Communicourt Intermediary Reports Are Not “Expert” Proof of Cognitive Impairment for Fair-Trial Applications: R v Simmons [2026] EWCA Crim 928

1) Introduction

In R v Simmons [2026] EWCA Crim 928, the Court of Appeal (Criminal Division) considered a non-counsel application to extend time and renew an application for leave to appeal against a murder conviction from the Crown Court at Woolwich (HHJ Andrew Lees).

The applicant’s proposed appeal focused on trial fairness and case management decisions: (i) refusal of an intermediary for the applicant’s evidence; (ii) refusal to exclude the first police interview under section 78 Police and Criminal Evidence Act 1984 and Code C; (iii) directions to the jury on adverse inferences and on lies; and (iv) alleged failure by the prosecution to pursue mental-health material relating to a key eyewitness (advanced to suggest an alternative perpetrator).

2) Summary of the Judgment

The Court refused an extension of time and would have refused leave in any event. It held the grounds were not reasonably arguable and the conviction was not arguably unsafe. Central to the Court’s reasoning were:

  • The trial judge had conducted a substantial evidential inquiry (two-day hearing) on vulnerability/intermediary needs and interview admissibility.
  • The Communicourt intermediary’s report could not be treated as expert evidence on cognitive functioning; and the psychological evidence did not demonstrate the necessity of an intermediary.
  • The section 78/Code C challenge to the first interview failed on the judge’s findings about capacity and process, reinforced by the applicant later maintaining the same account when represented.
  • Complaints about adverse inference and lies directions did not arguably undermine safety; any requested tailoring should have been raised at trial.
  • The proposed use of a witness’s mental-health condition to suggest violence was, in substance, impermissible bad character reasoning; and an alternative-perpetrator case needed proper notice in a Defence Statement.

3) Analysis

3.1 Precedents Cited

The Court’s short judgment does not cite prior authorities by case name. Instead, it applies established appellate principles: deference to a trial judge’s evaluative rulings where the judge has heard live evidence and given a detailed ruling; and the “safety of the conviction” test on appeal.

Although not cited, two doctrinal areas inform the Court’s language:

  • The well-known framework for “lies directions” (often associated in practice with a Lucas-type direction) to avoid a jury treating lies as automatic proof of guilt.
  • The established caution around using mental-health evidence as a proxy for violence/propensity, which tends to engage bad character logic.

3.2 Legal Reasoning

(a) Intermediary: necessity, evidence base, and the status of intermediary reports

The Court treated the intermediary issue as fact-sensitive and heavily dependent on the quality of the evidence before the trial judge. It emphasised that the judge had held a two-day hearing and considered “all the relevant legal questions.”

A key point of general importance is the Court’s clear statement that the Communicourt intermediary:

  • “cannot possibly be regarded as able to provide expert evidence” on cognitive/learning difficulties; and
  • was “simply not qualified to do so,” a limitation the intermediary herself recognised in stating her report was not expert evidence.

The Court then anchored the outcome in the psychological expert evidence (properly qualified evidence) and found it did not demonstrate the need for an intermediary to secure fairness.

On complaint that the judge/counsel failed to ensure fair questioning, the Court relied on the practical trial reality: the applicant was represented by leading and junior counsel, and there was no reason to suppose any difficulties were not (or could not have been) raised contemporaneously.

(b) Section 78 PACE 1984 and Code C: interview without solicitor/appropriate adult

The Court upheld the trial judge’s refusal to exclude the first interview. Its reasoning reflects a structured fairness assessment:

  • The judge heard evidence from multiple psychologists and police witnesses (including custody and interviewing evidence), placing him in a strong position to evaluate capacity and fairness.
  • The judge’s factual findings included: no autism, no mental disorder, functioning in the low average range of intelligence, and no evidence that physical complaints affected ability to answer questions.
  • The custody risk assessment and healthcare input were described as “comprehensive.”
  • A significant confirmatory factor: when represented by a solicitor later, the applicant “maintained the account” given earlier, and the solicitor raised no concerns about capacity or need for an appropriate adult.

