Dr Brendan M. O’Mahony, Professor Rebecca Milne (Both from The School of Criminology and Criminal Justice, University of Portsmouth) and Dr Kevin Smith (Crime, Policing and Investigation, University of Sunderland)
Introduction
Most prisoners receive determinate prison sentences and are released automatically on licence to the community at the halfway point of their custodial sentence where they are supervised by the probation service (HMPPS). These prisoners will not have any contact with the parole process unless they are recalled to custody for breaching their licence conditions where there may be a requirement that they are risk assessed by the Parole Board before re-release. The Parole Board Annual Report lists the type of sentence, such as indeterminate sentenced prisoners, and the numbers of cases that require an assessment of risk by the Parole Board, before a prisoner can be progressed to less secure prison conditions or released on licence to the community. In the year 2022-23 the Parole Board conducted 8085 oral hearings which, whilst a significant number, is less than ten per cent of the current prison population (Parole Board 2022/23).
In this section the history of intermediaries in England and Wales is briefly examined to give context to the use of intermediaries in the parole process. Intermediaries are non-partisan communication specialists who assess the communication needs of individuals attending the courts and tribunals in England and Wales. Having completed a detailed individualised communication assessment, the intermediary will advise the court whether an intermediary can assist with communication at court. The appointment of an intermediary is made by the court or tribunal, and it must be acknowledged that the court makes the final decision on whether the court has the expertise within it to adapt communication for a particular witness, or whether an intermediary is required, and, if so, the extent of their role in an individual case (See Section 6.2 Criminal Practice Directions 2023: https://www.judiciary.uk/wp-content/uploads/2023/04/Criminal-Practice-Directions-2023-1.pdf).
Intermediaries have professional backgrounds such as speech and language therapy, psychology, occupational therapy, social work, nursing and teaching (O’Mahony, 2010). Having completed a communication assessment, the intermediary advises the police interviewing officer and / or the court about the most effective way to communicate with the individual. If appointed, the intermediary intervenes as and when necessary to enable effective communication. Additionally, best practice has emerged where lawyers engage the expertise of intermediaries prior to the hearing and share a draft of the proposed questions so that the intermediary can provide comment and make suggested amendments to any complex language and grammar to enable effective communication, without changing the essence of the proposed question.
The initial intermediary scheme in England and Wales was developed solely for vulnerable victims (complainants) and witnesses in the criminal justice system and was rolled out to all police and prosecution areas following a successful pilot that commenced in 2004. One issue identified by researchers is the necessity that vulnerable witnesses have their communication needs accurately identified at the earliest opportunity in the criminal justice process (O’Mahony, Smith and Milne, 2011). Over time, intermediaries have been appointed by judges on an ad hoc basis for defendants with communication difficulties but the legislation for intermediaries for defendants has yet to be implemented (O’Mahony, 2010; O’Mahony, 2012; O’Mahony et al, 2011; O’Mahony, Creaton, Smith and Milne, 2016). The differences between the role of expert witness and intermediary in assessing cognitive functioning and communication support needs for vulnerable defendants has been examined (O’Mahony, 2024).
In 2022 HM Courts and Tribunal Services (HMCTS) established a scheme where accredited intermediaries were made available to the courts for appointment to all persons with communication needs attending courts and tribunals, including family and civil courts. Notably, attendees at Parole Board Oral Hearings were automatically excluded from the new scheme because the Parole Board is an arm’s length body of the Ministry of Justice, rather than part of HMCTS.
Intermediaries are not made available under the new HMCTS scheme to attend police suspect interviews either. Thirteen years have elapsed since a recommendation was made to examine the function of the intermediary in a police suspect interview and how the role overlaps with the Appropriate Adult (AA) with regards to facilitating communication (O’Mahony, 2010). There is little, if any, published data to paint a picture of how often intermediaries are used in police suspect interviews in England and Wales although there is information available for the different scheme operating in Northern Ireland (see https://www.justice-ni.gov.uk/ri).
Neither do we know the circumstances in which an intermediary is required in addition to an appropriate adult (AA), or indeed who fulfils this function in England and Wales. The difference between the intermediary role and that of the Appropriate Adult in the police suspect interview has been explored in the form of a hypothetical case study (Mattison, O’Mahony, Risan and Vaughan: in press). It is helpful to consider the various roles of communication assistance within the police suspect interview to see if any learning can be applied to the Parole Board oral hearing context in terms of the expertise required to facilitate communication.
