Intermediaries in the Justice System

Overview of the Intermediary and their Role

Intermediary Resources

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. 

‘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

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.

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

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.

  • 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.

The Advocate's Gateway is proud to host a number of training resources relating to Intermediaries. These resources had been produced for the Department of Justice of Tasmania who has kindly agreed that they may be shared on our website. We hope all will benefit from these resources. 

What is a 'Witness Intermediary'?

'The Learning Curve', a presentation by Joyce Plotnikoff DBE

Intermediary Podcasts, hosted by Professor Penny Cooper

In this series of podcasts, Professor Cooper, the Chair of TAG, speaks with a number of experts in the field of intermediaries. Each podcast begins with an introduction, provided by Penny. To skip to the main part of the podcast, please skip ahead to 55 seconds.

Podcast 1: The evolution of law to support vulnerable witnesses in the UK

00:00 / 33:47

Podcast 2: What intermediaries can teach judges and top tips on dealing with 'first time in court' nerves

00:00 / 27:46

Podcast 3: Why lawyers need training and what judges want in intermediary reports

00:00 / 25:29

Podcast 4: Essential intermediary skills, professional challenges and conducting remote assessment

00:00 / 26:45

Podcast 5: How intermediaries and lawyers can work together successfully

00:00 / 25:26

Podcast 6: How the intermediary role evolved and what to do when you don't know what to do

00:00 / 30:08
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Law
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During interviews between the police and a witness (and in the case of defence witnesses or a defendant, facilitating their communication with the lawyer) the intermediary will

  • Help to plan the interview, including such aspects as language, use of communication aids, need for breaks, and how best to arrange the room.  The intermediary however is not a second interviewer

  • Be present during the interview to provide further support or advice and to intervene if the recommendations are not followed

 

In addition to the functions already cited, the intermediary can facilitate communication at court hearings. For example, an intermediary can,

  • Attend and participate in the Ground Rules Hearing to discuss the intermediary’s report and to advise on the fairest and most effective questioning, and any other aspect that will enable the witness to give their best evidence.  Intermediaries have been innovative in their recommendations

  • Advise on visual aids to communication

Good practice example

A 12-year old boy with a learning disability had limited expressive language and so relied on gesture/pointing when he lacked sufficient vocabulary to communicate what he needed to say. The intermediary suggested that he be provided with a pre-drawn gender neutral body outline which he could point to, in order to communicate words for specific body parts. It was further agreed that if the boy made a gesture, the intermediary would describe it so that this communication was recorded as part of his evidence.

  • Request the judge’s ruling on the most appropriate way to intervene during the witness’s evidence if any of the ground rules are breached or some matter arises which affects the witness’s ability to give their best evidence

  • Assist if required in the vetting ahead of time of the advocate’s proposed questions for the witness

Good practice example

The vetting of questions ahead of the giving of evidence has been positively endorsed by the Court of Appeal in England.  A judge may direct the advocate[s] to submit their proposed questions to the intermediary by email.  The intermediary emails back her suggestions for rewording them to the advocate and to the judge.   

  • Assist during the giving of evidence.  The intermediary sits next to the witness so as better to monitor the questioning and to intervene where appropriate and in the manner agreed

Good practice example 1

During the evidence of an 11-year old boy, the intermediary noted that he was holding his breath, which could have been due to the trauma of recalling abuse.  Realising that the boy required breaks to breathe, the intermediary asked that the advocate wait while the intermediary and the child took some breaths together.

Good practice example 2

During the evidence of an adult with learning disability, the intermediary noted changes in their communication (such as glazed eyes) that suggested that they were tiring and losing focus.  The intermediary was able then to suggest a short break.

  • Assist a defendant throughout their trial, so that they are able to follow the proceedings and to give instructions and thus to participate in their trial.

Good practice example

The intermediary accompanied the vulnerable defendant with autism throughout the hearing.  This included taking notes, simplifying language and reviewing documents with them.  With the assistance of the intermediary, the lawyer was able to advise the defendant and to take instructions from them.

The intermediary report

An application to court for the use of an intermediary must be supported by a report.  Recommendations in it must be based on the assessment carried out by the intermediary with the witness or defendant.  The report in turn provides the basis for the judge when determining whether or not intermediary assistance is required, and, if it is, the basis for the Ground Rules Hearing. 

 

The report should:

  • Indicate if an intermediary is necessary to support communication during evidence.  In the case of a defendant, the report must explain why in the particular case, having regard to the issues, intermediary assistance is necessary in order to participate throughout the trial

  • Include a summary of the intermediary assessment process, giving examples which illustrate the communication needs and abilities of the witness

  • Recommend how questioning should be conducted.  For example, breaks (how often and for how long), question structure, use of signposting, using of names rather than pronouns, use of short questions with one idea per question, avoiding idioms, controlling pace and tone, etc.

  • Give practical examples of what to avoid, and what to do instead.  Simply saying “avoid tag questions” is not enough.

  • Recommend any further special measures or arrangements which are necessary to facilitate communication.  ‘Combined special measures’ are permitted, for example, screening the defendant from the witness’s view while the witness is in the live link room.  

Good practice example 1

As a result of the assessment the intermediary recommended that the witness, a young child, needed to feel as safe and calm as possible.  It was suggested that a “den” was constructed from material in the live link room, so that the child could go into it in order and take calming breaks during their evidence

Good practice example 2

A teenage boy had significant mental health issues and was at risk of self harm.  Two pre-trial visits were arranged so that he could make a choice whether to give evidence in the live link room or remotely.  The intermediary recommended that all sharp objects be removed from the live link room and also that the view of the defendant be blocked.  A trusted support worker was present in the room as well.

  • Recommend where the intermediary should sit viz. the witness

  • Provide all the recommendations in a format that enables them to be ‘checked off’ at the Ground Rules Hearing

 

Intermediaries are independent and impartial officers of the court who owe their primary duty to the court. They are not expert witnesses or language interpreters.  They cannot express an opinion on the competence of a witness or the accuracy of their evidence.  Everything they do should be transparent.  There should always be a third party present who can deal with any question of what took place while the intermediary was with the witness or defendant.

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