There is a quiet revolution taking place in the criminal justice
system. Until now people with learning difficulties and others,
including people who have problems communicating using speech, have
been all but excluded from courts because they have been considered
"unreliable" or "ineffective" witnesses.
Research on people with learning difficulties estimated that only 6
per cent of cases of alleged sexual abuse of people with a learning
difficulty went to court.1 Mencap also found that, of
284 cases of suspected sexual abuse of people with learning
difficulties, only a quarter (63) of these were investigated by
police.2 Just two (less than 1 per cent) proceeded to
court, and only one resulted in a conviction.
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Things are about to change. In criminal proceedings, vulnerable
witnesses (excluding defendants) will be able to apply for a range
of "special measures". One of these will permit a witness to be
examined by an intermediary.
An intermediary is someone who the court approves to communicate to
the witness the questions that the court, the defence and the
prosecution teams ask, and to communicate the answers that the
witness gives in response. The intermediary is allowed to explain
the questions or answers so that they can be understood by the
witness but without changing the substance of the evidence.
The intermediary is not an advocate and does not act for the
witness, prosecution or defence. They are neutral and their
responsibility is to the court.
The use of intermediaries will be tested in pilot areas, the first
of which will be Merseyside next month. Next year the pilot will be
extended to south Wales, Devon and Cornwall, Norfolk, Thames Valley
and the West Midlands. After evaluation and review the scheme will
become national.
Prospective intermediaries have been selected and are about to
undertake intensive training in legal proceedings in England and
Wales.
The selection process has been rigorous and challenging. Candidates
invited to interview faced a mixture of case study discussion and
formal questions and answers, which not only examined their skills
but also considered their attitudes and values. Candidates had to
prove their ability to withstand the adversarial legal system
without imposing their own views on proceedings.
It has been fascinating to be part of a process that has the
potential to provide one of the most significant shifts in the
legal system for decades. It sends a clear message to those who
seek to abuse vulnerable people that all steps will be taken to
bring them to justice.
To be effective, intermediaries need to have credibility. Their
knowledge, skills and experience must stand up to close scrutiny.
The assessment panel felt it was equally important that the
intermediary can establish credibility with the witness. So a
person may have many years' experience training others how to work
with communication difficulties, but might not have the people
skills to establish a sufficient rapport to develop a good working
relationship with a witness.
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Naturally, there are many unknowns about the role of the
intermediary. For example, it is not possible to predict how many
witnesses will need one.
In addition, there might be circumstances in which it is necessary
to use a regular carer or relative of the witness as an
unregistered intermediary if, for example, no registered
intermediary with the required skills is available. An unregistered
intermediary will still be required to remain neutral and their
responsibility will remain to the court.
However, their use will be restricted and will only be a last
resort as they are more likely to be challenged about their
closeness to the witness.
When the proposals for intermediaries were discussed at a
conference organised by Voice UK and the Crown Prosecution Service
recently, some delegates felt that parents whose children had been
abused would not be able to be sufficiently detached to carry out
this role. However, one parent responded: "If it meant my daughter
got justice for what happened to her I would try very hard
indeed!"
Naturally, the proof of the pudding will be in the eating. But with
the introduction of the intermediary there is every chance that
some of the most vulnerable people in our society previously denied
justice may now get redress.
Kathryn Stone is director of Voice UK.
References
1 Brown, Stein and Tusk,
The Sexual Abuse of Adults with a Learning Disability: A Second
Incidence Study, Mental handicap Research, 1995
2
Barriers to Justice, Mencap,
1997
