills;

His difficulties in these regards are complicated by the fact that he cannot be relied upon to consistently request clarification, express uncertainty, admit lack of knowledge or to effectively challenge either inaccuracies or assertions with which he disagrees;

They may be complicated further by an apparent tendency to agree by default;

His expressive communication profile is characterised by rapidity of speech and a tendency to offer rushed answers in reply to questions, denying himself the time required to formulate a properly considered response;

He presents with poor turn-taking, active listening and topic management skills, tending to speak tangentially and at unnecessary length;

Self-reported difficulties with managing paranoid ideation and anxiety are likely to exacerbate his attention and receptive difficulties and inhibit his expression, potentially posing a significant barrier to effective communication throughout his trial, and especially when giving evidence."

82. In order to address these difficulties, the report made a number of recommendations, including the use of an intermediary throughout the trial, submission of written questions to the intermediary in advance of the hearing, a ground rules hearing, regular breaks, and the use of screens to avoid distraction. Specific guidance was also included as to how questioning of the appellant should be approached in order to maximise his comprehension and ability fairly to express himself.
83. An application for special measures was made pre-trial but the Court ruled that only a renewed application would be considered, limited to assistance while giving evidence. As we have already noted, the intermediary was not prepared to attend for this limited purpose and in the end the appellant was left without intermediary assistance.
84. In these circumstances, during the course of the trial Mr Comb made an application that hearsay opinion evidence from the intermediary should be admitted, setting out the communication difficulties identified at para 4.2 of the report.
85. In support of the application reliance was placed on the decision of Green J in R v Beards and Beards [2016] EW Misc B143 (CC) 23 May 2016 in which a similar course of action had been taken.
86. In that case Green J was satisfied that in appropriate cases an intermediary could be regarded as an expert, stating as follows:

"20. Whether a person is an expert is a matter for the Court based upon a proper analysis of the evidence. It is certainly not an issue which can be pre-judged by an individual's employer. Whether an individual is an expert within CPR 33 is fact and context specific. It depends upon the individual's professional skill and experience in the context of the particular issue that the evidence is said to be relevant to in the proceedings and it also takes into account whether the opinion evidence in question is outside of the jury's assumed knowledge and experience.

21. In the present case, the issue is the ability of the jury to understand and evaluate answers given by Mrs Beards who is a person with the disabilities that I have already referred to. The issue for the jury occurs both in the context of her police interviews when no intermediary was present and her answers in Court both when questioned in chief and in cross-examination. The expertise required is as to the complications and risks attached to particular types of questions and, further, the risk of the Defendant answering questions in an inaccurate and misleading manner because of the type of question posed in the context of her particular level of disability."

87. In Beards the intermediary was prohibited from giving evidence by her employer. In all the circumstances Green J held that the appropriate course to take was to admit a written summary of her evidence as hearsay and with appropriate directions. He stated:

"41. The intermediary has, the Court is informed, been prohibited from giving evidence by her employer. This proposition has not been challenged. It would have been possible to have summonsed her. However, given the state and stage of the trial and the delays that would have been caused I have concluded that the admission of the summary, as hearsay, should be admitted in written form. I consider this to be fair. Mr Evans QC for the Prosecution has cooperated with Mr Sidhu QC for the Defendant as to the content of the summary of the Report and it contains material which ensures that the summary is balanced in the sense that it contains Ms Burton's views both for and against the Defendant. I can actually detect no unfairness to the Prosecution in it being admitted in this way, not the least because (as I observe elsewhere) it is not as if the Prosecution have their own report ready and waiting which challenges Ms Burton's conclusions or can even now pinpoint specific issues in the Report with which they disagree. And it will in any event be open to the Prosecution to comment upon the report in closing submissions if it is considered appropriate. I will give an appropriate warning to the Jury about the limitations of the report and a hearsay warning which will alert them to the fact that the summary is not an agreed document which has been sworn and that the author has not attended court to give evidence on oath."

