No: 2003/5593/C4 
Neutral Citation Number: [2004] EWCA Crim 2661
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 12 October 2004
 
B E F O R E:

LORD JUSTICE MANCE 

MR JUSTICE NEWMAN 
 
MR JUSTICE FULFORD 
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R E G I N A 

-v- 

BILLY JOE FRIEND
 
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MR M TURNER QC appeared on behalf of the APPELLANT
MISS S BENNETT-JENKINS appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE MANCE:  On 1st May 1996 in the Central Criminal Court before His Honour Judge Coombe, the appellant was convicted of murder and sentenced to detention during Her Majesty's Pleasure under section 53(1) of the Children and Young Persons Act 1933.  He was represented by solicitors and by leading and junior counsel, Mr Brian Barker QC (as he then was) and Mr Simon Gedge.  On 3rd November 1996 the single judge granted leave to appeal against conviction but that appeal was dismissed by the full court presided over by Lord Justice Otton on 4th February 1993.  He now appeals again against conviction upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995 on a variety of bases stated in the grounds as follows:  that he did not a have a fair trial owing to inability to participate effectively; that a ruling under section 35 of the Criminal Justice and Public Order Act 1995 cannot now be regarded as appropriate or correct in the light of fresh evidence; and on grounds relating to developments in the law inspired by Strasbourg jurisprudence relating to trials of children and young persons.  The fresh evidence on which the appellant seeks to rely consists in reports from an expert in adolescent psychology, Dr Susan Bailey, obtained by the Criminal Cases Review Commission and, as it happens, also in a report obtained on behalf of the Crown subsequently from Dr Susan Young of the Maudsley.
2.	The appellant stood trial with two others: his brother Edward Lee, or Ned, who, nine days after the start of the trial, pleaded guilty to murder and was sentenced to custody for life; and Ian Birch who was convicted at the trial of manslaughter on an indictment charging murder and was sentenced to three-and-a-half years' detention under section 53(2) of the Children and Young Persons Act 1933.
3.	The facts are these.  On 17th August 1995 Edward Lee, then aged 17, stabbed Ben O'Connor, aged 18, to death in the flat in which Ben O'Connor lived with his brother Matthew.  The flat was on the 19th floor of a block on Conway Road in Plumstead and it was owned by a friend of the O'Connor brothers' mother called Stephen Page (Sniper) who also lived there.  On the day in question Page, Matthew and Ben O'Connor, Birch and the appellant, together with two girls Anne Tullett and Michelle Wood, both aged 16, were present in the flat and all except the appellant were drinking.  The atmosphere was happy until an argument broke out.  At some point the appellant left and later returned with or closely preceded or followed by his brother Edward, or Ned.  His brother had a knife and started stabbing Ben O'Connor more than once.  The appellant left and got into a lift in which the victim's brother and the two girls were about to descend.  At that point, according to them, he looked shocked and terrified and was saying incoherently "Ned's stabbing your brother up" to Matthew.  
4.	It was the Crown case that there had been a joint enterprise between Birch, Lee (the brother) and the appellant.  The Crown case relied on the fact that the appellant fetched Lee and went back into the flat with him and he was or must have been, on the Crown case, aware that Lee had equipped himself with a knife.  Blood marks on Birch suggested that he had been near Ben and might have indicated that he was holding Ben at some stage.  No blood from the victim was found on the appellant.  The defence submitted that the jury could not be sure that the appellant knew that Lee had equipped himself with a knife or that the appellant foresaw the risk that the knife, if he knew about it, would be used to inflict really serious injury.  
5.	Birch admitted in evidence that he had fought with the victim earlier but he denied any part in the stabbing.  He said that he had been on the sofa when Lee entered the room and began stabbing Ben.  He said he ran past the victim all the way to the bottom of the building.  He said that the appellant did not come into the room while Lee was there.  He said he did not encourage the appellant to fetch Lee and could not in any event have anticipated that Lee would return with a knife and cause serious injury to Ben O'Connor.  
6.	Evidence was given by a number of witnesses including, firstly, Page.  He described the background, the drinking together and then a fight which started between himself and Birch with Matthew O'Connor and himself then trying to prevent Birch attacking himself, Page.  He also said that the appellant came in and lashed at him with fists and that a general struggle ensued involving the appellant, Birch, Ben Lee and Matthew O'Connor and himself.  He said that he escaped from his flat wearing only boxer shorts and that while waiting in that condition for Michelle to throw him his shoes, the appellant came running out "all fired up" and said that he was going to get his brother Lee.  He said that he felt frightened at that point and replied to the appellant that he was going to get help.  
