R, R. v

An interlocutory appeal under the Criminal Procedure and Investigations Act 1996 lies only from a ruling within the statutory categories. The phrase any other question of law relating to the case is confined to a question going to the root of the case. It does not encompass a complaint that a trial-management ruling, including one concerning an intermediary, may affect the fairness of the trial.

Low intelligence does not by itself establish mental vulnerability under PACE Code C. The assessment depends on the detainee’s capacity at the relevant time and all the surrounding evidence. A reasoned ruling that a confession was reliable and its admission fair will not justify appellate intervention merely because the defence prefers competing expert evidence.

The applicant faced terrorism charges arising from an alleged attempt to travel from the United Kingdom to Syria to fight for ISIS. After his return from Turkey, he made admissions in a PACE interview conducted without a solicitor or appropriate adult. He later made no comment when interviewed with a solicitor present.

At a mandatory preparatory hearing, the Crown Court judge ruled that an intermediary was unnecessary throughout the trial, although one should assist if the applicant gave evidence. The judge also admitted the earlier interview. The applicant sought leave to bring an interlocutory appeal on both rulings.

The central issues were whether the intermediary ruling was appealable under the Criminal Procedure and Investigations Act 1996, and whether the judge had wrongly concluded that the applicant was not mentally vulnerable and that the interview evidence was admissible.

1. Application for leave dismissed on both grounds. The court had no jurisdiction to entertain an appeal from the intermediary ruling. Under sections 35(1) and 31(3) of the Criminal Procedure and Investigations Act 1996, the statutory appeal is confined to a ruling on admissibility or a qualifying question of law.

2. The phrase any other question of law relating to the case in section 31(3)(b) has a restricted meaning. Applying the analysis in R v H [2007] 2 Cr App R 6 and R v VJA [2010] EWCA Crim 2742, the question must go to the root of the case and must be more specific than an assertion that the judge misdirected himself. A ruling about an intermediary was a case-management ruling outside that category. An asserted breach of Article 6 did not alter its character.

3. The court nevertheless recorded that the judge’s assessment of the intermediary evidence was careful and rational. The judge was entitled to distinguish between a need for assistance while giving evidence, where suggestibility might arise, and the remainder of a relatively straightforward trial. The judge could manage the latter stages and keep the position under review. This was an alternative observation after the jurisdictional conclusion.

4. The interview ruling was appealable because it concerned admissibility and went to the heart of the Crown’s case. Under section 76(2)(b) of PACE, the Crown had to establish reliability to the criminal standard; the judge also considered fairness under section 78.

5. The judge was entitled to find that an IQ in the borderline low-average or extremely low-average range did not itself establish mental vulnerability under PACE Code C. He considered the evidence as a whole, including the explanation of rights, fitness for interview, the caution and the recorded interview. His findings that the applicant understood the process, was not mentally vulnerable at the relevant time, and had made reliable answers were sustainable. There was therefore no arguable error or unreasonableness warranting leave.

• Court of Appeal (Criminal Division) — refused leave to appeal interlocutory rulings. It held that it lacked jurisdiction over the intermediary ruling and that the challenge to the admission of the PACE interview disclosed no arguable error.
• Crown Court — at a mandatory preparatory hearing, ruled that an intermediary was required only if the defendant gave evidence and admitted the earlier PACE interview. The judge did not grant leave to appeal.