ANALYSIS: Felicity Gerry considers how courts treat vulnerable defendants. Since the trial of Venables and Thompson where two children were tried in an adult court for the murder of James Bulger, efforts have been made by the courts to accommodate vulnerable defendants. A resolution of the Council of Europe in 2009 endorsed a road map for strengthening procedural rights of suspected or accused persons in criminal proceedings recognizing, as we all do that the right to a fair trial is fundamental. In a recent decision (R v Anthony Cox [2012] EWCA Crim 549) the Court of Appeal reiterated that special measures for vulnerable defendants are still very much at the discretion of the trial judge. The conviction for rape of the appellant, who had complex psychiatric difficulties, was found not to be unsafe by the fact that an intermediary could not be found to assist him as the trial process had been significantly adapted to enable him to effectively participate in the trial process

1. Who will be classified as a vulnerable defendant?

A vulnerable witness is defined by Youth Justice and Criminal Evidence Act 1999, section 16 as amended by the Coroners and Justice Act 2009.

1. Under 18
2. Suffering from a mental disorder within the meaning of the Mental Health Act 1983
3. Otherwise having a significant impairment of intelligence and social functioning
4. Having a physical disability or suffering from a physical disorder (covers deafness, blindness etc)

Many defendants may have similar vulnerabilities which can affect their capacity to participate in a crown Court trial. Examples might be:

• Vulnerable child: 15 year old boy with mental age of 7 accused of sexual offences against a 14 year old girl. Incident took place at their ‘special’ school. He accepts consensual events. She alleges non consensual and has bruises. She receives special measures by way of video, TV link and intermediary. He does not.
• Vulnerable adult: 43-year old man with low IQ and severe anxiety issues accused of historic sexual offences against his sister. He denies events took place at all. Her friend recalls a time he came into the room at night when she was staying over. He would have been 17 and his sister 12.
• Physically vulnerable person: Deaf defendant accused of rape of his wife who is also deaf. Witnesses are wife and hearing children with full panoply of special measures.

2. Why not just treat them as unfit to plead?

The procedure where a defendant is found unfit to plead (unable to give instructions etc) is very draconian. It effectively denies a defendant from putting forward any defence or explanation. It is a procedure whereby the acts can or may be proved but the reasons are ignored. The result is not a conviction it is a finding of fact from which a hospital order/supervision/a discharge can follow.

That a defendant is vulnerable or disabled is not a reason to treat them as unfit to plead. A finding that the defendant is unfit to plead deprives him of very significant rights and if found to have done the act in question severely limits the court’s ability either to protect the public or to assist him (R v Walls 2011 2 Cr App R 6). Vulnerable people are entitled to a fair trial just the same as anyone else but the way in which the trial is heard has to be adapted to accommodate them. For a vulnerable person facing a criminal charge who is capable of understanding the allegation and the process, it would be wrong to deny that person every assistance to engage and put their case across.

3. What measures are available to assist a vulnerable defendant

Special measures for witnesses are automatically available for children, those witnesses who are otherwise vulnerable, complainants in proceedings involving sexual offences or weapons (Youth Justice and Criminal Evidence Act 1999). Such a witness is, by virtue of the same Act, entitled to special measures to ensure they are able to give their best evidence. This can take the form of screens, pre-recorded video evidence, evidence by TV link, assistance of an intermediary or signer or picture board etc.

In relation to a defendant, the courts have consistently refused the use of pre recorded evidence and TV link stating that it was Parliament’s clear intention that defendants should be excluded from the provisions of YJCEA 1999

R (S) v Waltham Forest Youth Court [2004] 2 Cr App R 21 and R v Camberwell Green Youth Court ex p D a minor (by his mother and litigation friend and another 2005 UKHL 4 and R v Ukpabio 2008 1 Cr App R 101.

In the Camberwell Green case, the submission advanced by none other than Kier Starmer, the Director of Public Prosecutions, was that by requiring the evidence of child witnesses to be given by video recording and/or video link, while not affording the same facility to child defendants violated a defendant’s Article 6 rights. That appeal was dismissed. Baroness Hale said:

‘The defendant is excluded from the statutory scheme because it is clearly inappropriate to apply the whole scheme to him. There are obvious difficulties about admitting a video recorded interview as his evidence in chief… but the court has wide and flexible powers to ensure that the accused receives a fair trial and this includes a fair opportunity of giving the best evidence he can.’

