Responding to communication needs in the justice system

Intermediaries

Please note that The Inns of Court College of Advocacy, ICCA (formerly the ATC) is not able to recommend any provider of non-registered intermediaries or provide assistance in the process of obtaining a registered intermediary.

"The use of intermediaries has introduced fresh insights into the criminal justice process. There was some opposition. It was said, for example, that intermediaries would interfere with the process of cross-examination. Others suggested that they were expert witnesses or supporters of the witness. They are not. They are independent and neutral. They are properly registered. Their responsibility is to the court …their use is a step which improved the administration of justice and it has done so without a diminution in the entitlement of the defendant to a fair trial."

The Rt. Hon. The Lord Judge, Lord Chief Justice of England and Wales, 7 September 2012, at the 17th Australian Institute of Judicial Administration Conference in ‘Vulnerable Witnesses in the Administration of Criminal Justice’.

Registered Intermediaries for Vulnerable Victims and Witnesses in Criminal Cases (England and Wales)  

The Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) recognises that certain witnesses are ‘vulnerable’ and makes them ‘eligible for assistance on the grounds of age or incapacity’ (Section 16). One form of assistance is the intermediary whose function is to communicate to the vulnerable witness, 'questions put to the witness, and to any persons asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question' (section 29 (2) of the 1999 Act).

Legislation assists vulnerable witnesses for the prosecution and for the defence, but not the accused. The accused is specifically excluded (section 16 (1) of the 1999 Act). 

A witness is eligible for the assistance of an intermediary if they satisfy the test in section 16 of the 1999 Act.

(1)A witness in criminal proceedings (other than the accused) is eligible for assistance by virtue of this section '(a) if under the age of 17 [now 18] at the time of the hearing; or (b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason or any circumstances falling within subsection (2)' (section 16 (1) of the 1999 Act).

(2)The circumstances falling within subsection (2) are '(a) that the witness (i) suffers from mental disorder within the meaning of the Mental Health Act 1983; or (ii) otherwise has a significant impairment of intelligence and social functioning; (b) that the witness has a physical disability or is suffering from a physical disorder' (section 16 (2) of the 1999 Act).

(5)Section 16 (5) of the 1999 Act says that 'references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy; and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively'.

Procedural guidance for Registered Intermediary practise is set out in the Registered Intermediary Procedural Guidance Manual (2012) published by the Ministry of Justice. The Witness Intermediary Scheme is the administrative function through which Registered Intermediaries are available to vulnerable victims and witnesses.

How To Obtain The Services Of An Intermediary

Prosecution Witnesses.  Depending on the stage of the proceedings, a registered intermediary is obtained either by the police or by the Crown Prosecution Service, via the matching service which has been outsourced by the Ministry of Justice to the National Crime Agency.  The NCA will not accept a referral directly from a witness

Defence witnesses.   Witnesses called by the defence but excluding the defendant may also take advantage of the statutory scheme.  Defence solicitors should seek a referral via the matching service run by the National Crime Agency This email address is being protected from spambots. You need JavaScript enabled to view it.

 Defendants.  Defendants fall outside the statutory scheme and therefore are unable to seek a referral via the matching service.  However the court may through its inherent jurisdiction to ensure a fair trial allow the use of an intermediary to assist a defendant for any portion of the trial.  That person is called a ‘non-registered intermediary’. The non-registered intermediary may be anyone who satisfies the court of their qualifications and suitability. The Inns of Court College of Advocacy, ICCA (formerly the ATC) is not able to recommend any provider of non-registered intermediaries but there is information on the internet. Providers should be of assistance in terms of funding and of costs, which must be approved by the court  NB guidance issued by the Recorder of Leeds in R v GP, 20 July 2012 (available on the internet).  The use of an intermediary potentially includes assistance to a suspect in the police station, e. g., during an interview under caution. It would be the responsibility of defence solicitors (or the duty solicitor) to source someone and having regard to the limits on the time in which a suspect may be detained in custody at the police station. The intermediary’s assessment of the suspect would have to take place in the police station. A responsible third party must be present during an intermediary’s assessment. That person ought to be the solicitor.  It should not be a police officer.   

