Jordan Dixon was seventeen and a half at the time of the offence. It was admitted at his trial that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), he tested with an extremely low IQ (68; a later clinical psychologist found it to be 55), he suffered from learning difficulties and in particular dyslexia, a poor working memory, limited vocabulary, and a severe stammer. In addition, he did not know what words such as jury, evidence, oath, defence and alleged meant. Although he did not give evidence, the jury was made aware that he had given an account of the events in which he felt that he had been acting in self-defence.

The first appeal point was whether the judge should have allowed the jury to consider whether or not to draw inferences from the failure to give evidence. The defence relied on section 35(1)(b) of the Criminal Justice and Public Order Act 1994 which includes the exception, if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence’. The appellant relied on the decision in Billy Joe Friend (No.2) [2004] EWCA Crim 2661 where it was held that it is not necessary to show that the defendant would himself be harmed by giving evidence but that the extent of his condition was such that it was undesirable for him to give evidence because of his various mental disabilities. There were more recent authorities to the same effect. The Court of Appeal agreed with them: ‘There is likely to arise in the future a variety of circumstances, unrelated to damage to health, in which it would not be just (and thus it would be undesirable) to permit the possibility of an inference being drawn.’

However, they drew a distinction on the facts. Here there was an intermediary in place, the trial judge was entitled to note the appellant’s behaviour after the event and the nature of the account given by him, no issue of fitness to plead had been raised, and the intermediary’s report presupposed that the trial could proceed, with her assistance. ‘The question for the judge is a broad one with a wide margin of appreciation’ and ‘his approach and assessment’ of the situation resulted in a decision ‘to which he was entitled to come’. The Court of Appeal rejected the suggestion that they should take a ‘blanket approach’ in applying the statute more generously to defendants who are young or who have mental difficulties.

The Court heard live evidence from two experts, which was received de bene esse. They broadly agreed on the nature of the appellant’s difficulties but disagreed on whether this meant that there had been no effective participation by him in the trial. In the end the Court did not receive the evidence and considered that it would not afford a ground for allowing the appeal. It could have been sought and used at trial; it ‘merely represents an amplification of material available earlier’.

The final ground—that the appellant did not participate meaningfully in his trial—squarely brought into focus the role of the intermediary. The use of intermediaries to assist vulnerable defendants has grown since 2008 in parallel to the statutory scheme in which Registered Intermediaries assist prosecution and defence witnesses. No statutory provision covers the situation in Jordan Dixon and in many other cases where assistance is given throughout the trial. It is therefore necessary in each case for the judge and counsel to agree just how to adapt the trial process to fit the needs of this particular defendant. It is essential that there should be a Ground Rules Hearing first, to establish how the intermediary will carry out her role and also to empower her to do so. The need for a Ground Rules Hearing was mandated by Bar Council guidance in September 2007. Judges have had similar guidance on their intranet since 2008. In 2010 the Criminal Procedure Rule Committee amended the application for special measures at Part F1, reflecting the requirement for there to be a [G]round [R]ules discussion in cases with intermediaries for witnesses. Since the trial there has been ‘Treatment of Vulnerable Defendants’, Part III.30, Consolidated Practice Direction, October 2011 which says that ‘all possible steps’ should be taken to assist a vulnerable defendant to understand and participate in those proceedings which includes a Ground Rules Hearing.

During the course of argument in the Court of Appeal it seemed to the authors that the person best placed to assist the court about how the appellant coped during the trial was the intermediary herself. She had made a statement setting out her concerns about what had happened during the trial but the Court could not accept it in evidence unless she was called by the appellant. The Court put that option to counsel more than once and finally gave the appellants the choice of either calling her or of agreeing with the Crown what the situation had been at the trial. They chose the latter. This was: that the 2007 Practice Direction in respect of vulnerable defendants had not been followed, that there was no Ground Rules Hearing, there were no intermediary-instigated breaks on behalf of the defendant, and there was no adjustment of language in court. Counsel for the Crown then submitted that the intermediary had assisted the defendant as far as she could and could have told the defence if she thought the appellant was in real difficulties.

The Court felt that criticisms made by appellant’s counsel (who had not appeared below) had ‘some justification’. During argument, one of their Lordships suggested that the attitude might have been, ‘here’s an intermediary, we will carry on as usual’, and asked whether in some instances the decision of a vulnerable defendant whether or not to give evidence could be affected by him standing trial in language he does not understand and when he is tired because of a lack of breaks. That question was not decided here because the facts did not justify it. Instead there was information that the appellant had been visited many times by his solicitor while he was on remand, counsel had taken clear and detailed instructions, the appellant understood the concept of self-defence and could describe what he said had occurred on the night. The intermediary had assiduously fulfilled her duties. There was no evidence that she had asked for extra breaks or notified the court that ‘the procedures were such as to nullify the Appellant’s participation in the trial’. The case itself ‘hinged very much of what could be seen on the CCTV’, and what could be seen, put a defence of self-defence ‘in considerable difficulty’. Although ‘we are not left with the impression that the trial judge took an active role throughout the proceedings to ensure that this vulnerable Appellant was actively participating in the proceedings’ as he should have, the Court was satisfied that sufficient was done to enable effective participation.

It is worth noting that the judge when sentencing concluded that the appellant was well aware of what he was doing. In reaching that conclusion he had relied on his ‘observations of the Appellant’s demeanour in court during the case’. Given the appellant’s disabilities, including ADHD, it ‘may not have been appropriate to read anything into the Appellant’s demeanour in court’.

The impression gained by the authors was that when it comes to adapting the court process to accommodate vulnerable defendants (and witnesses), the Court of Appeal is ahead of the game.

However, where the Bar is playing catch up there is no shortage of advice and guidance. Guidance on the Advocates’ Gateway (www.theadvocatesgateway.org) provides advice on advocacy and case management in cases with vulnerable witnesses or defendants. The website allows free access to the training film A Question of Practice, introduced by the Lord Chief Justice.

David Wurtzel, Consultant Editor of Counsel and Penny Cooper Professor of Law at Kingston University and Chair of the Management Committee of The Advocate’s Gateway.

At first hand
Gaynor Miles and Catherine O’Neill, two intermediaries who have assisted a defendant, also at the Old Bailey, provide a positive experience:

“We recently worked jointly as intermediaries on the same defence case. Because of the expected length (three months) and complexity of the case, it was agreed at a pre-trial hearing that more than one intermediary should be involved. We assessed him together. Both of us attended the Ground Rules Hearing where we shared the witness box when discussing the report. We then worked out a plan of which days each of us would cover.

“During cross examination we assisted jointly: one of us was next to the witness while the other stood or sat just behind. We swapped over during the frequent breaks. This worked well as we were able to communicate with each other at the time, either verbally or by passing written notes with comments or ideas to assist.

“Each evening we tended to debrief on the phone. This kept us up with the progress of the trial but also provided an opportunity to reflect. The joint thinking also formed a type of peer supervision which was helpful in maintaining well-being in a very distressing and lengthy case.

“We together produced symbols visually to support counsel’s attempts to explain joint enterprise and to help the defendant decide whether he should/could go into the witness box. He did give evidence and managed extremely well, using figurines and picture symbols and signing. We felt that the intermediary support was vital regarding facilitation of communication. It also was important in building this young man’s confidence and enabling him to make informed decisions, which also helped him to deal with the understandable episodes of anxiety and of depression.

“Working from start to finish on a long trial involving 8 defendants and 8 barristers was good experience in the whole court process. It also highlighted the importance and need of having a system where trained intermediaries are available to both vulnerable witnesses and defendants.”