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
		3 November 2009

1. MR JUSTICE OPENSHAW: This is an application for permission to apply for judicial review. The claimant, "C", who must not been named or identified, is a 12-year old boy who is due to face trial at Sevenoaks Youth Court over three days, starting on 17 December, upon charges of assault with intent to rob and theft. There is evidence that the claimant has complex mental health issues. It is said on his behalf that he requires an intermediary so that he can properly understand the evidence, give instructions, prepare for and follow the trial, and if necessary to give evidence on his own behalf. The claimant now seeks permission to challenge, first, the decision of the Sevenoaks Youth Court to revoke an earlier decision purporting to authorise the appointment of an intermediary; second, to challenge the decision of the Legal Services Commission by which they refused funding for an intermediary; and third, to challenge the decision of the Crown Prosecution Service to continue the case against him given his continuing psychological difficulties.
2. The alleged offences took place on the evening of 11 October last year. A 13-year old boy was returning home in uniform from a meeting of the Army Cadet Force when he was approached by "C" and a 15-year old youth, "P". He was roughly held against a wall, they demanded his mobile telephone; the cadet told them, truthfully it seems, that he did not have his mobile with him, he was then pushed to the ground and repeatedly punched and kicked. One of his assailants ran off with the cadet's torch, hence the charge of theft. "C" and "P" were identified nearby and arrested.
3. The following day "C" was interviewed under caution at Tonbridge Police Station with an appropriate adult being present but without legal representation. He admitted speaking to the cadet but claimed that he only asked him the time. He said that he did not take part in any assault upon the cadet, neither did he see any assault committed upon him by others. "P", "C"'s co-defendant has appeared before us as an interested party, but his interests are confined to ensuring that the trial date is kept. We are very anxious that nothing which we do should imperil that trial date.
4. On 19 February 2009, at his first appearance at court, "C" was seen by the duty solicitor who immediately realised that he had serious mental health issues. His solicitors then set about obtaining medical evidence upon his condition. A week later, at the next hearing on 26 February, "C" formally entered pleas of not guilty to the charges.
5. Dr Marriot is a chartered clinical psychologist. She reported on 24 April. She was of the opinion that "C" had long standing emotional and behavioural disorders. As "C" was waiting to see Dr Marriot his behaviour was unmanageable; he was running about and shouting aggressively. At the meeting he presented as being severely overactive with extremely poor concentration and low tolerance. Although his lack of concentration was such that she could not complete a formal assessment of intellectual functioning, such tests as she could do were suggestive of a learning disability, possibly coming within the range of "exceptionally low". That is to say within the bottom second percentile. His comprehension was considerably below his chronological age. She was able to confirm the long standing diagnosis of Attention Deficit Hyperactivity Disorder, or "ADHD", which was not adequately controlled by the medication currently prescribed. He also suffered from a personality disorder known as Oppositional Defiance Disorder. She thought that he also presented with many of the symptoms of Aspergers Syndrome, for example his obsessive conduct and upset at changes to routines; the inability to recognise or understand the emotional state of others; and an inability to understand any non-verbal communication, which resulted in what she called a "huge deficit in social learning".
6. However, notwithstanding these disabilities, she thought that he did understand what he was charged with, and he also understood the nature of his plea. She thought that he would be able to give a relatively coherent and consistent account of the events surrounding the alleged offence. She had no doubt that he could tell right from wrong, she thought that he was fit to plead and fit to be tried. But she did not think that he would be able to concentrate during the trial, nor to listen to the evidence, nor instruct his solicitor about what parts of the evidence he accepted and what parts he disagreed with. She thought that he may be able to respond to sympathetic questioning but would find it difficult to cope with cross-examination and there was a risk that he would respond impulsively and inappropriately. However, she thought that he would be able to cope with the trial process provided he had regular breaks and if everyone used simple language. She was specifically asked if there were any steps that the court could take to enable "C" more effectively to participate in his trial, it was in answer to this question that Dr Marriot reported that he might be assisted in following the proceedings if the court appointed an intermediary who could speak to "C" throughout the trial, explaining to him those parts of the evidence and the proceedings which he did not understand, making sure that his case was properly understood by his solicitor and put to the court, both by way of cross-examining other witnesses and by giving evidence himself, and by calling such evidence as the interests of justice might require.
7. Dr Marriot was concerned that "C"'s ADHD was not being properly controlled and advised that he was seen by a consultant forensic neuro-psychiatrist. So it was that Dr Staufenberg was instructed. Although he did not report until 7 July, it is convenient to summarise his findings here. His long report is thorough and meticulous, no one has sought to question his findings. He confirms the diagnosis of Autistic Spectrum Disorder with Aspergers Syndrome specific symptoms, with resultant Hyperkinetic Neuro Developmental Syndrome, an expression he preferred to ADHD. Dr Staufenberg helpfully paid particular attention to the difficulties which "C"'s condition would present to the trial process. He thought that "C" interacted with his mother and with his solicitor whom he described as perceptive, concerned and kind. However, "C" had an impaired capacity to assimilate information. He had problems in forming coherent conclusions from the information which he had received, he had particular problems with abstract ideas. This is a recognised symptom of the so-called low central coherence which results in a markedly impaired capacity to understand or to present events or ideas in a logical and orderly manner which Dr Staufenberg considered to be "incompatible with the degree of coherence required in court".
8. "C" professed to Dr Staufenberg that he only vaguely remembered the incident which gave rise to the charges. Dr Staufenberg thought that he had little awareness of their relevance to the trial, it is not surprising therefore he commented that "C"'s version of events kept changing. "C" has little understanding of the trial process and had what the doctor called substantial significant pervasive and persistent difficulty in understanding or taking considered decisions as to the conduct of his trial, and a substantial impairment in monitoring the events of the trial. The doctor warns that "C"'s functioning at the trial is unpredictable and his capacity to concentrate is very limited. He may become seriously overstressed and may seek literally to escape from the court room if the pressure became too much for him to bear. Dr Staufenberg did report:

