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What works in practice? Dr Tina Pereira and Professor Lucy Henry sought answers from family and criminal judges across the country...
Equitable provision for vulnerable persons (VP) is now fairly well established in England and Wales. However, which aspects work in practice? In qualitative research agreed and endorsed by the Judicial College, we interviewed judges who sit in family and crime across the country and analysed their responses.
The judges we spoke to overwhelmingly reported intermediaries for witnesses working well. Opinion, though, was divided in relation to intermediaries for defendants (in crime) throughout the whole trial and parties in family cases. Those in favour considered communication vulnerability to be all pervasive, with some making comparisons between intermediaries and interpreters. For them, a communication difficulty present in one context also exists in another. To deny a defendant access to an intermediary for the whole trial would be morally and ethically unjustified.
A second reason given was the financial benefit of an earlier plea (because a defendant now better understood the prosecution case and the nature of the offences). Some judges considered an intermediary to be in a professionally more qualified position to assess a defendant’s current understanding, mental state and attention than counsel seated some distance away, whose understanding would be limited and ad hoc, and who lacked the professional skills and tools to repair a misunderstanding.
The reverse position was taken by other judges who reported that whole trial intermediary input was financially wasteful. They cited some intermediaries not providing tangible and demonstrable input in the dock for their presence to be warranted. The researchers felt, though, that consideration may not have been fully given to the positive effect of intensive, focused pre-trial preparation with a defendant. This may make demonstrable input during the trial less necessary.
This group of judges drew a distinction in relation to the intermediary role. They reported that intermediary input for evidence in chief and cross examination worked effectively. However, they believed other aspects of the intermediary role could be performed equally effectively by advocates, an unimpaired spouse, etc., unless a defendant’s communication difficulties were severe (e.g. they had an expressive speech disorder) or their vulnerability was apparent (e.g. a child). For this group of judges, communication is context dependent, i.e., a person’s communicative competence changes depending on their environment and task they are involved with.
Further assistance for those giving evidence can come from the use of intermediaries reviewing questions in advance, where appropriate. This was typically viewed favourably. As unbiased officers of the court, it was acknowledged that professionals with specialist knowledge of communication and interaction were in a better position to comment on linguistic aspects of cross examination questions. A minority, however, viewed this with a degree of concern, querying whether there might be a forensic advantage to the other party when this adaptation was granted. It is unclear if all participating judges were aware that according to their code of practice, intermediaries are not allowed to disclose questions or comments to others (Ministry of Justice, 2020).
A repeated theme that emerged was that intermediary assistance at pre-hearing/pre-trial conferences would, theoretically, be valuable, as it was recognised that communication difficulties exist irrespective of an individual’s position as a complainant or defendant. However, judges were largely unaware of whether this took place in practice. Since pre-trial/hearing input, when it occurs, largely takes place behind the scenes, judges were understandably unaware of their operational impact. Some cited the financial benefits, if an early plea is reached, because a defendant now more accurately understands the prosecution case. Others, though, noted practical and logistical barriers, suggesting advocates and the legal team need first to demonstrate having tried but failed to communicate with a defendant/other party before applying for intermediary assistance in this context. Some suggested replacing an intermediary with an un-impaired lay person, e.g., a spouse, partner, etc., thereby making financial savings.
What did not work for many judges was the insistence by some intermediary companies on an ‘all or nothing’ type of input, i.e., that an intermediary would need to be present for the whole trial or not there at all. It appears then, that judges’ experiences of some providers may have tainted their opinions of the entire intermediary community. Few reported experiences of intermediaries recommending evidence only or a hybrid version of input, with more noting that intermediaries preferred to err on the side of caution.
Judges considered the financial cost of whole trial intermediary input to be significant and always needed to be weighed against possible gain. All judges (and counsel), though, should be aware of the new HMCTS standardised rates of remuneration that came into effect in 2022. Random overpricing is no longer possible.
