Guidance on who needs an intermediary and who decides; victims and witnesses
Who needs an intermediary, when and for what?
Does every child and young person need an intermediary?
No, it depends on the child or young person, the context and the questioner(s). There are no fixed rules. Young children, very traumatised children and children with communication difficulties are particularly likely to meet the threshold (see below).
Who decides if an intermediary is needed?
The police may identify the potential need for an intermediary assessment early in the investigation. Pre-trial, CPS may identify the potential need for an intermediary assessment. The intermediary role is to assist by providing an independent, professional assessment and clear recommendations. We may recommend that no intermediary is needed, or that if adjustments are made then no intermediary is needed. The CPS would then apply for an intermediary, which is a special measure. The judge decides whether an intermediary is needed.
What is the ‘two point test’ for an intermediary?
This is set out in Achieving Best Evidence guidance: if a child seems unlikely to be able to recognise a problematic question or tell the questioner that they have not understood, assessment by an intermediary should be considered. (Page 27)
Similarly, the Equal Treatment Bench Book 2013 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. Studies suggest that the majority of young witnesses, across all ages, fall into one or other or both categories. (Paragraph 46, Chapter 5)
Finally, from the 2015 Criminal Practice Directions: Consider assessment if a child under 18 seems unlikely to be able to recognise a problematic question or, even if able to do so, may be reluctant to tell someone in authority. (Paragraph 3F.5)
Is an intermediary likely to be needed for specific groups of children and young people?
There is specific guidance for child sexual abuse: Intermediaries should be considered in all cases of child sexual abuse, not just those involving very young witnesses, and if not involved earlier in the case, they should still be actively considered in advance of the trial as a means of supporting the victim giving evidence in court. Children and young people do not approach communication in the same way as adults and ability across all age ranges can vary considerably. Guidelines on Prosecuting Cases of Child Sexual Abuse (paragraph 85).
There is some general guidance: for children up to 11, there should be a presumption that assessment is appropriate. Once the child's requirements are known and discussed at the Ground Rules Hearing, the Registered Intermediary may agree that his or her presence is not needed for trial. Criminal Practice Directions (paragraph 3F.5).
At what point in the process should there be an intermediary assessment?
The Guidelines on Prosecuting Cases of Child Sexual Abuse encourage early involvement of an intermediary:
The assistance of a Registered Intermediary should be considered at (an early) stage. They can help the victim give their account in the interview and understand what is being asked of them. The earlier the intervention the more likely it is that successful rapport building will take place and the child or young person will be able to give their best evidence. Even if the victim appears to understand, they are unlikely to be familiar with the terms sometimes used in questions posed in interviews, or may not understand a term in the same way as the interviewer, and an Intermediary can ensure that age appropriate language (or developmentally appropriate language) is used and terms are explained. (Paragraph 37).