England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 November 2005

Lord Justice Scott Baker:

1. At the conclusion of the hearing on the 7 October 2005 we dismissed this application for judicial review. We now give our reasons. This is the judgment of the court.
2. The claimant, who is a 15 year old, sought judicial review of a decision of 22 April 2005 of District Judge Simpson not to stay proceedings against him in the West London Youth Court for abuse of process. The claimant faced two charges, one of robbery and one of attempted robbery, and the underlying question was whether his intellectual capacity was such that he could not effectively participate in the proceedings. If that were so he could not have a fair trial and the proceedings against him should have been stayed. The judge decided he could effectively participate in the proceedings.

The claimant sought judicial review on three grounds.

(1) The judge applied the wrong standard of proof. He concluded he was not satisfied the claimant would be unable to participate to the extent required for a fair trial; he should have asked himself whether there was a real possibility that the claimant would not be able to participate effectively.

(2) The judge erred in finding that the claimant's circumstances were not unusual.

(3) The judge erred in concluding that the claimant's trial would not violate article 6 of the European Convention on Human Rights ("the ECHR") despite evidence of his limited intellectual capacity.

3. Following the grant of permission to apply for judicial review the two trial dates (which had been set separately for each offence) were vacated pending the outcome of this court's decision.
4. In a clear and careful judgment the judge recorded that the issues raised on behalf of the claimant were whether the court was entitled to find a 15 year old with an IQ of an 8 year old guilty of a criminal offence; whether he was able to understand the proceedings and charges against him and whether he could participate effectively in a trial in accordance with article 6 of the ECHR. It was not submitted that he was unfit to plead.
5. The judge had before him a report from Dr Marriott, a senior clinical psychologist of 5 years' experience, who was working in a secure unit for adolescent offenders. She also gave oral evidence. It is to be noted that Dr Marriott did not have experience of youth courts. She also appears to have been under the mistaken impression that the claimant would be tried by jury. The judge recorded that Dr Marriott found the claimant met the criteria for diagnosis for a mild learning disability, with his IQ placing his intellectual functioning within a range of significant mental impairment. However, insufficient assessment had been undertaken to meet the criteria for a formal diagnosis of mental handicap because of mild learning disability. He was aware a solicitor was there to help him and he was confident he would be able to speak to her alone if he needed help. He demonstrated a sufficient level of understanding in terms of his charge, his plea and possible sentences. He would need extra support from his solicitor to improve his awareness of court proceedings and sentences. His low level of cognitive functioning would need to be taken into account and compensated for during the proceedings. Concise and simple language would need to be used. She said in evidence he had difficulty in understanding the difference between robbery and theft and it was not clear he knew his behaviour was wrong. She had some doubt about his ability to give instructions. Whilst he would be able to point out things in evidence that he disagreed with, he might struggle to generate questions. He would be limited in his participation in a trial as all his levels were below the age of 10 years. Although he was fairly responsive, it was unusual how irritated he became when questioned.

The judge expressed his conclusion in these terms:

" On the evidence before me I am not satisfied on the balance of probabilities that TP would, in a youth court as opposed to a Crown Court, assisted by specialist and experienced youth court representatives such as Lawrence & Co., and Ms. Lambe in particular, be unable to participate to the extent required for a fair trial in accordance with the decision in SC –v- The United Kingdom. Many young defendants are intellectually limited and, as evidenced by the number of trials, many have difficulty in appreciating the ingredients of some offences and particularly robbery and joint enterprise. TP's circumstances are, of course, unfortunate and he presents challenges to the court, the prosecution and his legal representatives. His circumstances are, however, not unusual and he is not a stranger to court proceedings. It would not be an abuse of the process of the youth court for his cases to proceed in due course to trial."

