Registered and Independent Intermediaries - What's the difference?
The role of an intermediary as set out in the YJCEA is to assist communication between vulnerable witnesses and the criminal justice system, at both investigation and trial stage. The intermediary’s primary duty is to the court and not to the party that has engaged them.
The Registered Intermediary
The role of the Registered Intermediary is to assist communication with vulnerable witnesses at an investigative interview and/or at trial. They may also assist defence witnesses.
“Intermediaries are communication specialists not supporters or expert witnesses) whose role is to facilitate communication between the witness and the court, including the advocates. Intermediaries are independent of the parties and owe their duty to the court” (Criminal Procedure Directions 3F.1)
It is essential for the Registered Intermediary to keep a note of their involvement throughout the case and in particular if the witness makes any comment relevant to the charge.
The Registered Intermediary must respect the roles of the other court participants, and they should be aware of what those roles are. They must be prepared at any time to explain the Registered Intermediary’s role and training.
From the speech from the Lord Chief Justice, Lord Judge, on 21stNovember 2013:
Intermediaries do not interfere with the process of cross-examination. They are not supporters of the witness. They are neutral and independent, offering assistance to the court and responsible for the court. Their presence is designed to assist the judge and the advocates and the witness to ensure they all understand each other . . . Intermediaries perform a valuable function which it is not open to the judge to perform without, at any rate, giving the appearance, if the judge acts entirely on his or her own initiative, of partiality.
Contact the NCA if you require the services of a Registered Intermediary,
The introduction of similar provisions for defendants has been gradual. First, section 33 A-C of the YJCE Act as introduced by 47 of the Police and Justice Act 2006 allowed vulnerable defendants to give evidence by live link. Second, section 104 of the Coroners and Justice Act 2009 (not yet implemented) will allow for certain vulnerable accused to give oral evidence at a trial with the assistance of an intermediary.
In the interim, the practice has developed in the crown court whereby judges, exercising their inherent jurisdiction to ensure that the accused has a fair trial, have granted applications by the defence to allow the defendant to be assisted by an intermediary during their evidence alone and, in many cases, throughout their trial.
“He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story as his proof of evidence is drawn up; it may be that he needs help to speak to lawyer, let alone to the court; he will need help to follow the case as it proceeds…… he will need particular help to decide if he is to give evidence, and if so he will need help to do so. It is in the highest degree unlikely that this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and to help him, both during the trial itself and in preparation for it. In short, he needs an intermediary.”
In R. v. Camberwell Green Youth Court 2005 UKHL 4, the House of Lords made clear that the court has a wide and flexible inherent power to take such steps as are necessary to ensure that any defendant, but particularly a child, has a fair trial.
The court in the case of R (P) v West London Youth Court 2006 1 WLR 1219 took it as accepted that the Youth Court had an inherent power to take such steps as would enable the young defendantto participate effectively in the trial, including, “being pro-active in ensuring that the claimant had access to support”.
The Court of Appeal Criminal Division recognised in the R v H 2003 EWCA Crime 1209 that the courts have an inherent right, indeed a duty, to appoint an intermediary to help a defendantfollow the proceedings and to give evidence, if without such assistance he would not be able to have a fair trial.
A general statement of principle to like effect is to be found in SC v the United Kingdom 2005 40 EHRR 10 which states that:
“The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to follow the proceedings……. The defendant should be able to follow what is said by the prosecution witnesses, and if represented to explain to his own lawyers his version of events, point out any statements with which he disagrees, and make them aware of any facts which should be put forward in his defence”.
The non-registered intermediary facilitates communication between a suspect/defendant and:
• The Police
• Prosecution and Defence Teams
• The Court
This ensures that the communication process is as complete, coherent and accurate as possible.
The intermediary is impartial and neutral and ultimately his/her duties to the court are paramount.
The intermediary is allowed to explain the questions or answers so far as is necessary to enable them to be understood by the defendant or the questioner but without changing the substance of the evidence.
The intermediary will work with counsel and solicitor to assist the defendant to:
- Prepare for the trial, understanding the prosecution case against him/her and the options available
- Understand the evidence given by others including prosecution witnesses
- Explain to his own lawyers his version of events
- Point out any statements with which he disagrees
- Communicate instructions to his/her defence team
- Understand the legal proceedings.
Family Court Intermediary
The Intermediary in Family Court can assist a child in giving evidence to the court as well as providing support to any applicant to ensure that they able to understand and effectively participate in hearings.
Many parties and witnesses in family proceedings will have conditions that affect their ability to communicate, requiring the court to make adjustments and take steps to ensure that these basic requirements are met.
There has been an acknowledgment that the family jurisdiction had been a step behind the criminal justice system in terms of support for vulnerable parties and witnesses. Part 3A Family Procedure Rules 2010 now provides that the court must consider whether:
• A party’s participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
• The quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so whether it is necessary to make one or more participation directions. The factors to be taken into account are set out at rule 3A.7. ‘Participation directions’ which the court can make under rule 3A.8 include:
• For a party to participate in proceedings with the assistance of an intermediary, and
• For a party or witness to be questioned in court with the assistance of an intermediary.
Practice Direction 3AA – Vulnerable persons: Participation in proceedings and giving evidence’ sets out the procedure and practice to be followed where rule 3A applies.
As Toolkit 13on the Advocates Gateway explains:
“The Family Procedure Rules (FPR) 2010 set out the overriding objective (rule 1.1 (1)): the court must deal with cases ‘justly, having regard to any welfare issues involved’. This includes the requirement for courts to take reasonable steps to ensure the effective participation of vulnerable witnesses. The Family Courts are not limited by usual courtroom procedures/traditional special measures. Rule 4.1 FPR provides the Family Court with wide-ranging and flexible powers of case management, including the power to ‘take any other step or make any other order for managing the case and furthering the overriding objective’.”
Contact me today to discuss your needs for a suspect, defendant or family court 07970039314.
I am a member of Intermediaries for Justice and the Midland Intermediary Directory.