7.	Matthew O'Connor, the victim's brother, said that he had gone into the room to stop violence and had been accompanied by the victim Ben.  He pulled Birch and Page apart.  Ben and Birch had then exchanged blows and Birch had told Ben that he was "going to have it".  The appellant had arrived and had thrown a speaker down saying "You are going to have it, you're going to get it".  Birch told the appellant to get Lee, who had a pretty fearsome reputation.  Birch said "You're going to die, you're going to die".  The appellant had left.  Matthew had been concerned about what was going to happen and who was going to come and told the girls and Page to leave.  He had gone into Page's room to get Page's boots.  In the room Ben was stopping Birch from attacking Page.  Matthew and Ben had picked Birch up, carried him out and put him immediately outside the front door of the flat.  Birch kicked at the door and Matthew told Ben that he was going to phone for the police.  Matthew then left the flat before the return of the appellant with Lee.  He had met Michelle and Anne in the stairwell and they had got into the lift.  The appellant had joined them in the lift and told him that Lee was "stabbing your brother up", saying this three or four times and looking shocked and frightened.  
8.	Michelle gave evidence.  She said the appellant had shouted that he was going to get his brother.  She did not see the appellant after Lee's arrival.  She saw Lee stab Ben and then she ran.  
9.	Anne gave evidence that when the appellant returned he came through the front door quickly with somebody else.  They pushed past her and Michelle to get in.  Michelle and she had immediately left and the appellant and Lee had gone into Page's bedroom.  Ben and Birch were in there, Birch having calmed down.
10.	A resident in the block of flats on the 3rd floor, Mr Blackwood, knew the appellant by sight.  At about 11.30 pm he said he had noticed the appellant running out of the back entrance of the block.  The appellant had then re-appeared with another man and together they had jogged along the service road towards the back entrance.  One of them, sounding like the appellant, had said that a mate was in trouble upstairs but it was not a problem.  The person he was in a tackle with was still upstairs so they could still get him.  The appellant had said "We can get him".  The appellant had led the other man into the back of the flats.
11.	Charlotte Nye, a resident in the block of flats, used the lift that night.  The lift door had hardly started opening when someone started to come in, followed by a man she subsequently identified as Lee.  That man had what looked like a knife in his hand which he turned away from her view before looking behind at the other boy whom she could not identify.
12.	The appellant in interview initially made no comment.  His solicitor subsequently explained that she had given him advice to make no comment on account of his low mental age and the fact that full disclosure of the Crown case had not been given.  In a subsequent third interview, however, lasting about 12 minutes, he had answered questions on advice.  He had accepted his earlier presence in the flat, but he denied running home to get Lee and said that he had left with Michelle.  He denied asking Lee to "f.....g get him, did you do that?"  Lee was in bed when he got home.  Then Birch had come home and went out into the garden to give the dog some water before having a wash and going to bed.  He denied climbing about in the garden before his arrest or knowing anything about the stabbing until told about it in the police station.  He denied killing Ben.  He denied knowing who had killed Ben.  However at trial the defence accepted on his behalf that he had told in these respects lies in his interview -- firstly, a lie that he did not know who had killed Ben O'Connor; secondly, a lie that he had left Mr Page's flat with Michelle Wood; thirdly, a lie in saying that he had not run out of the flats through the back gardens of the flats when heading back towards Conway Road.  
13.	A voir dire was held on the issue whether the judge could and would give a direction to the jury under section 35 of the Criminal Justice and Public Order Act 1994 if the appellant did not give evidence. Under section 35 the court or jury in certain circumstances may, in determining whether an accused is guilty of the offence charged, draw such inferences as appear proper from the failure of the accused to give evidence, or his refusal without good cause to answer any question.  However, it is not permissible for the court or jury to draw such an inference if it appears to the court that "the physical or mental condition of the accused makes it undesirable for him to give evidence". 
14.	Dr, now Professor, Gudjonsson gave evidence on the voir dire as to the mental capacity of the defendant and his ability to give evidence in his own defence.  In the light of that evidence it was submitted on behalf of the defendant that there should be no adverse inference drawn under section 35 because his mental condition made it undesirable for him to give evidence.  No issue of unfitness to plead had been raised and the judge therefore said, correctly, that he started from the premise that the defendant was able to understand the proceedings and able to instruct a solicitor and counsel as to his defence, but that he accepted in the light of the wording of section 35 that there must be some undefined area between unfitness to plead and in effect normality, in which area, by reason of an accused's physical or mental condition, it was undesirable for him to give evidence.  According to the evidence of Dr Gudjonsson, if the accused was allowed plenty of time and if one could get him to settle down and concentrate, he could give a coherent account but he would find it more difficult to listen to questions and to concentrate if he was under stress.  Dr Gudjonsson expressed concern about whether he could do justice to himself.  His distractibility would be a concern.  He would not have the same intellectual resources as others.  One must take an overall view of his ability to concentrate.  However, the judge said that it appeared to him that the appellant had given a very coherent, even though in certain respects not true, account of what had happened in answers in the third interview and Dr Gudjonsson had said that he was not a very suggestible young man.  The judge said that he had to bear in mind the appellant's proven behaviour that night in so far as it threw any light on his mental condition.  At the time the power to draw inferences applied only to those of 14 or over, but the judge took the view, correctly no doubt as a matter of law, that that applied to calendar age and not to mental age.  The judge concluded that on balance the accused's mental condition was not such as to make it undesirable for him to give evidence and he based that conclusion, amongst other things, on the explanation given by the appellant in interview, as well as to Dr Gudjonsson when seen by him, and on the powers of the court to ensure a witness was not put under any undue pressure.  