88. The Judge declined to follow the approach adopted by Green J and refused the defence application to admit a summary of the intermediary's evidence in the ruling already referred to.
89. Mr Comb submits that the Judge was wrong so to rule and that it was unfair to withhold from the jury evidence of the appellant's difficulties.
90. Mr Comb further submits that the absence of an intermediary, and the failure to take any other protective steps as recommended, prejudiced the appellant at various stages of the trial and in particular:

(i) During the evidence of Sergeant Mulligan about service of the CAWN and the appellant's interview under caution, which took place without an appropriate adult, when the officer gave evidence that in his view the appellant had "understood' the meaning of the notice and that furthermore, in his opinion, there was no need at all for an appropriate adult in interview. The defence were prevented from countering this with evidence about the difficulties that the appellant experiences but which the police officer may not have been qualified to identify.

(ii) When the appellant gave evidence none of the measures proposed by the intermediary in his report were adopted. No formal ground rules hearing was held and no time limits were imposed on cross-examination. Defence counsel was inappropriately invited to intervene, in front of the jury, if he thought a break was necessary.

(iii) Much of the cross-examination was taken up by prosecution counsel, with the appellant contributing a more limited amount to the dialogue than may be expected.

(iv) Compound or rolled up questions were used on occasion, with confusing results.

(v) A particular consequence of the last two points is that there is a substantial risk that some of the appellant's answers may have been perceived as damaging that were in truth only manifestations of the very difficulties, or some of them, identified by the intermediary.

91. In all the circumstances it is submitted that the overall effect of the approach to the appellant's communication difficulties was real unfairness to the appellant. There was also, it is submitted, unfairness to the jury as they were not provided with the necessary information to evaluate properly his understanding of or reaction to the CAWN, his police interview or the answers that he provided to them in evidence.
92. In response, the Crown points out that no notice prior to trial was given that the defence would seek to rely on their intermediary report in evidence. It is accepted that on the morning of the trial, Mr Comb raised the question of referring to the intermediary report but no specific request was made and there was no identification of or discussion about specific passages. When the matter arose in court, prosecuting counsel refused to make any admissions.
93. The Crown further submits that an intermediary is not generally regarded or treated as being an expert and where there is material in an intermediary's report capable of informing the jury of matters outside the jury's normal competence, some other person who has the necessary expertise should ordinarily and preferably be instructed and the evidence should be served on the prosecution in the usual way so that it can be tested. That did not occur in this case.
94. In any event the Crown submits that the appellant was able to understand the terms of the CAWN and the proceedings and that this is evidenced by the appellant's responses to questions during the trial.
95. It is submitted that counsel cross-examined in such a manner as to ensure that the concerns raised by the intermediary were avoided and that, if and to the extent that this had not been the case, defence counsel or the judge would have intervened.
96. Reliance is also placed on R v Rashid (Yahya) [2017] 1 WLR 2449, in particular at [75]-[77] and [80]-[82] and [87]. It is pointed out that directions to appoint an intermediary for a defendant's evidence will be rare, and for the entire trial extremely rare. The importance of the duties of the competent advocate and of the court is stressed and it is submitted that in most cases this will provide sufficient protection for a disadvantaged defendant.
97. We acknowledge the force of many of the general points made by the Crown, but the issue on this appeal is whether the way in which the appellant's disadvantages were dealt with in this particular case calls into question the fairness of the trial.
98. The starting point is that the appellant's intermediary was not prepared simply to attend during the appellant's evidence, as was the case with Towart's intermediary. It was not considered appropriate to seek to address this difficulty by means of a witness summons and so the Judge had to consider how best fairly and proportionately to address the appellant's disadvantages in the absence of an intermediary.
99. The first problem which needed to be addressed in the absence of an intermediary was whether to take any of the recommended steps to protect the appellant during the course of giving evidence. There was some discussion of the use of screens in the context of which defence counsel pointed out that there had not been a ground rules hearing and that none of the recommendations made in the report had been adopted.
100. The Judge's response was as follows:

"JUDGE BATISTE: I'm aware of what he says. The intermediary report does not necessarily have to be slavishly followed by a judge, and that is something that the courts are now becoming clearer and clearer about.

MR COMB: I understand, but my anxiety is that none of the recommendations in the report have been adopted in Mr Pringle's case.