How the Registered Intermediary works

The Registered Intermediary Procedural Guidance Manual (2012) sets out good practice and the procedure in detail. In summary: 

1When a police officer identifies that the witness might benefit from the assistance of a Registered Intermediary the officer should speak to the Crown Prosecution Service (CPS) to discuss the possible involvement of a Registered Intermediary in a case.

2The police should obtain the necessary consents from the witness. The police officer contacts the Witness Intermediary Scheme matching service and submits a ‘request-for-service’ form. Attempts will be made to match the witness’s communication abilities and needs to an available Registered Intermediary with suitable expertise operating in the geographical area.

3The Registered Intermediary conducts an assessment of the witness’s communication abilities and needs.  The Registered Intermediary provides a preliminary report for the interviewing police officer (either oral if the assessment and interview take place on the same day or in writing if it happens on a subsequent day).  The report assists the police officer in how to plan the Achieving Best Evidence (‘ABE’) interview. The Registered Intermediary assists during the ABE interview, intervening if necessary to advise the police officer on communication with the witness.

4The Registered Intermediary writes a report for the court. It provides advice and makes recommendations with examples to those who will question the witness about how most effectively to do it.  It is sent to the CPS who will attach it to the Application for a Special Measures Direction. The timetable for an application and procedure are set out in Part 29 of the Criminal Procedure Rules.

5The application for special measures should be heard by a judge at the Pleas and Case Management Hearing (or magistrate at a preparatory hearing in the Magistrates Court) and in any event as soon as possible. If the application is contested then the Registered Intermediary should attend the court hearing in order to explain the report and its recommendations.  

6The Registered Intermediary attends the witness’s court familiarisation visit to assist with communication. They can advise the Witness Service on matters relating to the witness’s welfare of which the Registered Intermediary (who is not a witness supporter) may be aware.  They can advise on timetabling of the witness’s evidence and when and how the witness can watch their ABE interview to refresh their memory.  

7'Ground rules' for questioning must be discussed between the court, the advocates and the intermediary before the witness gives evidence (see Application for A Special Measures Direction (Criminal Procedure Rules, rule 29.3 and 29.10) at Part F, The Criminal Practice Directions of October 2013 and The Equal Treatment Bench Book chapter on Children and vulnerable adults) in order to determine the practical aspects of the way in which the witness will be questioned. See also The Advocate's Gateway Toolkit on Ground Rules Hearings.

8The Registered Intermediary, having taken the intermediary oath, assists during the giving of evidence.  They sit alongside the witness in the live link room (or stand next to them if they are giving evidence in court) in order to monitor communication. They intervene during questioning when appropriate and as often as appropriate in accordance with the ground rules and the recommendations in their report.

If at any stage the Registered Intermediary who assessed the witness and wrote a report for the court is unable to continue in the case or to assist at trial or to assist at re-trial then there is a hand-over procedure between the first Registered Intermediary and a substitute who is sourced through the WIS matching service. The new Registered Intermediary must herself assess the witness and write her own report (which can, where appropriate, consist of adding an addendum to the existing report). The reason is that her interventions during evidence at trial must be based on her own conclusions about the witness and not someone else's. The same procedure including the need for a fresh assessment and fresh report applies where an intermediary is assisting a defendant either throughout the trial or only when giving evidence. Where there is a re-trial there must be a fresh Ground Rules Hearing, whether or not the Registered Intermediary assisted at the first trial.9

The Bar Council’s Special Measures Guidance includes the following:

‘In the case of an application under section 29 of the Act for the use of an Intermediary, counsel should be aware that there has from time to time been a late recognition of the communication needs of the witness. The fact that an Intermediary was not used in interview is therefore not in itself evidence that one is not needed at trial.  The grounds for opposing a late application are the same as for one made on time, that is, the needs of the witness, and counsel should seriously consider the extent to which the client they represent would be prejudiced if the witness were assisted by an Intermediary. Above all, counsel should only raise such grounds in opposition as are properly arguable and not pursue a hidden agenda simply to deprive the witness of the opportunity of giving evidence effectively.’

