John Taggart, ESRC funded PhD candidate, Department of Law, LSE.

Intermediaries are an increasingly common feature of criminal proceedings in England & Wales. As one of the special measures introduced by the Youth Justice and Criminal Evidence Act 1999 (YJCEA), the role has effected a ‘culture change’ in how the criminal justice system deals with vulnerable witnesses (Cooper and Norton 2017). According to s.29 of the YJCEA, the intermediary is an individual whose function is to communicate to a witness the ‘questions put to the witness’ and ‘to any person asking such questions, the answers given by the witness in reply to them’. Intermediaries who assist witnesses are known as ‘registered intermediaries’ (RIs) and can be involved at the police investigation stage and also at court. This involves assessing the communication needs of vulnerable witnesses and developing communication strategies to enable them to participate in the criminal justice process.

Vulnerable defendants, however, occupy an ‘uneasy’ position in respect to intermediary provision (Plotnikoff and Woolfson 2015). They are excluded from the statutory intermediary scheme for witnesses, and s.104 of the Coroners and Justice Act 2009, which provides a statutory basis for defendant intermediaries, is yet to be implemented. Vulnerable defendants may only benefit, therefore, from the assistance of a ‘non-registered’ intermediary, which can be appointed by the court using its inherent jurisdiction (R(C) v Sevenoaks Youth Court). The absence of in-force legislation led judges in England & Wales to step in ‘to fill the gap and permit defendant intermediaries where they are necessary for a fair trial’ (Cooper and Wurtzel 2013). As a result, what has emerged since is a ‘two-tiered’ intermediary provision with unequal provision of intermediaries between witnesses and defendants (Henderson 2015).

Registered and non-registered intermediaries

The difference in intermediary provision and organisation between vulnerable witnesses and defendants is stark. RIs are recruited by the Ministry of Justice (MOJ) and provided through the Witness Intermediary Scheme (WIS). The WIS is operated by the National Crime Agency (NCA) which matches requests with suitable available RIs. Every RI must complete training and assessment, be a member of a regional support group and must to satisfy annual CPD requirements. Governance of RIs is overseen by The Intermediary Registration Board (IRB) and The Quality Assurance Board (QAB). Conversely, non-registered intermediaries do not constitute a coherent, recognised group and there is no standard way of finding a suitable intermediary for a defendant (Plotnikoff and Woolfson 2015). There is no formal requirement or policy stipulating that a non-registered intermediary needs any particular experience or even any knowledge of the criminal justice system. Although some training is available for the role, no similar accreditation system exists and rates of pay are unregulated (Criminal Practice Directions 2015, 3F.15).

In reality, however, a high percentage of individuals who work as a non-registered intermediaries are also accredited as RIs under the MOJ scheme. Many individuals routinely work under both schemes and, as a result, encounter a broad range of communication difficulties among witnesses and defendants alike. Further, the majority of court appointed intermediaries for defendants come from the two leading commercial providers of defendant intermediaries, Triangle and Communicourt. Both organisations provide training programmes, clinical supervision and CPD to ensure consistency in standards among their intermediaries who work exclusively with suspects and defendants. Consequently, while non-registered intermediaries do not collectively work under an umbrella organisation such as the MOJ, many work to recognised standards set by their employer or, at the very least, are able to bring transferrable skills from their work as RIs.

But the fact that many individuals with communication expertise fulfil the roles of both registered and non-registered intermediary clouds a salient question: is defendant intermediary work materially different from witness intermediary work? This question goes to the heart of how we approach the rights of the vulnerable accused and, in particular, the right to effectively participate in criminal proceedings. The Divisional Court in R(OP) v Secretary of State for Justice considered that ‘an intelligent observer would be puzzled’ as to why a disparity exists between witnesses and defendants regarding intermediary provision. This is no doubt true, but the issue deserves a more nuanced analysis.