6. It was indeed correct that the claimant was no stranger to court proceedings. He had been reprimanded in 2003 for taking a motor vehicle, given a final warning for theft of a motor vehicle in 2004 and allowing himself to be carried and later in 2004 received a referral order for robbery.
7. The judge had earlier correctly directed himself that the minimum requirements for a fair trial for the claimant were:

i) he had to understand what he is said to have done wrong;

ii) the court had to be satisfied that the claimant when he had done wrong by act or omission had the means of knowing that was wrong;

iii) he had to understand what, if any, defences were available to him;

iv) he had to have a reasonable opportunity to make relevant representations if he wished;

v) he had to have the opportunity to consider what representations he wished to make once he had understood the issues involved.

He had therefore to be able to give proper instructions and to participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arose.

8. It was essential to the judge's decision, as is apparent from the passages of the judgment that we have read, that the appellant would be tried in a Youth Court as apposed to a Crown Court and that he would be assisted by specialists and experienced Youth Court representatives. The Youth Court is a specialised court designed and adapted for hearing cases where youngsters are charged with criminal offences. Specialist judges with the requisite training sit in them. District Judge Simpson is one of those judges. Judges, and the advocates who appear in those courts, have special expertise and experience in dealing with the kind of problems presented by the claimant and other youngsters whose intellectual capacity falls at the lower end of the scale. The Youth Court is the specialist tribunal for criminal cases involving child defendants in England and Wales. The Crown Court, where the more serious cases are tried, has designated court centres and special rules for trying child defendants. But it has never been suggested this case should be tried in the Crown Court.
9. Ever since the European Court of Human Rights decided V v United Kingdom (2000) 30 EHRR 121 (relating to the trial of the boys who murdered Jamie Bulger) there has been an increasing awareness of the need to ensure that young people can effectively participate in the determination of criminal charges against them. V, and his co-defendant T, were of course tried in the Crown Court. The European Court concluded that they were denied a fair hearing and accordingly there was a breach of article 6(1). The court however observed that in England and Wales children charged with less serious crimes are dealt with in special youth courts from where the public are excluded and there are automatic reporting restrictions on the media. It is to be noted that there was no application in V to stay the proceedings as an abuse of process; the European Court was looking at the fairness of the proceedings after the event. In the present case the trial has yet to take place.
10. SC v United Kingdom (2004) 40 EHRR 10 was another case where the European Court of Human Rights had to look back at the fairness of the trial. It held by a majority of 5 to 2 that there had been a breach of article 6(1) of the ECHR. The applicant, aged 11, and another boy aged 14, approached an 87 year old woman in the street and tried to take her bag. She fell down and fractured her arm. The applicant's defence to attempted robbery was that he had acted under duress from the other boy. The Youth Court, bearing in mind his significant offending history, committed him for trial to the crown court. He was convicted and appealed to the Court of Appeal, contending he had been deprived of a fair trial in the light of his age and impaired intellectual capacity. His appeal was rejected.
11. The European Court observed first that the attribution of criminal responsibility to, or the trial on criminal charges of, an 11 year old boy did not of itself give rise to a breach of the Convention as long as he was able to participate effectively in the trial. The right to effective participation includes not only the right to be present but also to hear and follow the proceedings. In the case of a child, it is essential that he will be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings, including conducting the hearing in such a way as to reduce as far as possible his feeling of intimidation and inhibition.

The court went on:

"29.The Court accepts the Government's argument that Article 6 § 1 does not require that a child on trial for a criminal offence should understand or be capable of understanding every point of law or evidential detail. Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which take place in the courtroom: this is why the Convention, in Article 6 § 3(c), emphasises the importance of the right to legal representation. However, "effective participation" in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (see, for example, the above-mentioned Stanford judgment, §30)."

It said it was unable to conclude the applicant was capable of participating effectively in his trial in this sense. The court concluded with these words:

"As noted above, Dr Brennan found that, "on balance", the applicant probably did have sufficient intelligence to understand that what he had done was wrong, and that he was therefore fit to plead. The Court is not, however, convinced in the circumstances of the present case, that it follows that the applicant was capable of participating effectively in his trial to the extent required by Article 6§1."