15.	Nonetheless, it was decided by the defence that the appellant should not give evidence.  Dr Gudjonsson was, however, called, this time before the jury, and stated that the appellant was capable of expressing himself but had a moderate mental handicap and mental years the equivalent of a child aged nine or, in August 1995, eight.  He said there was no evidence of mental illness and that the appellant was less suggestible than other average people, but he also said that the appellant got bored and was so less able to concentrate and indeed that he got bored very easily.  
16.	Birch gave evidence that he threw the first punch which was directed at Page, that Ben had then joined in the fighting and that he did not remember precisely who was involved, but that the fighting had stopped suddenly.  He said he was not in the room when Ben was stabbed.  He saw Ben stabbed but thought it was to the shoulder.  He did not see him stabbed in the heart.
17.	In his summing-up, the judge directed the jury that it was open to them to draw an adverse inference from the appellant's failure to give evidence and/or from his failure in interview to mention facts which he could reasonably have been expected to mention -- see the summing-up at pages 83 to 84 -- and he also directed them that they might attach significance to lies in certain circumstances, in particular if they did not consider that there was or might be some other explanation than guilt -- see pages 88 to 89.  He reminded the jury, however, in terms about the relevance of Dr Gudjonsson's evidence to the issue whether they could or should draw any such inferences or attach any such significance.  
18.	The case was, as we have said, taken with leave of the single judge, Dyson J, to the Court of Appeal presided over by Lord Justice Otton.  There were three grounds of appeal.  Firstly, the judge's ruling that he would give the adverse inference direction.  Secondly, his directions regarding the interviews, particularly as to the significance the jury might attach to (a) the failure to answer any questions when first interviewed and (b) when the appellant did eventually speak, the lies he told in his third interview.  And, thirdly, there was a point on alleged bias on the part of some jury members which is of no present concern.  
19.	The Court of Appeal in its judgment reported in [1997] 2 All.ER 1010 dismissed all three grounds of appeal.  As to the first ground it recited the judge's account of Dr Gudjonsson's evidence and said as to the law, this:
"[Section 35(1)(b)] in effect provides no adverse inference may be drawn if the mental condition of the accused makes it undesirable for him to give evidence.  Its clear purpose is to mitigate any injustice to a person who is physically or mentally handicapped.  The language of the section is such as to give a wide discretion to the trial judge...  
We do not consider that the judge erred in principle in applying the wrong test.  It cannot be said that he applied the wrong pest if only because there is no right test.  Indeed, we do not consider it appropriate to spell out a test to be applied in such a situation.  The language of this part of the section is simple and clear.  It is for the judge in a given case to determine whether or not it is undesirable for the accused to give evidence.  A physical condition might include a risk of an epileptic attack; a mental condition, latent schizophrenia where the experience of giving evidence might trigger a florid state.  If it appears to the judge on the voire dire that such a physical or mental condition of the accused makes it undesirable for him to give evidence, he will so rule, the inference cannot thereafter be drawn and he will so direct the jury.  Thereafter, and by operation of section 35(3) the jury in determining whether the accused is guilty may draw such inferences 'as appear proper' from the failure to give evidence and in doing so may take account of medical or other evidence directed to this issue.  This is precisely what happened in the instant case.  Thus we consider that the clarity of the language is such that it is not necessary to supplement the 1994 Act with a test.  The section itself is a practical framework within which the provision and purpose of the statute can be put into effect and no formal guidelines are called for.  
Against this analysis, we are unable to find that the judge erred in principle in approaching this issue.  He carefully considered Doctor Gudjonsson's evidence in some detail.  He took account of the expert's opinion that the appellant could not do himself justice in giving evidence because of his poor ability to concentrate and express himself.  This assertion was somewhat vague and having explored it with the witness the judge was entitled to give such weight to it as he felt appropriate.  He was able to balance it against Dr Gudjonsson's conclusions on the suggestibility score that they fell within normal limits and that the appellant was not a very suggestible young man and coupling it with the judge's own powers to mitigate the stress of giving evidence.  We can find no error in principle in taking into account his behaviour after the offence (as opposed to the commission of the offence) and his answers in interview.  It is not possible to fault the judge's conclusion or the manner in which he reached it.  We accept Mrs Poulet's submission that the submission can only be impugned if it can be shown that it was 'unreasonable' in the Wednesbury sense, ie that no judge faced with this evidence could rationally have reached this conclusion.  We are satisfied that the judge reached his conclusion in a proper, and balanced manner.  He took into account relevant matters.  He did not consider those that were irrelevant.  It was thus open to him to arrive at the conclusion that he did on the evidence before him and there is no basis for this court to substitute a contrary conclusion.  