How To Become a Registered Intermediary

The Ministry of Justice has overall governance and policy responsibility for the Witness Intermediary Scheme (WIS) which includes recruitment. The WIS is operated and managed on behalf of the Ministry by the National Crime Agency (NCA). Recruitment of Registered Intermediaries takes place in response to need and resources. If you are interested in applying to become a Registered Intermediary, please email This email address is being protected from spambots. You need JavaScript enabled to view it. to register your interest.

Intermediaries for Vulnerable Defendants in Criminal Cases (England and Wales) 

A substantial number of offenders suffer from disabilities which cause them to have limited language ability and communication skills, learning disabilities, and to be acquiescent and suggestible.  It is known that ‘16% of people placed in custody meet one or more of the assessment criteria for mental disorder’ (M Maguire, ‘Not a Marginal Issue: Mental health and the criminal justice system in Northern Ireland’ (2010) Northern Ireland: CJINI) and ‘a consensus figure of 50 – 60 % of young people who are involved in offending having speech, language and communication needs is emerging’ (J Gregory and K Bryan, ‘Speech and language therapy intervention with a group of persistent and prolific young offenders in a non-custodial setting with previously undiagnosed speech, language and communication difficulties’ (2011), International Journal of Language and Communication Disorders, Vol. 46, No. 2, 202–215). However,  apart from section 47 of the Police and Justice Act 2006 which allows certain accused to giving evidence through a live link, there is no legislation in force which permits the use of special measures for defendants.  Section 104 of the Coroners and Justice Act 2009 (for Article 12 of the Justice Act (Northern Ireland) 2011 see below), provides for examination through an intermediary of a vulnerable accused, but it is not yet in force.  

The lack of a statutory framework has not however prevented the growing number of occasions where judges have allowed defendants to be assisted by an intermediary, the order being based on the court’s inherent jurisdiction to ensure that the defendant has a fair trial, pursuant to Article 6 of the European Convention on Human Rights. The use of intermediaries (note they are classified as non-registered intermediaries as they operate outside the Ministry of Justice Witness Intermediary Scheme) for defendants in England and Wales was established even before the Divisional Court considered the matter in C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin). More recently in R v Dixon [2013] EWCA Crim 465, the Court of Appeal highlighted the responsibility of trial judges to actively ensure the effective participation of vulnerable defendants.

For a detailed discussion on intermediaries for defendants see P Cooper and D Wurtzel, (2013) ‘A day late and a dollar short: in search of an intermediary scheme for vulnerable defendants in England and Wales’, Criminal Law Review (1), 4 – 22.

Registered Intermediaries for Vulnerable Victims and Witnesses in Criminal Cases (Northern Ireland)  

In 2013 the Department of Justice, Northern Ireland, is piloting a scheme of Registered Intermediaries to assist vulnerable witnesses to communicate with those in the criminal justice system who question them.  The Northern Ireland Criminal Evidence (Northern Ireland) Order 1999 (the 1999 Order) recognises that certain witnesses are ‘vulnerable’ and makes them ‘eligible for assistance on the grounds of age or incapacity’ (see article 4 of the 1999 Order). The function of the intermediary is set out in article 17 of the 1999 Order:

‘to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question.’

A witness is eligible for the assistance of an intermediary ‘(a) if under the age of 17 [now 18] at the time of the hearing; or (b) if the court considers that the quality of evidence given by the witness is likely to be diminished by reason of any circumstances falling within paragraph (2)’ (article 4 (1) of the 1999 Order).

