Thomas, R v

A trial judge must decide whether a vulnerable defendant needs an intermediary by assessing the defendant’s communication needs in the context of the particular trial. An expert recommendation is important but is not determinative. The court must consider the factual, legal and procedural demands of the proceedings, the assistance available from legal representatives, and whether adaptations such as clear questioning and regular breaks will secure effective participation.

An intermediary is not a routine trial-management measure. Appointment for evidence is rare and appointment for an entire trial is extremely rare, but it must be made when necessary for a fair trial. Fitness to plead under the Pritchard criteria is likewise assessed in the context of the actual proceedings, not in the abstract.

The appellant was convicted in the Crown Court at Canterbury of causing death by careless driving while over the prescribed drug limit, contrary to section 3A(1)(BA) of the Road Traffic Act 1988. He was acquitted of causing death by dangerous driving. He received three years’ imprisonment, a driving disqualification and an extended retest requirement.

Before and during the trial, he relied on expert evidence concerning low cognitive functioning, chronic pain, medication and depression. He sought an intermediary for the whole trial and, later, for any evidence he might give. The judge declined to appoint one and found him fit to plead, while making adaptations including breaks and permission to move in the dock.

He appealed against conviction on the intermediary and fitness rulings, and sought leave to appeal sentence. The central issue was whether the absence of an intermediary prevented his effective participation and rendered the trial unfair.

1. The appeal against conviction was dismissed. The trial judge’s decisions refusing an intermediary for the whole trial, finding the appellant fit to plead, and declining to use the court’s inherent power to appoint an intermediary for his evidence were correct. The appellant had participated sufficiently and the trial remained fair.

2. The court may appoint an intermediary under its inherent powers. The relevant statutory provisions had not yet commenced: section 104 of the Coroners and Justice Act 2009 would insert sections 33BA and 33BB into the Youth Justice and Criminal Evidence Act 1999. Appointment is not presumed merely because it would improve the process. It depends on the defendant’s needs in the setting of the particular proceedings.

3. A whole-trial appointment is extremely rare, and an appointment for evidence is rare. However, rarity cannot displace the requirement to appoint an intermediary when necessary for effective participation. The judge must consider the defendant’s vulnerabilities, the actual complexity and duration of the trial, the assistance available from representatives, and whether adaptations will adequately meet the need. Expert recommendations inform, but do not determine, that judicial assessment.

4. The court approved the practical measures identified in R v Cox [2012] EWCA Crim 549, including short and simple questions, regular breaks and opportunities for counsel to explain evidence and obtain instructions. A Ground Rules Hearing should be considered where comprehension or communication difficulties may arise. Intermediaries may also assist counsel in obtaining instructions in an appropriate case.

5. Fitness to plead under R v Pritchard [1836] 7 Car & P 303 must be assessed in the context of the proceedings faced. Applying Marcantonio [2016] EWCA Crim 14, the court held that the expert report insufficiently related the appellant’s difficulties to this relatively narrow and straightforward driving trial. He had not proved unfitness on the balance of probabilities.

6. The court granted leave to appeal sentence but dismissed the appeal. The three-year sentence was not manifestly excessive. The sentencing judge had properly considered the glare, the appellant’s tiredness and drug after-effects, his cognitive and physical difficulties, and the grave consequences for the deceased’s family.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction. Granted leave to appeal sentence but dismissed that appeal: [2020] EWCA Crim 117.
• Crown Court at Canterbury Convicted the appellant of causing death by careless driving when over the prescribed limit and sentenced him to three years’ imprisonment, with a driving disqualification and extended retest requirement.