R v Zakaria Lahrar

Expert evidence about an accused’s cognitive ability will ordinarily be inadmissible on the issue of intention. Intention is generally for the jury to decide from all the evidence. Expert assistance may be admissible where the facts and issues make it necessary, but such cases will be rare.

Measures for a vulnerable defendant must secure effective participation. An intermediary or a direction to the jury about intellectual difficulties is not automatic where clear questioning, breaks and judicial intervention adequately address the defendant’s needs. In sentencing a young adult, age, immaturity and limited intellectual capacity may be reflected either in the starting point or as mitigation, provided the overall sentence fairly balances aggravation and mitigation.

Following a jury trial in the Crown Court at Basildon, the appellant was convicted of murder arising from a planned attack in which a co-accused used a machete. The prosecution alleged that he assisted or encouraged the attack as part of a joint enterprise. He denied knowing of any plan or weapon and denied providing assistance.

He renewed an out-of-time application for leave to appeal against conviction and sought to adduce psychological reports as fresh evidence under section 23 of the Criminal Appeal Act 1968. He contended that his cognitive impairments required expert evidence on intent, greater trial adjustments, an intermediary, and a jury warning. He also appealed his life sentence and 14-year minimum term as excessive.

1. The court refused the renewed applications concerning conviction and dismissed the appeal against sentence. The correction of the remand period to 372 days, with the minimum term expressed as 14 years and one day, stood.

2. Applying R v Turner (1974) 60 Cr App R 80 and R v Henry [2005] EWCA Crim 1681, expert opinion is unnecessary where a jury can form its own conclusion from the proven facts. Whether the appellant knowingly joined a serious attack and shared the required intention was ordinarily a matter for the jury. The court held that R v Jogee [2016] UKSC 8 had not altered that position.

3. Neither psychological report suggested that the appellant was incapable of forming the relevant intention. His evidence showed that he could disagree with suggestions, seek clarification, correct questioners and maintain his account. The recommendations in the pre-trial report had been followed through breaks, short and clear questioning, and interventions by counsel and the judge. The absence of an intermediary, and the absence of a jury direction on his intellectual difficulties and suggestibility, did not arguably render the trial unfair. The proposed fresh evidence was inadmissible and did not satisfy the statutory test. The conviction grounds were therefore unarguable, and an extension of time would have been academic.

4. The judge correctly adopted a 15-year starting point because he could not be sure that the appellant knew a machete would be used. The judge was entitled to increase the term for the violent, drug-related joint attack, then reduce it to reflect the appellant’s lesser role, age, immaturity, intellectual limitations and other mitigation. R v Peters [2005] EWCA Crim 605 identified one permissible sentencing approach, not a mandatory sequence. It did not matter whether youth and immaturity were reflected first in the starting point or later as mitigation, provided they were fully and fairly taken into account. The resulting minimum term was not manifestly excessive.

• Court of Appeal (Criminal Division): Refused the renewed applications for an extension of time, leave to appeal against conviction, and admission of fresh evidence. Dismissed the appeal against sentence.

• Crown Court at Basildon: Following a jury trial, convicted the appellant of murder on 8 March 2018. On 25 September 2018, imposed life imprisonment with a minimum term, subsequently corrected to 14 years and one day to reflect 372 days spent on remand.