JUDGE BATISTE: Well, as I said to you, I am going to try and ensure that fairness and equality takes place in his evidence with his co-accused by trying to ensure that it is made clear that he understands the question, the questioning is going to be simple, as it was with his co-accused."

101. In our judgment, given the particular difficulties which had been identified, this is a case in which it would have been desirable to hold a ground rules hearing, to give guidance as to what form of questions would and would not be appropriate, to take a properly assessed decision about providing regular breaks and to consider seriously the other special measures requested. This was not done.
102. Having not taken any such steps it became particularly important to ensure that there was no unfairness during the conduct of the cross examination of the appellant, as the Judge himself recognised.
103. We have carefully considered the full transcript of the evidence and have taken into account the detailed submissions made by Mr Hodson as to how he sought to accommodate the issues raised by the intermediary's report in his conduct of the cross examination. We do not doubt that Mr Hodson did his best to do so, but we nevertheless have a number of concerns about the appellant's evidence, as highlighted by Mr Comb. For example, it is apparent that he was asked at length about matters of peripheral relevance; that he was at times confused by the questioning and in his answers; that he was prone to speak very quickly and in an unclear manner; that he did not have regular breaks despite at times seeming to need them; and that there was, in particular, some very real difficulty with his ability to deal with cross-examination about his police interview that was not addressed by giving him a copy of the interview to follow – indeed, as it seems to us, that itself became a source of distraction and confusion for him as very important questions followed as to why he answered some but not other police questions.
104. In this particular case, there was also the complication that Towart, who suffered from comparable disadvantages, had an intermediary, whilst the appellant did not. As the Judge recognised, this required an explanation. As he said in his ruling:

"The prosecution argue that the appropriate way to deal with this matter is to give the usual warning with regard to an intermediary set out in the Crown Court Compendium but to add to that that Mr Pringle had some similar issues that a ground rules hearing (inaudible) as to his evidence, which indeed it has, and the methodology and that an intermediary may, and I don't go any further than that, but may have been instructed for him but for the fact that an intermediary was not prepared to act on that particular basis, and it's suggested that that would ensure that there is parity in understanding as to the approach that's being adopted with regard to both defendants."

105. In the event, no clear direction to this effect was given. The only reference to these matters was in the following passage in the summing-up:

"In addition, you know that James Pringle was helped---- no, it was Mr Towart who was - forgive me - Mr Towart ---- perhaps you should just change that please---- not James Pringle. Mr Towart. Mr Towart was helped by an intermediary when he gave his evidence. This was so as to ensure that he understood what was being said and to ensure that he was understood in court.

The fact that the defendant was assisted by an intermediary does not affect how you assess any of the evidence in the case and it is no reflection on his---- on this defendant or indeed his co-accused, Mr Towart, Mr Pringle, with whom an intermediary had been instructed but was unwilling to work on his own (inaudible)."

106. The jury are likely to have found this explanation confusing and question begging. It did not ensure that there was "parity in understanding as to the approach that's being adopted with regard to both defendants".
107. In order for the jury to have a proper understanding this was a case in our judgment in which some explanation needed to be given of why there was a need for an intermediary for both defendants. Whilst we can understand why the judge had objections to the full summary set out in 4.2 of the report going before the jury, it should have been possible for a brief summary of the main points made to be agreed and put before the jury.
108. In this particular case, it was also important that the jury should have some awareness of the appellant's difficulties, so that they were in a position properly to evaluate his evidence in interview and in court, including in relation to the CAWNs. As already noted, the Crown was relying on the CAWNs as evidence relating to the appellant's ability to comprehend and communicate. At the same time, however, they were successfully resisting any evidence being put before the jury as to the difficulties he may have in doing so, as set out in the intermediary's report. They were in effect having it both ways.
109. Whilst we appreciate that the judge was placed in a difficult position by the intermediary's unwillingness to assist only during the appellant's evidence, for all the reasons outlined above we have serious concerns that the way in which matters were dealt with resulted in real unfairness to the appellant both in relation to the giving of his evidence and in relation to the jury's ability to assess his evidence. Those concerns are in our judgment sufficiently serious to render the conviction of the appellant unsafe.

Conclusion

110. In all the circumstances, in our judgment this is a case in which the appeal against conviction should be allowed and we so order.