Thomas, R v

Factual and Procedural Background

On 28 February 2019, at the Crown Court at Canterbury before Judge Brown and a jury, the Appellant, aged 45, was convicted by a majority of 11 to 1 of causing death by careless driving while over the prescribed limit, contrary to section 3A(1)(BA) of the Road Traffic Act 1988. This was count 2 on the indictment, an alternative to count 1 for causing death by dangerous driving, of which the Appellant was acquitted. The Appellant was sentenced to three years' imprisonment, disqualified from driving for four years and six months (including an 18-month uplift pursuant to section 35A of the Road Traffic Offenders Act 1988), ordered to take an extended retest, and subjected to a victim surcharge of £170.

The incident occurred on 28 January 2018 at about 10 am when the Appellant was driving a Hyundai motorcar from his partner's house to his home in Herne Bay, passing via the Thanet roundabout. The victim, a cyclist on an electric bicycle, was also travelling via the roundabout. The Appellant’s car collided with the victim’s bicycle on the roundabout, and the victim died from injuries sustained 12 days later.

At the time of the collision, weather conditions were fine, the traffic light and roads were in good repair. A witness following the Appellant recorded the accident on a dash cam. The Appellant was arrested and tested negative for alcohol but positive for Benzoylecgonine ("BZE"), a cocaine metabolite, at a level exceeding the legal limit. He was below the legal limit for cocaine and heroin but showed signs of tiredness and difficulty staying awake during police procedures.

During police interview, the Appellant denied seeing the victim, stated he looked both ways before entering the roundabout, and claimed the sun was in his eyes. He admitted to taking cocaine and heroin days before the accident but claimed no impairment at the time of driving. Toxicological evidence contradicted his account, indicating cocaine use 6 to 12 hours prior, with potential impairment effects and withdrawal symptoms relevant to driving ability.

Expert evidence included observations of poor performance on a roadside impairment test, disagreement among officers regarding impairment, and assessments of environmental factors such as the sun and vehicle design creating possible blind spots. The prosecution attributed dangerous driving to drug effects, tiredness, failure to adapt to sun glare, and failure to adjust for vehicle blind spots. The defence argued the accident was caused by sun position and vehicle design, denied drug impairment, and maintained the Appellant’s driving was reasonable and not careless.

Procedurally, the defence applied for appointment of an intermediary to assist the Appellant throughout the trial, citing expert reports describing the Appellant’s cognitive impairments, poor concentration, suggestibility, and physical pain exacerbated by medication. The trial judge refused the appointment of an intermediary for the entire trial but allowed for one to assist if the Appellant gave evidence. The Appellant was found fit to plead and stand trial despite challenges raised concerning fitness without intermediary assistance.

Legal Issues Presented

1. Whether the trial judge erred in refusing to appoint an intermediary to assist the Appellant throughout the trial.
2. Whether the trial judge erred in finding the Appellant fit to plead and stand trial without an intermediary.
3. Whether the trial judge erred in declining to exercise the court’s inherent powers to appoint an intermediary when Legal Aid funding was unavailable.

Arguments of the Parties

Appellant's Arguments

• The judge’s refusal to appoint an intermediary deprived the Appellant of effective participation and the opportunity to give evidence.
• The medical expert reports unanimously recommended an intermediary was essential due to the Appellant’s cognitive and communication difficulties.
• The case involved several complex subsidiary issues requiring the Appellant’s instructions and evidence, including drug influence, tiredness, sun glare, blind spots, and roadside tests.
• The Appellant’s disabilities crossed the threshold for mandatory intermediary assistance throughout the trial.

Prosecution's Arguments

• The judge was entitled not to appoint an intermediary for the entire trial given the Appellant’s participation in pre-trial events and ability to provide instructions and answers in interview.
• Dr Cullen’s psychiatric report did not properly apply the Pritchard criteria for fitness to plead.
• The judge’s decision to find the Appellant fit to plead was correct and consistent with the statutory and case law framework.
• The refusal to use the court’s inherent powers to appoint an intermediary when Legal Aid funding was unavailable was appropriate, considering the straightforward and limited issues the Appellant needed to address.
• Advocates were expected to adapt questioning and trial procedures to accommodate the Appellant’s communication needs without intermediary assistance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the factual context, the nature of the Appellant’s cognitive and physical impairments, and the complexity of the trial issues. It emphasized that fitness to plead and the necessity for an intermediary must be assessed in relation to the particular proceedings, not abstractly. The judge’s refusal to appoint an intermediary for the entire trial was upheld on the basis that the case was straightforward with largely agreed facts and limited disputed issues. The Appellant had opportunities to discuss the case with legal representatives, was granted regular breaks, and was allowed to stand or move in the dock to alleviate pain.

The court acknowledged the expert reports recommending an intermediary but stressed that such recommendations are not determinative. The trial judge was best placed to assess the Appellant's needs and the trial's demands. The judge’s conclusion that a fair trial could be conducted without a full-time intermediary was reasonable given the limited complexity and the adaptations made during trial.

Regarding fitness to plead, the court found that the psychiatric report failed to properly apply the Pritchard criteria in context, and the judge was correct to find the Appellant fit to plead. The court also supported the judge’s discretion not to exercise inherent powers to appoint an intermediary when Legal Aid funding was unavailable, given the straightforward nature of the issues the Appellant needed to address and the accommodations made.

The court referenced established case law and the Criminal Practice Direction, which emphasize that intermediary appointments for the entire trial are exceptionally rare and must be justified by compelling reasons. It highlighted the importance of trial adaptations, including simplified questioning, breaks, and clear communication, to ensure effective participation without necessarily appointing an intermediary.

Holding and Implications

The court DISMISSED the appeal against conviction and DISMISSED the appeal against sentence.

The decision confirms that the appointment of intermediaries is a discretionary, fact-sensitive judicial determination that must consider both the defendant’s vulnerabilities and the specific demands of the trial. The ruling underscores that not all defendants with cognitive impairments are entitled to an intermediary throughout the trial and that effective participation can often be secured through procedural adaptations. The ruling does not establish new precedent but affirms the existing framework governing intermediary appointments and fitness to plead assessments.

The direct effect is that the Appellant’s conviction and sentence stand, with recognition that the trial judge made a careful, lawful assessment balancing fairness and practicality in a case of moderate complexity involving a vulnerable defendant.