Intermediaries in the Criminal Justice System

Improving Communication for Vulnerable Witnesses and Defendants

Plotnikoff, Joyce, Woolfson, Richard, Joyce Plotnikoff, Richard Woolfson

• Publisher: Policy Press
• Year: 2015
• Print ISBN:
  9781447326069
• Edition: 1
• eBook ISBN:
  9781447326083
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

This is the first book about the intermediary scheme, criminal justice's untold 'good news story'. Intermediaries are independent communication specialists who assist children and vulnerable adults at police interviews and trials, helping to improve the quality of their evidence and providing access to justice for those who previously had been excluded. Richly illustrated with case examples through intermediaries' own descriptions of their work, the book also includes feedback from justice system personnel and over 70 judges.

This unique book provides a comprehensive explanation of how intermediaries work in practice and gives 'behind the scenes' insights into the criminal process. It will be of interest to practitioners and the wider public in England and Wales and encourage consideration of the scheme elsewhere.

THIRTEEN

The uneasy position of vulnerable defendants

An intermediary sometimes assists a vulnerable person called to court as a prosecution witness; that person can appear in a different case as a defendant, without intermediary help. As intermediaries observe, only the side of the fence has changed, not the person’s communication needs. The overriding objective in Criminal Procedure Rule 1 (2015), ‘that criminal cases be dealt with justly’, includes dealing with the prosecution and defence fairly and recognising the defendant’s rights to a fair trial under Article 6 of the European Convention on Human Rights. Courts are obliged to take ‘every reasonable step’ to facilitate the defendant’s participation, including setting directions and ground rules, especially in intermediary cases. The aim is to enable defendants to give their best evidence, understand the proceedings and ‘engage fully’ with their defence; the pre-trial and trial process should be adapted as necessary (Criminal Procedure Rules 3.9(3)(b), 3.9(6) and 3.9(7), 2015; toolkit 8, Effective participation of young defendants, www. theadvocatesgateway.org). This requires the judiciary to ensure ‘by any appropriate means’ that defendants understand what is happening and what has been said by those on the Bench, the advocates and witnesses (Criminal Practice Directions 3D.2 and 3G.9, 2015).

Many defendants would meet the criteria governing the provision of special measures, including intermediary assistance, as set out in the Youth Justice and Criminal Evidence Act 1999; however, the Act specifically excludes defendants (section 17(1)). Over half of children and adults who offend have communication difficulties: many have learning difficulties and mental health problems, often combined with alcohol or drug misuse (Talbot, 2012; Criminal Justice Joint Inspection, 2014b). However, for reasons of political expediency and cost, the Act excluded vulnerable defendants from eligibility.

Pressure as a result of court decisions has led to a grudging legislative response. Some defendants under the age of 18 may now give evidence by live link (Police and Justice Act 2006, section 47, creating new section 33A-C, Youth Justice and Criminal Evidence Act 1999). A provision permitting appointment of an intermediary, on narrower grounds of eligibility than for vulnerable witnesses and restricted to the giving of evidence, has not been put into effect (Coroners and Justice Act 2009, section 104, creating new section 33BA(4), Youth Justice and Criminal Evidence Act 1999). The government continues to delay implementation on the grounds of resource implications.

In an effort to redress the imbalance between witnesses and defendants, courts have exercised their inherent powers to appoint an intermediary to assist the defendant’s communication, either when giving evidence or throughout the trial and, where necessary, in preparation for trial (Criminal Practice Direction 3F.3, 2015, which cites the relevant case law). The term ‘registered intermediary’ is restricted to those recruited by the Ministry of Justice to assist witnesses under the 1999 Act. Those appointed as intermediaries for defendants are classed as ‘non-registered’ and as ‘private and unregulated’ (HM Courts and Tribunals Service, undated; Cooper and Wurtzel, 2013). Courts can appoint anyone to act as an intermediary, whether or not professionally qualified. In practice, those who take on defendant work are either already registered in respect of witness work but also willing to accept defence appointments, or are professionals working exclusively with defendants. This latter group tends to work for two private sector providers of defendant intermediaries, Communicourt and Triangle.

The rest of this book tells the story of witness intermediaries. In this chapter, we hear from registered intermediaries who also undertake defendant work and from defendant intermediaries whose appointments come through private companies. These intermediaries take us to the other side of the courtroom, sitting alongside the defendant in the dock. Like their counterparts for witnesses, they operate as neutral officers of the court but they are creatures of case law, operating without a legislative foundation, official guidance, approved training or regulation. The chapter explores what these intermediaries do and why their assistance is often needed for the duration of the trial. As with witness intermediaries, their work with defendants behind the scenes may not be recognised by others in the courtroom.