My research

As part of my PhD research, I conducted 31 interviews with practising intermediaries and judges to better understand the nature and scope of the intermediary role. My interviews with intermediaries (all with experience of both registered and non-registered work) suggest that, despite a broad wish to see the WIS extended to defendants, the nature of ‘defendant’ intermediary work is often viewed as qualitatively different from ‘witness’ intermediary work. This ranges from intermediaries feeling that judges and lawyers are less receptive to the non-registered role, to specific areas where defendants require enhanced communicative support compared to witnesses.

These reflections are perhaps not overly surprising. Plotnikoff and Woolfson (2015) have noted that intermediaries assisting defendants ‘require a broader and more in-depth understanding of the legal process than when working with witnesses’. Depending on when they are introduced in a case, a non-registered intermediary may be required to help the defendant understand the nature of the case against him/her in consultation with legal representatives, assist legal representatives in taking instructions and sit with the defendant in the dock throughout the trial to explain what is being said. O’Mahony et al (2016) raised the possibility that intermediaries working with defendants ‘may experience a range of different cognitions and emotions when engaged in a lengthy trial’ and my interviews reveal evidence of this in practice. On the other hand, the RI role is often much more limited and normally ends as soon as the witness has finished their oral testimony. Vulnerable defendants, however, may require intermediary assistance right through to sentencing- a stage which one intermediary in interview suggested is most important for a defendant to comprehend.

As Cooper and Wurtzel (2013) note, there is nothing in the MOJ training to prepare RIs for defendant work. There is also no indication that the newly developed training programme, which launched in the summer of 2018 in collaboration with other criminal justice agencies, addresses the position of defendants either (MOJ 2020a). But the inferior treatment of defendants regarding intermediary provision seems to have recently been acknowledged by the MOJ. In July of this year, it released a ‘Pre Procurement Notice’ for ‘Court Appointed Intermediary Services’ (MOJ 2020b). These services are ‘specifically focused on the appointment of intermediaries who can be instructed to provide an assessment of a person’s communication needs’ and provide recommendations on suitable measures (MOJ 2020). The notice made it clear that requests for intermediary support for witnesses in criminal cases would continue to fall under the WIS. In other words, such a service would formalise provision for defendant intermediaries and go some way to rebalancing the current ‘two tier’ provision.

Despite increasingly loud calls for the registration of defendant intermediaries, there is no clear consensus on how this should be achieved. For example, the Law Commission (2016) has called for a bespoke ‘Registered Defendant Intermediary Scheme’ that would likely be administered by the MOJ but tailored to the needs of defendants in terms of training and governance. Conversely, Intermediaries for Justice (IFJ), a charity which seeks to raise awareness of the work of intermediaries within the justice system, has rejected the concept of a parallel scheme to run alongside the WIS. IJF prefers a unified scheme, similar to the one operated by the Department of Justice of Northern Ireland, assisting all vulnerable individuals (IFJ 2020). My research interviews suggest that while intermediaries are generally in favour of a formalised intermediary scheme for defendants, implementing this would present challenges. For example, a number of interviewees admitted enjoying the freedom of the non-registered role and the flexibility it offers. There is also the thorny issue of the role’s neutrality. My interviews reveal how this core principle is often conceptualised differently depending on whether an intermediary is assisting a witness or a defendant. It is surely better to acknowledge such issues and address them in intermediary training rather than artificially treating ‘witness’ and ‘defendant’ work as identical in practice.

