Unfairness towards Appellant denied an Intermediary at trial
R v James Davis Pringle
In the recent case of R v James Davis Pringle [2019] EWCA Crim 1722, the Appellant’s appeal against conviction was allowed with the Court of Appeal finding that there has been real unfairness to the appellant both in relation to the giving of his evidence and in relation to the jury’s ability to assess his evidence as a result of not having been given the benefit of an intermediary throughout his trial.
Facts
The Appellant was 20 when he was found guilty of child abduction. The Appellant and his co-defendant both had communication difficulties. Whilst the co-defendant had the benefit of an intermediary throughout his trial, the Appellant did not. Reliance on an intermediary throughout the Appellant’s trial had been recommended, but the court at first instance ruled that any assistance should be limited to his evidence. The intermediary, not unusually in these situations, refused to attend for the limited purpose and trial against the Appellant continued without an intermediary. In addition, the trial judge refused to allow the intermediary’s report to be put before the jury.
The Court of Appeal found that, given the particular difficulties which had been identified in the report, it would have been desirable ‘to hold a ground rules hearing, to give guidance as to what form of questions would and would not be appropriate, to take a properly assessed decision about providing regular breaks and to consider seriously the other special measures requested. This was not done. Having not taken any such steps it became particularly important to ensure that there was no unfairness during the conduct of the cross-examination of the appellant, as the Judge himself recognised.’
Whilst efforts were made to mitigate any unfairness, it is apparent that the Appellant was ‘asked at length about matters of peripheral relevance; that he was at times confused by the questioning and in his answers; that he was prone to speak very quickly and in an unclear manner; that he did not have regular breaks despite at times seeming to need them; and that there was, in particular, some very real difficulty with his ability to deal with cross-examination about his police interview that was not addressed by giving him a copy of the interview to follow – which itself became a source of distraction and confusion for the Appellant as very important questions followed as to why he answered some but not other police questions’.
No clear direction was provided to the jury as to why the co-defendant had the benefit of an intermediary and why the Appellant did not. The explanation provided was confusing and there was not “parity in understanding as to the approach that’s being adopted with regard to both defendants”.
Commentary
R (on the Application of OP) v the Secretary of State for Justice [2014] EWHC 1944 (Admin) that the registered intermediary scheme should be extended to defendants – In a system where there might be regulation as to rates of pay in the same way as there is for (registered) intermediaries for witnesses it is much more likely that fewer vulnerable defendants would be left in the position of unfairness in which this Appellant found himself.
It must also be remembered that the experience the Appellant had when giving his evidence would also have been extremely traumatic. In his case, it may have been made worse by the fact that a co-defendant, facing similar charges in the same trial had intermediary assistance.
The Court of Appeal’s description of how the Appellant struggled during questioning is disturbing. It is a reminder that anyone questioning a vulnerable witness should have undergone training and be competent – R v Rashid (Yahya) [2017] 1 WLR 2449.
