Intermediaries
Updated 09/07/08
Principle:
The potential use of an intermediary should be considered as part of the broader consideration of special measures. The provision of an intermediary must be available to all eligible witnesses, subject to the court's discretion in deciding whether to make a special measures direction. The approval of appointment by the court may be retrospective. The absence of an intermediary at the police interview does not preclude the use of an intermediary at trial.
Guidance:
Guidance is contained in the "Intermediary Procedural Guidance Manual" and in "Achieving Best Evidence", elsewhere in this guidance.
Introduction:
The Intermediary provision is one of a range of measures which, under the Youth Justice and Criminal Evidence Act 1999, the courts may make available to vulnerable witnesses to assist them to give evidence in court. This provision may be used by both prosecution and defence witnesses.
Section 29 of the 1999 Act provides for
"any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section (an intermediary).
The function of an intermediary is to communicate:
a) to the witness, questions put to the witness;
b) to any persons 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".
Section 18 of the 1999 Act limits the availability of intermediaries to witnesses eligible for special measures on the grounds of age or incapacity, under Section 16 of the Act. Age in this context refers to children and young people under the age of 17 at the time of the hearing who are eligible for appropriate special measures, in accordance with the presumptions set out in Section 21 of the Act. Incapacity in this context may include a physical or learning disability that affects their ability to communicate with others within the criminal justice system.
The court's approval must be obtained when the intermediary is to be used to assist the witness give evidence, either during a video-recorded interview at the investigative stage (for which the court's approval may be given retrospectively) or during the trial. This approval takes the form of a Special Measures Direction.
The entitlement to use an intermediary to facilitate communication is open to the prosecution and the defence to assist their witnesses, although not to the defendant under the terms of the 1999 Act. However, in light of the European Court of Human Rights judgement in SC v UK, it may be appropriate, in certain circumstances, to consider use of an intermediary for defendants with communication needs.
Procedure:
All agencies should follow the actions identified on the checklist included in the "Intermediary procedural guidance manual".
Police officers have a responsibility to identify that there is a difficulty communicating directly with a witness. Before proceeding to interview the witness, the investigating officer should hold an Early Special Measures Meeting with the CPS to agree the form of the statement to be taken and which special measures are appropriate, including any intermediary provision needed to assist during the interview and at the trial. If it is decided to use an intermediary, it is the responsibility of the investigating officer to contact the Intermediary Registration Board Secretariat to arrange the appointment of the intermediary. The investigating officer and prosecutor must also discuss the use of the intermediary as part of the charging procedures.
When applying for special measures, complete Part C of the form if an intermediary was used at the time of the police video of the witness, as well as Part D.
The application for special measures must include:
- a description of the communication needs of the witness;
- why the quality of the evidence given by the witness would be improved by use of an intermediary;
- the reason it is considered the person nominated to be the intermediary has the necessary skills to meet the particular communication needs of the witness;
- a copy of the checklist.
A copy of the report prepared by the intermediary (edited, if necessary) should be attached to the application for special measures. Consider whether it will also be necessary to make a PII application.
As with all special measures applications, the prosecutor should notify the Witness Care Officer that an application is being made so that the Witness Care Officer can inform the witness.
An application for the use of an intermediary during the trial will be made before the trial, at the same time as applications for any other special measures to assist the witness. Such applications will include seeking retrospective approval for the use of an intermediary during a video-recorded interview when an application is being made for the recording to be admitted as the witness's evidence in chief. Applications will be normally be considered at the pre-trial hearings in the Magistrates' Court and the Plea and Directions Hearing in the Crown Court.
The outcome of the application to use an intermediary must be notified to the witness and the intermediary. A copy of the court order should therefore be sent to the Witness Care Unit, the Witness Service and the intermediary. The details of the intermediary must be included on the LWAC stating their role as "Intermediary", and copies supplied to the Witness Care Unit, the Witness Service and court listing (if that is local practice). Prosecutors should check that court listing is aware of the involvement of the intermediary, and arrange for the intermediary to attend special directions hearings.
A copy of the checklist should be forwarded to prosecution and defence advocates, the Witness Service and the court.
Chapter 3 of the "Intermediary procedural guidance manual" contains detailed guidelines on the use of registered and unregistered intermediaries.
Relevant links:
"Intermediary Procedural Guidance Manual"
Application for special measures form, including Parts C and D