She went on to say that with a defendant with learning and communication difficulties the court could allow him the equivalent of an interpreter to assist with communication, a detailed written statement could be read to the jury so that they knew what he wanted to say and he might even be asked leading questions based upon that document all in an attempt to enable him to give a proper and coherent account. ‘If there are steps which a court can take in the exercise of its inherent powers to assist the defendant to give his best quality evidence the 1999 Act does not exclude that.’

Despite the fact that relevant legislation is not in force, special arrangements can be made for vulnerable Defendants in accordance with the Consolidated Criminal Practice Direction (available on HM Courts Service website).

Once it is established that a defendant is fit to plead, the question for the court will be:

• Does the defendant have the capacity to effectively participate in a trial?
• How much (or how little) does the defendant have to understand to be deemed sufficiently engaged to participate?

As to whether special measures for a defendant are necessary will depend on the particular capacity of the defendant. ‘The steps which should be taken… should be judged, in any given case, taking account of the age, maturity and development (intellectual, social and emotional) of the defendant concerned and all other circumstances of the case.’ (Schedule 1 part III.29).

Practical measures can include:

• advocates getting to know their client’s well enough for communication to be improved
• using concise and simple language
• having regular breaks
• taking additional time to explain court proceedings
• being proactive in ensuring that he has access to support
• explaining and ensuring he understands the ingredients of the charge, outcomes and sentences etc
• controlling questioning so that questions are short and clear and frustration is minimised

The Court can also consider the following:

• court familiarisation visit
• removing formal court dress – wigs, gowns, bands etc
• sitting the defendant out of the dock without the attendance of a dock officer and at the same level as the advocates and judge
• timing the length of evidence and breaks
• ensure that questioning is phrased appropriately and expressed in a non hostile manner
• clearing the public gallery
• securing the attendance of an appropriate adult or intermediary

4. What is the position regarding intermediaries?

An intermediary can assist communication. Some are registered but other people can also be used if they are particularly familiar with the defendant’s needs. This might be a family member or carer.

Statutory provisions in the Coroners and Justice Act 2009 to automatically provide an intermediary for a defendant with similar difficulties are not yet in force but the courts have been critical of cases where one was refused (see C v Sevenoaks Youth Court 2009 EWHC 3088 referring to R v H 2003 EWCA Crim 1209 and SC v United Kingdom 2005 40 EHRR 10 as well as The Queen v Great Yarmouth Youth Court 2011 EWHC 2059. In LA v X 2011 EWHC 3401the family division called for the provision of funding of intermediaries to assist child witnesses to give evidence in family cases saying it required ‘urgent attention’.

There are cases where intermediaries have been identified and used to facilitate effective participation of vulnerable defendants (children and adults).

5. What role will medical evidence play in these cases?

Medical/psychiatric/psychological evidence and/or an assessment by a registered intermediary will be necessary to provide the basis to make special arrangements for a vulnerable defendant. Much depends on what his/her vulnerabilities are. If, in all the circumstances, the defendant is capable of effectively participating in the trial, with the appropriate safeguards, then relevant expert evidence should be put before the jury to explain his/ her limitations (by agreement if possible). In my view, in many cases (particularly where the defendant has mental health issues) it will not be sufficient to simply give a ‘special arrangements’ direction without the jury hearing some evidence of his incapacity. See TS v Regina 2008 EWCA Crim 6 where evidence was admissible to explain to the jury the defendant’s peculiar behaviour in court (reading a book) so that the jury can understand his limitations rather than be prejudiced by them.

On a practical note, the defence should ensure that the defendant is properly assessed in advance of the trial by the appropriate experts (psychiatrist/psychologist/intermediary/speech and language therapist/deaf signer).

The prosecution may wish to obtain their own expert evidence with which the defendant will be expected to cooperate.

The court should rule on these matters in advance of the trial (and before the indictment is put) to enable the appropriate arrangements to be put in place in good time.