In relation to special measures such as screens (s 23) and video link (s 24) judges overwhelmingly reported they worked well for witnesses. Some, though, noted they were unavailable to and inappropriate for defendants and some parties in family cases. For them, it was unreasonable to accept that a defendant could be intimidated by the court environment or that a party would need to give evidence from behind a screen in court, when they might be going back to the same household that evening and encountering the same apparently intimidating individuals there.
Conversely, another group of judges did acknowledge the effects of sensory overload and attention difficulties in court, and the fact that factors other than intimidation might be reasons for a s 23 and s 24 application. Auditory or visual hyper/hypo sensitivities can negatively impact a VP’s ability to listen, understand and participate effectively with their trial. What might sometimes exhibit outwardly as poor behaviour and non-cooperation could actually be an indicator of sensory overload (Medical News Today, 2024).
The use of communication aids (s 30), on the other hand, e.g., visual timelines and diagrams, were considered useful universally to all groups of VPs, with many judges endorsing their use. Visuals convert the abstract spoken word to a concrete visual rendition of it, reducing the pressure on a VP’s auditory memory, assisting recall, attention and understanding (The Advocate’s Gateway, 2015). When introduced in a non-leading manner and managed carefully, judges noted that they worked well.
Noting the change in judicial directions over time is significant. Twenty years ago, special measures and accommodations for witnesses were just coming into existence. Some years later, judges began directing such adaptations for defendants and other parties. However, since then, Practice Rules and the recent judgment in West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam) are urging judges to be more cautious.
As always, it is a balancing act, but the two key barriers appear to be financial, and for some, limited awareness of neurodiversity. Until these two factors change, we will continue to observe discrepancies.
When advocates next make an intermediary application, it would be worthwhile considering judicial views on the use of intermediaries and the recommendations they might make. Not knowing how a particular judge approaches such an application, it would be prudent to consider the above research when arguing the case and be fully prepared for a possible response.
Dr Tina Pereira is an Honorary Research Fellow at City St George’s, University of London. She is also an intermediary who works with vulnerable individuals in criminal and family courts.
Professor Lucy Henry is a Joint Research Director at City St George’s, University of London. She is a qualified Clinical Psychologist with research expertise in neurodiversity.
Equitable provision for vulnerable persons (VP) is now fairly well established in England and Wales. However, which aspects work in practice? In qualitative research agreed and endorsed by the Judicial College, we interviewed judges who sit in family and crime across the country and analysed their responses.
The judges we spoke to overwhelmingly reported intermediaries for witnesses working well. Opinion, though, was divided in relation to intermediaries for defendants (in crime) throughout the whole trial and parties in family cases. Those in favour considered communication vulnerability to be all pervasive, with some making comparisons between intermediaries and interpreters. For them, a communication difficulty present in one context also exists in another. To deny a defendant access to an intermediary for the whole trial would be morally and ethically unjustified.
A second reason given was the financial benefit of an earlier plea (because a defendant now better understood the prosecution case and the nature of the offences). Some judges considered an intermediary to be in a professionally more qualified position to assess a defendant’s current understanding, mental state and attention than counsel seated some distance away, whose understanding would be limited and ad hoc, and who lacked the professional skills and tools to repair a misunderstanding.
The reverse position was taken by other judges who reported that whole trial intermediary input was financially wasteful. They cited some intermediaries not providing tangible and demonstrable input in the dock for their presence to be warranted. The researchers felt, though, that consideration may not have been fully given to the positive effect of intensive, focused pre-trial preparation with a defendant. This may make demonstrable input during the trial less necessary.
This group of judges drew a distinction in relation to the intermediary role. They reported that intermediary input for evidence in chief and cross examination worked effectively. However, they believed other aspects of the intermediary role could be performed equally effectively by advocates, an unimpaired spouse, etc., unless a defendant’s communication difficulties were severe (e.g. they had an expressive speech disorder) or their vulnerability was apparent (e.g. a child). For this group of judges, communication is context dependent, i.e., a person’s communicative competence changes depending on their environment and task they are involved with.