"In terms of the current circumstances, the court has my recommendation of "C" lacking the pre-requisite capacity for effective participation in trial proceedings"

But he does not say in terms that "C" is unfit to plead or unfit to be tried, nor, as I understand it, is that contended on his behalf.

9. The doctor considered the steps which might be taken to allow the trial to proceed. He canvassed reducing the formality of the proceedings but there is not much formality in the Youth Court. He suggested that everyone should simplify their language, again that is a standard procedure when trying any 12-year old. Sitting without the public being present and with reporting restrictions he thought would not help this defendant greatly. He canvassed "C"'s giving evidence behind screens or even by video link, he does not mention intermediaries by name but I understand him to be suggesting something of that kind when he says, at page 38 in his report, that:

"Ensuring adequate social support during the trial is achievable, although heightened anxiety with episodic exacerbation may betray such a high level of anxiety that it may be doubtful whether "C" could draw on and make use of such support".

10. Dr Marriot's report was received by the solicitors on 27 April. To my mind, her report plainly demonstrated that if "C" is to have a fair trial he must have the help of an intermediary if he is to be able properly to participate in the trial. That conclusion was fortified by Dr Staufenberg's report which, although not available at the time, is, if anything, even stronger in its conclusions. I should make clear that no one appearing before us seeks to doubt that "C" requires the services of an intermediary if he is to receive a fair trial.
11. The next date, 28 April 2009, following submissions by the defence, the trial fixed for that date was adjourned and the court made a direction that an intermediary for "C" be appointed. It was, I think, assumed that the court had power to make such an order. The relevant statutory power to make such an appointment was not identified and no consideration was then given to the question of who was to pay for the intermediary, certainly no order was made to cover the costs incurred. Shortly afterwards the justice's clerk at Sevenoaks Youth Court questioned whether the court had power to make an order appointing an intermediary for a defendant and, following legal argument, at a hearing on 15 June 2009, the court revoked the direction that an intermediary be appointed. Their reasoning is clear, the statutory regime for special measures for vulnerable and intimidated witnesses under the Youth and Criminal Evidence Act 1999 does not apply to defendants who are specifically excluded from its provisions by the terms of section 16(1). No order can therefore be made for the provision of an intermediary for the defendant himself pursuant to section 29 of that Act. A similar problem arose in R(S) v Waltham Forest Youth Court 2004 EWHC 715 Admin, where this court came to the conclusion that there was no statutory authority to allow a youth who was defendant to give evidence by way of a video link, because the special measures allowed by the 1999 Act applied only to witnesses and not to defendants. The justice's clerk thought that this decision applied with equal force, or certainly by analogy, to the appointment of intermediaries.
12. The Court of Appeal Criminal Division recognised in the R v H 2003 EWCA Crim 1209 that the courts have an inherent right, indeed a duty, to appoint an intermediary to help a defendant follow the proceedings and to give evidence, if without such assistance he would not be able to have a fair trial. A general statement of principle to like effect is to be found in SC v the United Kingdom 2005 40 EHRR 10, in the European Court of Human Rights. I read from paragraphs 28 and 29:

"28) The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, 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 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 proceeding, including conducting the hearing in such a way as to reduce, as far as possible, his feelings of intimidation and inhibition.