12. Mr Hugh Southey, who appeared for the claimant, submitted that the judge applied the wrong standard of proof when considering the application for a stay of the proceedings. He argued that the true test is not whether the claimant has established on the balance of probabilities that he will not be able to participate effectively in the trial, but whether there is a real possibility he will be unable to do so.
13. The first difficulty with this submission, and in our view it is a fundamental one, is that the standard Mr Southey seeks to impose is different from the standard ordinarily imposed by domestic law in abuse of process applications. Mr Southey accepts that, if he is right, there is this distinction but he justifies it by saying that Article 6 is an absolute right and domestic law is insufficient to protect against Article 6 violations.
14. In R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 427, 433 Brooke LJ observed that the jurisdiction of a court to stay criminal proceedings for abuse of process is "of great constitutional importance and should be…………preserved:" per Lord Salmon in DPP v Humphrys (1976) 63 Cr App R 95, 122, [1997] AC 1 at p46 C-F. But he went on to point out that in most cases any alleged unfairness could be covered in the trial process itself. Staying criminal proceedings for an abuse of process is a power that ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it. See Attorney-General's Reference (No. 1 of 1990) (1992) 95 Cr App R 296, 303, [1992] QB 630, 643G. Apart from cases where the court is seeking to protect its own process from abuse there are, broadly, two categories of case (i) cases where the court concludes that the defendant cannot receive a fair trial, and (ii) cases where it concludes that it would be unfair for the defendant to be tried, see Neill LJ in Beckford [1996] 1 Cr App R 94, 101. Within these categories, which may overlap, abuse of process can come in different forms but in every case, so far as we are aware, abuse has to be established on balance of probabilities. It would be odd in the extreme if one species of abuse, namely that contended for by Mr Southey in the present case, requires proof of a lesser standard.
15. There are other circumstances in the criminal law where a defendant has a burden of proof on balance of probabilities. One example is unfitness to plead and section 4 of the Criminal Procedure (Insanity) Act 1964. As Rose LJ pointed out in R v M, R v Kerr, R v H [2002] 1 Cr App R 25, an application for a stay for abuse of process would be inappropriate on the ground of unfitness to plead alone. If Mr Southey's argument is correct there would be one standard for unfitness to plead and a lesser one for inability effectively to participate in the trial. That, in our view, simply cannot be right.
16. Article 6(1) of the ECHR provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone in entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

