OP, R (On the Application Of) v Secretary of State for Justice

A criminal court may use its inherent powers to appoint an intermediary for a defendant notwithstanding the statutory exclusion of defendants from the witness-intermediary provisions. The relevant question is the assistance required to secure a fair trial, rather than whether an intermediary is needed throughout the trial. Where a defendant may give evidence, the decision-maker must consider whether a registered intermediary is required at that stage. A policy restricting registered intermediaries to prosecution and other witnesses is unlawful if it fails to address that issue and creates an arguable or perceived risk of unfairness or inequality of arms. The defendant must have the best opportunity to give evidence and do himself justice.

The claimant, a young man with significant learning disability and Asperger’s Syndrome, awaited trial in the magistrates’ court. The court directed that an intermediary be appointed, subject to availability, but the Ministry of Justice refused access to a registered intermediary under the Witness Intermediary Scheme. The claimant accepted that a non-registered intermediary could be provided, but challenged the policy as unfair and prejudicial.

The central issue was whether the defendant had to be considered for a registered intermediary, particularly when giving evidence, despite the statutory scheme applying expressly to witnesses rather than defendants.

1. Claim allowed. The Ministry of Justice’s refusal to provide a registered intermediary was quashed. The defendant was required to reconsider whether a registered intermediary should be provided solely to assist the claimant if he gave evidence.
2. The statutory scheme under Youth Justice and Criminal Evidence Act 1999, including section 29, excludes a defendant from the definition of witness. That exclusion does not remove the criminal court’s inherent power to appoint an intermediary where necessary to secure a fair trial. Non-registered intermediaries may be appointed under that power.
3. The court distinguished between general support during a trial and the skilled assistance potentially required when a defendant gives evidence and is cross-examined. It was not essential that a registered intermediary be available throughout every trial. The critical point was the defendant’s evidence, if he elected to give it. The decision-maker therefore had to consider the terms and purpose of section 33BA of the 1999 Act, inserted by section 104 of the Coroners and Justice Act 2009, although that provision was not yet in force.
4. The policy had been formulated on the basis that requests for defendants might reduce the pool of registered intermediaries available to witnesses. That reasoning did not address the restricted assistance required when a defendant gave evidence. There was an arguable, at least perceived, risk of unfairness and inequality of arms where a prosecution witness could receive a registered intermediary matched through the Witness Intermediary Scheme but the defendant against whom that witness gave evidence could not.
5. Fairness could not be sacrificed to administrative convenience. The Ministry of Justice had to reconsider whether refusing equivalent provision for the defendant and a prosecution witness, for the purpose of giving evidence, was justifiable.

No appellate history is stated in the judgment.