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 of the intricacies and exchanges which take place in the court room. That is why the convention in article 6(3)c) emphasises the importance of the right to legal representation. However, effective participation in this context pre-supposes 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".

13. Also paragraph 35:

"The court considers that 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 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 adapt its procedure accordingly".

14. In R v Camberwell Green Youth Court 2005 UKHL 4, the House of Lords made clear that the court has a wide and flexible inherent power to take such steps as are necessary to ensure that any defendant, but particularly a child, has a fair trial. Baroness Hale of Richmond, after reviewing the authorities, said at paragraph 59:

"If there are steps which the court can take in the exercise of its inherent powers to assist the defendant to give his best quality evidence, the 1999 Act does not exclude this".

She went on to doubt whether the Waltham Forest case had been rightly decided.

15. Similarly, in R(P) v West London Youth Court 2006 1WLR 1219, this court took it as accepted that the Youth Court had an inherent power to take such steps as would enable the young defendant to participate effectively in the trial, including, "being pro-active in ensuring that the claimant had access to support", as was said at paragraph 26.
16. I have already made clear that there is no statutory power permitting the appointment of an intermediary for a defendant, but there may be some procedural power in the Criminal Procedure Rules. Criminal Procedure Rule 1.11 sets out the overriding objective to deal with criminal cases justly, which includes at (c) recognising the rights of a defendant, particularly under Article 6 of the European Convention on Human Rights. Furthermore, the court's case management powers at Rule 3.10(b)(v) require the court to consider what arrangements are necessary to facilitate the participation of any person in the trial, including the defendant. In an appropriate case this surely requires the appointment of an intermediary for the defendant himself.
17. In my judgment, when trying a young child, and most particularly a child such as "C" who is only 12 with learning and behavioural difficulties, notwithstanding the absence of any express statutory power, the Youth Court has a duty under its inherent powers and under the Criminal Procedure Rules to take such steps as are necessary to ensure that he has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial. He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story as his proof of evidence is drawn up; it may be that he needs help to speak to his lawyers, let alone to the court; he will need help to follow the case as it proceeds; he would need help to decide whether to question the cadet whom he is alleged to have attacked; whether to accept his identification or to attack his credibility; he will need to decide what line to take with his co-defendant, "P", depending on the evidence he gives; he will need particular help to decide if he is to give evidence, and if so he will need help to do so. It is in the highest degree unlikely that this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and to help him, both during the trial itself and in preparation for it. In short, he needs an intermediary. Furthermore, if an intermediary is to be effective, "C" must know the intermediary and have confidence in him or her. Such trust will not be established if their first meeting is on the morning of the trial. Moreover, the court will have to adopt its procedures to ensure that the hearing is fair to "C" by using simple language, by taking breaks, by taking any and all such steps as are necessary. Experienced justices sitting in Youth Courts are well able to ensure the fairness of the proceedings.
18. I conclude that there is nothing in the Waltham Justice 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". I would quash his decision to revoke the appointment of an intermediary. The case should therefore immediately return to the Youth Court for the necessary directions to be given. In my judgment, the suitable intermediary needs to be appointed after urgent consultation between the Office of Criminal Justice before the Ministry of Justice, Sevenoaks Youth Court, and the defence. We may need to draft an order in appropriate terms after concluding our judgments.
19. I turn then to the question of costs, and by whom the intermediary is to be paid. Mr Luckhurst on behalf of the claimant argues that if there is an inherent power to provide for intermediaries, then there must be an inherent power to provide for payment out of central funds. It is, however, axiomatic that the court cannot make an order for the payment of costs out of central funds without a specific statutory power. If authority is needed for such a proposition it is to be found in the case of Steel, Ford and Newton v the CPS 1994 1AC 22. The strong statement of principle made by Lord Bridge is at page 33, letter E to F, it is in these terms:

"But still more important in the present context is the special constitutional convention which jealously safeguards the exclusive control exercised by parliament over both the levying and the expenditure of public revenue. It is trite law that nothing less than clear, express, and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure. As it was put by Viscount Haldane in Auckland Harbour Board v the King 1924 AC 318 at 326: 'it has been a principle of the British constitution now for more than two centuries ... that no money can be taken out of the consolidated fund into which the revenues of the state have been paid excepting under a distinct authorisation from parliament itself'".

