Intermediaries in the Justice System

Overview of the Intermediary and their Role

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

Intermediaries are professionals with expertise in facilitating the communication of vulnerable people. The aim is to make the process fair and just for all. Two different models for the use of intermediaries have evolved:

Direct-questioning model

The intermediary directly questions child witnesses on behalf of the court. In South Africa, the intermediary accompanies the child in the video link room, relaying and adapting the court's questions into age-appropriate language. In Norway, the intermediary is a forensic interviewer who questions the child while the judge and advocates observe via live link.

Facilitator model

The witness is questioned by the advocates (or, earlier, the police), informed by advice from an intermediary who has already met the witness and assessed their needs. The intermediary is present throughout to assist or intervene where necessary. This model began in England and Wales in 2004 and has since been adopted, in similar form, by New Zealand and several Australian states.

Each jurisdiction has its own eligibility criteria. In England and Wales, eligibility for a prosecution or defence witness is set out in the Youth Justice and Criminal Evidence Act 1999; for a defendant, it is set out in the Criminal Procedure Rules 2020, Part 18. Both are based on age (under 18) or the presence of a mental disorder, significant impairment of intelligence and social functioning, or a physical disability or disorder.

The Facilitator Model in Practice

Intermediaries facilitate communication prior to and at court hearings, for example:

When police officers take a statement or conduct a video-recorded interview with a witness
When police officers interview vulnerable suspects under caution
When a witness refreshes their memory from a statement or recording before trial
When a witness practises using the live link at court
During a familiarisation visit to the court building and courtroom
When defence lawyers take instructions from vulnerable clients
When a witness or defendant gives evidence at trial
To enable a vulnerable defendant to participate throughout their trial
To enable participation of vulnerable parties and witnesses in family or civil proceedings

Good practice example: during a live-link practice session, an intermediary noted that a young child communicated with small gestures that would not come across clearly on screen. She recommended that the judge and advocates sit in the live link room with the child during cross-examination - a recommendation the judge accepted.

Intermediaries working within the facilitator model typically assess the witness's communication abilities and needs, then provide a report with clear recommendations for those who need to question the vulnerable person. Although templates exist, the substance of each report is individualised.

At Court Hearings

In addition to pre-trial support, an intermediary can:

Attend and participate in the Ground Rules Hearing to advise on the fairest and most effective questioning
Advise on visual aids to communication
Request the judge's ruling on the most appropriate way to intervene if ground rules are breached
Assist in vetting the advocate's proposed questions ahead of time
Assist during the giving of evidence, sitting next to the witness to monitor questioning and intervene where agreed
Assist a defendant throughout their trial so they can follow proceedings, give instructions and participate

Good practice example: a 12-year-old boy with a learning disability had limited expressive language and relied on gesture. The intermediary suggested a pre-drawn, gender-neutral body outline he could point to in order to communicate words for specific body parts, with the intermediary describing each gesture so it was recorded as part of his evidence.

Good practice example: during the evidence of an 11-year-old boy, the intermediary noticed he was holding his breath, possibly due to the trauma of recalling abuse, and asked the advocate to pause while the intermediary and child took some breaths together.

Good practice example: the intermediary accompanied a vulnerable defendant with autism throughout the hearing, taking notes, simplifying language and reviewing documents with them so the lawyer could take instructions and advise the defendant effectively.

The Intermediary Report

An application to court for the use of an intermediary must be supported by a report, based on an assessment carried out with the witness or defendant. The report provides the basis for the judge's determination on whether intermediary assistance is required and, if so, the basis for the Ground Rules Hearing. The report should:

Indicate whether an intermediary is necessary to support communication during evidence
Summarise the assessment process, with examples illustrating communication needs and abilities
Recommend how questioning should be conducted - breaks, question structure, signposting, avoiding idioms, pace and tone
Give practical examples of what to avoid and what to do instead
Recommend any further special measures or arrangements necessary to facilitate communication
Recommend where the intermediary should sit relative to the witness
Provide recommendations in a format that can be checked off at the Ground Rules Hearing

Good practice example: an intermediary recommended a "den" be built from material in the live link room so a young child could take calming breaks during their evidence.

Good practice example: for a teenage boy with significant mental health issues and risk of self-harm, two pre-trial visits let him choose between the live link room or giving evidence remotely; the intermediary recommended removing sharp objects from the room, blocking the defendant's view, and having a trusted support worker present.

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, and cannot express an opinion on a witness's competence or the accuracy of their evidence. Everything they do should be transparent, and a third party should always be present who can speak to what took place while the intermediary was with the witness or defendant.

Training Resources

The Advocate's Gateway hosts a number of training resources relating to intermediaries, produced for the Department of Justice of Tasmania and shared with permission, including "What is a 'Witness Intermediary'?", "The Learning Curve" (a presentation by Joyce Plotnikoff DBE), and a series of intermediary podcasts hosted by Professor Penny Cooper covering the evolution of the law, working with judges, training for lawyers, essential intermediary skills, and how intermediaries and lawyers can work together successfully.