C v Sevenoaks Youth Court

A criminal court has an inherent power and duty to appoint an intermediary for a defendant where that assistance is necessary for effective participation and a fair trial. The power applies before and during trial and is supplemented by the case-management duties in the Criminal Procedure Rules. The court cannot order payment from central funds without clear statutory authority. Funding may nevertheless be provided voluntarily by the Ministry of Justice or, where necessary, by the Legal Services Commission under its funding powers. The continuation of a prosecution should not be stayed merely because a vulnerable child requires procedural adjustments, where appropriate safeguards can secure a fair trial.

The claimant was a 12-year-old defendant facing trial in the Youth Court on charges of assault with intent to rob and theft. Medical evidence showed significant learning, behavioural and mental health difficulties. An intermediary was considered necessary to enable him to understand the proceedings, communicate with his lawyers and participate effectively.

The Youth Court initially directed that an intermediary be appointed, but later revoked that direction on the basis that the Youth Justice and Criminal Evidence Act 1999 provided special measures only for witnesses. The claimant also challenged the Legal Services Commission’s refusal to fund the intermediary and the Crown Prosecution Service’s decision to continue the prosecution.

1. Intermediary. The application for judicial review of the Youth Court’s decision was granted and the revocation of the earlier appointment was quashed. Although the Youth Justice and Criminal Evidence Act 1999 did not provide an express statutory power to appoint an intermediary for a defendant, the Youth Court had inherent powers, reinforced by Criminal Procedure Rules 1.11 and 3.10(b)(v), to take all steps necessary to secure a fair trial and effective participation. That duty applied during preparation for trial as well as during the hearing. The assistance required could include helping the child understand the case, communicate with lawyers, decide how to challenge evidence, decide whether to give evidence and follow the proceedings.
2. The court distinguished the statutory special-measures regime for witnesses from the court’s inherent jurisdiction. R v H, SC v the United Kingdom, R v Camberwell Green Youth Court and R(P) v West London Youth Court supported the principle that vulnerable defendants, particularly children, must be enabled to participate effectively in their trials.
3. Funding. The court had no power to order payment from central funds. Regulation 20 of the Costs in Criminal Cases Regulations 1986, read with regulation 16, applied to intermediaries assisting witnesses under section 29 of the 1999 Act and to interpreters required because of lack of English. It did not authorise payment for an intermediary assisting a defendant because of learning difficulties or mental health issues. The Ministry of Justice could voluntarily meet the reasonable costs. The Legal Services Commission also had power to fund the intermediary under its contractual disbursement powers or, if necessary, its residual funding power. Its refusal was therefore justified while Ministry funding remained available, but it had to reconsider if that funding failed.
4. Continuation of prosecution. Permission to seek judicial review of the CPS decision was refused. The CPS had conducted repeated reviews and was entitled to weigh the evidence, seriousness of the offences, previous offending, public interest and the available safeguards. The child was not presently said to be unfit to plead or be tried. The prosecution and trial court remained under a continuing duty to monitor fairness and fitness, but a stay was premature.
5. The matter was remitted to the Youth Court for an early directions hearing and urgent arrangements for an intermediary. No order for payment from central funds was made.

The judgment was a rolled-up hearing in the Divisional Court. The Youth Court’s decision of 15 June 2009 revoking its earlier direction of 28 April 2009 was quashed. Permission to apply for judicial review of the Legal Services Commission and CPS decisions was refused.