20. It is said by the claimant, and indeed by the Legal Services Commission that specific authority for the payment of intermediaries is to be found in the costs in Criminal Cases Regulations 1986, regulation 20, which is headed "expert witnesses etc". It reads as follows:

"20(1) The court may make an allowance in respect of an expert witness for attending to give expert evidence, and for the work in connection with its preparation, of such an amount as it may consider reasonable having regard to the nature and difficulty of the case and the work necessarily involved.

(2) Paragraph 1 shall apply with necessary modifications to a) an interpreter or intermediary; or b) ... as it applies to an expert witness".

21. Taken in isolation this seems to solve the problem. Regulation 20 is, in part (v) of the regulations, headed "allowances to witnesses". Regulation 16(1) provides that:

"Where in any proceedings in a criminal cause or matter in a Magistrates' Court, a Crown Court, a Divisional Court, the Queens Bench division, the Court of Appeal, or the House of Lords ... an interpreter is required because of the accused's lack of English, or B)a) a witness called by the defendant is examined through an intermediary under section 29(1) of the Youth Justice and Criminal Justice Act 1999 ... the expenses properly occurred by a witness referred to above ... shall be allowed out of central funds in accordance with this part of these regulations, unless the court directs that the expenses are not to be allowed out of central funds".

To my mind this makes it abundantly clear that regulation 20 is intended to cover, and only covers, those intermediaries appointed under section 29 of the Youth Justice and Criminal Evidence Act 1999.