In so far as he exercised his discretion it cannot be said that he erred in principle or that the exercised it capriciously.  Finally, we are satisfied that the circumstances of the case were not such as to be 'exceptional' as envisaged by Lord Taylor CJ in Cowan [1996] QB 373.  
Consequently, we are not persuaded that the judge was wrong to reject the submission that the appellant's mental age made it undesirable for him to give evidence." 
As to second ground, the court said it was inevitable that the judge linked the appellant's alleged lies in interview with the way the jury should consider Dr Gudjonsson's evidence.  The central issue for them to consider was the weight to be given to the answers at interview and this could only be done in the light of Dr Gudjonsson's evidence as to his mental state.  This evidence was also of vital importance in regard to intent and foresight of injury.  The court then went on to recite the judge's direction and to say:
"We accept Mr Barker's proposition that, in the light of the very difficult decisions the jury had to make in applying the law to the facts, very clear directions were required.  We are satisfied that this criteria was satisfied.  There was a plain, clear and appropriate 'Lucas' direction.  It was given at the correct stage of the summing-up when the judge was giving directions on the law and before embarking on an analysis of the evidence.  There was no need to repeat the direction on the second day of the summing-up.  There was a correct and helpful linkage with Dr Gudjonsson's evidence.  The judge correctly left the 'undesirability' and adverse inference issue to the jury.  The issue of forseeability was correctly addressed and left to the jury and did not call for the refinements or elaboration contended for.  We reject the suggestion that the jury could have been left with the impression that a series of lies coupled with not giving evidence was sufficient to convict." 
20.	In 2000 the CCRC commenced a review of the conviction on the application of the appellant under the Criminal Appeal Act 1995. By a Statement of Reasons dated 24th September 2003 it decided to refer the conviction under section 9 to this court and set out its reasons under section 14(4).  In the course of its consideration of the case it obtained reports from Dr Susan Bailey of the Adolescent Forensic Service, Prestwich, Manchester, to which we have referred.  The first was dated 8th April 2002 and was prepared on the basis of documentary material only.  In paragraph 11.1 on page 7 she said that the appellant had features of attention deficit hyperactivity disorder.  She expressed her opinion that, although the appellant was just fit to plead, he did not have the cognitive or psychological function or capacity to participate effectively in the trial as a result of, firstly, his level of mental impairment; secondly, inattentiveness and lack of ability to concentrate; and thirdly, his emotional state; and that it was thus undesirable for him to give evidence.  Further, she expressed the view that in any event a less emotive setting could have been arranged, eg involving a separate trial or a video link.  She said his functional capacities were such that he could only have comprehended simple questions with one concept within a question (page 10) and that he would have been unlikely to remember earlier answers while giving evidence at trial.  
21.	The Criminal Cases Review Commission later contacted Dr Gudjonsson in the light of this report and he said, in a letter of 26th February 2003, that he was not convinced that Dr Bailey was correct with regard to the last two points and that when he assessed the appellant he did not seem to have any comprehension problems.  He thought that the court did have a reasonably comprehensive picture of the appellant's strengths and weaknesses.  He observed that he had not specifically stated that it would be undesirable for the appellant to give evidence because he thought that was for the court to decide.  He did however go on as follows:
"However, Billy Joe Friend's problems with concentration, hyperactivity and impulsivity, as noted at the Glenthorne Centre [and we interpose that that was a centre to which this appellant had gone at some point and which had provided material which was not material available at the time of trial], are consistent with features of attention deficit and hyperactivity disorder (ADHD). It might have been helpful if he had been assessed at the time by an expert on ADHD.  If Billy Joe Friend would have met the criteria for ADHD at the time of his trial then this might well have strengthened the arguments that it had been undesirable for adverse inferences to be drawn due to his not giving evidence at his trial.  Even though it is likely that Billy Joe Friend's possible ADHD condition in adolescence will have markedly improved over the years, I think the CCRC should consider the possibility of referring him for an assessment to an expert on ADHD, or at least consult with such an expert about the practicalities of carrying out such an assessment."  
Nevertheless, his final conclusion was that on the basis of the information he had at present, even if he had had the opinion of Dr Bailey when he gave evidence in 1996, he did not think that it would have influenced the test he gave at the time.  
22.	Dr Bailey was then asked by the Commission to see the appellant, which she did, following which she wrote a second report dated 22nd September 2003.  After reviewing his account of his early life, his understanding of the offences, the trial process, sentencing and life at Glenthorne Youth Treatment Centre which he had attended, she considered that the information obtained confirmed her prior opinions that he could not effectively have participated in the trial.  The Criminal Cases Review Commission also approached senior counsel, now His Honour Judge Barker QC, who had represented the appellant at trial and on appeal, and he gave them information which is summarised in an attendance note in the report to the effect that the appellant was simply incapable of giving a coherent account of himself when in consultation and that he was not called to give evidence for that reason.  
