R v Cox (Anthony Russell)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 01 March 2012 |
| Neutral Citation | [2012] EWCA Crim 549 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | 2011/04593/C1,No. 2011/04593/C1 |
| Date | 01 March 2012 |
[2012] EWCA Crim 549
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice of England and Wales
(Lord Judge)
Mrs Justice Macur DBE
and
Mr Justice Saunders
No. 2011/04593/C1
Mr A Lewis appeared on behalf of the Applicant
Miss F Gerry appeared on behalf of the Crown
Thursday 1 March 2012
This is an application for leave to appeal against conviction which has been referred to the full court by the Registrar. We grant leave.
On 26 July 2011, in the Crown Court at Leicester, before His Honour Judge Head and a jury, the appellant was convicted of rape.
The facts can be briefly summarised. The complainant and the appellant had known each other for some time. She was aged 20 at the material time. She had a long-established history of alcohol and drug dependency. She worked as a prostitute and lived in a hostel.
The appellant was 26 years old. He lived in a nearby hostel. He had major difficulties which included alcohol dependency, personality disorder and a learning disability. The extent and impact of these disabilities are at the heart of the appeal.
On the evening of 1 November 2008, after they had both consumed alcohol, the two were walking together. Sexual intercourse took place between them in some bushes in a wooded area near the canal in Leicester. The complainant screamed. Her screams were heard by independent witnesses. The police were called. When they arrived the complainant was in obvious distress. She immediately alleged that she had been raped.
In interview the appellant's response was that the complainant had initiated sexual intercourse and had consented throughout. He was granted bail, but was subsequently remanded in custody in October 2009 when the complainant alleged that he had twice approached her in the street and threatened her in an attempt to persuade her to drop the rape charge. The jury which convicted him of rape acquitted him of two offences alleging witness intimidation arising from this allegation.
The grounds of appeal are unusual. The conviction followed a carefully conducted trial and a characteristically fair and meticulous summing-up. The basis of the present appeal is that the trial should not have taken place at all. The argument arises in this way.
The appellant is a man with complex psychiatric difficulties. These facts were known well before the trial began. Considerable efforts were made to investigate the extent of his multifactorial problems and the appropriate steps to address them in the context of the forthcoming trial of the very serious offence. The history showed that between 1998 and 2006 the appellant had made eight separate court appearances for a variety of different offences. Following indecent assaults on his mother when he was 15 years old, there was an indication that he had been found unfit to plead. However, the subsequent history of his previous convictions did not suggest, and does not suggest to us, either that his fitness to plead was raised as an issue, or, if it was, that he was found to be fit to plead on any other occasions.
In March 2011 the issue of using an intermediary was raised before the judge. The judge examined whether he had any power to direct the necessary public funding for this purpose, or indeed whether there was any statutory provision then in force which related to the use of intermediaries for a defendant at trial. On the basis of the well-known decision of the Divisional Court in C v Sevenoaks Youth Court [2010] 1 All ER 735, the judge concluded that he was possessed of a common law power to give a direction which would enable the appellant to be provided with an intermediary, and accordingly he directed that one should be made available to assist. The direction was ineffective. No intermediary could be identified for whom funding would be available. The issue was taken up in June 2011 before Judge Hammond, another judge who sits in Leicester Crown Court. He was told that three intermediaries had been approached but that each felt unable to provide the necessary assistance. Judge Hammond, anxious to ensure the fairness of the forthcoming trial, took the view that if the problem related to the funding of an appropriate intermediary, he would give an indication of the importance he attached to the provision of an intermediary.
In the meantime, both the prosecution and the defence stated that they would obtain further reports on the issue of the appellant's fitness to plead, although in the result the only further report was provided by the defence.
In early June 2011 the response to Judge Hammond by the Ministry of Justice, through the Policy Officer for Vulnerable and Intimidated Witnesses, was that every attempt had been made to find a registered intermediary for the case, without success, that the provision of a non-registered intermediary was the responsibility of the solicitors acting for the appellant, and that they had been so informed on a number of earlier occasions.
On 13 July 2011 the issue was reviewed at Leicester Crown Court, again before Judge Hammond. Counsel for the appellant told the judge that it was agreed that the real problem was communication with the appellant, and that it was in that context that assistance was needed.
On 19 July the case began before Judge Head. The question of the appellant's fitness to plead was closely examined. A substantial body of evidence was placed before the judge to enable him to rule not only on the application which related to his fitness to plead, but also to the question whether, if he was fit, the trial should be stayed as an abuse of process on the basis that it would be unfair for the appellant to be tried without the assistance of an intermediary. In reality, the evidence on these two distinct applications was essentially the same. To that extent, therefore, they were linked.
The judge examined the written material. He heard the evidence of Dr Latham who gave oral testimony before him. The judge concluded that, although the appellant's capacity was significantly reduced by "genuine disabilities", there nevertheless remained "a sufficient residue of capacity [for him] to be fit to plead and stand trial". By the date of this ruling it had become apparent that, despite every effort, no intermediary could be found. Examining the second submission the judge asked himself whether, absent the participation of an intermediary, the appellant could receive a fair trial. He concluded that, although the situation was far from ideal, with a number of modifications to the ordinary process, the appellant would indeed be afforded a fair trial.
The single ground of appeal is that, notwithstanding the care with which the judge approached these issues, and the provision of competent counsel and solicitors, the appellant was deprived of special measures in the form of an intermediary necessary to enable him to play a proper and effective part in the trial. We must narrate the facts in greater detail.
Judge Head considered the evidence of Dr Latham with great care. He noted that, in view of the multifactorial features of the appellant's condition, it was not possible to be satisfied about the correct diagnostic label for the appellant's condition which, according to Dr Latham, was at that time stable. Dr Latham believed that the appellant understood the charges against him. He appreciated that rape involved sexual intercourse with a woman who did not consent. The essence of his account was that he had been invited to take part. Indeed, as the judge noted, during various different examinations throughout the process the appellant had reiterated that when making her complaint that sexual intercourse took place without her consent, the complainant had lied. For example, when one doctor asked him why he was in custody, the appellant replied, "She said I intimidated her, but I never did that". On this basis Dr Latham reiterated, and the judge concluded, that the appellant was well able to decide on his plea, that on the basis of his instructions a not guilty plea was appropriate, and that the appellant was also capable of understanding his right, limited as it now is, of challenge to jurors.
As part of his analysis of the issue of fitness to plead, the judge considered the tape-recording of the 25 minute long interview...
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