22. It is said that many courts have made orders requiring intermediaries for defendants to be paid out of central funds on the basis that an intermediary is some species of interpreter; this will not do. I have already made clear that the intermediary referred to in regulation 16 is an intermediary appointed to assist a witness under section 29 and not an intermediary appointed to assist a defendant. Similarly, an interpreter within the meaning of regulation 16 is an "interpreter ... required because of the accused's lack of English". The point is made even more clear by the originating power in section 19(3)b) of the Prosecution of Offender's Act, by which the Lord Chancellor may by regulation make provision for the payment out of central funds of such sums as may be reasonably necessary to cover the proper expenses of an interpreter who is required because of the accused's lack of English. This is not apt to cover an intermediary appointed to help a defendant because of his learning difficulties and mental health issues. I am clearly of the view that the authority in regulation 16 to pay for an interpreter out of central funds is not a proper or effective authority to pay an intermediary required because of the defendant's special needs.
23. The result is that there is in truth a lacuna here in the regulations. The courts, in safeguarding the interests of young and vulnerable defendants, have provided protection which is not yet provided for by statute, or indeed by the regulations. I am clear that there is no provision by which the courts can order the payment of the costs of an intermediary for a defendant out of central funds. However, as I have already made clear, if a fair trial to "C" requires the appointment of an intermediary, some provision must be made for the payment of the intermediary's reasonable fees and expenses, otherwise the provision of an intermediary will be rendered nugatory. This will be only a temporary problem, for if clause 33 of the Coroners and Justice Bill presently before parliament passes into law, the appointment of intermediaries to assist defendants will be sanctioned by statute, and there will, no doubt, be amendments to the regulations to permit payments to intermediaries so appointed out of central funds.
24. Neither the Ministry of Justice nor Her Majesty's Court Service are represented before us today. We are told by Mr Coppel, counsel on behalf of the Legal Services Commission, in the course of his most helpful submissions, that for sometime the MOJ had been voluntarily accepting responsibility for the payment of intermediaries appointed by the court for defendants. He has produced a standard form of contract which the MOJ uses on such occasions and it is clear that they do contemplate that intermediaries may be appointed to act for defendants. The legal basis for this acceptance of responsibility is not altogether clear, but it may be pursuant to a general common law power vested in the government to take such steps as are necessary to carry out the substantive governmental function of delivering an efficient, effective, and fair system of criminal justice which is part of the responsibility entrusted by parliament to the Lord Chancellor by the Court's Act 2003. The existence of such a general common law power may have been recognised in R (Shrovesbury, H and Borough Council) v the Secretary of State [2008] 3 All England 548. Such a voluntary payment may be objectionable if it conflicts with some other statutory provision, in my judgment it does not. Indeed, in providing for the payment of intermediaries for defendants, it is merely anticipating the passage of the Coroners and Justice Bill. As I have already said, a fair trial of "C" requires the appointment of an intermediary, and unless some provision is made by the courts for the payment of an intermediary, then ordering an intermediary is futile. Whatever the precise legal basis of their position, it seems to me very suitable for the MOJ voluntarily to cover the modest costs of the appointment of an intermediary, for without that, disadvantaged defendants such as "C" would not have a fair trial. We understand that their practice is to fix the appropriate sum at the level presently paid to interpreters, again this seems to me to be very sensible. We make clear that this payment by the MOJ is a payment voluntarily made by them, the courts cannot order the Secretary of State to make such a payment, because, as we have already said, there is no statutory authority for the courts to make such an order.
25. In argument before us, Mr Coppel sought to identify another possible source of funding. It is said that each court has a budget from which the ordinary incidental running expenses of the court are paid. He calls this, by way of shorthand, it is not a technical expression, the "local budget". He argues that the courts could use these funds to pay intermediaries appointed for defendants. This seems to me to be simply a device to avoid the absence of statutory authority to permit payment out of central funds. Furthermore, the payment of intermediaries is not provided for when these local budgets are set, and if such orders could be made some courts, for example specific youth courts, could be hit very hard. I find this an unpersuasive argument and personally I would reject this as a potential source of funding for intermediaries for defendants.
26. I turn then to the Legal Services Commission. Mr Coppel accepts that since a fair trial requires that an intermediary be appointed for "C", some provision has to be made for the payment of the intermediary. He has made clear that the Legal Services Commission does have the power to pay intermediaries appointed by the court for defendants. He has taken us to section 4(2)(a) of the Access to Justice Act which authorises the Legal Services Commission to enter into contracts with solicitors for the provision of legal services. The contract is the Unified Contract (crime), the July 2008 version. He concedes that the disbursements permitted under paragraph A22.16 and A22.17 might include the costs of intermediaries appointed to assist defendants. Failing that there is the "long stop" provided by section 14(2)(g) of the Access to Justice Act which permits the Legal Services Commission, "to do anything else which it considers appropriate for funding representation". Although Mr Coppel says that there is a strong presumption that everything is covered by the contract, there will always be some circumstances which are unforeseen and unforeseeable, so, if the need arose, the Legal Services Commission could plug the funding black hole.