Crucially, the establishment of any formalised defendant intermediary scheme must be underpinned by recognition of the rights of the defendant, in particular the right to effective participation. While the scope of this right is contested, there should at the very least be recognition of the significant barriers to defendant participation that continue to exist (Owusu Bempah 2020). For example, whether intermediaries assisting defendants should be appointed for ‘evidence only’ or for the ‘full trial’ is a vexed issue which has been addressed in the Criminal Practice Directions (CPD). The CPD 2015 (3F.13) state that ‘Directions to appoint an intermediary for a defendant’s evidence will thus be rare, but for the entire trial extremely rare’. This policy was subsequently confirmed in the case of R v Rashid. The Law Commission (2016) emphasised that protecting the accused’s fair trial rights demands that defendant intermediary provision ‘should encompass intermediary assistance both for the giving of evidence and for as much of the wider trial proceedings as is necessary for the defendant to have a fair trial.’ Indeed, Communicourt has a policy of refusing ‘evidence only’ bookings if the assessing intermediary considers the defendant ‘would not fully understand the prosecution case and be able to instruct his/her legal team without the use of an intermediary’ (Communicourt 2019). This policy was criticised by the Court of Appeal in the case of R v Biddle as ‘wrong’ and in need of revision. Any formalised defendant intermediary scheme must recognise the strength of feeling on this issue and seek to strike a fair balance. In truth, the majority of intermediaries I interviewed were in favour of a ‘middle way’ approach whereby the extent of an intermediary’s involvement corresponds with the individual needs of the vulnerable defendant. The reality is that some defendants will require assistance to understand and communicate effectively right throughout the trial whereas others may only need an intermediary at ‘the point of maximum strain’ i.e. during oral testimony (R (on the Application of OP) v The Secretary of State for Justice s). Intermediaries are best placed to make this assessment and recognition of their communicative expertise within a formalised defendant intermediary scheme is crucial.

Conclusion

The introduction of a MOJ defendant intermediary scheme, more akin to the WIS for vulnerable witnesses, is certainly a step in the right direction. But policy-makers should ensure they pay careful attention to the available research, which suggests that while the role of intermediaries for defendants and non-defendants is similar in its nature, it is not identical. The nuances in the role must be pulled out and adequately reflected in the new defendant intermediary scheme so that it properly upholds the right to a fair trial and, importantly, the defendant’s ability to participate effectively in it.

References

Communicourt, ‘Decision making in respect of intermediary appointments for defendants’ (2019) available at: <https://www.communicourt.co.uk/wp-content/uploads/2013/05/1-and-2.-Decision-making-in-respect-of-intermediary-appointments-for-defendants.pdf&gt;

Cooper, P & Norton, H. (2017). Vulnerable People and the Criminal Justice System. Oxford: Oxford University Press.

Cooper, P., & Wurtzel, D. (2013). A Day Late and a Dollar Short: In Search of an Intermediary Scheme for Vulnerable Defendants in England and Wales’ (2013) Criminal Law Review, 1, 4-22.

Criminal Practice Directions [2015] EWCA Crim 1567

Henderson, E . (2015). A Very Valuable Tool’: Judges, Advocates and intermediaries discuss the intermediary system in England and Wales. International Journal of Evidence and Proof, 19(3), 154-171

Intermediaries for Justice, ‘IFJ Response to MOJ PIN’ (1^st September 2020) available at: < https://www.intermediaries-for-justice.org/sites/default/files/ifjs_response_to_moj_pin.pdf&gt;

MOJ, ‘The Witness Intermediary Scheme: Annual Report 2019/2020’ (September 2020a) available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/919858/witness-intermediary-scheme-annual-report-2019-2020.pdf&gt;

MOJ, ‘Court Appointed Intermediary Services: A Pre-Procurement Notice
by MINISTRY OF JUSTICE’ (July 2020b) available at: http://bidstats.uk/tenders/2020/W30/731250855

O’Mahony, B., Creaton J., Smith K & Milne B. (2016). Developing a professional identity in a new work environment: the views of defendant intermediaries working in the criminal courts. The Journal of Forensic Practice, 18(2), 155-166.

Owusu Bempah, A. (2020). Understanding the barriers to defendant participation in criminal proceedings in England and Wales. Legal Studies, 1-21.

Plotnikoff, J., & Woolfson, R. (2015). Intermediaries in the criminal justice system. Bristol: Policy Press.

Cases

R v Biddle [2019] EWCA Crim 86

R v Rashid [2017] 1 WLR 2449

R(OP) v Secretary of State for Justice [2014] EWHC 1944 (Admin)