AS, R (on the application of) v Great Yarmouth Youth Court

A criminal defendant who may be unable to follow proceedings or give evidence adequately without assistance may, under the common law, have a right—and in appropriate circumstances a duty may arise—to the appointment of a registered intermediary where that assistance is necessary for a fair trial. The court must assess the defendant’s particular communication difficulties and the risk that they may be misunderstood. Reasons rejecting an intermediary are irrational if they fail to engage with those difficulties and the resulting risk to trial fairness.

The claimant faced charges of theft and arson arising from an incident involving polystyrene blocks and a fire. He had been diagnosed with ADHD. Psychiatric evidence accepted that he could communicate his evidence but would benefit from a registered intermediary because complex vocabulary could cause frustration, delayed responses and apparent failure to engage with questions.

The Great Yarmouth Youth Court refused intermediary assistance, reasoning that the report did not show difficulties greater than those experienced by many other youths. The claimant sought judicial review of that decision. The issue was whether the refusal was lawful and compatible with his right to a fair trial.

1. Common-law protection. Although there was no statutory provision assisting defendants to give instructions or evidence comparable to the provision for witnesses, the common law had developed protective measures for defendants who might have difficulty presenting their case fully and properly. Under R v H [2003] EWCA Crim 1209, a defendant may have a right, which in appropriate circumstances may amount to a duty, to the appointment of a registered intermediary to help him follow proceedings and give evidence where, without assistance, he could not receive a fair trial.
2. Application to the claimant. The psychiatric report established that complex vocabulary could cause the claimant to become frustrated, answer an earlier question instead of the question asked, and appear not to engage properly. Without an intermediary, or another person alert to those difficulties, there was a real risk that the court would wrongly interpret his responses as dissembling or prevarication. An intermediary could ensure that questions were simple, allow adequate time for responses and alert the court to the claimant’s difficulties.
3. Irrationality and remedy. The justices’ comparison with other youths did not address the claimant’s particular difficulties or the real risk to trial fairness. Their reasons were inadequate and therefore irrational. The refusal was quashed, and the decision whether to provide a registered intermediary was remitted to the Youth Court for fresh determination.