Profile of intermediary appointments and private sector providers

‘The intermediary was of great assistance in helping the client understand what was going on and facilitating communication between him, his legal team and the court. Her work was of a high standard.’ (Defence solicitor)

‘The intermediary was invaluable to me in taking instructions from my client. She was able to break down significant legal processes into simple terms that he understood.’ (Defence solicitor)

We have put together information for 417 defendant appointments by combining limited Ministry of Justice figures and unpublished data from the two private sector providers. Details of 97 Ministry of Justice defendant appointments for the two years ending in August 2009 were quoted in R (OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin). In addition, Communicourt and Triangle provided details of 250 and 70 appointments respectively.

Information from all three sources is remarkably consistent: most defendant intermediary appointments are for the duration of the trial, with under 10% restricted to assisting defendants while giving evidence (overall, between a quarter and a half of these defendants did not give evidence). Ministry of Justice figures were not broken down by trial length but most private sector intermediary appointments are for more than one day. Triangle acts exclusively for defendants under 25; half of Communicourt’s

clients are also in this age group. Both have teams of around 20 intermediaries and are led by registered intermediaries. For both organisations, the majority of appointments are for Crown Court trials. Common presenting problems are learning disability, autism spectrum disorders and attention deficit hyperactivity disorder.

The backgrounds of the Triangle team (a mix of employed and self-employed) include psychology, teaching and speech and language therapy; all have significant experience working with vulnerable children and young people. Communicourt’s team (all of whom are employed) are qualified speech and language therapists; many are recent graduates but some have forensic experience or have worked in prisons. Both teams include some intermediaries on the Ministry of Justice register and both provide training and monitoring; their members follow a report template. There is continuity of intermediary between assessment and trial in the majority of appointments; if there is scheduling difficulty, another team member attends the trial.

Registered intermediaries working in a non-registered capacity with defendants receive no training from the Ministry of Justice for this aspect of their work and are not required to follow a specific report format but will try to provide continuity of service from assessment to trial if court scheduling permits.

Finding and funding a defendant intermediary

‘The defendant is only 13 (and, it is fair to say, not the brightest 13-year-old). He, of course, is not entitled under the statute to the benefit of any special measures. There is a danger of the playing field not simply being uneven but being on a considerable slope.’ (Defence barrister, objecting to an application for a witness intermediary: Plotnikoff and Woolfson, 2007a, p 68)

‘The intermediary was helpful in explaining the difficulties that people with learning difficulties and mental health problems face in criminal proceedings, and how even apparently simple questions have to be “deconstructed” before they are understood.’ (Defence barrister)

Initially, the Ministry of Justice’s Witness Intermediary Scheme matching service responded to requests to find a registered intermediary on behalf of defendants. It had made around 100 such appointments when this service was withdrawn in August 2011, because of the pressure of requests for witnesses. Since then, the matching service has provided registered intermediaries for defendants only when obliged to do so as a consequence of litigation. Shauneen Lambe of the charity Just for Kids Law, who has brought such cases, argues that defendants are disadvantaged when their lawyers cannot access the range of registered intermediary skills provided by the matching service. In a 2014 case brought on behalf of a defendant with learning disabilities and autism, the Divisional Court agreed that a registered intermediary should be provided but restricted the appointment to the defendant’s testimony. The court considered that an ‘intelligent observer would be puzzled’ as to why the matching service provided a registered intermediary to a vulnerable witness while giving evidence, but not to a defendant in the same position (R (OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin), para 47).

In the absence of access to the matching service for registered intermediaries, there is no standard way of finding a suitable defendant intermediary. Unpublished guidance to court staff provides a ‘non-exhaustive’ list of organisations as a starting point (HM Courts and Tribunals Service, undated); it does not include Triangle or Communicourt and none of the organisations that are listed provide this assistance routinely (Talbot, 2012). A clinical nurse specialist employed by the National Health Service and based at the Old Bailey screens expert reports on defendants. Where it appears that an intermediary appointment may be appropriate (for example, because the report identifies the defendant’s learning disability), he raises this with defence solicitors and refers them to a list used by London Crown Courts of registered intermediaries who take defendant appointments. This list consists of those on the register because of their status with the Ministry of Justice and because private sector organisations’ charges are higher. Most Old Bailey appointments are for the duration of the trial. A private discussion group on the website LinkedIn is used by registered and non-registered intermediaries to exchange information about solicitors seeking a defendant intermediary. Intermediaries for Justice, the intermediaries’ professional organisation launched in December 2014, expects to provide a list of intermediaries undertaking defendant work.

Funding for a defendant intermediary is by no means automatic and arrangements to fund pre-trial and trial work differ. Defence solicitors seek prior approval from the Legal Aid Agency to cover costs of intermediary assessments and other pre-trial work, whereas the court covers the cost of intermediaries ‘during court proceedings’ with judicial authorisation (HM Courts and Tribunals Service, undated). We were unable to obtain details of the number of defendant intermediary appointments paid for by the Legal Aid Agency and courts.

