Common myths dispelled
At the investigation stage . . .
Registered Intermediaries are sourced by the police or the Crown Prosecution Service to achieve a conviction; and intermediaries are appointed by defence teams to avoid vulnerable defendants being convicted.
Their independence and their duty to the court are amongst an intermediary’s greatest attributes. S/he has no stake in the outcome of the trial. Enabling a witness to give their best evidence does not conflict with the defendant’s right to a fair trial or alter the burden and standard of proof. And enabling a defendant meaningfully to participate in his own trial likewise does not ‘change the rules’ or alter the balance that needs to be kept in any criminal proceedings.
It is preferable to get a videoed interview or a suspect statement quickly than to wait for an intermediary to make an assessment of their communication abilities and help the police plan to question them.
It is never better to interview a vulnerable witness or a suspect in advance of an intermediary assessment. Going ahead with an interview in advance of an assessment should only be considered in exceptional circumstances where there is an immediate threat to public safety or a real risk that the interviewee’s memory might be compromised as a result of the delay.
It is hard to get an intermediary in a hurry. Better to interview the witness without one and leave it to Crown Prosecution Service to request intermediary involvement near to the trial date.
A referral for Registered Intermediary input after an ABE interview has several disadvantages. A witness may have struggled to communicate their initial account to the police; or they may not have had their evidence video recorded at all; and late referrals for an intermediary not only create time constraints but are not well received by courts. The absence of an intermediary at initial interview may also be relied on by a defence barrister as a reason to oppose the use of an intermediary at the trial.
It is surely better to use an Appropriate Adult rather than an intermediary to assist in an interview of a vulnerable defendant under caution because then the interview can take place sooner.
While an Appropriate Adult may provide useful support for a vulnerable defendant, an intermediary who is a communication specialist has the knowledge and skills to support the defendant’s understanding of questions so s/he can give more reliable answers. An interview under caution in those circumstances is in turn more likely to be held admissible at trial.
A vulnerable witness’ understanding of Truth and Lies must, at all costs, be tested during the videoed police interview.
While ‘truth and lies’ should always be considered wherever the witness is under 18 or has learning disabilities, it is not necessary to attempt it if impractical to do so within the narrow constraints of a video-recorded interview. In these circumstances, consideration could be given to commissioning an expert witness assessment by a psychologist or a psychiatrist at a later date.
If a vulnerable witness does not use English as their first language, it is better for the police to request an interpreter for the videoed interview than to have the assistance of a Registered Intermediary.
While interpreters are essential for translating one language into another, they cannot assist a vulnerable witness to communicate with the under-developed or idiosyncratic aspects of their communication. It may well be that both translator and intermediary are required. This has worked well in many such cases.
At the trial stage . . .
Screens in the court room are more suitable than use of a video link room and TV screen for a vulnerable witness to give evidence.
If the live link option for a particular witness (or defendant) creates the most conducive conditions for the truth to be investigated then everyone’s rights have been upheld. Twenty-five years ago live link represented a revolution. In twenty-five years from now it will probably seem as natural as wearing glasses, so long as we do not presume that live link is inferior to face to face cross-examination in the courtroom.
The interventions of an intermediary at court potentially interrupt a defence barrister’s flow of questioning and prevent the evidence of a vulnerable witness from being tested vigorously enough to be fair to their client, the defendant.
The intermediary’s report and a good Ground Rules Hearing will give a conscientious barrister enough guidance so that s/he can formulate questions in a way which the vulnerable witness can deal with, while still being tested in cross-examination. Intermediaries only intervene if they spot a communication difficulty in its broadest sense; and they consider it a ‘success’ if — because of their earlier input and Counsel’s skill — they do not have to intervene, thereby allowing the witness to give their best evidence yet still ensuring a fair trial for the defendant.
Our thanks to:
Professor Penny Cooper, Kingston Law School, Kingston University
Dr. Kevin Smith, BA (Hons), MA, PhD, CPsychol National Vulnerable Witness Adviser, ACPO Approved Interview Adviser
David Wurtzel MA, Barrister, Consultant, Senior Lecturer The City Law School