TI v Bromley Youth Court

A court deciding whether a vulnerable defendant requires an intermediary must assess the defendant’s ability to participate effectively in the particular trial. The fact that whole-trial appointments are rare does not create a high threshold where an intermediary is necessary for a fair trial. Expert recommendations are not determinative, but the judge must engage with the evidence and explain how effective participation will otherwise be secured. A previous trial without an intermediary, a prepared police statement and the apparent simplicity of the issues may carry limited weight. They cannot justify treating proceedings as effectively irrelevant to the defendant if disputed evidence may require the defendant’s engagement.

TI, aged 15, was awaiting trial in the Bromley Youth Court on charges of theft and breach of a criminal behaviour order. Psychological and intermediary assessments indicated significant difficulties with concentration, comprehension and engagement, and recommended intermediary assistance throughout the trial.

A District Judge refused the application, relying on the specialist nature of the Youth Court, the claimant’s previous participation in a trial without an intermediary, a prepared statement given through his solicitor, and the view that the case was effectively a lawyers-only case. TI applied for judicial review. The issue was whether the refusal was legally sustainable and whether an intermediary was necessary to secure his effective participation and a fair trial.

1. The claim succeeded. The court had already quashed the District Judge’s decision and ordered the appointment of an intermediary for the whole trial.
2. The decision was an evaluative case-management decision deserving respect. The court would interfere if it was wrong or unsupported by the material available, even though it might otherwise have reached a different conclusion.
3. The court may appoint an intermediary under its inherent jurisdiction. The Criminal Practice Directions recognise that an intermediary may be appointed for a defendant’s evidence or for the entire trial. The frequency descriptions in CPD 3F.13 do not create a high hurdle. They reflect that most defendants do not need an intermediary. The controlling question remains whether assistance is necessary for effective participation and a fair trial.
4. The court adopted the core principles in R v Dean Thomas [2020] EWCA Crim 117: the decision is fact-sensitive; the defendant’s difficulties must be assessed against the actual proceedings; expert recommendations are not determinative; and all other adaptations must be considered, while ensuring that necessary assistance is provided.
5. The District Judge failed to explain how the Youth Court’s ordinary expertise and proposed directions would overcome the claimant’s documented inability to engage and concentrate. The earlier trial without an intermediary was of limited assistance because its circumstances and effectiveness were unknown. The prepared statement showed only that the claimant could give basic instructions through his solicitor. It did not establish an ability to engage with the trial process as a whole.
6. Describing the case as a lawyers-only case was not sufficient. The prosecution relied on disputed identification evidence from a lay witness and police officers. Although the claimant might not need to contribute directly during every stage, it could not be assumed that he would have no need to follow or respond to the proceedings.
7. Where evidence demonstrates that a defendant lacks capacity to participate unaided, the judge must explain how effective participation will otherwise be secured, and must explain why materially reasoned expert views are rejected. The District Judge did not do so. The decision was therefore wrong. It was quashed, and the case was referred to the Chief Magistrate for prompt listing and judicial allocation.

This was a judicial review in the High Court (Administrative Court) of the District Judge’s refusal to appoint an intermediary. The High Court quashed that decision and ordered an intermediary for the entirety of the trial.