27. Mr Coppel argues that since an intermediary is appointed by the court to assist the defendant to prepare and present his case at court, the most suitable person to pay the costs is either the court or the MOJ. I agree. I have rejected the argument that the court itself can order payment of an intermediary out of central funds or out of local funds, but I have already recited how now the costs of intermediaries for defendants are being met by the MOJ. It follows that, so long as the intermediary is funded by the MOJ, there is no requirement for the Legal Services Commission to pay those expenses. It is far more suitable that the costs are met by the MOJ. The decision of the Legal Services Commission in this case not to fund "C"'s intermediary was correct on the basis that funding will be provided by the MOJ. If, however, circumstances change, and if the MOJ were not to fund "C"'s intermediary, then the Legal Services Commission would need to reconsider the matter in the light of changed circumstances.
28. I move on to consider the claim by the defence that the continuation of the case is an abuse of the process of the court and/or the result after decision by the CPS which is so flawed that this court should intervene. It is established that this court can interfere with decision of the CPS to prosecute, but in the absence of bad faith, which is not here suggested, such a decision is not open to challenge unless the code for prosecutors has been discarded or not properly followed. I have already reviewed the evidence against "C" and it should also be pointed out that "C" has in the past had two previous warnings for common assault and theft in February 2008, and for theft in September 2008; he has convictions for battery and handling stolen goods in May and August 2008. Since being charged with the incident offences he has been charged with criminal damage in April 2009, theft in May 2009 and common assault in June 2009. These three sets of proceedings have all been adjourned pending the resolution of this application for judicial review.
29. There have been no less than four separate reviews of the conduct of the case by the CPS which has disclosed the working papers evidencing each decision. The first considered the evidential sufficiency; it has not been suggested here that the evidence was not sufficient to proceed. The second review considered the public interest in which the lawyers sought to balance "C"'s extreme youth against the seriousness of the offence and his previous offending. Furthermore, "diversion" from the Criminal Justice System requires an admission of guilt which there has not been in this case. The third review was simply an advice on evidence. It is the fourth review which is the most relevant, this was conducted by Miss Ellis, a CPS lawyer. She concluded it was in the public interest that the matter proceeded to trial. She set out her reasons in a long and careful letter to the defence solicitors on 17 August.
30. Mr Luckhurst, on behalf of "C", argued, without much conviction it seemed to me, that the CPS should have considered the medical evidence before 17 August, but he did not challenge this delay at the time. If there was any such failing, which I doubt, then it was to my mind cured by the detailed review which took place on 17 August. I summarise what seemed to me to be the relevant factors: first, the strength of the evidence; second, his previous offending and the further charges later made against him strongly gravitate in favour of proceeding despite his extreme youth and his myriad of mental health issues. Moreover, under paragraph 5.9 of the code for prosecutors, the seriousness of the offence and his antecedents weigh heavily in support of a prosecution, and under paragraph 8.9, when a youth has already received a final warning, the public interest will usually require a prosecution; third, I note Dr Marriot's conclusion that "C" knew the difference between right and wrong and understood that assault and taking other people's property was wrong; fourth, as I have already discussed, serious though his mental health issues may be, I accept the doctor's opinion that suitable measures could be taken to accommodate "C"'s needs, including the appointment of an intermediary, using simple language, and taking breaks; fifth, it has not been suggested that "C" is unfit to plead. No application has been made to withdraw the plea of not guilty already entered, no application has been made to the court that he is unfit to be tried. The CPS and the court are under a continuing duty to review whether "C" was and remains fit effectively to participate in the trial and if it were to become clear that he was not then the procedure could change to an enquiry under section 37(3) of the Mental Health Act 1983 read together with section 11(2) of the Powers of Criminal Court Sentencing Act 2000, as to whether he had done the acts alleged. All these are perfectly proper reasons for deciding to proceed with the charge.
31. In my judgment, with the necessary safeguards for the assistance and protection of "C", including the appointment of an intermediary, he can have a fair trial, or more accurately, it cannot be said at this stage that he will not have a fair trial. It would, in my judgment, be quite wrong to stay the proceedings at this stage. It is for the trial court to determine whether the trial is fair as it then proceeds and for the prosecution to keep the fairness of the trial and "C"'s fitness to be tried under constant review. I do not think there are grounds for thinking that the decision to continue with the prosecution of "C" is in anyway flawed and I would refuse permission for judicial review against the CPS.