The Court therefore found no arguable basis to interfere with the trial judge’s evaluative judgment under section 78.

(c) Adverse inference and lies directions: interaction and fairness

The applicant argued that, given his cognitive profile, an adverse inference direction was unfair and, combined with a lies direction, undermined the fairness of the trial. The Court rejected this:

  • It accepted there were lies, making a lies direction “only fair” to the applicant (i.e., to ensure the jury approached lies correctly rather than as conclusive proof of guilt).
  • It held that if the applicant sought additional tailoring to reflect explanations for interview omissions, this should have been raised at trial.
  • In any event, any omission in that regard could not “even arguably” render the conviction unsafe.

(d) “Reasonable lines of inquiry,” alternative perpetrator, and mental-health material as bad character

The final ground reframed disclosure/investigation as a complaint that the prosecution failed to investigate whether a key eyewitness had schizophrenia, said to be relevant to whether he could have killed the deceased.

The Court’s answer proceeded in two steps:

  1. Pleading discipline: if the defence case was that the eyewitness “was, or might have been” the murderer, that needed to be advanced in a Defence Statement.
  2. Relevance and impermissible reasoning: no “proper link” was established between the condition and the killing; the apparent purpose was to suggest the condition implied violence and therefore likelihood of guilt—“clearly” bad character evidence, rightly refused.

3.3 Impact

  • Intermediary applications: the decision underlines that intermediary recommendations are not a substitute for qualified expert opinion on cognition/communication deficits. Trial courts may demand properly scoped expert evidence establishing necessity for fairness, not general vulnerability narrative.
  • Section 78 challenges: the Court signalled that where (i) the trial judge has held a thorough admissibility hearing, and (ii) the suspect’s later solicitor-assisted account is consistent with the earlier interview, appellate intervention will be difficult absent clear error.
  • Directions to the jury: the judgment reinforces that complaints about the fine-tuning of directions (especially to reflect particular explanations) are best made at trial; and that the safety test will not readily be met by speculative criticisms after conviction.
  • Mental health and propensity reasoning: the decision cautions against using mental-health labels as a backdoor route to suggest violent disposition, especially when deployed to insinuate alternative perpetration without a properly articulated evidential foundation.
  • Procedure: where the Court concludes the grounds are not reasonably arguable, it may refuse an extension of time as serving “no purpose.”

4) Complex Concepts Simplified

  • Intermediary: a communication specialist who can help a vulnerable witness/defendant understand questions and give evidence effectively. The key question is whether their assistance is necessary to ensure a fair trial.
  • Section 78 PACE 1984: gives the court discretion to exclude prosecution evidence (including interviews) if admitting it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
  • Code C / Appropriate adult: Code C regulates detention and questioning; an appropriate adult safeguards vulnerable suspects. Whether one is required depends on assessed vulnerability and the fairness of the process.
  • Adverse inference direction: tells the jury they may, in limited circumstances, draw an inference from a defendant’s failure to mention facts in interview later relied on at trial—subject to fairness and the overall evidence.
  • Lies direction: guidance that a lie is not automatically evidence of guilt; it may be told for other reasons (panic, shame, fear), and the jury must treat it with caution.
  • Bad character (propensity) reasoning: using someone’s condition or past to argue they are the “type of person” likely to commit the offence, rather than relying on evidence directly connecting them to the events.
  • Defence Statement: a formal document setting out the nature of the defence and the issues in dispute; it promotes fair notice and proper case management, particularly where an alternative-perpetrator case is advanced.

5) Conclusion

R v Simmons confirms a practical appellate stance: where a trial judge has conducted a careful evidential inquiry into vulnerability and interview admissibility, and has given a reasoned ruling, the Court of Appeal will not interfere absent clear misdirection or error. The judgment is particularly noteworthy for its explicit clarification that a Communicourt intermediary report is not, without more, expert evidence of cognitive impairment capable of grounding a fair-trial necessity argument. It also reiterates that speculative alternative-perpetrator theories must be properly pleaded and cannot be advanced through impermissible propensity inferences derived from mental-health labels.