17. Mr Southey's submission is that there is a real possibility in the present case that the claimant will not be able to participate effectively in the trial and that this violates his right to a fair hearing. It seems to me that the concept of a 'real possibility' has to be seen in contradistinction to a 'fanciful possibility'. Be that as may, Mr Southey's contention opens the door to the prospect that some cases will not proceed to trial because there is a chance that the defendant will not be able effectively to participate albeit he is more likely than not to be able to do so. It is submitted that the Article 6 right to a fair trial is such an important right that it justifies the non-trial of some defendants who could probably, albeit not surely, have a fair trial.
18. Mr Heywood, who has appeared for the Crown Prosecution Service, points out that there is a fundamental public interest in cases and defendants being tried. The Crown Prosecution Service decide, according to well known criteria, which cases should proceed and it is only in exceptional circumstances that the court should descend into the arena and prevent a case from being heard. The first port of call is not to prevent the court from hearing the case but to grapple with the difficulties. A trial should not be abandoned before all practical steps to overcome the difficulties have been exhausted. It is also, we think, an important point that the judge who is hearing the trial has a continuing jurisdiction to stay proceedings for abuse of process. Thus, if it becomes apparent during the course of the hearing that the claimant is unable effectively to participate, the judge can stay the proceedings at that point. This is surely a better course than staying a prosecution at the outset when events would have shown it could fairly have proceeded.
19. Mr Southey submitted that support for his case was to be found in R v Secretary of State for the Home Department ex parte Q [2000] UKHRR 386. In that case the applicant was to be held in a prison for the duration of his criminal trial. His defence required him to name a prison officer who was said to have assisted him in a previous escape from the prison. He argued he was at risk of serious harm and so he should be moved to another prison. If he remained in the prison where he was his right to a fair trial would be denied. Richards J, as he then was, said the correct approach was for the court to ask itself whether there was a real danger that the applicant might not be able to put his defence fully and freely. The court had to form its own judgment as to whether the right to a fair trial would be infringed. It had to ascertain the relevant circumstances from the available evidence and determine on the basis of that evidence whether there was a real danger of an infringement of the right to a fair trial. Remote or fanciful risks could sensibly be discounted. On the facts of the case Richards J held that there was no real danger and the application for judicial review of the refusal of the Secretary of State to relocate the applicant failed.
20. Richards J explained that the case was in many ways an exceptional one and that in the particular circumstances judicial review was a more appropriate route than leaving the matter to be dealt with by the trial judge on an application to stay for abuse of process. One can, with respect, see the obvious good sense in this bearing in mind the decision challenged was, as Richards J said, entirely outwith the trial process. For present purposes the important distinction between Q and the present case is that Q was not an abuse of process application. We cannot see therefore that the test Richards J applied in that case has any relevance to the test that should be applied in the present case. He was applying a pragmatic solution to a specific situation. The decision sought to be reviewed could not be revisited during the trial.
21. Apart from Q, the 'real possibility' test, advocated by Mr Southey, is not to be found in any of the abuse of process cases to which we have been referred. It comes from Porter v Magill [2002] 2 AC 357 and the cases concerned with apparent bias on the part of a tribunal. Apparent bias on the part of a tribunal is very different from effective participation in the proceedings. A finding of apparent bias does not result in a stay of proceedings; it is not a bar to the issues between the parties being tried, it effects the composition of the tribunal before which those proceedings can be tried.
22. To get his argument on its feet, Mr Southey relies on the concluding passage of the judgment of the European Court in SC that we have cited. In particular he refers to the court not being "convinced" that the applicant was capable of participating effectively in his trial to the extent required by article 6(1). One must, however, take the passage as a whole. The previous sentence refers to Dr Brennan's finding that "on balance" the applicant probably had sufficient intelligence to understand what he had done was wrong and that he was, therefore, fit to plead. The court then went on to say that: "it is not, however, convinced in all the circumstances of the present case that it follows the applicant was capable of participating in his trial etc". In our view the court was doing no more than saying that it was not convinced of the propriety of drawing an inference as to the ability of the applicant to participate effectively from the fact that he understood that what he had done was wrong.
23. In our judgment Mr Southey is reading too much into the use of the word "convinced". Had the court been intending to lay down any principle about the standard of proof of 'effective participation' it is likely that it would have done so in clear and explicit terms. The use of the phrase "not……convinced" indicates nothing whatever about the standard of proof or type of evidence required by a judge when considering whether a trial will breach article 6. There are other contexts in which the European Courts of Human Rights has laid down tests as to the type of evidence required in particular circumstances: see, for example, Herczegfalvy v Austria (1992) 15 EHRR 437, para 82 (the medical necessity required for compulsory medical treatment of a mental patient must be 'convincingly shown to exist'), and Sunday Times v United Kingdom (No.2) (1991) 14 EHRR 229, para 50 (the need for restrictions on freedom of speech under article 10(2) must be 'convincingly established'). Nothing similar, however, is said in SC. Furthermore, as Mr Martin Chamberlain, for the Secretary of State, pointed out, even where such language is used by the court the word 'convincingly' refers to the nature and quality of the evidence required to make good the case rather than the standard of proof. See also Munby J in R (DJ) v Mental Health Review Tribunal [2005] EWHC 587 (Admin) paras 66-68.
24. Mr Chamberlain makes the further point that the present claim for judicial review is made before the claimant's trial had taken place. Ordinarily, the fairness of a trial is judged in retrospect, taking into account the trial process as a whole; see R(S) v Waltham Forest Youth Court [2004] 2 Cr App R 21. In the present case, unusually, permission to apply for judicial review has been granted in advance of the trial. In our judgment it would require the most compelling reasons to set aside the decision of a district judge with special expertise and training in this field. If Mr Southey's argument is correct, the result would be to stay proceedings on the basis of a possibility that the trial would be unfair when, after the event it could well be shown not to have been.
25. The fundamental distinction between SC and the present case is that SC was tried in the crown court; the claimant will be tried in the youth court. The question in our view is this. Taking into account the steps that can be taken in the youth court will the claimant be able effectively to participate in his trial? Dr Marriott did not go so far as to say that effective participation would not be possible.
26. It is apparent from the judge's judgment and Dr Marriott's evidence that there are indeed a number of steps that can be taken during the trial. These include:

