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Dominic Lewis
Dominic Lewis

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Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

Intermediaries: who needs them? (And what do they do anyway?)

The concept of the intermediary – an independent specialist whose role is to facilitate communication between the court and a witness – was introduced as part of the raft of special measures included in the YJCE 1999 that were designed to help witnesses to participate effectively in criminal proceedings.

It perhaps goes without saying that these provisions were not originally intended to assist defendants. However, it is now settled that defendants are entitled to similar assistance as all other witnesses, at least in this regard, and it seems likely that as time goes on the intermediary will become more of a fixture on the defence side than that of the prosecution, especially as the stream of historical (usually sexual) cases featuring allegations against now elderly defendants flowing through the criminal courts shows no sign of drying up.

The tendency of the defence lawyer may be to shy away from considering the instruction of an intermediary, perhaps through a combination of fear of the unknown and an understandable sense that it has always been one of the primary functions of counsel and solicitors to facilitate effective communication between the court and the defendant.

However, if you take the view that it would be foolish to fail to deploy every tool placed at the disposable of the defence, then read on …

Who are these intermediaries?

Generally speaking they will be qualified speech and language therapists, used to dealing with people with, learning difficulties, mental health problems, and neurological conditions such as dementia etc.

When might I need an intermediary?

In short, when you have a client who is “vulnerable”, whether by virtue of youth, or because they are suffering from a mental disorder or otherwise have a significant impairment of intelligence and social functioning, or because of a physical disability or disorder: s.16 YCJE 1999.

What can an intermediary do?

First, they can assess the defendant’s particular difficulties. Secondly, they can prepare a report proposing adaptations to the trial process to facilitate the effective participation of the defendant. The court is pretty much duty bound to take this report seriously. Thirdly, the intermediary can then, at trial, assist the defendant (and the defence case) by ensuring that the defendant fully understands everything that is taking place in court and that he gives the best account of himself when giving evidence.

Sounds good. How do I instruct one?

The first step is to obtain a report on the desirability of such assistance at trial. You will have formed a view about impairment etc from your first meeting with the client. If you consider that any of the s.16 criteria are met you might feel it necessary to instruct an intermediary, although in a severe case your first port of call will still be a medical professional, particularly if there are perceived to be issues that might affect fitness to plead or stand trial at all. One situation in which a intermediary is clearly likely to be of use is in a borderline case where your client is assessed or found to be fit to plead and stand trial under the Pritchard criteria, but where there are nevertheless legitimate concerns about their ability fully to participate that make some modification of the standard trial process necessary to ensure that a fair trial takes place.

In order to obtain a report, your client will need to be assessed by someone who is themselves trained as an intermediary. Funding for this will require prior authority unless the court agrees to provide funding – which may well happen in a borderline fitness to plead case as described above. The good news on funding, however, is that (at present) funding for intermediaries at trial stage comes from the court.

What is the report likely to say?

It is difficult to envisage a scenario in which someone assessed by their legal representatives to have difficulty following proceedings or communicating with their lawyers is seen by an intermediary who does not then in their report suggest that they would benefit from assistance at trial. What is particularly helpful, though, is the guidance such a report will contain on precisely how a defendant’s condition may affect their participation in court proceedings, and the measures that can best be put in place to ensure effective participation (see “Ground Rules”, below).

So I have my report, what next?

An application needs to be made to the court (under Part 29 of the CrimPR) to allow the defendant to have the benefit of assistance from an intermediary at trial. Again, once you have your report in hand, it is going to be hard for a court to refuse such an application.

Ground Rules

Next, a ground rules hearing will usually be scheduled at which the intermediary will be present and participate in a discussion of topics such as:

-       where should the defendant and intermediary sit?

-       how should the intermediary’s role and the defendant’s condition be explained to the jury?

-       when will breaks be required?

-       how long will such breaks need to be?

-       how will the defendant’s condition be monitored?

-       are there any particular forms of questioning to be avoided?

This ought all to be sorted out well in advance of the trial, perhaps at a PTR if one is going to be listed in any event. To avoid an unnecessary appearance, however, it might be helpful to prepare a note of ground rules proposed by the defence, then invite the agreement of prosecution counsel and present it to the court as a fait accompli, to be reviewed as necessary as the trial proceeds.

At trial

The intermediary will sit alongside the defendant. They will generally whisper to the defendant as the evidence is given, ensuring as far as possible that a contemporaneous understanding of the case develops. There will also need to be regular breaks, at which the intermediary will check that the defendant has understood what has gone on in court, and perhaps assist with taking instructions if any unexpected evidence has emerged during the session.

During the defendant’s evidence

This is where the intermediary ought really to come into their own. They should be alert to identify questions which may spark confusion, and should object to any that violate the ground rules. The interruption of cross-examination is anathema to most defence counsel, on the basis that it may make it look to the jury as though the prosecution are scoring valuable points. The same can not be said for proper interventions by an intermediary, who will have been introduced to the jury as an independent professional designed to assist the court process.

Some tips …

For counsel, this is one reason why an early conference (i.e. before the PCMH) with clients is useful. For solicitors, the corollary is that counsel will need to be instructed well in advance of the PCMH.

It is also likely to prove helpful if those instructed on behalf of a vulnerable client have discussions with family members who should be able to give a degree of insight into the daily difficulties that the defendant might face during the trial.

If an intermediary is to be engaged, the court will deal with the booking, including of course the all-important question of payment. However, it is imperative that the defence team chase the court’s administrative staff to ensure that this is done, as it is unlikely to be at the forefront of their minds. If a late booking is made, one consequence can be that the defendant find themselves with a different intermediary from the one who conducted their assessment. Given that the purpose of the process is to minimize confusion, this is often an unattractive scenario.

In brief, why should I get one?

There are a number of reasons. First and foremost, you owe a duty to your client, if he is likely to have an impaired ability to participate in the proceedings, to take all steps available to assist him. Secondly, it should be recognized that, for all our undoubted abilities, we lawyers are not necessarily able to spot every aspect of a defendant’s vulnerability in the way that a trained specialist would be. Thirdly, leaving aside the functions already described above, an intermediary is a helpful presence at trial as an extra pair of hands, not least when instructions need to be taken while preparation is made for the next stage of the trial proceedings. 

So, in summary … nothing to fear, and much to gain from this special measure. An anomaly in the current criminal justice system perhaps, making it even more important that we take advantage of it.

Posted by Dominic Lewis on 19 September 2015 at 12:12