Recent Court of Appeal Cases
April 8, 2020
Lockdown. What better time to see what the appeal courts were up to in the weeks before the virus struck? I have dealt with two cases. One, (Thomas), confirms the serious restrictions on using a defence intermediary at trial. The other, (Stokes), reminds practitioners and judges of the care that should be taken when a young defendant crosses an age threshold by the time of sentence.
Intermediaries: R v Thomas  EWCA Crim 117
This case confirms the difficulties that defence teams will face when applying to the court for the use of an intermediary for their client.
Section 29 of the YJ&CE Act does not apply to defendants. The court retains a discretion. In Thomas, the Defendant was tried for causing death by careless driving when over the prescribed limit. The defence relied on an intermediary’s report which concluded that it was “essential for [D] to be assisted by an intermediary throughout his trial”. D had real difficulties concentrating and retaining information. D was highly suggestible and was easily overwhelmed by too much information. A psychologist’s report was relied upon. The psychologist found that D possessed weak cognitive functioning in the “extremely low” range, meaning that D would struggle to understand court processes and to give instructions. The psychologist entirely agreed that an intermediary was necessary for the entirety of the trial. The trial judge ruled against the application for an intermediary. She said that the facts of the case were largely uncontroversial. D would be given regular breaks. He could stand up and stretch in the dock if he was stressed or weary. At a later stage, the judge said that D could have an intermediary if he gave evidence and if one could be made available. She added that if an intermediary could not be found, D could still have a fair trial without one. D gave evidence but funding could not be secured for an intermediary at such short notice. The defence asked the court to appoint an intermediary. The judge refused. The trial continued. D was convicted and appealed.
The Court of Appeal dismissed the appeal. The court reviewed the authorities, (R v Cox  EWCA Cri 549, Grant Murray  EWCA Crim 1228) and the Practice Direction (3F.12). The Court stated that the judge had not been at fault in refusing to use the court’s inherent powers to appoint an intermediary. The court acknowledged that there would be occasions when the use of an intermediary would improve the trial process. However, it made absolutely clear that the provision of an intermediary for a defendant will be “a rare occurrence and…..it will be exceptionally rare for a whole trial order to be made”. There must be compelling reasons for an intermediary to be appointed and only where all other adaptations to the trial process would not sufficiently meet the D’s needs to ensure participation. “The recommendation by one or more experts that an intermediary should be appointed is not determinative.” It remains a matter for the trial judge who is best placed to understand what is required to ensure that the accused is fairly tried.
Sentencing Young Defendants: R v Stokes  EWCA Crim 162
This case reveals the continuing importance of R v Ghafoor  EWCA Crim 1857 and the Guideline for Sentencing Children and Young People.
D was 17 at the time of the offences but 20 when sentenced. He had pleaded guilty on the day of trial to s.20 assault and affray. He was sentenced to 27 months’ detention in a young offender institution for the assault with nine months concurrent for the affray. The offences occurred during a 5-a-side football match. One player was assaulted resulting in a fractured jaw. D was not responsible for this. However, the brother of the first victim tried to intervene and was punched and kicked in the face. He sustained a fractured eye socket. D had instigated this assault and was involved in the fracas. The following night, D sent a threatening message to the second victim.
D had no previous convictions but had a reprimand and a youth caution, both for assault. The position on the Assault Guidelines was that it was a Category 1 offence (higher culpability and greater harm). The starting point was three years with a range of two-and-a-half to four years’ imprisonment for an adult after trial. D appealed against the sentence.
The Court of Appeal stated in clear terms that inadequate regard had been paid to D’s age. He was 17 at the time of the offending. If the sentencing judge had been referred to the Guideline for Sentencing Children and Young People, a different approach would have been adopted. Paragraph 6.3 of that Guideline states that: “When any significant age threshold is passed, it will rarely be appropriate that a more severe sentence than the maximum the court could have imposed at the time the offence was committed should be imposed. However, a sentence at or close to that maximum may be appropriate.”
If D had been sentenced at the youth court (at age 17), the maximum sentence would have been two years DTO. It had not been correct to pass a more severe sentence than that maximum. The sentence on the assault was reduced to 12 months. The concurrent sentence of nine months was undisturbed.
The decision in R v Ghafoor  EWCA Crim 1857 is long-standing authority for the principle applied in this case. The case of Stokes should serve as a reminder to advocates. Implicit in the Court of Appeal’s judgement is criticism of the advocates at the sentencing hearing. It was unfortunate that the sentencing judge was not referred to Ghafoor or to the Guideline for Sentencing Children and Young People. A lesson for us all!
David Temkin is a member of the criminal department at Exchange Chambers. David specialises in crime and regulatory/professional disciplinary work. He is a Grade 4 CPS Advocate and in 2006 was appointed to the Attorney-General’s Unified List of Prosecutors. In 2012, he was appointed to the national list of Specialist Regulatory Advocates in Health & Safety and Environmental Law.