Further assistance for those giving evidence can come from the use of intermediaries reviewing questions in advance, where appropriate. This was typically viewed favourably. As unbiased officers of the court, it was acknowledged that professionals with specialist knowledge of communication and interaction were in a better position to comment on linguistic aspects of cross examination questions. A minority, however, viewed this with a degree of concern, querying whether there might be a forensic advantage to the other party when this adaptation was granted. It is unclear if all participating judges were aware that according to their code of practice, intermediaries are not allowed to disclose questions or comments to others (Ministry of Justice, 2020).
A repeated theme that emerged was that intermediary assistance at pre-hearing/pre-trial conferences would, theoretically, be valuable, as it was recognised that communication difficulties exist irrespective of an individual’s position as a complainant or defendant. However, judges were largely unaware of whether this took place in practice. Since pre-trial/hearing input, when it occurs, largely takes place behind the scenes, judges were understandably unaware of their operational impact. Some cited the financial benefits, if an early plea is reached, because a defendant now more accurately understands the prosecution case. Others, though, noted practical and logistical barriers, suggesting advocates and the legal team need first to demonstrate having tried but failed to communicate with a defendant/other party before applying for intermediary assistance in this context. Some suggested replacing an intermediary with an un-impaired lay person, e.g., a spouse, partner, etc., thereby making financial savings.
What did not work for many judges was the insistence by some intermediary companies on an ‘all or nothing’ type of input, i.e., that an intermediary would need to be present for the whole trial or not there at all. It appears then, that judges’ experiences of some providers may have tainted their opinions of the entire intermediary community. Few reported experiences of intermediaries recommending evidence only or a hybrid version of input, with more noting that intermediaries preferred to err on the side of caution.
Judges considered the financial cost of whole trial intermediary input to be significant and always needed to be weighed against possible gain. All judges (and counsel), though, should be aware of the new HMCTS standardised rates of remuneration that came into effect in 2022. Random overpricing is no longer possible.
In relation to special measures such as screens (s 23) and video link (s 24) judges overwhelmingly reported they worked well for witnesses. Some, though, noted they were unavailable to and inappropriate for defendants and some parties in family cases. For them, it was unreasonable to accept that a defendant could be intimidated by the court environment or that a party would need to give evidence from behind a screen in court, when they might be going back to the same household that evening and encountering the same apparently intimidating individuals there.
Conversely, another group of judges did acknowledge the effects of sensory overload and attention difficulties in court, and the fact that factors other than intimidation might be reasons for a s 23 and s 24 application. Auditory or visual hyper/hypo sensitivities can negatively impact a VP’s ability to listen, understand and participate effectively with their trial. What might sometimes exhibit outwardly as poor behaviour and non-cooperation could actually be an indicator of sensory overload (Medical News Today, 2024).
The use of communication aids (s 30), on the other hand, e.g., visual timelines and diagrams, were considered useful universally to all groups of VPs, with many judges endorsing their use. Visuals convert the abstract spoken word to a concrete visual rendition of it, reducing the pressure on a VP’s auditory memory, assisting recall, attention and understanding (The Advocate’s Gateway, 2015). When introduced in a non-leading manner and managed carefully, judges noted that they worked well.
Noting the change in judicial directions over time is significant. Twenty years ago, special measures and accommodations for witnesses were just coming into existence. Some years later, judges began directing such adaptations for defendants and other parties. However, since then, Practice Rules and the recent judgment in West Northamptonshire Council v KA & Ors [2024] EWHC 79 (Fam) are urging judges to be more cautious.
As always, it is a balancing act, but the two key barriers appear to be financial, and for some, limited awareness of neurodiversity. Until these two factors change, we will continue to observe discrepancies.
When advocates next make an intermediary application, it would be worthwhile considering judicial views on the use of intermediaries and the recommendations they might make. Not knowing how a particular judge approaches such an application, it would be prudent to consider the above research when arguing the case and be fully prepared for a possible response.
What works in practice? Dr Tina Pereira and Professor Lucy Henry sought answers from family and criminal judges across the country...
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