In England and Wales there are currently two schemes for obtaining an intermediary depending on whether the individual with perceived communication needs falls within the criminal justice system as a victim (complainant) or witness, or whether they fall outside that scheme. Notably, not all persons with complex communication needs have their needs met through a (formal) intermediary scheme, such as the police suspects and prisoners attending parole board oral hearings, and so disparity of service still exists. However, the first author was aware from experience and discussion with intermediary peers that intermediaries have been used on occasion at both police suspect interviews and at Parole Board oral hearings, seemingly without official guidance or regulation. It appears illogical that the provision of communication assistance currently available in the form of an appropriate adult at police suspect interview, or intermediary at trial for a defendant, is not currently available on a formal basis to prisoners. The Parole Board is tasked with assessing whether it is necessary that the prisoner remains confined in prison, and part of this risk assessment usually entails hearing from the prisoner. The prisoner may well have legal representation (and they are not obliged to speak at the oral hearing) but so do the suspects in police custody and the defendants at trial, where it is accepted that the legal representatives do not have the requisite expertise to assess and adapt communication.
Research Study
The aims of this study were to (i) find out to what extent intermediaries are currently being used to facilitate communication with vulnerable victims preparing for, and reading, Victim Personal Statements at Parole Board Oral Hearings and (ii) examine to what extent intermediaries are currently being used to facilitate communication with vulnerable prisoners giving oral evidence at Parole Board hearings (iii) to explore whether there is a role for intermediaries at Parole Board Oral Hearings (O’Mahony, Milne and Smith: 2024).
A questionnaire was designed and disseminated to all members of the Parole Board who were accredited to sit as Oral Hearing panel members. It was a purposive design, and a proportionate representation was sought from the three categories of members, namely, Independent Members; Judicial Members; and Specialist Members (Psychologists and Psychiatrists). The questionnaire was made available to Parole Board Members via the Parole Board Intranet. Thirty-nine participants completed the questionnaire.
The data was analysed using frequency tables and qualitative analysis. The findings revealed that participants recognized a number of communication difficulties that persons attending an oral hearing may have. In addition, participants had limited experience of intermediaries attending oral hearings for prisoners and zero experience of intermediaries attending hearings for victims or victims’ relatives. Participants recognized that intermediaries could assist with both receptive and expressive communication. There was also a strong level of support for the benefits of using intermediaries at oral hearings, though there were also some cautionary words of concern expressed.
Conclusion
The study showed that there is a role for intermediaries at Parole Board oral hearings. In the absence of a formal intermediary service for Parole Board oral hearings, all Parole Board Members, professional witnesses, and legal representatives must be aware of adaptations that should be made to enable effective communication at an oral hearing. It remains to be seen how prisoners’ (and victims’) communication needs are best identified at the earliest opportunity in the parole process, and how (and by whom) their communication needs can be supported at the oral hearing. One issue to consider is the extent to which an intermediary is used in the Parole Board context both prior to the oral hearing, during the hearing, and post hearing. Guidance is currently being written for Parole Board Members and the Parole Board has developed, and is currently delivering, a training programme to all members about effective communication with vulnerable prisoners.
References:
Mattison, M., O’Mahony, B.M., Risan, P., & Vaughan, M. (in press). Complex Vulnerability and Facilitative Communication Roles, In Rebecca Milne and Ray Bull (Eds). Investigative Interviewing: Psychology and Practice, 2nd Edition, Wiley.
O’Mahony, B.M. (2010). The emerging role of the Registered Intermediary with the vulnerable witness and offender: facilitating communication with the police and members of the judiciary. British Journal of Learning Disabilities, 38, 3, 232-237.
O’Mahony, B.M. (2012). Accused of murder: supporting the communication needs of a vulnerable defendant at court and at the police station. Journal of Learning Disabilities and Offending Behaviour, 3, 2, 77-84.
O’Mahony, B.M. (2024). Assessing the communication needs of a vulnerable defendant with intellectual disabilities: The role of the court appointed intermediary. In Leam Craig, Hugh Koch, & Gus Baker (Eds). Psychology and the Law: Case Studies of Expert Witnesses. Wiley.
O’Mahony, B.M., Creaton, J., Smith, K., & Milne, R. (2016). Developing a professional identity in a new work environment: the views of defendant intermediaries working in the criminal courts. Journal of Forensic Practice, 18, 2, 155-166.
O’Mahony, B.M., Milne, R., & Smith, K. (2024). The use of Intermediaries (communication specialists) at Parole Board Oral Hearings in England and Wales. The Journal of Forensic Practice, Vol. ahead-of-print No. ahead-of-print. https://doi.org/10.1108/JFP-04-2024-0012.
O’Mahony, B.M., Smith, K., & Milne, B. (2011). The early identification of vulnerable witnesses prior to an investigative interview. The British Journal of Forensic Practice, 13, 2, 114- 123.
Defending Vulnerability 