What s my story? A guide to using intermediaries to help vulnerable witnesses

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Myrtle Pope
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1 What s my story? A guide to using intermediaries to help vulnerable witnesses

Intermediaries can be the difference between vulnerable witnesses communicating their best evidence or not communicating at all.

They can help witnesses at each stage of the criminal justice process, from police investigations and interviews, through pre-trial preparations to court.

As well as improving access to justice for vulnerable people, intermediaries also help criminal justice practitioners.

2 Intermediaries can be the difference between vulnerable witnesses communicating their best evidence or not communicating at all. An intermediary is someone who can help a vulnerable witness understand questions they are asked and who can then communicate the witness s responses. They can help witnesses at each stage of the criminal justice process, from police investigations and interviews, through pre-trial preparations to court. Intermediaries perform an important function, helping the most vulnerable members of our society gain equal access to justice. Why use an intermediary? As well as improving access to justice for vulnerable people, intermediaries also help criminal justice practitioners. Intermediaries can: > improve decision making by providing practical information about a witness s needs; > make investigative interviews and court testimony more productive; and > improve the prospect that a case will have a positive outcome in court.

3 Who can get help from an intermediary? All witnesses who are considered vulnerable can get help from an intermediary. Under Section 16 of the Youth Justice and Criminal Evidence Act 1999, a vulnerable witness is someone: > less than 17 years old; or > whose evidence would be diminished in quality because they have a: mental disorder (within the meaning of the Mental Health Act 1983); or learning disability (significant impairment of intelligence and social functioning); or physical disability or physical disorder. Children don t need to have a disability or disorder to get help from an intermediary.they may just need help understanding the questions according to a recent survey by the National Society for the Prevention of Cruelty to Children, half of all children who went to court didn t understand at least some of the questions that lawyers asked them. Who qualifies as an intermediary? Intermediaries come from a range of professional backgrounds, including speech and language therapy, occupational therapy, psychology, education and social work. When an intermediary is requested, the Intermediary Registration Board (IRB) will match the skills of an intermediary with the needs of the vulnerable witness. Registered intermediaries have successfully completed a rigorous assessment process and agreed to abide by a code of practice and a code of ethics.they are re-assessed periodically to make sure they continue to meet the required standards. Registered intermediaries are almost always used in preference to an unregistered person. Ultimately, intermediaries are sanctioned by the courts and their personal expertise and conduct will be open to legal challenge.

What do intermediaries do? Intermediaries have a range of responsibilities that help both vulnerable witnesses and criminal justice practitioners at every stage from investigation to trial.

5 What do intermediaries do? Intermediaries have a range of responsibilities that help both vulnerable witnesses and criminal justice practitioners at every stage from investigation to trial. Intermediaries can carry out an initial assessment of a witness s communication needs. At this stage, they will not discuss the case in any way.this assessment is for the intermediary to: > evaluate the abilities and needs of the witness; > evaluate whether they have the necessary skills to act as the intermediary for that witness; and > establish rapport with the witness so that their assistance enables the witness to give their best evidence. Intermediaries can provide advice that can help achieve more productive interviews and get the best evidence at trial. For example, they can advise on: > how a witness communicates; > their levels of understanding; and > how it would be best to question them to get the best evidence. Advice on questioning could include: > types of questions to avoid; > what question formulation is likely to get the most accurate response; > how long the witness will take to answer a question; or > when they will require a break in questioning. Intermediaries can also directly assist in the communication process helping a witness understand questions during an investigative interview or testimony at trial and helping them communicate their answers. They can also help out in pre-trial preparation, such as a court familiarisation visit by the witness. Intermediaries are independent and do not pursue their own line of questioning they are not an investigator, an advocate, an appropriate adult or a supporter. Their duty is to the court and to justice they have to make a declaration stating this when they assist a witness in giving evidence. An intermediary can usually be matched with a witness within 24 hours. Once an intermediary has been commissioned, they will liaise with the officers in the case to arrange a time for an initial assessment of the witness. Intermediaries try to be as flexible as possible when fitting in assessments around their usual work commitments and are skilled at making assessments quickly, to fit into interview schedules. Following an initial assessment, you are not committed to using an intermediary throughout a case. For example, an intermediary may advise that they are not needed to get best evidence but may still provide advice on questioning.

When to use an intermediary If you think that a witness might benefit from help with communicating or understanding questions and answers in criminal proceedings then you should bring in an

6 When to use an intermediary If you think that a witness might benefit from help with communicating or understanding questions and answers in criminal proceedings then you should bring in an intermediary as early as possible. It may be that you don t know if a witness has a communication need but feel that there might be a problem; an intermediary assessment will help police officers and the Crown Prosecution Service (CPS) decide what to do next. Even if the case is going to court, it isn t too late.the CPS can apply to the court to use an intermediary during the trial even if one wasn t used in the interview. For evidence taken using an intermediary to be admissible, the court will need to be satisfied that the criteria for use of special measures are met. If intermediaries, or other special measures, are used during investigations, court approval has to be sought retrospectively so early discussion between the police and CPS is important. A court would be expected to approve the use of an intermediary when the answer to the two questions opposite is yes.

