REGINA v Biddle

Factual and Procedural Background

The case concerns an appellant who was granted an intermediary for the duration of the trial by a judge (Judge Cartwright) based on expert reports and an unopposed application by defence counsel. The intermediary was intended to assist the appellant in fully participating in the trial. Subsequently, another judge (Recorder Butterworth) revisited and altered this decision, limiting the intermediary's role to the period when the appellant gave evidence. The appellant did not give evidence, and the trial judge directed the jury that an adverse inference could be drawn under section 35 of the Criminal Justice and Public Order Act 1994 (CJPOA) from this failure. The appellant appealed, arguing that the intermediary should have been present throughout the trial and that the adverse inference direction was unreasonable given the withdrawal of the intermediary.

Legal Issues Presented

1. Whether the trial judge was correct to alter the prior order for an intermediary to be present throughout the entire trial and whether an intermediary should have been allowed for the whole trial.
2. Whether the trial judge was correct to direct the jury that an adverse inference could be drawn from the appellant's failure to give evidence under section 35 of the CJPOA, particularly in light of the withdrawal of the intermediary.

Arguments of the Parties

Appellant's Arguments

• The original order granting an intermediary for the whole trial was based on expert reports and a written application, and was unopposed by the Crown, indicating the appellant’s need for full trial assistance.
• The subsequent judge's decision to limit the intermediary’s role was flawed, as it considered irrelevant factors such as the short length of the prior hearing, the cost of an intermediary, and the appellant’s ability to cope in interview (which was supported by an appropriate adult and legal representative).
• The judge misunderstood the intermediary’s role, incorrectly limiting it to assistance with communication only during evidence, whereas the intermediary had indicated a broader role throughout the trial.
• The appellant may have experienced difficulties during the trial that were not obvious on the record or transcript.
• Regarding the adverse inference, the appellant required an intermediary to give effective evidence, and the absence of one made it undesirable for him to give evidence under section 35(1)(b) CJPOA.
• The decision to give an adverse inference direction was unreasonable (Wednesbury unreasonable) given the withdrawal of the intermediary and the appellant’s vulnerability.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the subsequent judge was entitled to revisit the decision on the intermediary’s role and was not bound by the earlier order or expert recommendations. The court found that the recorder had properly applied relevant principles and exercised his discretion appropriately. The intermediary had not reviewed all materials and could not identify any trial stage apart from giving evidence where their assistance was necessary. The appellant was represented by competent counsel, and no difficulties in following or participating in the trial were raised during proceedings or in appeal grounds.

Regarding the adverse inference direction, the court noted that section 35(1)(b) CJPOA allows for an exception if it is undesirable for the accused to give evidence due to physical or mental condition. However, the trial judge must consider all material and expert opinions, which the recorder did. There was no evidence of a causative link between the absence of the intermediary and the appellant’s failure to give evidence. The appellant had been able to give accounts to police and legal representatives without significant difficulty. The court concluded that the decision to give an adverse inference direction was not Wednesbury unreasonable.

The court also commented on the policy of the intermediary provider (Communicourt), noting that their internal policy requiring an intermediary only for giving evidence was contrary to established principles and should be reconsidered. Ultimately, the decision on the necessity and duration of intermediary assistance rests with the trial judge.

Holding and Implications

The court DISMISSED the appeal.

The trial judge’s decision to limit the intermediary’s role and to give an adverse inference direction was within the proper exercise of judicial discretion and consistent with legal principles. The ruling confirms that while intermediary assistance is important, its scope is determined case-by-case by the trial judge, not solely by intermediary providers. No new precedent was set; the decision primarily affects the parties by upholding the conviction and the trial process as fair and reasonable under the circumstances.