32. I should make clear that although this judgment has necessarily focused on the fairness of the trial for "C", it is necessary to have in mind that the fairness of the trial postulates as well fairness to the co-defendant, "P"; fairness to the 13-year old cadet who claims to be the victim of this assault; and fairness also to the public who, if the charges against "C" are made out, may need some respite from him.
33. I summarise my conclusions: a) an intermediary should be appointed to help "C" to prepare for the trial in advance of the hearing and during the trial so that he may effectively participate in the trial process; b) that appointment is not made pursuant to a special measures direction under the Youth Justice and Criminal Evidence Act 1999, but pursuant to the court's inherent powers; c) the decision of the justice's clerk revoking the appointment should be quashed; d) the courts have no power to order payment of such an intermediary out of central funds; e) the purported payment of intermediaries for defendants out of central funds as a species of interpreter is without statutory authority; f) I commend the voluntary acceptance by the MOJ of the costs of paying for intermediaries appointed to assist defendants, but the courts cannot order such payments to be made; g) the Legal Services Commission have the power to order payment of intermediaries for defendants as a disbursement under their standard form contract; h) in the light of the voluntary acceptance of the costs of an intermediary by the MOJ, the Legal Services Commission were justified in refusing to fund the intermediary themselves, but if funding from the MOJ is refused or fails to materialise they must reconsider the matter in the light of their power to make payment themselves; I) if clause 33 of the Coroners and Justice Bill is passed in something similar to its existing form, then urgent amendments must be made to the regulations to give authority to the courts to order payment of the intermediaries' reasonable fees and expenses out of central funds. Regulations might perhaps usefully authorise payment for work done both before, during, and indeed after the trial; J) the decision by the CPS to pursue "C" to trial is entirely proper and I would not interfere to stop the prosecution. The CPS and the court must continue to monitor the fairness of the trial and "C"'s fitness to be tried.
34. LORD JUSTICE SULLIVAN: I agree.
35. Now, in terms of the court's formal order, as I understand it this is a rolled up hearing for permission to apply for JR and for JR. It seems to me, Mr Luckhurst, first things first, the applications for permission to apply for judicial review against the CPS and the LSC are refused; the application for permission to apply for judicial review against the Youth Court is granted and judicial review is granted -- permission to apply for JR granted, and judicial review granted. The most important order is that the decision, I think it was on 15 June was it not?
36. MR LUCKHURST: Indeed.
37. LORD JUSTICE SULLIVAN: To revoke the earlier decision, just remind me of that, that was 28 April.
38. MR LUCKHURST: 28 April.
39. LORD JUSTICE SULLIVAN: The decision on 15 June 2009, to revoke the earlier decision on 28 April 2009 to appoint an intermediary, be quashed. So, that is enough then to bring that 28 April 2009 decision back into life again. Then further detailed directions, have you possibly put your heads together and thought of things?
40. MR LUCKHURST: My learned friend, Mr Coppel has drawn up an order which, the first part of that order, the first paragraph, if I may hand up a copy.
41. MR COPPLE: In anticipation of what I thought the court's decision might be, it does not reflect the detail of which my Lord has just set out in this.
42. LORD JUSTICE SULLIVAN: No, we are grateful nonetheless.
43. MR COPPLE: It is a starting point.
44. LORD JUSTICE SULLIVAN: It will be a useful check list anyway. Other counsel have got it have they, so everyone knows what we are all talking about? Right.
45. MR COPPLE: Some paragraphs may be superfluous in the light of the terms of judgment.
46. LORD JUSTICE SULLIVAN: I would have thought so. I do not think we want to go around making declarations unless we absolutely have to.
47. MR JUSTICE OPENSHAW: I agree.
48. LORD JUSTICE SULLIVAN: Mr justice Openshaw agrees. I have dealt with three by saying that I think the formal order to be effectively application for permission to apply for JR of your clients and the CPS refused, and we grant permission in respect of the Youth Court, grant the application for judicial review and make the order in terms of your paragraph 1. Right. Detailed assessment of costs of the claimant and of the interested party.
49. MR COPPLE: Then five, the inter partes costs. I think the position both of the CPS and of my client is that we do not seek any costs against the claimant.
50. MR DICK: That is right, my Lord.
51. LORD JUSTICE SULLIVAN: Thank you very much. So we do not need five, we do not need to say that we are not doing anything.
52. MR COPPLE: I have not asked Mr Luckhurst what he wants to ask for in relation to the Youth Court, he has succeeded against the Youth Court, who of course are not here, have not participated, and it is down him to --
53. MR JUSTICE OPENSHAW: It would be helpful to give some directions for a speedy directions hearing before the Youth Court, would it not, to sort out the intermediary.
54. LORD JUSTICE SULLIVAN: Shall we just deal with the costs.
55. MR JUSTICE OPENSHAW: Yes.
56. LORD JUSTICE SULLIVAN: So far as the costs in respect of the Youth Court Mr Luckhurst, it would not be normal would it to order costs against a court that did not participate. If they had turned up and made a song and dance about it then we might have done, but I think we would not normally order costs against them.
57. MR LUCKHURST: That seems quite right.
58. LORD JUSTICE SULLIVAN: So, we will not make any order in that respect. No need to mention that I think, so the only costs issue is that you and Mrs Hoggett-Jones get a detailed assessment of your publicly funded costs, effectively. Right, and then what about my Lord, Mr justice Openshaw's suggestion that there should be some form of direction. I mean I am sure the justices will do it themselves anyway, but you might be assisted, you and indeed Mrs Hoggett-Jones, and I am sure in a sense Mr Dick too as I am sure the CPS is as anxious as anyone else to maintain the trial date. It might be as well to order a speedy directions hearing at the earliest convenient date. Whether we need to say any more than that; do you think a) would that be helpful, and b) do we need to say any more?