23.	In the light of this and other material, the Commission concluded that there was a real possibility that this court would reach a revised view of the position under section 35 if the matter were referred back.  It correctly identified the differences between Dr Gudjonsson and Dr Bailey, but noted the comment regarding ADHD by Dr Bailey which Dr Gudjonsson had followed up in his letter.  We note however that when the matter was referred back to Dr Bailey in the light of Dr Gudjonsson's letter, she did not expressly carry this point further.  Had there not been subsequent developments, to which we shall come, it might have been more difficult to resolve this appeal. 
24.	The Commission also identified more general concerns regarding the fairness of the trial process in the light of  V v United Kingdom [2000] All.ER 1024 and the Practice Direction [2000] 1 WLR 659 to which that decision of the European Court of Human Rights led.  It considered that in the light of Dr Bailey's evidence the trial procedures could be regarded as unfair.  It also identified in the same light potential objections to the interview process, particularly (a) the absence of a specialist in adolescent learning disability and (b) the presence of the appellant's mother during the interview in which the appellant said, lyingly, that he did not know who killed the victim.  The Commission pointed out that the mother had a conflict of interest between her two sons' interests.  One might summarise the effect of this point as being that so too did the appellant: knowing that his brother was the killer but being in his mother's presence he would naturally be very torn about telling the truth.  
25.	We turn to the subsequent developments which are to our mind conclusive of the resolution of this appeal.  The Crown has sought the advice of a further independent chartered clinical psychologist from the Maudsley, Dr Young, as we have said.  She interviewed the appellant, saw all the relevant documents and reported on 2nd June 2004.  She diagnosed ADHD as follows:  
"The core symptoms of ADHD are inattention, impulsiveness and hyperactivity.  Symptoms must be present before age 7 years and to have caused impairment in two or more settings (eg at school, work, home).  There must be clear evidence of clinically significant impairment in social, academic or occupational functioning.  Symptoms must not be better accounted for by another mental disorder.
Many ADHD children maintain full symptom patterns through mid-adolescence, with a sizeable number persisting into young adulthood.  It is estimated that 3-5% of the childhood population has ADHD and symptoms generally gradually remit as they mature.  Nevertheless, up to two-thirds of ADHD children will continue to have residual symptoms in young adulthood and it is estimated the disorder is present in about 1-3% of adults or one in every 35 people.  Some adults continue to be symptomatic in their 40s or even 50s.
Research into the long-term outcome of children with ADHD suggests it is a risk for multiple problems.  ADHD is a strongly associated with specific learning problems, problems in employment and instability in relationships.  Around one-third of ADHD children are subject to a Statement of Special Educational Needs and either receive additional support to cope in mainstream education or referred to special school due to their learning and/or behaviour problems.  Comorbid problems are commonly reported including conduct disorder (50%), depression (70%), anxiety (25%) and personality disorder (30%).  Anti-social behaviour is present in appellant approximately up to 50% of this operation and a sizeable subgroup misuse drugs and engage in criminal behaviour.
ADHD is a neurodevelopmental disorder and alterations in brain functioning and neurochemical change are important factors in the aetiology of ADHD.  Because of their cognitive deficits, individuals are predisposed towards poor impulse control, an attention deficit and a desire for immediate gratification without consideration for the consequences.  There is a significant risk for anti-social outcomes, including criminal behaviour, disinhibited and aggressive behaviour.  In addition to these behavioural problems, they suffer a range of neurocognitive impairments, including attentional, executive (ie poor planning, sequencing and organisational ability) and memory dysfunction.  Although these deficits appear widespread, it is thought that their neuropsychological basis involves dysfunction in working memory, the self regulation of cognition and future directed behaviour.
In order to evaluate the diagnosis in adulthood it is necessary to first ascertain whether an individual had ADHD as a child and then evaluate to what extent that individual suffers from residual symptomatology in adulthood.  As difficulties stemming from childhood are central to diagnosis, information from contemporaneous documentation recorded in childhood is an important source (ie school records, probation records, professional assessments).
Mr Friend obtained a score of 64 on the Wender-Utah Rating Scale which means he self-rated himself to have a childhood history consistent with ADHD.  This finding is strongly supported by the contemporaneous childhood documentation completed by multi-disciplinary professionals between the age of 8 to 15 years.  These documents consistently record Mr Friend had problems with attentional control and poor behavioural controls (impulsivity) from a very young age and these problems caused him to underachieve academically.  Because of these problems, Billy Joe Friend was referred to special schools but was excluded from three units for aggressive behaviour towards staff and teachers.  The cognitive and behavioural problems contained within this detailed documentation are entirely consistent with a history of Attention Deficit Hyperactivity Disorder in childhood.
