In a notable recent Murder trial in which Gillian Frost (Advocacy Department) was instructed to represent one of the defendants, a trial which resulted in an acquittal, one of the more novel aspects of the case was the use of an intermediary to assist her client.
The defendant in question had significant learning difficulties and was in grave risk of being left at an unfair disadvantage without specialised support to help him understand and follow the proceedings. Application was made for this support and granted. In the following article Gillian explains the legal background to this developing area.
Section 16(1) of the Youth Justice and Criminal Evidence Act 1999 (the Act) made provision for the use of special measures in the case of vulnerable and intimidated witnesses to facilitate the giving of their evidence.
Section 29 of that Act allows examination of a witness through an intermediary as one of the special measures allowed.
The use of special measures for Defendants was expressly excluded by s.16(1) of the Act. However, an amendment added by s.104 of the Coroners and Justice Act 2009 has amended the Act by inserting s.33BA. Part of s.104 is reproduced below:
section 33BA Examination of accused through intermediary
(1) This section applies to any proceedings (whether in a magistrates’ court or before the Crown Court) against a person for an offence.
(2) The Court may, on the application of the accused, give a direction under subsection (3) if it is satisfied –
(a) that the condition is subsection (5) is or, as the case may be, the conditions in subsection (6) are met in relation to the accused, and
(b) that making the direction is necessary in order to ensure that the accused receives a fair trial.
(3) A direction under this subsection is a direction that provides for any examination of the accused to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).
(4) The function of an intermediary is to communicate –
(a) to the accused, questions put to the accused, and
(b) to any persons asking such questions, the answers given by the accused in reply to them,
and to explain such questions or answers so far as necessary to enable them to be understood by the accused or the person in question.
(5) Where the accused is aged under 18 when the application is made the condition is that the accused’s ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused’s level of intellectual ability or social functioning.
(6) Where the accused has attained the age of 18 when the application is made the conditions are that –
(a) the accused suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function, and
(b) the accused is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court.
(7) Any examination of the accused in pursuance of a direction under subsection (3) must take place in the presence of such persons as Criminal Procedure Rules or the direction may provide and in circumstances in which
(a) the judge or justices (or both) and legal representatives acting in the proceedings are able to see and hear the examination of the accused and to communicate with the intermediary, and
(b) the jury (if there is one) are able to see and hear the examination of the accused, and
(c) where there are two or more accused in the proceedings, each of the other accused is able to see and hear the examination of the accused.
For the purposes of this subsection any impairment of eyesight or hearing is to be disregarded.”
Unfortunately this amendment has not yet come into force and it is understood that an implementation date for s.104 has not yet been given as there is still a considerable amount of preparatory work required.
Nonetheless, an application can succeed on the basis of the case of C v Sevenoaks Youth Court – EWHC 3088 (3/11/09), where an application was granted on behalf of a juvenile Defendant on a charge of assault. The case was heard in the High Court on an application for permission to apply for judicial review. Paragraph 16 of the judgment of Openshaw J reads:
“I have already made clear that there is no statutory power permitting the appointment of an intermediary for a Defendant, but there may be some procedural power in the Criminal Procedure Rules. Criminal Procedure r 1.11 sets out the overriding objective to deal with criminal cases justly, which includes at (c) recognising the rights of a Defendant, particularly under art 6 of the European Convention on Human Rights. Furthermore, the court’s case management powers at r 3.10(b)(v) require the court to consider what arrangements are necessary to facilitate the participation of any person in the trial, including the Defendant. In an appropriate case this surely requires the appointment of an intermediary for the Defendant himself.”
We represented a Defendant in what we believe was the first practical use of a defendant intermediary in a major trial. This was a murder trial before a High Court Judge. The case also involved kidnap, false imprisonment and perverting the course of justice.
This was a six handed case. The fifth Defendant was our client who had limited abilities which we will detail below (but included an IQ of 63). The intermediary sat in the Dock alongside the Defendant throughout the evidence relevant to him and went with him to the witness box when he testified.
The trial was complicated by the “cut throat” nature of the Defences and there was an issue raised by co-defendants regarding the necessity for an Intermediary.
The Practical Steps
(1) INITIAL ASSESSMENT BY THE DEFENCE
In our case the Defendant, a man of 36, had been unrepresented during his first two interviews and had not been provided with an intermediary (the FME (police doctor) agreed in evidence that he would have recommended one had he known of the Defendant’s very low IQ).
When we read the answers given by the defendant in those police interviews we appreciated that the defendant was likely to struggle to give evidence on his own behalf at trial. He spoke of having a very bad memory during the interview. When we met him he presented as vulnerable and slow.
We advised the obtaining of a psychiatric report and an educational psychologist report.
(2) THE REPORTS
The reports we obtained showed that the Defendant would be able to stand trial but that he did not have the capacity to properly give evidence in normal court working procedure conditions. He would need regular breaks and he would need to be given information in extremely small packages. His concentration would be limited and breaks would be required to check that he understood the proceedings.
In this case the reports specifically recommended the assistance of an intermediary. The reports were served on the Crown.
(3) THE APPLICATION
The application for an intermediary has to be made expeditiously because if granted an appropriate intermediary has to be located and funding obtained. In our case the Prosecution also obtained two medical reports. (At trial we called the Prosecution psychologist as a defence witness as she had been able to do more extensive testing of the Defendant). It was agreed that the Defendant had low level of verbal comprehension, low IQ and very poor short term memory.
