Vulnerable witnesses with certain support needs are entitled, by law, to a registered intermediary to help them understand and participate in court proceedings, but vulnerable defendants aren’t. We discuss how this can jeopardise their right to a fair trial and what needs to change
“I didn’t understand really – I pleaded guilty straight away.” This is just one example – taken from the Prison Reform Trust’s new briefing paper, Fair access to Justice? – of how young people with a learning disability or communication difficulty can struggle, without the right support, to participate in court and get a fair trial.
It demonstrates the need for an intermediary for such vulnerable defendants, but this need is rarely recognised. Vulnerable witnesses are entitled to a registered intermediary (under Section 29 of the Youth Justice and Criminal Evidence Act 1999), as part of special measures. But defendants are not – they rely on the discretion of the court and common law.
Registered intermediaries are qualified professionals, with specialist skills appropriate to the needs of the witness, who undergo a rigorous selection process and are bound by a code of conduct. Such safeguarding is often overlooked when it comes to vulnerable defendants, as there is no legislation to regulate intermediaries. Therefore, even if an intermediary is called upon, they may not be adequately qualified.
This lack of legislation makes the process of appointing an intermediary for a defendant with communication needs unclear and erratic. Although the judge is responsible for ensuring a fair trial, the lack of routine screening to identify support needs and a lack of clarity around the use of intermediaries for defendants can make this hard.
The Prison Reform Trust’s paper calls for special measures, including the provision of registered intermediaries, available to vulnerable witnesses and defendants to be equal in law.
RYG discussed these issues with:
- Jenny Talbot (JT), programme director at the Prison Reform Trust
- An anonymous magistrate (AM)
- Dave Mahon, programme manager at the Communication Trust (DM)
What effect does the lack of clarity on intermediaries have?
JT: Under article 6 of the European Convention on Human Rights, everyone has the right to a fair trial, but without the appropriate support this can be compromised. The lack of clarity surrounding the use of intermediaries for vulnerable defendants means they may not get support, which might mean they cannot effectively participate in the trial.
DM: For some in the justice system, there is uncertainty over when an intermediary can be appointed and who will pay. An intermediary can be appointed for a defendant, but this is discretionary. There is not a consistent approach across the country.
AM: There is a lack of knowledge among magistrates that intermediaries exist and can be used in court. I’ve never seen an intermediary in an adult or youth court.
What difference could an intermediary make to a vulnerable defendant?
DM: It could be the difference between a confused defence and an articulate defence. An intermediary can ensure that a vulnerable defendant understands what they are charged with and help them articulate their side of the story. Put yourself in the shoes of a young person with a communication difficulty facing a court appearance – you might find it difficult to understand what you are being asked and, in trying to recall events, you may become confused. Your confusion may make it appear that you are lying. An intermediary can also advise the police, solicitors and judges on how best to put their questions so a vulnerable person can understand.
JT: The Prison Reform Trust report No One Knows: prisoners’ voices talks about opaque proceedings – if you don’t understand what’s happening in court, it is opaque, not transparent. You are unlikely to be able to participate effectively if proceedings are opaque.
Who should take responsibility for requesting a registered intermediary?
JT: At the moment, everybody has responsibility but no one seems to be accountable. In court, it’s the judge or magistrates who are responsible for ensuring that those involved understand what’s happening and can participate. But there are also solicitors and court clerks who could request an intermediary. It is part of a continuum – there is the right to a fair trial, so an intermediary is simply a tool for this to happen. A screening process is needed, so a judge or magistrate can be made aware of an individual’s support needs and, if necessary, insist that he or she receives support from an intermediary.
AM: A legal adviser, bench chairman or defence lawyer could ask for intermediaries, in the same way that they do for interpreters. It is in the interest of justice that defendants and witnesses know what is happening in a court of law. I have had communication training, so I have changed my language and I make defendants repeat what they have to do, so I know they understand.
DM: It should be the responsibility of everyone who works with the defendant at all stages of the process, including police and solicitors, to understand what communication needs are and how they impact on a young person. It should be as early as practicable.
How can current access to intermediaries for vulnerable defendants be improved?
DM: By strengthening their legal right to support.
AM: I completely support increasing awareness of intermediaries and having them in courts. But if I was in court tomorrow and saw someone who didn’t understand what was going on and I asked staff to get an intermediary, I don’t think they would know how or where to get one.
JT: There needs to be much better information about what an intermediary is, how to get hold of one and who pays for them. Also, the anomaly between intermediaries for vulnerable witnesses but not vulnerable defendants needs to be rectified.
How can early identification of vulnerable defendants make a difference?
JT: It’s fundamental – every police station and court in England should have a liaison and diversion service by 2014. An integral part of their role will be to identify vulnerable suspects at the police station and help ensure participation in police and court proceedings.
AM: Police are the frontline and could really make the difference in identifying vulnerable defendants. Police, in the first instance, decide whether to keep people in custody or release them. By the time it gets to the Crown Prosecution Service, it’s almost too late. It is difficult for a magistrate to ask the lawyers if their client understands what is happening.
DM: I would like to see staff at all stages of the system recognise people with communication difficulties and be trained to support them.
Read the Prison Reform Trust’s full paper: Fair access to Justice? support for vulnerable defendants in the criminal courts