The claimant, TP, a 15 year-old boy, sought judicial review of a decision by the District Court not to stay proceedings against him at the West London Youth Court for an abuse of process, regarding an alleged offence of robbery and attempted robbery. The District Court had asked whether his ‘intellectual capacity’ was such that he could not effectively participate in the proceedings. If that were so, he could not have a fair trial and the proceedings against him should have been stayed.
It heard evidence from a clinical psychologist who diagnosed TP as having a mild learning disability, placing his intellectual functioning within a range of significant mental impairment. He reported that TP would need extra support to improve his awareness of court proceedings, and his low level of cognitive functioning would need to be considered and compensated for and his participation at trial would be limited.
Based on the evidence of the psychologist, the judge concluded that with specialist assistance from the Youth Court, TP would be able to participate to the extent required for a fair trial in accordance with the decision in SC v United Kingdom (2004) and it would not be an abuse of process to proceed. The judge also held that TP’s circumstances were not unusual and that it would not be an abuse of the process of the youth court for T’s case to proceed in due course to trial.
TP sought judicial review on 3 grounds:
(i) The judge had applied the wrong standard of proof; he should have asked himself whether there was a ‘real possibility’ that TP would not be able to participate effectively.
The High Court stated that the standard of proof normally imposed in abuse of process applications was one where the claimant established on the balance of probabilities that he could not effectively participate in a trial. Furthermore, it stated that staying criminal proceedings for an abuse of process was a power that ought only to be employed in exceptional circumstances. Attorney-General’s Reference (No1 of 1990).
TP’s assertion that a lower standard of proof i.e. one of a ‘real possibility’ that he could not effectively participate in a trial was incorrect and could not be found in any abuse of process cases cited to the court. The court also commented that rather than staying proceedings before they had begun, the judge in the case had an obligation to grapple with difficulties and take all practical steps to overcome them. In this way he would retain the power to stay proceedings if it became apparent that a defendant could not effectively participate in his trial. It would not be right to stay the proceedings on the basis of a possibility that the trial would be unfair when after the event it could well be shown not to have been.
The High Court also stressed that TP would be tried in a Youth Court and as such would be provided with the specialist assistance recommended in the psychologist’s report. The SC case also laid down a recommendation that a child defendant be “tried in a specialist tribunal which is able to give full consideration to and make proper allowance for the handicaps under which he labours, and adapt its procedures accordingly.” The Youth Court was such a specialist tribunal and TP would be able to participate effectively in his trial to the extent laid down by Article 6 ECHR.
The second ground did no more than say that TP’s circumstances were not markedly different from many young defendants who passed through the youth court. He was no stranger to criminal proceedings and his incapacity was not beyond the experience of the youth court.
The High Court held that the third ground added nothing to the first and that the decision in SC showed that the trial of a defendant with a low IQ does not necessarily involve a breach of Article 6. What was crucial was whether the tribunal hearing the case was able to adapt its procedures so that the defendant could effectively participate in the proceedings.