Cox, R v

An intermediary may improve communication at trial, but its unavailability does not automatically make a trial unfair or require a stay. The use of an intermediary as a special measure is discretionary. The trial judge retains overall responsibility for fairness and must adapt the ordinary process where a defendant has communication difficulties.

Where every sensible effort to obtain an intermediary has failed, the judge must make an informed assessment of whether the defendant can still receive a fair trial. A defendant who is fit to plead will only unusually be so disadvantaged that a properly brought prosecution must be stayed.

The appellant was convicted of rape by a jury at Leicester Crown Court on 26 July 2011. He had learning difficulties, a personality disorder and alcohol dependency. Although the trial judge found him fit to plead, an intermediary could not be obtained despite repeated efforts.

The judge refused to stay the prosecution. He ordered adaptations to the trial, including short periods of evidence, regular breaks, simplified questioning, an agreed statement about the appellant’s difficulties, and active judicial monitoring. The appeal challenged the fairness of the trial in the absence of an intermediary and whether the appellant could participate effectively.

1. Appeal dismissed. The conviction followed a fair trial.

2. An intermediary is one of the discretionary special measures under Youth Justice and Criminal Evidence Act 1999. Its use can make a valuable contribution to justice and may improve a trial. However, improvement alone does not make its provision mandatory.

3. The trial judge’s general responsibility to ensure fairness has not been displaced by the availability of intermediaries or other special measures. Judges must address communication problems and adapt the process where necessary so that a defendant or witness is not disadvantaged by personal difficulties.

4. When sensible steps to identify an intermediary have failed, the proper question is whether its absence would make the proposed trial unfair. The next step is not automatically a stay. A stay would be most unusual where a defendant is fit to plead, particularly where a genuine complaint has properly been brought.

5. Here, the judge had properly assessed the appellant’s abilities and monitored the trial. The adaptations enabled him to follow evidence in manageable periods, give instructions and have his account placed before the jury. The judge intervened when needed and treated the appellant’s police account as exculpatory evidence in summing up. No failure in the protective measures was identified.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted, but the appeal was dismissed.
• Crown Court at Leicester: On 26 July 2011, the appellant was convicted by a jury of rape.