C v Sevenoaks Youth Court
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 2009 |
| Neutral Citation | [2009] EWHC 3088 (Admin) |
| Docket Number | CO/10290/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 November 2009 |
[2009] EWHC 3088 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION DIVISIONAL COURT
Before: Lord Justice Sullivan
Mr Justice Openshaw
CO/10290/2009
MR J LUCKHURST appeared on behalf of the Claimant
MR J COPPEL appeared on behalf of the Legal Services Comission
MR J DICK appeared on behalf of the Crown Prosecution Service
MRS L HOGGETT-JONES appeared on behalf of the Interested Party
MR JUSTICE OPENSHAW: This is an application for permission to apply for judicial review. The claimant, “C”, who must not been named or identified, is a 12-year old boy who is due to face trial at Sevenoaks Youth Court over three days, starting on 17 December, upon charges of assault with intent to rob and theft. There is evidence that the claimant has complex mental health issues. It is said on his behalf that he requires an intermediary so that he can properly understand the evidence, give instructions, prepare for and follow the trial, and if necessary to give evidence on his own behalf. The claimant now seeks permission to challenge, first, the decision of the Sevenoaks Youth Court to revoke an earlier decision purporting to authorise the appointment of an intermediary; second, to challenge the decision of the Legal Services Commission by which they refused funding for an intermediary; and third, to challenge the decision of the Crown Prosecution Service to continue the case against him given his continuing psychological difficulties.
The alleged offences took place on the evening of 11 October last year. A 13-year old boy was returning home in uniform from a meeting of the Army Cadet Force when he was approached by “C” and a 15-year old youth, “P”. He was roughly held against a wall, they demanded his mobile telephone; the cadet told them, truthfully it seems, that he did not have his mobile with him, he was then pushed to the ground and repeatedly punched and kicked. One of his assailants ran off with the cadet's torch, hence the charge of theft. “C” and “P” were identified nearby and arrested.
The following day “C” was interviewed under caution at Tonbridge Police Station with an appropriate adult being present but without legal representation. He admitted speaking to the cadet but claimed that he only asked him the time. He said that he did not take part in any assault upon the cadet, neither did he see any assault committed upon him by others. “P”, “C”'s co-defendant has appeared before us as an interested party, but his interests are confined to ensuring that the trial date is kept. We are very anxious that nothing which we do should imperil that trial date.
On 19 February 2009, at his first appearance at court, “C” was seen by the duty solicitor who immediately realised that he had serious mental health issues. His solicitors then set about obtaining medical evidence upon his condition. A week later, at the next hearing on 26 February, “C” formally entered pleas of not guilty to the charges.
Dr Marriot is a chartered clinical psychologist. She reported on 24 April. She was of the opinion that “C” had long standing emotional and behavioural disorders. As “C” was waiting to see Dr Marriot his behaviour was unmanageable; he was running about and shouting aggressively. At the meeting he presented as being severely overactive with extremely poor concentration and low tolerance. Although his lack of concentration was such that she could not complete a formal assessment of intellectual functioning, such tests as she could do were suggestive of a learning disability, possibly coming within the range of “exceptionally low”. That is to say within the bottom second percentile. His comprehension was considerably below his chronological age. She was able to confirm the long standing diagnosis of Attention Deficit Hyperactivity Disorder, or “ADHD”, which was not adequately controlled by the medication currently prescribed. He also suffered from a personality disorder known as Oppositional Defiance Disorder. She thought that he also presented with many of the symptoms of Aspergers Syndrome, for example his obsessive conduct and upset at changes to routines; the inability to recognise or understand the emotional state of others; and an inability to understand any non-verbal communication, which resulted in what she called a “huge deficit in social learning”.
However, notwithstanding these disabilities, she thought that he did understand what he was charged with, and he also understood the nature of his plea. She thought that he would be able to give a relatively coherent and consistent account of the events surrounding the alleged offence. She had no doubt that he could tell right from wrong, she thought that he was fit to plead and fit to be tried. But she did not think that he would be able to concentrate during the trial, nor to listen to the evidence, nor instruct his solicitor about what parts of the evidence he accepted and what parts he disagreed with. She thought that he may be able to respond to sympathetic questioning but would find it difficult to cope with cross-examination and there was a risk that he would respond impulsively and inappropriately. However, she thought that he would be able to cope with the trial process provided he had regular breaks and if everyone used simple language. She was specifically asked if there were any steps that the court could take to enable “C” more effectively to participate in his trial, it was in answer to this question that Dr Marriot reported that he might be assisted in following the proceedings if the court appointed an intermediary who could speak to “C” throughout the trial, explaining to him those parts of the evidence and the proceedings which he did not understand, making sure that his case was properly understood by his solicitor and put to the court, both by way of cross-examining other witnesses and by giving evidence himself, and by calling such evidence as the interests of justice might require.
Dr Marriot was concerned that “C”'s ADHD was not being properly controlled and advised that he was seen by a consultant forensic neuro-psychiatrist. So it was that Dr Staufenberg was instructed. Although he did not report until 7 July, it is convenient to summarise his findings here. His long report is thorough and meticulous, no one has sought to question his findings. He confirms the diagnosis of Autistic Spectrum Disorder with Aspergers Syndrome specific symptoms, with resultant Hyperkinetic Neuro Developmental Syndrome, an expression he preferred to ADHD. Dr Staufenberg helpfully paid particular attention to the difficulties which “C”'s condition would present to the trial process. He thought that “C” interacted with his mother and with his solicitor whom he described as perceptive, concerned and kind. However, “C” had an impaired capacity to assimilate information. He had problems in forming coherent conclusions from the information which he had received, he had particular problems with abstract ideas. This is a recognised symptom of the so-called low central coherence which results in a markedly impaired capacity to understand or to present events or ideas in a logical and orderly manner which Dr Staufenberg considered to be “incompatible with the degree of coherence required in court”.
“C” professed to Dr Staufenberg that he only vaguely remembered the incident which gave rise to the charges. Dr Staufenberg thought that he had little awareness of their relevance to the trial, it is not surprising therefore he commented that “C”'s version of events kept changing. “C” has little understanding of the trial process and had what the doctor called substantial significant pervasive and persistent difficulty in understanding or taking considered decisions as to the conduct of his trial, and a substantial impairment in monitoring the events of the trial. The doctor warns that “C”'s functioning at the trial is unpredictable and his capacity to concentrate is very limited. He may become seriously overstressed and may seek literally to escape from the court room if the pressure became too much for him to bear. Dr Staufenberg did report:
“In terms of the current circumstances, the court has my recommendation of “C” lacking the pre-requisite capacity for effective participation in trial proceedings”
But he does not say in terms that “C” is unfit to plead or unfit to be tried, nor, as I understand it, is that contended on his behalf.
The doctor considered the steps which might be taken to allow the trial to proceed. He canvassed reducing the formality of the proceedings but there is not much formality in the Youth Court. He suggested that everyone should simplify their language, again that is a standard procedure when trying any 12-year old. Sitting without the public being present and with reporting restrictions he thought would not help this defendant greatly. He canvassed “C”'s giving evidence behind screens or even by video link, he does not mention intermediaries by name but I understand him to be suggesting something of that kind when he says, at page 38 in his report, that:
“Ensuring adequate social support during the trial is achievable, although heightened anxiety with episodic exacerbation may betray such a high level of anxiety that it may be doubtful whether “C” could draw on and make use of such support”.
Dr Marriot's report was received by the solicitors on 27 April. To my mind, her report plainly demonstrated that if “C” is to have a fair trial he must have the help of an intermediary if he is to be able properly to...
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