Guidance on who needs an intermediary and who decides; suspects and defendants
Who needs an intermediary, when and for what?:
Does every young suspect or defendant need an intermediary?
No, it depends on the young person, the context and the questioner(s). There are no fixed rules. A court may use its inherent powers to appoint an intermediary to assist the defendant’s communication at trial (either solely when giving evidence or throughout the trial) and, where necessary, in preparation for trial: R (AS) v Great Yarmouth Youth Court  EWHC 2059 (Admin),  Crim L.R. 478; R v H  EWCA Crim 1208, Times, April 15, 2003; R (C) v Sevenoaks Youth Court  EWHC 3088 (Admin),  1 All Criminal Practice Directions (paragraph 3f.3).
The legal representatives of a defendant may apply to a judge to allow the use of an intermediary to assist a vulnerable defendant when giving evidence or throughout his trial. Judges are permitted in appropriate circumstances to make such orders under their inherent jurisdiction to ensure that the defendant has a fair trial. Section 104 of the Coroners and Justice Act 2009 (not yet implemented) will allow for certain vulnerable accused to give oral evidence at 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.
Who decides if an intermediary is needed?
The police may identify the potential need for an intermediary assessment early in the investigation. Pre-trial, solicitors may identify the potential need for an intermediary for defendants. At trial, judges may identify the need for an intermediary. The intermediary role is to assist by providing an independent, professional assessment and clear recommendations. We may recommend that no intermediary is needed, that if adjustments are made then no intermediary is needed, that an intermediary is needed for evidence only, that an intermediary is needed for meetings with counsel or that an intermediary is needed for the whole trial. At trial, the judge decides whether an intermediary is needed.
What can indicate the need for an intermediary?
Defendants may have problems attending and following complex language. If this is the case, they may struggle without support during proceedings, which are likely to require them to process complex language and terminology and to attend for extended periods.
The Equal Treatment Bench Book provides that assessment by an intermediary should be considered if the person seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to say so to a questioner in a position of authority. (Paragraph 46, Chapter 5, 2013.)
Is an intermediary likely to be needed for specific groups of children and young people?
Intermediaries may be needed for part, or all, of the trial for defendants with significant communication difficulties arising for example from learning disability, physical disability or mental health issues.
At what point in the process should there be an intermediary assessment?
If communication needs or difficulties have been identified, an intermediary assessment should be arranged as soon as possible once the trial date is known. This can help to avoid delays to the judicial process.
Is an intermediary needed for the whole trial?
Not necessarily. It depends on the defendants’ communication needs, the extent to which trial processes can be adapted to meet those needs and the complexity of the case. For example, if the defendant’s communication difficulties are expressive then it may be that intermediary support is only needed when the defendant gives evidence, especially if the defence team can be enabled to understand their client directly. If the defendant has significant receptive communication difficulties they are likely to require assistance to follow proceedings throughout the trial. Sometimes this assistance can be provided by an independent advocate working to intermediary guidance.
A, aged 15, had autism and severe learning disability. He faced multiple charges of rape, GBH and attempted murder. There were three co-defendants. He was assessed by an intermediary pre-trial. She recommended intermediary support throughout the trial, including when A was instructing his legal team. The judge ordered this and it was provided.
B, aged 17, had a severe speech impairment. He faced a single charge of ABH. He was assessed by an intermediary pre-trial. She recommended a range of strategies to enable communication between B and his legal team and facilitated their first meeting. The intermediary was present only when B gave his evidence as he was able to follow proceedings without support and his legal team were able to understand him using the strategies and communication aids put in place by the intermediary (minimal distractions, pacing cards, forced choice confirmation of understanding).
C, aged 22, had ADHD, Tourette’s and moderate learning disability. He was charged with multiple drug offences. He was assessed by an intermediary pre-trial. The intermediary recommended some adaptations to the trial process to enable C to follow proceedings (clear summaries from his legal team) and some strategies to support him to remain calm and engaged (simple language; regular breaks; pen and paper to note down his questions when in the dock). Intermediary support was provided for the first two days of the trial and then for all meetings between C and his legal team and for evidence-giving, as C was unable to regulate his own state and attend without support in these situations. The judge also requested intermediary support for a pre-sentencing meeting with probation.
When an intermediary is to be instructed for evidence-only, it is crucial that a defendant’s receptive communication skills have been assessed and carefully considered in order to ensure that they are able to understand the case against them and the implications of giving/not giving evidence in order to instruct their legal team.
If the intermediary is to be used for evidence only, the intermediary will need additional time to meet with both the barrister and the defendant prior to cross-examination. This will enable the intermediary to build rapport, gain an insight into the trial and establish the defendant’s understanding of the evidence. A Ground Rules Hearing before the trial begins will be essential. This will allow sufficient time to advise and assist prosecution and defence in the preparation of question styles and to enable adjustments so that the defendant can fully participate in the trial when the intermediary is not present (e.g. regular breaks, conducting the entirety of the trial in language that the defendant is able to understand).