Most young defendants appear in the youth court. As discussed in Chapter Ten, youth court advocacy is widely considered to be problematic. Court applications for intermediaries are likely to be approved for young defendants ‘who need to be communicated with in developmentally appropriate ways and those with physical disabilities and mental disorders which adversely affect their communication’ (R v GP and 4 Others (2012) T20120409, ‘Guidance for future applications’, para 66(3)). However, inability to obtain an intermediary is not a reason to stay (suspend) a trial where judges can adapt the trial process to help defendants follow proceedings, for example by setting ground rules requiring all witnesses to be asked simple questions and to give short answers (Criminal Practice Directions 3F.4-6, 2015).

Duration of appointment

Courts make most intermediary appointments for the duration of the trial, recognising ‘a right, which might in certain circumstances amount to a duty’, to appoint a registered intermediary to assist the defendant to follow the proceedings ‘if without assistance he would not be able to have a fair trial’ (R (AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin), para 6, involving a child with attention deficit hyperactivity disorder). More recently, however, the Divisional Court was ‘not persuaded that it is essential a registered intermediary be

available to all defendants for the duration of their trials’ (R (OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin), para
41). During the rest of the trial, the defendant’s needs could be met by:

general support, reassurance and calm interpretation of unfolding events … a task readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial. In play are understandable emotions: uncertainty, perhaps a sense of territorial disadvantage, nervousness and agitation. (para 35)

However, ‘Sympathy and compassion cannot compensate for the cognitive deficits of defendants with comprehension as well as communication difficulties’ (Hoyano, 2015, p 82). We agree. The intermediary contributes to delivering such defendants’ right to effective participation in the entire trial process as required by Article 6 of the European Convention of Human Rights (SC v UK [2005] 40 EHRR 10; R v Jordan Dixon [2013] EWCA Crim 465).

‘Evidence only’ intermediary appointments

Lorna, who has experience of ‘evidence-only’ appointments, explains why these make the intermediary’s role more difficult:

‘You present yourself at the most stressful time for defendants. They don’t know you and vice versa. If involved throughout the trial, we pick up so much about their communication and level of understanding – and sometimes as a result we ask for another ground rules hearing just prior to cross-examination. Also, if you haven’t had the chance to work alongside the defence lawyer taking instructions from the client, you may have to intervene during the defendant’s evidence-in-chief. It is much better to get to know the defence representative who can then “model” the way you want questions to be asked of the defendant before the prosecutor cross-examines him.’

Appointment for the whole trial generally enables intermediaries to assist in relevant pre-trial matters. Cameron finds it easier to make recommendations and be involved in the trial if he has attended lawyer conferences and pre-trial hearings:

‘You have a much more in-depth knowledge of the case and the defendant’s needs. You are familiar with the lawyers, have made them aware of a good communication style, and have had a chance to build rapport with the defendant as well as the legal teams. You can then implement your recommendations with them before the trial begins.’

Cameron was appointed as intermediary for H, a defendant with depression and anxiety:

‘Spending a lot of time building rapport with H was essential to my role in this two-week trial. This in turn led him to tell the solicitor and barrister his full account of what had happened, which he had not shared with anyone before the trial began. If I had been requested only for evidence-giving I doubt that he would have shared his true account with his lawyers and he may have chosen not to give evidence.’ (H was found not guilty.)

There is a practical difficulty in restricting intermediary assistance to the defendant’s evidence: a decision as to whether the defendant will testify is often not made until the close of the prosecution case. The pilot registered intermediary scheme in Northern Ireland provides an intermediary matching service for defendants, but only while giving evidence; no defendants received this assistance in the first 18 months of the scheme (Department of Justice, 2015, para 31). For the rest of the trial, if necessary, the Northern Ireland Department of Justice will arrange for MindWise, a mental health charity which has

the contract for the Appropriate Adult Scheme, to provide a supporter to accompany the defendant. The Department considers that appointing intermediaries for the entire trial potentially jeopardises their independence: ‘Neutrality could surely be called in to question if a registered intermediary was writing notes to a defendant or using pictures/ diagrams to assist them to follow what was going on but these communication aids were not visible to the court, only the defendant’ (2015, para 56). As described later in this chapter, English intermediaries active during the...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• About the authors
• Acknowledgements
• Foreword
• One: Introduction: a fresh pair of eyes
• Two: The intermediary scheme in England and Wales
• Three: Behind the scenes: planning to assess the witness
• Four: Assessment methods and involvement of the interviewer
• Five: Communication aids and stress reduction strategies
• Six: Contributing to the effectiveness of the police interview
• Seven: Negotiating professional space at the ground rules hearing
• Eight: Making the ground rules hearing effective
• Nine: ‘Every reasonable step’: preparation for giving evidence
• Ten: Cross-examination: research, case law, training and regulation
• Eleven: Cross-examination: intervention at trial
• Twelve: Cross-examination: challenges at the cutting edge
• Thirteen: The uneasy position of vulnerable defendants
• Fourteen: A new profession
• Fifteen: Conclusion
• References