By Joyce Plotnikoff and Richard Woolfson
Giving evidence is daunting. For children or vulnerable adults, conventional cross-examination is likely to exploit their vulnerabilities. Professionals may even consider that they will be unable to cope and their case may not be prosecuted. Having the assistance of an independent communication specialist – an intermediary – can make all the difference in providing access to justice.
Intermediaries on the Ministry of Justice register are drawn from speech and language therapists, teachers, mental health nurses, occupational therapists, social workers and psychologists, working on a full or part-time basis in the intermediary role. At police interview and trial, they help ensure that witnesses understand the questions and in turn that their answers are understood.
Under the Youth Justice and Criminal Evidence Act 1999, those under 18 are eligible for special measures, including an intermediary, as are adults with a learning or physical disability or mental disorder if the court considers the quality of their evidence is likely to be diminished by reason of their impairment. Many who are eligible are overlooked: social workers and associated professions can play a key role in highlighting need.
The provision applies only to witnesses. However, judges have also appointed intermediaries for vulnerable defendants and in family proceedings, tribunals and the Court of Protection. Anyone unlikely to recognise when they do not understand, or who may be reluctant to say so to questioners in a position of authority, should be considered for intermediary assessment (a process triggered by the police or Crown Prosecution Service asking the witness intermediary matching service to appoint an intermediary with appropriate skills).
These informal discussions allow intermediaries to explore, for example, ability to describe a non-evidential event and to resist the pressure of suggestion. The intermediary then provides a report and recommendations about how best to tailor communication.
At trial, much of the benefit of intermediaries is achieved behind the scenes. Before the witness gives evidence, the trial judge, advocates and intermediary meet at a ground rules hearing to discuss the intermediary’s report and recommendations. The judge then rules on how questioning should be conducted. This may include simplifying questions and requiring them to be put directly (‘Did Jim hit you?’), if the intermediary considers that the witness is unlikely to answer reliably if questions suggest the answer (‘Jim didn’t hit you, did he?’).
Ground rules may also limit the length of cross-examination, set frequency of breaks, and make adjustments such as moving advocates into the live link room to question witnesses face to face, rather than over a live link with the courtroom. Remarkably, judges now may require advocates to submit their questions in writing in advance for review by the judge and intermediary. In such cases, wording will be decided at the ground rules hearing.
Ground rules may also address how questions can best be answered. Some witnesses lack intelligible speech or the words to explain what happened; others become too embarrassed to say it aloud. Ground rules have allowed witnesses to whisper to the intermediary and to write, type, text or point to a range of neutral answers which are then read out by the intermediary. Ground rules often include neutral visual aids identified or developed by intermediaries. These include pictures or models to help indicate intimate touching, or timelines to point to if answering questions about ‘when’ something happened (pictorial time lines can allow even young children to answer questions anchored to familiar events). Other visual aids remind witnesses of the ‘rules’ at court, for example, to slow down and listen, or enable them to point to a symbol when a question is not understood or when they need the toilet or a break.
Intermediary recommendations also include strategies to reduce witness stress. These have included being allowed to hold a ‘fiddle’ toy, indicating levels of anxiety on a visual ‘stress thermometer’ during questioning, and being accompanied by a calm dog while giving evidence.
Sometimes, despite ground rules, advocates are unwilling or unable to adapt their questioning sufficiently, or the witness becomes distressed or loses concentration. It is then the intermediary’s responsibility to alert the judge. These interventions require a quick judgment call. On occasion, if the advocate cannot rephrase a question adequately, the judge may ask the intermediary to do so.
If you know someone who may benefit from an intermediary, speak to the police officer or lawyer dealing with their case. If you work directly with eligible groups, have a professional qualification, practical experience in facilitating communication and are interested in applying to become an intermediary, contact firstname.lastname@example.org. For more information, see Intermediaries for Justice (IfJ), the professional body for intermediaries.
Joyce Plotnikoff and Richard Woolfson work together as Lexicon Limited to provide consultancy, training and research to organisations working in the justice sector, including on issues relating to intermediaries.