When assessed by myself, Mr Friend self-rated himself to have some residual inattention and impulsive/hyperactive symptoms on the DSM-IV Checklist of ADHD Symptoms.  Objective testing indicated he continues to have severe deficits of attention (95th percentile on the Letter Cancellations Test) and impulse control (98th percentile on the Matching Familiar Figures Test and 99th percentile for errors of commission on the Continuous Performance Test).  When asked to do a task that required sustained attention (errors of omission on the Continuous Performance Test) his performance fell within the normal range.  The stores suggest that Mr Friend generally adopted a strategy that favoured speed over accuracy resulting in numerous errors.  
Her conclusions were these: 
"1.  Mr Friend suffered with ADHD in childhood and is currently in partial remission of his symptoms.  A history of childhood ADHD is clearly documented in contemporaneous records.  Mr Friend's current residual symptoms of attention and impulsivity fall within a level of significant impairment on neuropsychological measures.  One neuropsychological measure found his current ability to inhibit responses was abnormally poor (errors of commission, Continuous Performance Test, score 1st percentile).  At the time of his trial, these symptoms would have been considerably more prevalent and severe.  At the time of his trial, his ADHD was unrecognised, undiagnosed and untreated.  
2.  Mr Friend does not have, and never has had, a general learning disability or 'mental handicap'.  An assessment of intellectual functioning conducted when he was 8 years old suggested he was falling within the low average range of intellectual functioning 'but clearly his attainments in no way reflect his potential ability".  However two intellectual assessments conducted around the time of his trial suggest he had significant mental impairment.  The most important and relevant intellectual assessment is that conducted nearest to the date of the trial which is that of Professor Gudjonsson as it is this assessment that gives the clearest indication of Billy Joe Friend's general intellectual ability, verbal and non-verbal intellectual abilities as well as specific strengths and weaknesses at the time of the trial.  This assessment suggests that at the time Billy Joe Friend had mental impairment in terms of both verbal and performance intellectual abilities.  Nevertheless, Billy Joe Friend had some specific relative strengths in terms of his verbal and non-verbal reasoning skills and Professor Gudjonsson drew attention to both relative strengths and weaknesses in his testimony.   
3.  In my opinion Mr Friend's IQ scores were depressed during the adolescent assessments for two reasons.  Firstly, Mr Friend's symptoms of ADHD (ie poor attentional control, distractibility, difficulty attending and staying on task, poor response inhibition, hyperactivity) meant that the IQ scores obtained were not an accurate reflection of his ability and potential which most likely fell in the low-average range.  Research shows that following treatment with medication for ADHD, cognitive test scores falling within an impaired range have been shown to fall within a normal range.  Secondly, his lack of school attendance caused severe disruption to his education.  It was subtests that are particularly sensitive to educational attainment that were markedly low.   
4.  In his evidence Professor Gudjonsson highlighted Billy Joe Friend's general intellectual impairment as well as his relative intellectual strengths.  He drew attention to the fact that Billy Joe Friend 'was disadvantaged overall to a significant degree with those specific strengths that he has'.  He stated that his main concern was Billy Joe Friend's distractibility, however Professor Gudjonsson was unaware at the time of the full extent of Billy Joe Friend's impairment in attention and response inhibition.  Billy Joe Friend was suffering with Attention Deficit Hyperactivity Disorder and his cognitive deficits (ie inattention, impulsivity) and hyperactive behavioural problems appear to have been severe and most likely disabling at the time.  His intellectual deficits were secondary to his primary problem, ADHD, which was not diagnosed at the time.  Furthermore, at the time of the trial Mr Friend was noted to be 'very anxious' and this anxiety is likely to have exacerbated his cognitive deficits.  Thus, although consideration was given at the time to his concentration problems and level of distractibility, it is unlikely that the severity of these problems was fully appreciated.   
5.  The implication of having ADHD and significant cognitive impairments of this type means that Mr Friend would have had difficulty sustaining attention over a prolonged period, he would have become easily distracted and his mind may have wandered onto different and/or irrelevant topics.  His verbal deficits meant that he was disadvantaged in terms of his understanding of what was being said (ie not understanding the meaning of some of the words used) but his ADHD cognitive deficits meant that he may have completely missed some parts of the process (eg by going off task, ie not listening or 'tuning out').  When I interviewed Mr Friend he described this to be the case saying that he did not understand what was being talked about and at times his mind wandered onto other topics such as thinking about a football game.  His defence counsel, Mr Gedge, recalls difficult conferences when Billy Joe Friend was highly distractible and used the time on matters unrelated to the case.  
