Biddle, R v

A trial judge must decide case by case whether, and for which part of a trial, a vulnerable defendant needs an intermediary. An intermediary’s recommendation is important but is not determinative. Competent advocacy, appropriate questioning, judicial trial management and breaks will ordinarily enable participation without an intermediary throughout the trial. Such an order will be very rare.

A physical or mental condition does not of itself make it undesirable for an accused to give evidence under section 35(1)(b). The judge must evaluate all the evidence and has a wide discretion. The absence of an available intermediary may be material, but it does not preclude an adverse inference without evidence that it caused the defendant not to give evidence.

The appellant, aged 17 at the time of indictment, pleaded guilty at Worcester Crown Court to sexual assault of a child under 13. He was later convicted of rape of a child under 13 and sentenced to six years’ detention.

Psychological and intermediary reports recommended assistance throughout the trial. An earlier judge made such an order, but the trial recorder limited any intermediary to the appellant’s evidence. No intermediary was then available under Communicourt’s policy, and the appellant did not give evidence. The recorder gave a standard adverse-inference direction under Criminal Justice and Public Order Act 1994, section 35.

The appeal challenged the restriction of intermediary assistance and the adverse-inference direction.

1. Appeal dismissed. The recorder was entitled to reconsider the earlier order for an intermediary. He was not bound by either that order or the intermediary’s recommendation. The question was whether an intermediary was necessary, rather than merely desirable, for the relevant part of the trial.

2. The recorder’s conclusion fell within his broad evaluative discretion. The trial was short and straightforward. The appellant had competent representation, received appropriate breaks, and no difficulty in following or participating in the proceedings was identified. The appellant’s evidence, if given, would have been supported by the recorder’s adoption of the intermediary’s recommended communication measures. The case did not approach the very rare category in which an intermediary is required throughout a trial. This applied the principles in R v Rashid [2017] EWCA Crim 2.

3. The court added observations on Communicourt’s policy. An assessing intermediary may recommend the duration of assistance, but the trial judge decides whether and to what extent it is necessary. A policy refusing an evidence-only booking unless the assessor recommends it reverses that approach. If Communicourt accepts an assessment instruction, it should comply with the trial judge’s directions.

4. Under section 35(1)(b) of the Criminal Justice and Public Order Act 1994, a physical or mental condition does not automatically make it undesirable for an accused to give evidence. The judge must consider all available material, including expert opinion, and has a wide margin of judgment. There was no evidence that the absence of an intermediary caused the appellant not to give evidence. The decision to give a standard adverse-inference direction was therefore not Wednesbury unreasonable.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed.
• Worcester Crown Court: The appellant pleaded guilty to one count of sexual assault of a child under 13, was convicted after trial of rape of a child under 13, and was sentenced to six years’ detention.