59. MR LUCKHURST: It would be helpful. I happened to come across the justice's clerk in Maidstone on Saturday and she is anticipating an early hearing.
60. LORD JUSTICE SULLIVAN: That is an interesting way of dealing with the matter, but I think it would be sensible, having quashed the revocation order, so got us back to square one, we direct that there be an early directions hearing before the Sevenoaks Youth Court at the earliest convenient opportunity. I do not think we need to say any more. It seems to me that Mr Coppel's point six, the liberty to apply, might well be sensible. Apart from anything else it might well concentrate people's minds wonderfully in the department, that they know that if there is not a pretty clear indication 'PDQ' that they are going to pay, the whole roadshow will be coming back in front of us and having a moan.
61. MR LUCKHURST: I would agree with that.
62. LORD JUSTICE SULLIVAN: Good idea? Yes. Anything else you want?
63. MR LUCKHURST: It seems, my Lord, that there also might be a need for an order of this court that the Ministry of Justice, the defence, and Sevenoaks Youth Court, there should be a liaison between them after that directions hearing.
64. MR JUSTICE OPENSHAW: Well, it is in the judgment. Cooperation really is usually more effective if it is done on a voluntary basis.
65. LORD JUSTICE SULLIVAN: It would obviously be helpful if prior to the directions hearing you were to get together with Mr Dick and Mrs Hoggett-Jones and agree, for example, that passages in my Lord's judgment that specifically refer to the need for cooperation between the parties to appoint an intermediary ASAP. It would effectively tell them why it is, the principle reason why you are wanting a directions hearing really, so that a trial date can be kept. I would have thought that can be done by discussion between the solicitors.
66. MR JUSTICE OPENSHAW: You might see the justice's clerk next Saturday.
67. LORD JUSTICE SULLIVAN: Yes, arrange to meet in the High Street again and sort it all out.
68. MR LUCKHURST: My Lord, it was in the hairdressers.
69. LORD JUSTICE SULLIVAN: So the visit may not be quite so appropriate. Any more for any more?
70. MR COPPLE: My Lord, just one small point of detail. The clause number in the Coroners and Justice Bill to which my Lord referred, is clause 100 which would insert a section 33ba into the 99 Act.
71. MR JUSTICE OPENSHAW: Thank you very much.
72. LORD JUSTICE SULLIVAN: Can I just check something with the associate. It would help the associate if you could please, Mr Luckhurst, just liaise with Mr Coppel, Mrs Hoggett-Jones, and Mr Dick, and agree an order or form of order which reflects what I have just been saying, just set it out. If you are all agreed that that is the position there is no need to come back to us, just give it to the associate and all is well. Anything else? Yes, Mr Dick?
73. MR DICK: Your Lordship initially suggested that the magistrates should be directed to have a directions hearing as soon as possible, may I suggest that that is after the 14 days liberty to apply. If we were to come back before the magistrates, say in seven days time, we may not know whether anyone has actually agreed.
74. MR JUSTICE OPENSHAW: 14 days time, you need to get this underway because you need the intermediary in place. The defence solicitors will probably want conferences with the intermediary before then.
75. LORD JUSTICE SULLIVAN: Mr Dick I endorse my Lord's observations. It seems to me the sensible thing to do is to get on with it on the basis that what we have been told by Mr Coppel and what is rehearsed in my Lord's judgment is this position. There is this (inaudible) between the MOJ and the LSC which will provide for funding, and I think that will work. The liberty to apply is a) to gently nudge people to ensuring that it does work, but really just a long stop if all else fails. I would hate to delay everything on the off-chance that it might not work.
76. MR DICK: Yes.
77. LORD JUSTICE SULLIVAN: You may have a specific reason.
78. MR DICK: My only concern my Lord is if we were to appear before the Sevenoaks justices in seven days time, to put it frankly, there might not be very much for us to say.
79. MR JUSTICE OPENSHAW: It is important to inject a sense of urgency into it. I think ordering these things happen as soon as possible is one way of doing that, otherwise it is just going to float gently up to 17 December and no one is going to be ready.
80. LORD JUSTICE SULLIVAN: What you and Mr Luckhurst or Mrs Hoggett-Jones will be able to say to the magistrates is, look the divisional court has said he has got to have an intermediary, it is said you have got to get on with appointing the intermediary 'PDQ', it is said it is quite obvious if you are going to appoint him he has got to be paid for, and the choice as between who pays seems to be between the MOJ or the Commission. You as the Magistrate' Court are out of the loop so you need not trouble yourself about that. Provided the intermediary knows he is going to be paid by someone, I would have thought everyone will get on with it.
81. MR LUCKHURST: Indeed. The directions hearing, in any event, the key issue for "C" was an intermediary. Now we know the intermediary will be put in place there is timetabling to be addressed, there has got to be directions by the Youth Court that there will be regular breaks. It would be foolish for you us to turn up on the day of trial without a timetable for the trial, a timetable for calling of the witnesses, so there is a lot more at the discretions hearing in any event. My Lord, I have to agree with your indication that if focuses minds on what has been a very frustrating and drawn out process.
82. LORD JUSTICE SULLIVAN: Right. So, it is not postponed until after the 14 days Mr Dick, I think you are outvoted on that one I am afraid. All right. Any more? Good, so you will give the order to the associate, and assuming there is no problem we will not need to be involved again.