Practice: Obtaining And Using An Intermediary
Remarkably there is still no statutory basis in force for the use of an intermediary to assist a defendant during the course of their trial. The measures in place to help witnesses under the Youth and Criminal Justice Act 1999 to give evidence are now second nature to most criminal practitioners. Less well known however is just how much the trial process can, and should, be modified to assist vulnerable defendants whose needs can sometimes be complex and demanding.
When dealing with a vulnerable defendant the first question that comes to mind is whether they are fit to plead or stand trial. If they are but there are still concerns over their ability to comprehend the evidence, give instructions and understand the trial process, what then? The likelihood is that an intermediary needs to be considered. There are now increasing numbers of specialist intermediary services available in the criminal justice system.
The initial intermediary report will identify the needs of the particular defendant and sets out the measures that should be put in place to ensure the defendant has effective participation. It is the need for “effective participation” that underpins the whole process. Practitioners may want to bring the Practice Direction (Criminal Proceedings: Further Directions)  1 WLR 1790 and R v Dixon  EWCA Crim 465 to the court’s attention when making an application.
There is of course the need for funding. The Crown Court’s “inherent jurisdiction to ensure a fair trial” was confirmed in C v Sevenoaks Youth Court  EWHC Admin to be the basis for funding by the Ministry of Justice. It is important to note however that the court itself instructs the intermediary and so the court, not the defence, must actually book the intermediary for the trial (and any conferences before the trial).
Ground Rules hearings have become more commonplace in Crown Courts across the country to set down rules for dealing with child or vulnerable witnesses. The process should be no different for vulnerable defendants. As a minimum there should be a Ground Rules hearing between the court and parties with the intermediary before the trial, and most likely a further hearing before any defendant gives evidence.
The measures that are appropriate in any particular case vary according to the needs of the defendant. The intermediary report will provide recommendations for both how the trial process itself and the questioning of the defendant should be varied to ensure effective participation. Whether any particular measure is adopted is the subject of a discussion at the Ground Rules hearing. The measures can include anything from removing wigs and gowns to, in extreme cases, rulings on the admissibility of certain types of evidence. In a recent case the prosecution served an, enormously expensive, electronic presentation of evidence (after the Ground Rules hearing). The vulnerable defendant was not able to follow the evidence on screen and listen to what was going on in court. The judge excluded the evidence citing the practical difficulties for the vulnerable defendant as one of the reasons. The prosecution should therefore take an active role at an early stage by alerting the court and intermediary to potentially complex types of evidence.
Even with the measures in place nothing is set in stone when dealing with a vulnerable defendant. It is impossible to predict how a defendant will react once the trial actually starts. Assuming the court has allowed the intermediary to be present throughout the trial then the defendant’s level of participation can and should be kept under constant, daily, review. A measure that was not thought necessary at the initial Ground Rules hearing may very quickly become necessary. Having the intermediary at court means the trial process can be quickly and appropriately modified as and when a particular need is identified.
Despite the enormous assistance the intermediary can provide there are of course limits. The intermediary is not one of the “defence team”. They are often speech and language specialists but not expert witnesses. They cannot give evidence to the jury and they cannot comment on whether a defendant becomes unfit to stand trial during the trial. They are best viewed as a tool to help the defendant communicate and a built in safeguard to ensure effective participation in the process as a whole.