I feel as if I were there at the beginning. In March 2007 I spoke to the Midland Circuit of the Bar about intermediaries. The scheme was still in the pilot period and awareness of it was low. A barrister came up to me afterwards and explained that his lay client who was appealing a conviction in the magistrates’ court bore all the hallmarks of a ‘vulnerable witness’. Could an intermediary help this vulnerable defendant when giving his evidence? An intermediary did, and I think she was the first to do so.
Things have grown exponentially since then. In the vast majority of cases, the intermediary acts throughout the trial and not just when the defendant is giving evidence. Apart from short magistrates’ and youth court cases, the defendant’s evidence-giving does not happen until some time after the trial begins (days or even weeks later) and is subject always to his own election as to whether he will or will not to go in the witness box, a decision he may not take until the last minute, having regard to how the prosecution evidence has unfolded and the advice he is given by his legal representatives. In the very early days, the Ministry of Justice paid for registered Intermediaries who acted for defendants but that ended when the financing of the scheme was devolved. The RI matching service, now operated by the National Crime Agency, has not been available to vulnerable defendants since 2011. It only matches RIs to vulnerable victims and witnesses and there are set rates for this work. The question of how much and who pays the intermediary for a defendant is not always easy although guidance was provided by the Recorder of Leeds in 2012.
Section 104 of the Coroners and Justice Act 2009, which puts on a statutory basis the provision of intermediaries for defendants when they give evidence, has not yet been brought into effect although its equivalent provision has been effected in Northern Ireland. There, in practice, they have encountered the difficulty of how a defendant (especially one with mental health issues) can be assisted during the trial itself. This issue also arose in England in the recent Cheltenham Magistrates’ Court decision where the Divisional Court was asked to rule whether it was lawful for the Ministry of Justice not to provide a registered intermediary for a defendant when he gave evidence. Lady Justice Rafferty and Mr Justice Collins saw the parallels between the role of the intermediary in assisting a defendant when giving evidence and that of the intermediary assisting a vulnerable witness. They held that the former was a particularly stressful part of the trial and felt that, for the rest of the case, someone else suitably qualified [undefined] could help the defendant. Few support this logic.
The Law Commission in its current consultation on what is termed ‘fitness to plead’, has asked Further Question 12 which reads: ‘Do consultees consider it desirable and practicable for defendants to have a statutory entitlement to the support of a Registered Intermediary for as much of the proceedings, including pre- and post-trial, as is required, where the court is of the view that such assistance is necessary to ensure that the defendant receives a fair trial?’ One looks forward to the analysis of the responses to this. Law Commission recommendations are persuasive but it is always left to Government to decide whether or not to enact primary legislation—and whether to bring existing legislation into effect.
Assisting a defendant throughout his or her trial is now probably the lengthiest and most taxing job an intermediary can do. Those who have done it are best placed to describe it. Sitting next to the defendant in the dock, they are very much in the cockpit of the court and in the direct sight-line of the Judge, who is anxious to ensure a fair trial and who needs to be kept fully informed of the defendant’s needs. In the Appeal Court, a case titled R v Jordan Dixon [2013] EWCA Crim 465 highlighted this challenge. There was powerful evidence presented by Prosecution (termed ‘The Crown’ in legal language). CCTV images showed that the defendant had taken part in an unprovoked attack on a young man which proved fatal. He pleaded not guilty and was entitled meaningfully to take part in his own trial. But had he taken part? When tested, he had an extremely low IQ, he suffered from learning difficulties and in particular dyslexia, a poor working memory, limited vocabulary and a severe stammer. He did not know what words such as ‘jury, evidence, oath and defence’ meant. The jury could not reach a verdict so there was what is termed a ‘hung jury’ and the defendant was deemed ‘not guilty’. Prosecution then went to Appeal on that outcome.
In the Appeal Court, in the course of what is termed ‘legal argument’, one of the judges expressed the view that the attitude of Prosecuting Counsel during the trial had been ‘Here’s an intermediary, we will carry on as usual’, which seemed to the observer to be a correct summary. When sentencing the defendant, the trial Judge had said that the defendant had been well aware of what he was doing; and in reaching that conclusion the Judge had relied on his observations of the demeanour of the defendant during the trial. The Court of Appeal, however, said that it ‘may not have been appropriate to read anything into the defendant’s demeanour in court’. For the reasons set out in their judgement, they dismissed Prosecution’s appeal.
Two intermediaries shared the task of assisting Jordan Dixon and wrote about their experience, of how they took part and how they helped him. More recently the same two intermediaries assisted another defendant through nine weeks of trial, a further nine weeks of re-trial; and some weeks of an abortive trial in between. That gives some flavour of the task that has to be undertaken. (Editor: There is a considerable potential volume of work with vulnerable defendants; and non-registered intermediaries are also now being commissioned by defence ‘teams’ for this purpose. This website provides for defence solicitors to request an intermediary: the needs of the case and the geographical area will be matched to a Registered or non-registered intermediary in as many cases as possible. As Intermediaries for Justice grows, this new facility will become increasingly effective.)
Every intermediary is conscious of his or her duty to the court and the need for independence and impartiality. This can be particularly difficult in defendant cases where the defendant may easily see the intermediary as part of his ‘team’. Registered Intermediary and Forensic Psychologist Dr. Brendan O’Mahony’s brilliant PhD thesis deals with the issue of affinity between intermediary and defendant. (Editor: This thesis can be found in the Members Area Library)
To paraphrase the former Lord Chief Justice, we are very far indeed from the end of the road in the development of the role of the intermediary in the criminal justice system. When we are able to devise a system which facilitates intermediaries to assist a defendant (as a matter of course) during his or her ‘interview under caution’ at the police station we really will be making progress.