The court room can be an intimidating environment for any party playing a role in proceedings, not least very young or vulnerable witnesses. It was acknowledged in R v Barker [2010] EWCA Crim 4 and R v Lubemba [2014] EWCA Crim 2064 that the usual trial process had to be modified to meet the needs of children and vulnerable witnesses in order that they can play an active role, but their evidence can be tested successfully and accurately. Hallet LJ said in Lubemba that there had to be a departure from the traditional style of advocacy, in that counsel must adapt to the needs of the witness and not vice versa. Allegations against a defendant must still be fully tested for a jury to convict safely, no matter who the witnesses. Taking into account that children and vulnerable witnesses can be unreliable, untruthful, have difficulty in understanding questions put, or have difficulty in relaying a clear or coherent answer, Intermediaries have been introduced to criminal proceedings to facilitate communication between all parties.
A vulnerable witness, as set out in s16 Youth Justice and Criminal Evidence Act 1999, is any person under the age of 17, any person who suffers a mental disorder or any person who has a significant impairment of intelligence and social functioning or a physical disorder or condition that is likely to affect their evidence. Before trial, in cases involving a vulnerable witness, it will be necessary to hold a Ground Rules Hearing. This hearing allows the Judge to give detailed directions to advocates for cross examination, and determine what measures should be taken to enable any vulnerable witnesses or defendants to take a full and active part in the trial. A report will often be produced by an Intermediary and will form the basis of many of the directions. In lieu of a report, advocates may still make applications for reasonable adjustments. The Advocate’s Gateway ‘tool kit’ provides guidance on many measures that should be adopted. In Barker, Lord Judge CJ advocated the use of short, simple questions putting the essential elements of the defendant’s case to the witness and this is largely what happens in practice. Whether an Intermediary is needed for vulnerable witness will be approved by the court on a case by case basis.
The Intermediary aids communications between the Judge, the advocates and the witnesses. Much like an interpreter, they are to be neutral and independent parties within the process. The advocate will draft questions for the vulnerable witness and the Intermediary will read through them prior to the cross examination. Where necessary, with knowledge of the witness’s needs, the Intermediary will work with the advocate to reword and adjust the question so that its true meaning is properly understood by the witness. If the witness is unable to understand fully the question, it follows that they cannot give a full and honest answer. Slight nuances in phrasing will be addressed and the Intermediary will make suggestions for substitute phrases, or questions, that the advocate may use if the question is not understood when it is asked. This can be especially so in questions that involve one or more subjects or involve the concept of time, i.e. before and after, or abstract questions ‘why didn’t you…’ or ‘would you have…’ Advocates take direction from Intermediaries and, likewise, Intermediaries must be guided by advocates so that the essence of the question being asked is not lost in the question’s simplicity. The risk, of course, in pre-prepared and pre-approved cross examination, is the distinct lack of flexibility for advocates who are then confined to their script, unable to deviate or follow a line of questioning in response to an unexpected answer.
The Intermediary will introduce the Judge and advocates to the witness before cross examination and it is common practice to remove wigs for this brief meeting. The Intermediary will then sit with the witness while they are cross examined to ensure that they better understand the questions and, equally, to ensure the answers are understood. They will enforce breaks when the witness needs and are in a position to guide the court if there is a problem with a question and advise if something needs to be rephrased.
The introduction of Intermediaries has improved access to justice for vulnerable witnesses and it has been through careful consideration that their involvement has not diminished the defendant’s right to a fair trial. Creative ways to support witnesses and encourage their communication has changed the ordinary running of the courtroom and it is likely that still more change is to follow as we come to better understand the needs of individuals. The process is largely effective: Judge’s directions to a jury about the restrictions placed upon advocates in their questioning, or why the advocate did not put the defendant’s case to the witness, safeguards the defendant from any inference being drawn. Care still must be taken, though, to ensure that the evidence is tested in front of the jury and that the vulnerable witness is able to understand the necessity for truth and honesty.