i) keeping the claimant's level of cognitive functioning in mind;

ii) using concise and simple language;

iii) having regular breaks;

iv) taking additional time to explain court proceedings;

v) being proactive in ensuring the claimant has access to support;

vi) explaining and ensuring the claimant understands the ingredients of the charge;

vii) explaining the possible outcomes and sentences;

viii) ensuring that cross-examination is carefully controlled so that questions are short and clear and frustration is minimised.

27. In our judgment neither youth nor limited intellectual capacity necessarily leads to a breach of Article 6. It seems to us that a critical conclusion of the court in SC is to be found in paragraph 35 of that decision:

"…….when the decision is taken to deal with a child, such as the applicant, who risks not being able to participate effectively because of his young age and limited intellectual capacity, by way of criminal proceedings rather than some other form of disposal directed primarily at determining the child's best interests and those of the community, it is essential that he be tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapts its procedure accordingly."

That did not happen in SC. But the present case is different. The specialist tribunal is the youth court. That is where the claimant will be tried. The judge concluded that, given the steps we have outlined, the claimant could effectively participate in his trial to the extent required by Article 6. He reached this conclusion having applied the right test when he said:

"I am not satisfied on the balance of probabilities that (the claimant) would in a Youth Court………………assisted by specialist and experienced……representatives….be unable to participate to the extent required for a fair trial…….."

28. Mr Southey's second and third grounds were advanced as very much subsidiary matters. He did not seek to add to his skeleton argument. On the second ground complaint is made of the judge's statement in his conclusion that the claimant's circumstances are not unusual. It is submitted that this is a finding of fact with no evidence to support it; the unchallenged evidence of the claimant's psychologist was that the claimant had an exceptionally low verbal IQ that put him within the bottom 0.3% of the population. Mr Chamberlain seeks to put this point in perspective by reminding us that the claimant has an IQ of 63 and that 23% of young offenders have an IQ of 69 or below and that an additional 36% have borderline learning difficulties – IQ's in the range 70-79 (see Child and Adolescent Mental Health Services Interdepartmental Project Board Report, 15 June 2005, para 8). In our judgment, however, the judge was doing no more than saying that the claimant's circumstances were not markedly different from many young defendants who passed through the youth court. His incapacity was not beyond the experience of the youth court at West London and, as the judge went on to say in the very same sentence, the claimant was no stranger to court proceedings. We can see no substance in this ground.
29. The third ground contends the judge was wrong to conclude there was no violation of Article 6 in the light of the claimant's limited intellectual capacity. This ground really adds nothing to the first and main ground. The decision in SC shows that the trial of a defendant with a mental age of 8 does not necessarily involve a breach of article 6. What is crucial is whether the tribunal hearing the case - in this case the Youth Court – is able to adapt its procedures so that the defendant can effectively participate in the proceedings. The judge concluded that it could.
30. We found that none of the grounds for judicial review was made out and accordingly the claim failed.