Intermediary role with defendants
The presence of an intermediary throughout a long trial, and retrial, of a vulnerable young defendant with mental health difficulties was invaluable. The intermediary assisted us in effectively communicating with our client. Her presence calmed and reassured him and we were made aware of any issues promptly. We were able to concentrate on the legal complexities of the case safe in the knowledge that our client’s health and well being were being monitored, managed and communicated to us.
The use of intermediaries with vulnerable defendants
Vulnerable defendants can be of any age from 10 years upwards. Their vulnerability may be due to age or an incapacity such as a learning disability, one of many communication disorders, or a mental health difficulty.
Recent studies have shown that the incidence of communication problems is considerably higher amongst male and female offenders than in the general population (Bryan et al, 2007). A survey at Polmont Young Offenders Institution found that 70% of young men had significant communication problems (Polmont, 2003).
The vulnerability of some defendants may be very apparent and their difficulties may be well documented in a specialist report or an education, health and care plan. However for many others their difficulties may not be evident in everyday conversation, and their language and communication needs may not have been formally assessed due to their lack of engagement with education or other services. A history of school non-attendance, behavioural problems, emotional difficulties, literacy difficulties or low educational attainment may point towards someone having underlying and undiagnosed communication problems.
Those defendants with hidden communication problems may find it difficult to concentrate and retain information. They are often adept at hiding their lack of understanding, tending to show agreement and rarely volunteering that they have not understood.
The Advocate’s Gateway toolkits give helpful information:
How might vulnerable defendants’ difficulties impact on their participation in a trial?
For any defendant, an appearance in court may be intimidating and anxiety provoking; and for the vulnerable defendant the hurdles are even greater.
A seat in the dock presents some unique challenges for following the progress of a trial. The judge is the most visible person to the defendant, directly facing him or her from the other side of the court. However, it is the back view of the wigs and gowns of Prosecuting and Defense counsel (the lawyers in the case) that dominates the defendant’s view during many verbal exchanges: barristers’ facial expressions, or indeed faces, are not visible.
A sealed dock (where the defendants are separated from the main part of the court by a toughened glass screen) distances defendants from the proceedings. Furthermore dock officers, whose role is that of a minder, do not need to follow the exchanges in court or take responsibility for encouraging a defendant with concentration problems to remain focused.
The language of the court is often complex and uses vocabulary that vulnerable defendants will not come across in their everyday lives. The defendant will need to follow the exchanges between the judge and counsel in order to follow the timetabling and procedure of the court. Such a vulnerable defendant may only pick up part of what is said and remain confused as to what is due to happen, leading to further anxiety.
If counsel are cross-examining an articulate witness and the questions are posed with pace and complexity, then the vulnerable defendant is not likely to follow much of the content of the exchange and will not be able to later inform his barrister about details of evidence with which he did not agree.
The defendant will often be given evidential documents or transcripts to read. Those with poor reading ability find it difficult to access such material. Similarly, a defendant may need to remember key points to mention to their counsel; and those with literacy difficulties are unable to write notes as a reminder.
Many defendants with undiagnosed language or communication needs have become used to not understanding, and either do not recognize or do not acknowledge when they have not followed something. If a vulnerable defendant enters the witness box for cross-examination without the court having the benefit of knowing about their specific mental health, learning or communication needs, then the chances of them being able to fully understand the questions, and give clear responses, are much reduced.
How do intermediaries help a vulnerable defendant?
One judge observed:
“She must be given such help as she needs to understand the case against her; she must be helped to give her own side of the story as her proof of evidence is drawn up; it may be that she needs help to speak to her lawyer let alone to the court; she will need help to follow the case as it proceeds… she will need particular help to decide if she is to give evidence; and if so she 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 s(he) may be… in short, she needs an intermediary.”
If it is decided that an intermediary might be needed, and once a suitably matched intermediary has been located for the case, the intermediary needs to meet the vulnerable defendant and complete a comprehensive communication assessment before the trial. Solicitors usually obtain prior authority for funding of the assessment from the Legal Aid Agency.
Following the assessment, the intermediary is then able to confirm whether the defendant needs, and indeed consents to, the services of an intermediary. The intermediary writes a report to inform the court of the defendant’s particular areas of difficulty and advises on what help and strategies or adaptations to the trial process should be considered.
Another professional, such as a psychologist, may have already flagged up the need for an intermediary in a preliminary report. However, this initial meeting between defendant and intermediary remains vital in establishing a rapport and ensuring that the defendant has a say in the matter and understands how the intermediary can help.
At court the intermediary should work in partnership with Prosecution and Defence counsel to ensure that the vulnerable defendant is able to understand key vocabulary and concepts in relation to the trial. The intermediary sits next to the vulnerable defendant in the dock, is able to explain and summarise the evidence; and can make notes of anything that the defendant would like to raise with their counsel later. Issues such as difficulty in concentrating and anxiety can be monitored and brought to the attention of the judge and counsel at an appropriate time.
After all the evidence for the prosecution has been heard, the defendant, advised by his barrister, decides whether to go into the witness box, give evidence and answer questions. If the vulnerable defendant is to be cross-examined, the intermediary attends a Ground Rules Hearing with the judge and counsel at which everyone is made aware of the defendant’s difficulties and of the advice and strategies recommended by the intermediary. This ensures that questions are posed that the defendant will understand, thereby enabling him or her to give their best evidence.
If the defendant leaves the dock to be cross-examined and stands in the witness box to answer questions from counsel, the intermediary stands beside them and is able to intervene if questions are asked that are unlikely to be understood. The intermediary may suggest the use of visual prompts in the form of words and pictures to act as a reminder for the vulnerable defendant in the witness box. For example, a ‘traffic light’ prompt may provide a reminder to listen before responding; or a visual time-line of agreed events in relation to the evidence can enable him or her to keep track of the chronology.
See the following Advocate’s Gateway toolkit for information on young defendants.
A judge summed up as follows, what he saw as the key role of intermediaries working with defendants in two separate cases in his court:
“In both of these cases the most important part of the role was to ensure the defendant followed what was taking place and that any disadvantage he or she had was addressed so that the particular defendant could play as full a role in the proceedings as was possible. In many ways their role was to be there, but not obviously so, and this they did extremely well.”
Working with vulnerable defendants can be difficult and challenging, however, if judge, counsel and the intermediary work together then a defendant’s effective participation can be facilitated and a fair trial ensured.