Jordan Dixon v R
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 17 April 2013 |
| Neutral Citation | [2013] EWCA Crim 465 |
| Docket Number | Case No: 201006122 D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 April 2013 |
[2013] EWCA Crim 465
Lord Justice Treacy
Mr Justice Saunders
and
His Honour Judge Milford QC
Case No: 201006122 D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HHJ HONE QC
T20107012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Bennathan QC and Ms C Wade (instructed by Registrar of Appeals) for the Appellant
Mr Altman QC and Mr D Atkinson (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 12th–13 March 2013
The Offence
Jordan Dixon was convicted of murder on 12 th October 2010 at the Central Criminal Court. On 15 th October 2010 he was sentenced to detention at Her Majesty's pleasure, being aged 17 1/2 at the time of the offence. The minimum term specified was 14 years less 277 days spent in custody on remand.
There were two co-accused, Ross Collender and Daniel Ransom, who were also convicted of murder and sentenced to life imprisonment. Each received a minimum term of 16 years less time spent in custody. Those two were slightly older than Jordan Dixon. There was a fourth person before the court, Sarah Davey, who was acquitted on a count of assisting an offender, namely Dixon, by having harboured him for about two months after the offence.
The full court has previously granted leave to appeal against conviction (in relation to grounds one and two as set out below), and sentence.
The Appellant and the two co-accused were part of a group which in the early hours of 1 st November 2009 became involved in a dispute with others in Sutton town centre, Surrey. Events began with part of a Halloween costume, a hat and wig, being taken from Allana Devine, the partner of the deceased, Ben Gardner, by the co-accused Collender.
Shortly afterwards the Appellant's group were near a mini cab office close to where Ms Devine lived. She asked for the return of her items, but was then abused verbally by the Appellant. She and her partner, Gardner, decided to confront the Appellant's group. Ms Devine went to pick up the witch's hat, which by then was lying in the road. As she did so the Appellant tried to kick it away. Ransom had removed his jacket, as if anticipating a fight. He kicked and stamped on the hat, then spat into it and threw it at Ms Devine. Collender punched Gardner on the side of the head causing him to fall to the ground. The Appellant then struck a blow to Gardner's head or chest, and Ransom proceeded to kick Gardner in the head as he was on the ground.
After the attack on Gardner the Appellant hit Devine in the face. CCTV which was shown at trial captured the incident. There was also eye witness evidence. Both these sources of evidence showed the Appellant and his group to be the aggressors.
Gardner had sustained a traumatic subarachnoid haemorrhage. He died shortly afterwards as a result of that. The medical evidence could not establish who had been responsible for the fatal blow.
Ransom and Collender were arrested soon after the incident. This Appellant, however, was not arrested until two months later, on 9 th January 2010, having stayed with Sarah Davey. He was well aware that the police wanted to see him in connection with the death of Mr Gardner. In the time prior to his arrest he had given an account of events, firstly to Sarah Davey shortly after the incident, and then to a man called Dufton.
Neither the Appellant nor his two co-accused gave evidence. The Crown's case was that the three were jointly liable for the murder and that they had intended really serious harm. The Crown asserted that the joint enterprise had begun with the snatching of the Halloween costume and had continued thereafter through the attack.
The Appellant's primary defence was that he had been acting in self defence. He relied on the account given to Ms Davey and Mr Dufton. This was to the effect that Collender had punched the victim, at which the victim had approached the Appellant and the Appellant had then punched him. He had only hit the victim because he thought that man was going to hit him.
In addition to that line of defence, it was also submitted (a) that the Appellant's actions could not be said to have contributed to the death, (b) that he was not acting in furtherance of a joint enterprise, (c) that he could not have foreseen that the co-accused intended to cause really serious harm and, (d) that he did not himself have that intent.
The adverse inference and pre-trial reports
In summing up the judge directed the jury that no adverse inference should be drawn from the fact that the Appellant did not answer questions in interview. However, he did direct the jury that it was open to them to draw an inference from his failure to give evidence. There had been legal argument about that issue and the judge had ruled that a direction pursuant to Section 35(1)(b) of the Criminal Justice and Public Order Act 1994 was appropriate.
Admissions had been made about the Appellant in the following terms:
"10.4 Dixon was examined by a forensic medical examiner at 10:50pm on 9 th January. He indicated to the doctor that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) three years earlier, and suffered from learning difficulties and in particular dyslexia. He was deemed fit to be interviewed, providing that an appropriate adult was present to assist him and monitor his welfare in view of his learning difficulties, and further he indicated that he had difficulties reading and writing. Dixon was seen by another doctor at 11:49am on 10 th January.
10.5 Following two full recent assessments it was determined that: (a) Jordan Dixon has a full scale IQ of 68; (b) further, he has: (i) low non-verbal abilities, (ii) poor working memory, (iii) a lack of knowledge and concepts normally gained through education, (iv) a limited vocabulary and semantic knowledge, and (v) a severe stammer. (c) Jordan did not know what a "jury" "defence" "evidence" "oath" "alleged" meant; (d) people with learning difficulties are often compliant and easily led, (e) Jordan has language levels around the equivalent of a 7–8 year level."
When the judge came to rule on the question of whether an adverse inference should be given, he had those admissions before him. In addition he had the report of Mary Auckland, a specialist speech language therapist, together with a report from Cheryl Berriman, a registered intermediary dated 8 th September 2010.
As a result of receiving those two reports at the start of the trial the judge had made the special measure of providing Ms Berriman's services as an intermediary for the Appellant during the trial.
Ms Auckland's report referred to a diagnosis by a consultant child and adolescent psychiatrist made in May 2010 that the Appellant suffered from "Hyperkinetic Conduct Disorder", i.e. a combination of ADHD: poor concentration, impulsivity and over activity, and Conduct Disorder: a triad of aggression, defiance and anti-social behaviour.
That same report showed a full scale IQ of 68. The report spoke of the Appellant as having poor attention and being easily distractible. It said he had severe difficulties in understanding spoken language, and that his expressive abilities were severely limited, especially when he moved from everyday social exchanges. The Appellant had a poor working memory, compromising his verbal comprehension and expressive language. He also suffered from a stammer which could render him unable to speak.
Ms Auckland's overall conclusion was that "his language abilities remain severely affected in that once away from everyday social exchange he has severe difficulty understanding or expressing himself. Jordan is likely to appear to understand or agree when he has not understood out of wish to appear cooperative in a difficult situation".
His poor education had contributed to a limited vocabulary. Overall he had low non-verbal abilities, poor working memory, a lack of knowledge and concepts normally gained through education, a limited vocabulary and semantic knowledge, and a stammer. The effect was that he "cannot understand any short quantity of verbal information, nor can he describe, explain or narrate adequately." Ms Auckland recommended that consideration should be given to an application for a registered intermediary to assist the Appellant at his trial.
Ms Berriman's report, which resulted in her being appointed to act as the intermediary, recommended use of an intermediary because of the Appellant's reduced language understanding and vocabulary, and because the stresses associated with a trial would heighten his vulnerability and communication difficulties. She said that he would be unable to follow information given at normal speed. He required time and repetition. He was likely to find difficulty in speaking in the witness box. For those reasons he required an intermediary.
The report also disclosed that he was unable to understand words requiring skills similar to those required when listening in court, but that once language was simplified and repeated, he was able to answer test questions.
He had said that if he thought he was going to stammer he would not say anything in response to a question. She stated that people with learning difficulties are often compliant and easily led, but during time spent with the Appellant he had been able to say that he did not understand and also to resist leading questions.
Nonetheless her opinion was that he would agree with what was being said if he did not understand, and that he...
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