Question 1 Is the witness vulnerable? The answer is yes, if: > the witness is less than 17 years old when the court decides the special measures application.

evidence would be diminished for any of the following reasons: they have a mental disorder (within the meaning of the Mental Health Act 1983); or they have a learning disability (significant

7 Question 1 Is the witness vulnerable? The answer is yes, if: > the witness is less than 17 years old when the court decides the special measures application. For these witnesses there is no need to demonstrate that they also have a disability age alone is sufficient to qualify them as vulnerable ; > the witness is aged 17 or over and the quality of their evidence would be diminished for any of the following reasons: they have a mental disorder (within the meaning of the Mental Health Act 1983); or they have a learning disability (significant impairment of intelligence and social functioning); or they have a physical disorder or a physical disability. Question 2 Will using an intermediary improve and maximise the quality of the witness s evidence? See below for the definition of quality in these circumstances. As a rule of thumb, you can simply consider the question Would the use of an intermediary help the witness give best evidence?. An intermediary could be one of a combination of special measures helping a witness give better evidence. For example, they could use an intermediary, aids to communication and video-recorded evidence in chief. Quality here means completeness, coherence and accuracy. Coherence refers to a witness s ability, in giving evidence, to give answers that address the questions put to them and can be understood both individually and collectively. When deciding whether questions 1 and 2 are satisfied, the court will consider all the circumstances of the case, including any views expressed by the witness (for example, whether they wish to use an intermediary) and whether a special measure might make it difficult to test the validity of the evidence.

8 Case studies Intermediaries have been used successfully in police investigations and trials around the country. Liverpool, 2004 Background When a young woman with learning difficulties reported that she had been raped, it was initially decided that she could not be a witness because of her difficulty communicating. However, after hearing about the scheme, the police engaged an intermediary to assist in investigative interviews, and the young woman was able to give evidence with the intermediary s help. Intermediary support In police interviews, the intermediary identified questions that were too complex for the witness and repeated some of her answers. In court, the intermediary informed the judge and lawyers about how to look out for the witness s communication difficulties. The intermediary also helped the witness use pictures to identify rooms where it was alleged the offences had taken place. Result This case resulted in a conviction and the defendant was sentenced to 10 years in prison.

Reading, 2005 Background In a case where a witness was a 64-year-old man with severe learning difficulties, he first gave evidence using a video statement.

9 Reading, 2005 Background In a case where a witness was a 64-year-old man with severe learning difficulties, he first gave evidence using a video statement. However, when he was then asked to give evidence before the court in person, an intermediary was used to help him give his account clearly and with the least upset and disruption to him. Intermediary support The intermediary produced a report on the witness for the Judge and both the prosecuting and defence counsel, explaining the witness s difficulties and how he needed to be treated. Result This report gave the Judge the information needed to challenge inappropriate questioning by, in this instance, defence counsel who asked exactly the type of question the intermediary had reported the witness would be unable to answer. Without an intermediary this questioning would have gone unchallenged, giving the appearance to the jury of a witness unsure of his account and therefore unreliable. 7

10 How to get an intermediary Step 1 Police officers should gain any necessary internal agreement to commission an intermediary assessment.the witness s views should be considered and discussions between the police and CPS to agree the way forward should take place as early as possible. Guidance on these discussions is contained in the booklet Early Special Measures Meetings between the Police and the Crown Prosecution Service and meetings between the Crown Prosecution Service and Vulnerable or Intimidated Witnesses: Practice Guidance. Step 2 Contact the IRB (located within the Office for Criminal Justice Reform) on one of the following numbers: > > > Alert them that a referral is to be made and discuss any issues which require clarification. Step 3 Complete a witness referral pro forma (available from the IRB), giving as much information as possible. Fax this to the IRB on or it to intermediaries@cjs.gsi.gov.uk The IRB will then find a suitable intermediary and provide you with their contact details. The IRB aims to acknowledge receipt of your pro forma the same day and to provide an intermediary match within 24 hours.this service is only currently available during office hours, 9.00 to 17.00, Monday to Friday. Read the intermediary case checklist, which the IRB will provide, so that you understand what steps to take next. Contact the intermediary direct to make arrangements for them to carry out an initial assessment of the witness. The intermediary will come to carry out an assessment of the witness and, if appropriate, help with the investigative interview or trial process. A trained vulnerable witness (Achieving Best Evidence) interviewer will need to carry out any investigative interview. Please inform the IRB when a case involving an intermediary is listed for trial. If an intermediary has been used for the interview stage and the case proceeds to trial, the same intermediary would generally participate in both stages to ensure there is continuity for the witness.

14 Further information For more information about intermediaries, contact the Intermediary Registration Board on any of the following numbers: > > > or Published by the Office for Criminal Justice Reform, reprinted February Prolog Order code: IVW/WMS. Ref:

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