6. How much or how little does a defendant have to understand to be deemed sufficiently engaged to participate?

A child (or vulnerable adult) need not be able to understand every point of law or evidential detail but should have a broad understanding of the nature of the trial process and what is at stake for him including the significance of any penalty. With the assistance of an interpreter, social worker or friend he should be able to understand the general thrust of what is said in court. He should be able to follow what is said by the prosecution witnesses, to explain his version of events thus putting forward the points in his defence.

The underlying question was whether his intellectual capacity was such that he could not effectively participate in the proceedings. If that were so, he could not have a fair trial and the proceedings against him should be stayed.’ R(TP) v West London Youth Court 920050 EWHC 2583 (Admin) (para 2).

The minimum requirements for a fair trial were set out in R(TP) as follows:

1. He had to understand what he is said to have done wrong
2. The court had to be satisfied that he had the means of knowing, when he had done an act or omission, that he knew that was wrong
3. He had to understand what if any defences were available to him
4. He had to have a reasonable opportunity to make relevant representations if he so wished
5. He had to have the opportunity to consider what representations He wished to make once he has understood the issues involved
6. He must be fit to plead in the sense that he is able to give proper instructions and participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arose

7. This would appear to raise human rights issues, is there any case law?

The decision in R (TP) referred to and adopted the judgement of the ECHR in SC v UK (2004) EHRR 10 in which that court said: ‘The right to effective participation includes not only the right to be present but also to hear and follow the proceedings. In the case of a child, it is essential that he will be dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings including conducting the hearing in such a way as to reduce as far as possible his feelings of intimidation and inhibition.’

These decisions in relation to youths can equally be applied to a vulnerable adult.

8. What happens if safeguards are not sufficient to protect a vulnerable defendant from an unfair trial?

In R v Cox, the Lord Chief Justice said: ‘In the context of a defendant with communication problems, when every sensible step taken to identify an available intermediary has been unsuccessful, the next stage is not for the proceedings to be stayed, which in a case like the present would represent a gross unfairness to the complainant, but for the judge to make an informed assessment of whether the absence of an intermediary would make the proposed trial an unfair trial.  It would, in fact, be a most unusual case for a defendant who is fit to plead to be found to be so disadvantaged by his condition that a properly brought prosecution would have to be stayed.  That would be an unjust outcome where, on the face of the evidence, a genuine complaint has properly been brought against the defendant.’

However, if these safeguards remain insufficient to allow the defendant to effectively participate in the trial, arguably it would be an abuse of process to try a defendant. Each case will depend on the vulnerability of the particular defendant. As a matter of principle, that a defendant is intellectually or emotionally challenged is not a bar to his being tried but there may be very rare cases where the defendant is so vulnerable that it would be an abuse of process of the court for him to be tried. One example where this has been applied was in relation to a 70 year old man with brain atrophy as a result of age/dementia. He did not have a mental disorder but was not likely to recover and had no reliable memory.

9. Are there any specific directions the judge will give to a jury in relation to special arrangements for a defendant?

The jury should be directed properly as to how to use that evidence. In an article some years ago in CBQ Magazine I outlined the following form of words used by His Honour Judge Head in Leicester and now routinely given in cases of this nature including the case of R v Cox in which he was the trial judge:

‘The evidence of the defendant’s intellectual limitations, vulnerability (or whatever condition) gives rise to matters of law:

1. The procedure of the court has been adjusted to make allowance for [factors affecting the Defendant]
2. You discharge your duty applying the same rules and standards regardless of the arrangements made for the trial
3. If you decide that the Defendant did the acts alleged,  the factors affecting the Defendant do not mean he did not have capacity to commit the offence
4. It is no defence to say that he would not have done things if less intellectually challenged or less anxious (or whatever factor)
5. When considering his evidence you should make appropriate allowance to reflect the evidence you have in relation to his limitations.’

10. What can be deduced from all of this?

Providing proper arrangements are made, a vulnerable defendant can be fairly tried but it takes a lot of effort. It is an effort worth making to enable victims to be heard as witnesses and defendants who have understandable limitations to put their case across.