If a defendant in England and Wales is identified as being vulnerable, special measures can be taken to allow a non-registered intermediary to assist them during their trial. Around two thirds of all offenders have communication difficulties and there is a high demand for non-registered intermediaries in the criminal courts. The first practical use of a defendant intermediary in a major trial is believed to be a murder case before a high court judge. If an intermediary is to be used the court should then attempt to find an appropriate intermediary. HMCTS staff have been issued with guidance which includes the list of several professional organisations that may be able to assist in providing an intermediary. The two largest providers of intermediaries for defendants in the criminal and family courts are Communicourt and Triangle
Intermediaries carry out a range of functions to assist the courts and criminal justice practitioners including:
Carrying out a detailed and specialist assessment of the defendant's communication skills Preparation of a report providing advice, guidance and information to the courts and criminal justice practitioners on how to Achieve Best Evidence from the defendant, including what types of questions to avoid, how long the defendant will need to process and answer a question and when they will need breaks Helping a defendant to follow the course of a trial and the case against him/her Assisting criminal justice practitioners to rephrase questions the defendant does not understand (without changing the substantive meaning) and communicating their answers to the court
The Difference Between Registered and Non-Registered Intermediaries
The Youth Justice & Criminal Evidence Act 1999 created the provision for a range of "Special Measures" for cases involving vulnerable and intimidated witnesses to give their best evidence in court, one of which is the intermediary special measure. The Witness Intermediary Scheme (WIS) was set up by the Ministry of Justice’s Better Trials Unit to implement the intermediary special measure. The National Policing Improvement Agency operate and manage the WIS’s national database and matching service on behalf of the Ministry of Justice. Intermediaries appointed through the WIS will be Registered Intermediary, recruited, trained and accredited by the Ministry of Justice. RIs work through the Witness Intermediary Scheme, run by the Ministry of Justice, which maintains a register of intermediaries, providing training and matching them with witnesses or victims. The legislation currently excludes defendants from using RIs. Instead they have to rely on what the High Court called ‘private and unregulated’ helpers
Vulnerable defendants frequently stand trial without the professional assistance they require. Defendants do not have access to the MoJ "Registered Intermediaries" but should still have access to high quality intermediaries with skills not only in assisting with evidence giving, but also in helping the defendant to understand the case against him/her, instruct his legal team, and participate in the trial.
Ground Rules Hearing
In preparation for trial, courts must take ‘every reasonable step’ to facilitate the participation of witnesses and defendants. One such step is the ground rules hearing: A pre-trial meeting of the trial judge, trial advocates and intermediary with the aim of deciding how someone who has communication needs or is otherwise vulnerable should be enabled to give their best evidence, or how a vulnerable defendant can participate effectively in the trial. 'Ground rules' for questioning must be discussed between the court, the advocates and the intermediary before giving evidence. GRHs are a form of case management hearing and discussion of ground rules is required in all intermediary trials. Intermediaries indicated the most important matters which needed to be discussed at a GRH:
i. The recommendations in the intermediary report/ going through the questioning recommendations
ii. When, and how often, breaks should occur (for the vulnerable person)
iii. How and when the intermediary should intervene / get the judge’s attention if there is a communication issue
iv. How to introduce and use communication aids
v. Strategies to keep the vulnerable person calm and engaged
vi. The role of the intermediary
vii. The relevant materials from The Advocates Gateway
viii. When the vulnerable person will practice with the video link (if used)