The circumstances falling within paragraph (2) are ‘(a) that the witness (i) suffers from mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986, or (ii) otherwise has a significant impairment of intelligence and social functioning; (b) that the witness has a physical disability or is suffering from a physical disorder’ (article 4 (2) of the 1999 Order).

The Registered Intermediaries Procedural Guidance Manual (Northern Ireland) published by the Department of Justice sets out how the scheme works. The guidance and procedure described in it is similar to that set out in the manual for Ministry of Justice Registered Intermediaries in England and Wales. However, there is one very important difference; the Department of Justice Schemes cover not only vulnerable victims and witnesses but also vulnerable defendants. 

Registered Intermediaries for Vulnerable Defendants in Criminal Cases (Northern Ireland)  

In 2013 the Department of Justice, Northern Ireland, is piloting a scheme of Registered Intermediaries to assist vulnerable defendants to communicate with those in the criminal justice system who question them. 

Article 19 of the Justice Act (Northern Ireland) 2011 allowed a court to make a direction allowing an accused to give evidence by live link. Article 21BA Criminal Evidence (NI) Order 1999, as inserted by article 12 the Justice Act (Northern Ireland) 2011, provides for examination through an intermediary of a vulnerable accused giving testimony. Both article 19 and article 21BA of the 1999 Act employ the same criteria:

Where the accused is aged under 18 when the application is made, the conditions are that (a) his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning; and (b) use of [a live link/ an intermediary] would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).'

Where the accused has attained the age of 18 at that time, the conditions are that (a) he suffers from a mental disorder (within the meaning of the Mental Health (Northern Ireland) Order 1986 (NI 4)) or otherwise has a significant impairment of intelligence and social function; (b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and (c) use of [a live/link/ an intermediary] would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise).'

The contrast with the test in Article 4 is obvious:  ‘ability to participate effectively in the proceedings as a witness’ vs. to avoid diminishing the ‘quality of evidence’.  

The Department of Justice’s Registered Intermediaries Procedural Guidance Manual sets out the procedure for the use of Registered Intermediaries for vulnerable defendants in Northern Ireland.

Intermediaries for Vulnerable Witnesses in Family and Civil Cases (England and Wales, Northern Ireland) 

There is ample scope for intermediaries to be used in civil cases for example in Re X (A child) [2011] EWHC 3401 (Fam), para 42, the use of an intermediary for a vulnerable teenage witness with Asperger Syndrome was discussed. The judge noted that the absence of an intermediary scheme in family cases led to ‘real obstacles’ finding and funding one. The Family Justice Council Guidelines (2011) in relation to children giving evidence in family proceedings encourage practitioners to consider the use of intermediaries at the ‘earliest opportunity’ (para 14).  

For further discussion on intermediaries in family cases see for instance P Cooper (2012) ‘Intermediaries and vulnerable witnesses in family courts: what do we do now?’ Family Law, 42, pp. 868-870 and A Brammer and P Cooper, (2011), ‘Still Waiting for a Meeting of Minds: Child Witnesses in the Criminal and Family Justice Systems’, Criminal Law Review, Issue 12, 925 – 941.

In 2011 the Northern Ireland Law Commission (NILC 10 (2011)) recommended the use of special measures in the civil courts for children, or people who are living with mental illness, learning disability or personality disorder or physical disability or disorder, and for witnesses who suffer fear and distress in connection with giving evidence.  The Commission, ‘encouraged by the use of intermediaries in criminal proceedings in England and Wales’, recommends the use of intermediaries is included as a special measure subject to it being successfully implemented in criminal proceedings in Northern Ireland (para 3.52).

Intermediary Podcast Interviews 

Podcast interviews with intermediaries in England and Wales are available at
http://www.city.ac.uk/law/courses/continuing-professional-development/in-house-courses/intermediary-training

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