6.  Aside from having difficulty following the proceedings, it is unlikely that Mr Friend would have coped satisfactorily with giving evidence for prolonged periods in the witness box.  Although his poor attentional control was considered at the time, the implication of his impulsivity or difficulty inhibiting an immediate (and perhaps inappropriate) response was not.  This latter point would have particular relevance as to whether it was desirable for Billy Joe Friend to give evidence.  For example, aside from concentration problems in the witness box causing him to lose his train of thought, Mr Friend may have blurted out the first thing that came to mind.  He may have been inconsistent and given conflicting evidence.  People with ADHD often speak and act without thinking of the consequences.  He may have become emotionally labile, distressed and/or angry when giving evidence.  He may not have been able to inhibit a verbally aggressive response.  These vulnerabilities are likely to be misinterpreted by a jury.  When giving evidence his verbal deficits, in particular his extremely poor understanding of word meanings may have meant that would not have exactly understood everything put to him.  When I recently assessed Mr Friend as an adult I noticed that he does not always admit to not understanding a word but will attempt to answer a question regardless.  This tendency is likely to have been more marked as a young person giving evidence with all the eyes upon him in an intimidating formal environment.  
7.  If circumstances were the same and I were conducting an assessment of his type today for the court, I would firstly recommend a psychiatric evaluation (from a relevant expert in ADHD) to establish whether treatment with medication is appropriate as this may improve his cognitive functioning and general ability to cope with the legal process.  I would recommend that Mr Friend receives regular ten minute breaks (say every hour) during his trial in order to help him attend to and follow the court process.  I would advise counsel to avoid lengthy questions and complex sentence structures and suggest that questions are expressed in relatively simple language and broken down into small stages.  I would suggest that important information is put across directly and simply, avoiding long-winded complicated explanations.  I would conclude that, provided these precautions are taken, Mr Friend is fit to stand trial and give evidence.  
8.  However, no such precautions were made at the time of Mr Friend's trial and, although only 8 years ago, much has changed in the intervening years in terms of the court's understanding of the needs of young persons standing trial and the scientific advancement in our knowledge of ADHD.  Having perused all the documentation and conducted a neuropsychological assessment of Mr Friend's current functioning, I conclude that at the time of his trial Mr Friend was hampered by the following problems:  
a) severe cognitive deficits associated with ADHD en inattention and impulsivity)  
b) poor behavioural controls (hyperactivity, restlessness, emotional liability)  
c) verbal intellectual deficits. 
d) deficits in short-term verbal memory. 
e) anxiety. 
f) his young age. 
g) no concessions made at trial.  
The low IQ scores obtained prior to trial do not solely render cause for it to have been undesirable for Billy Joe Friend to give evidence at his trial.  However, his low IQ scores are secondary to his primary problems of ADHD.  Thus I conclude that, due to his ADHD (and cognitive deficits being exacerbated by anxiety) and combined with his verbal intellectual deficits, it was undesirable for Billy Joe Friend to give evidence.  I further conclude that, for the same reasons, he was unlikely to have effectively participated in the trial proceedings."
26.	In summary, she concluded that the appellant suffered from ADHD in childhood, although currently in partial remission of his symptoms when she saw him.  She concluded that at trial his ADHD was unrecognised, undiagnosed and untreated and she concluded that:  
"The implication of having ADHD and significant cognitive impairments of this type were that [he] would have ... become easily distracted and his mind may have wandered onto different and/or irrelevant topics ... his ADHD cognitive deficits meant that he may have completely missed some parts of the process..." 
And that means, as we understand it, whether of interview or of his examination at trial in evidence.  She said that these points would have: 
"... particular relevance as to whether it was desirable for Billy Joe Friend to give evidence.  For example, aside from concentration problems in the witness box causing him to lose his train of thought, Mr Friend may have blurted out the first thing that came to mind.  He may have been inconsistent and given conflicting evidence.  People with ADHD often speak and act without thinking of the consequences...  These vulnerabilities are likely to be misinterpreted by a jury."  
We add that of course the same considerations are likely to have applied to interview. 
27.	The grounds of appeal now served on behalf of the appellant very sensibly and understandably concentrate on the fresh and positive diagnosis of ADHD thus made.  There are in the formal grounds six stated paragraphs.  The first and second are these:  
"In the light of fresh evidence, not reasonably available at the time of trial that the appellant was suffering from ADHD, the verdict is unsafe.  
In the light of the fresh evidence, the learned trial judge could not have allowed the jury to draw a potential inference from the appellant's failure to give evidence.  
In the light of the fresh evidence the ... judge should have excluded the second interview of the appellant." 
The third ground is not pursued.  The fourth ground is pursued.  It reads: 
"Had the learned trial judge properly admitted the appellant's second interview he should have revised his 'Lucas lies' direction to include the fact that the appellant suffered from ADHD and in consequence heighten the normal cautions contained in a 'Lucas' direction."  
The fifth ground is to the effect that he should have put in place a trial regime which would have facilitated giving evidence by the appellant.  That is not stressed by Mr Turner for the appellant, although he submits that if the evidence of the experts now available had then been available the regime would in likelihood have been different.  The sixth ground that the appellant did not receive a fair trial as envisaged by Article 6(3) of the European Convention on Human Rights is also not stressed.  Effectively, as we see it, any territory which it could cover would be covered by the other grounds.