The Prosecution did not object to the Defendant’s use of an intermediary. However, we had to serve the reports on the co-defendants so that their counsel could raise concerns they may have.
In principle the learned trial Judge agreed that an intermediary should be used if and when the Defendant gave evidence and to assist him more generally during the evidence of others.
(4) STEPS AFTER THE APPLICATION WAS GRANTED
The Register of Approved Intermediaries is maintained by a Department of the Ministry of Justice. They assist in helping to find an appropriate intermediary. A period of liaison between the intermediary and “client” is recommended so that they can establish a relationship. This may not always be a long period but ideally should be established by one or two interviews before trial and after the Intermediary has been provided with at least a Summary of the case and any interview Exhibits. The intermediary will normally be required to furnish an assessment of his own, written or oral, depending on the circumstances and time available.
Funding of the intermediary for defendants is through an application for prior authority to the Legal service commission. The rates for intermediaries have to be submitted. The authority is for the pre-trial assessment and for attendance at trial. Jason Connolly, Policy Officer at the Ministry of Justice was of assistance to us in providing information such as the Registered Intermediary Codes of Practice and Ethics and their rates of remuneration.
(4) TRIAL ISSUES
There were 4 Issues to be addressed:
(1) The “Ground Rules” needed to be established so that the Intermediary could carry out his task with minimum disruption to the flow of the case. Our intermediary made some observations to the court (in the absence of the jury) as to how he viewed his role. The intermediary advised counsel to avoid double negatives and multiple clauses and seek to ask short questions. The intermediary discussed the procedure to be adopted for how he should indicate to the Judge that the Defendant needed a break.
(2) What directions (or guidance) should be given to a jury with regard to the function of the “official” seen in the Dock with the Defendant.
The learned trial Judge made some introductory remarks when the jury were first made aware of the intermediary’s presence. Later on in the trial the trial Judge circulated to counsel a proposed statement to be given to the jury in relation to the intermediary assisting the defendant in the witness box. This set out the psychologist’s findings and recommendation for an intermediary. The jury were also told that not all parties accepted that evidence but the Judge had allowed the intermediary on the basis that he had to ensure a fair trial. The jury were told that the Barristers had been advised as to how they should ask questions (eg avoiding double negatives). The jury were told the intermediary would indicate if he considered the defendant did not understand a question. The jury were told that they would have to decide relevant matters themselves, regardless of the Judge’s decision that an intermediary should be allowed and regardless of the presence of the intermediary in court.
(3) At what stage to deal with the Issue of the need for an Intermediary. Each case will vary depending on for example: number of defendants; whether the defendant is to give evidence or just have assistance in the dock during the prosecution evidence; whether there is agreement or not as to the necessity for the intermediary. In our case the need for an intermediary was raised pre-trial but the substantive argument developed during the course of the trial. The Judge, in order to ensure a fair trial for our defendant, allowed the intermediary to be in the dock. That helped counsel as the intermediary could note on what occasions the defendant had difficulty understanding and we could assist him later in conference about those parts of the evidence. Before the defendant gave evidence (but after defendants 1 to 4 had given evidence) the role of the intermediary was canvassed further with counsel and the Judge ruled on how he would direct the jury. Interestingly our defence experts were interposed during the course of the defendant’s evidence but the learned Judge had made a statement to the jury before he gave his evidence. The intermediary was able to clarify the meaning of words or to reassure the defendant about issues as they arose. A brief reference was made to the jury as to the presence of the intermediary in the dock. In our case the intermediary was not present for the jury selection, opening speech and initial witnesses that did not affect our defendant.
(4) What further instruction (if any) was needed in the summing up? The learned trial Judge directed the jury that the defendant had been allowed the assistance of an intermediary in case there was any difficulty in him understanding the questions asked and the case put against him by the prosecution or other defendants. The jury were told that the extent of any impairment of his understanding was a matter of dispute and that it was a matter for them whether he had real difficulties. The intermediary was allowed in case there were difficulties.
The choice of whether or not to call a defendant to give evidence is sometimes a difficult one to make. In some cases it may be that medical evidence for a vulnerable person would be sufficient to avoid any adverse inference from not giving evidence. However, there may be times when counsel’s experience is such that they believe that the calling of a defendant is essential. The use of an intermediary is a course of action which can help that vulnerable defendant to feel more relaxed because he knows there is someone who can intervene if he has difficulty understanding a question. The intermediary assists counsel because in a case of a poor memory the defendant will forget what he needs to tell counsel by the time of the next break in the case. He can indicate to the intermediary immediately who can make a note of the point and inform counsel. Special measures for witnesses have been available for some time (prosecution and defence witnesses) and now there is the availability of at least this special measure for vulnerable defendants. As mentioned above, the statutory framework is not yet implemented. There is much to be done, partly to ensure there will be sufficient registered intermediaries available. Hopefully all those defendants that require an intermediary will be able to have one. It will be important to be aware of the possibility as soon as practicable. Trying to match a registered intermediary that is local to the relevant court will be important in keeping down costs. The longer the time it takes to obtain the funding for an intermediary the harder it may be to find an appropriate intermediary who is sufficiently local.
GILLIAN FROST (Barrister, Ronald Fletcher Baker LLP)
A similar article written by Gillian Frost appeared in the Criminal Bar Quarterly periodical.