Many people with communication needs become involved in the criminal justice system, as witnesses, as complainants and as defendants.  These communication needs may be due to any number of reasons:  age, physical disability, learning disability, mental illness or conditions such as autism. The scheme of intermediaries came about in order to allow these people to communicate, in a complete, coherent and accurate way with others within the criminal justice system. 

Intermediaries themselves are professionals with an expertise in facilitating the communication of those who are vulnerable.  The aim is to make the process fair and just for all. 

Two different models for the use of intermediaries have evolved.

1. In the first model, the intermediary directly questions child witnesses on behalf of the court.  In South Africa this happens by the intermediary accompanying the child in the video link room where they relay the questions asked in court to the child but adapting it to be in age appropriate language.  In Norway, the intermediary is a forensic interviewer who questions the child while the judge and advocates, who observe the process through a live link, are given the opportunity to suggest topics to be covered or inconsistencies to be explored.

2. In the second, ‘facilitator model’, the witness is questioned by the advocates (or, earlier in the process, the police) who are informed by the advice provided by the intermediary, who has already met the witness and assessed their needs. The intermediary is present throughout the questioning to provide assistance or to intervene where necessary.  This model began in England and Wales in 2004 and has since been adopted in similar form by New Zealand and by several states of Australia (New South Wales, Victoria, the Australian Capital Territory, Tasmania). 

Each jurisdiction has its own criteria for eligibility. This may be set out in legislation or the court might simply make an order ‘in the interests of justice’.  In England and Wales eligibility for the use of an intermediary for a prosecution or defence witness is set out in the Youth Justice and Criminal Evidence Act 1999.  The use of an intermediary to facilitate a defendant’s participation in their trial is set out in the Criminal Procedure Rules (CrimPR) 2020, Part 18.  In both instances it is based on age (under 18) or whether there is a mental disorder, a significant impairment of intelligence and social functioning or a physical disability or disorder. 

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‘Facilitator model’

Intermediaries facilitate communication prior to and at court hearings. Examples of how the facilitator model has been used to facilitate communication prior to trial are:

• When police officers take a statement from a witness or conduct a video recorded interview with them

• When police officers interview vulnerable suspects under caution

• When prior to the trial the witness refreshes their memory from the statement or recording

• When prior to the trial the witness practices using the live link at court

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Good practice example

During such a practice the intermediary noted that the witness, a young child, communicated with small gestures which would not come over clearly on screen to those in the courtroom. She therefore recommended that the judge and advocates sat in the live link room with the child during the cross-examination.   The judge accepted this recommendation.

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• When prior to the trial the witness or defendant attends the court building for a ‘familiarisation visit’ to the building and court room

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Good practice example

During such a practice the intermediary noted that the witness, a young child, communicated with small gestures which would not come over clearly on screen to those in the courtroom. She therefore recommended that the judge and advocates sat in the live link room with the child during the cross-examination.   The judge accepted this recommendation.

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• When defence lawyers take instructions from their vulnerable clients

• When a witness or defendant gives evidence at a trial

• To enable a vulnerable defendant to participate during the entirety of their trial

• To enable participation of vulnerable parties and witnesses in family law or civil law proceedings.

​Intermediaries who work within the facilitator model would typically assess the witness’s communication abilities and needs and would then provide a report on their findings for those who might need to question the vulnerable person (police, advocates, judge or lawyer in the case of a defendant) with clear recommendations about how best to do so.  Although there are templates for reports, the substance of each report is individualised for the particular vulnerable person.