28.	We are asked to admit the evidence of the experts and the skeleton supporting that application amplifies the grounds which are now primarily pursued, both with regard to the drawing of any inference from a failure to give evidence and with regard to the drawing of any inference arising from the failure to answer questions in initial interview and the significance of any lies in the third interview.
29.	The Crown in its skeleton dated 6th August 2004 has stated the general legal position as it submits it to be in paragraph 16:  
"If the court is of the opinion that the fresh psychiatric and psychological evidence should be received, it appears to the respondent that notwithstanding the observation in paragraph 12 above, it is likely that the court will be of the view that had the evidence been given at trial it might reasonably have affected the jury's decision to convict.  Indeed, had this material been available at the time of trial, then it is conceded that the Crown would not have invited the court to allow an adverse inference to be drawn under section 35 of the Criminal Justice and Public Order Act 1994, from the appellant's failure to give evidence.  
17.  Whilst it is not conceded in the light of the fresh evidence, that the learned trial judge should have excluded the second interview of the appellant, it is accepted that the effect of the fresh evidence would have been such as to necessitate the learned trial judge to revise and/or modify the 'Lucas lies' direction."  
In our view the fresh expert evidence of Doctors Bailey and Young should clearly be admitted.  It satisfies all the relevant preconditions in section 23 of the Criminal Appeal Act 1968.  It is capable of belief.  It may afford a ground for allowing an appeal.  It would have been admissible at trial and there is a reasonable explanation for failure to adduce it then.  As to the last precondition, the defence at trial went of course to an extremely distinguished expert, although not it appears a specialist in adolescent problems.  The understanding of ADHD has, on the expert evidence before us, significantly increased since the date of trial.  Through no fault of the appellant or his advisers or anyone, the nature and extent of the appellant's problem was not fully appreciated at trial, as it now has been.  
30.	Having admitted that evidence, the effect of which we have recited, we conclude in the light of it that this conviction can no longer be regarded as safe.  It is clear that the judge would not have ruled in favour of drawing any adverse inference, certainly in respect of the failure to give evidence, and we think probably also in respect of the interview or silence at the first interview in so far as he did direct the jury that they might do so.  Indeed, the Crown has conceded that it would not even have invited any adverse inference as regards the failure to give evidence.  
31.	Even if there had been any direction regarding an adverse inference, the judge would still have had to direct the jury with reference to the new evidence and in any event, and quite apart from these points, he would in the light of the new evidence certainly have directed the jury in quite different terms as regards any inference from silence or lies told in interviews -- see the summing-up at page 88.  He would in particular have had to reflect the passages in paragraph 6 of the conclusions in Dr Young's report.  
32.	In these circumstances, this conviction cannot stand and we quash it.  The Crown through Miss Bennett-Jenkins has answered the court's question about the attitude to adopt in those circumstances in a way which in no way surprises us.  She points out the length of time which this appellant has already spent in custody since May 1996, now just over eight years.  That is a very substantial period after which, particularly in the light of this appellant's mental condition, then and still, it would be, we think, inconceivable to have a fresh trial.  She points out that many of the witnesses are not available and accepts that it would not be in the public interest for there to be a retrial.  We agree with that proposition.  This appeal will therefore be allowed and the conviction quashed.
33.	MR JUSTICE TURNER:  Thank you my Lords.  I have one application.  It is just this.  Would my Lords be kind enough to make a defendant's costs order.  The object of this is to seek to cover the costs of those, not myself but solicitors and advocates before the case reached the CCRC, the Criminal Cases Review Commission, the work they did.  I cannot give you an exact cost but I am told by those who instruct me that it is likely to be less than £1,000 in total and we would ask for that order to be taxed. 
34.	LORD JUSTICE MANCE:  Just remind us of the jurisdiction.  It is simply a discretion, is it? 
35.	MR TURNER:  It is a discretion to grant a defendant's costs order providing costs have been incurred. 
36.	LORD JUSTICE MANCE:  Are there any conditions or guidance as to when the discretion should be exercised? 
37.	MR TURNER:  My Lord. 
38.	MR JUSTICE FULFORD:  You would say, Mr Turner, that it is an order that is often made by this court.
39.	MR TURNER:  Yes, providing there is a successful appeal, yes. 
40.	LORD JUSTICE MANCE:  It may often be made when asked for but it is not very often asked for.  It sounds a reasonable proposition.
41.	MR TURNER:  There has been a lacuna identified so far as instructing solicitors are concerned. 
42.	LORD JUSTICE MANCE:  Which is not covered by any legal assistance.
43.	MR TURNER:  That is right. 
44.	LORD JUSTICE MANCE:  Yes, thank you. You may have that.
45.	MR TURNER:  Thank you very much, my Lord.
46.	LORD JUSTICE MANCE:  To be taxed.