The Intermediary Scheme-Chambers Training

 

On the 13th October 2007 a large number of members of chambers participated in an intermediary training day organised and managed by David Wurtzel through ICSL. The format was participative with a series of role plays  with an actress playing the role of a witness with special needs, a qualified intermediary and a local judge, His Honour Judge Ashurst. KBW is the second set of chambers in the country to receive intermediary training-the first set outside London, and special thanks are extended to David Wurtzel, His Honour Judge Ashurst, Judy Clegg, the trained intermediary (a qualified speech therapist) who gave up her Saturday to come and help a bunch of barristers) and a particular thanks to ‘Bianca’-the witness with special needs

 

Intermediaries were one of a number of special measures introduced by the Youth Justice and Criminal Evidence Act 1999 for witnesses deemed to be vulnerable. Vulnerable witnesses are defined in Sections 16 and 17 of the Act; intermediaries are concerned only with witnesses who are eligible by virtue of S16, that is (i) children under the age of 17 at the date of the application (who have automatic entitlement) and (ii) people with a mental or physical disability, that is witnesses whom the court is satisfied are suffering from a mental or physical disability or disorder or a significant impairment of intelligence and social functioning by reason of which the court considers that the quality of evidence given by them is likely to be diminished. Witnesses falling into this category are not eligible for special measures as of right. They must satisfy the whole test.

 

Intermediaries were introduced by S29 of the Act. The function of an intermediary is “to communicate to the witness, questions put to the witness and to any person asking such questions the answers given by the witness in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the witness or person in question”

 

Intermediaries are available to all witnesses, prosecution and defence. The Act does not make provision for the use of intermediaries for defendants although the court has an inherent power to ensure that a defendant is able meaningfully to participate in his own trial and this would extend to the use of an intermediary.

 

 

How the scheme works-the initial contact (with a prosecution witness) is with the police. One of the duties of an officer is to identify a vulnerable witness. If an officer feels an intermediary may be required, this should be communicated to the CPS. If investigation is agreed, the police contact the Office for Criminal Justice Reform to request a referral (tel: 020 7035 8461). The OCJR will try to match an intermediary to the witness. An intermediary will contact and meet with a witness in the presence of a third party (almost always the interviewing officer who has ABE training). The intermediary will assist the officer as to how best to communicate with the witness. For court, a report will be prepared assessing the needs of the witness and explaining the problems a witness may have in dealing with questions. This report is the basis of the special measures application. There must, if an intermediary is ordered, be a pre-trial hearing between the trial judge, trial counsel and the intermediary. At this hearing the ‘ground rules’ are discussed-how the witness is to be questioned, when the judge should intervene, when breaks should take place. This is now contained in professional guidance to the Bar (see Bar News of September 2007).

The ability of children to understand questions and to tell the court when they do not is often over-rated. The ACPO guideline is: “Can they say ‘l don’t understand’” (see also “In Their Own Words”-2004-Plotnikoff and Woolfson). Adult witnesses with communication difficulties are frequently unable to give an account resulting in the collapse of a trial. The intermediary system is not there to support the witness. In all cases, an intermediary’s primary duty is the court. They are there to ensure that witnesses who might otherwise be denied a voice in the trial process are heard.

 

The following members of chambers have received intermediary training:

 

Andrew Robertson Q.C.                                  Tina Dempster                                                                                                         

Franz Muller Q.C                                               Matthew Bean

Nicholas Campbell Q.C.                                  Rebecca Stevens    

Adrian Waterman Q.C.                                    Emma Farnsworth

Toby Wynn                                                        Adrian Strong

Sarah Mallett                                                     Ian Mullarkey

Christine Egerton                                             Alex Menary

Paul Cleasby                                                    Oliver Thorne

Richard Barradell                                             Nathan Moxon

David Brooke                                                   Katy Rafter

Amanda Denton                                           

Sarah Margree

Rupert Doswell

                                   

 

Tina Dempster

2007-10-21