‘I am not beholden to anyone… I consider myself to be an officer of the court’: A comparison of the intermediary role in England and Wales and Northern Ireland

AuthorJohn Taggart
Published date01 April 2021
Date01 April 2021
DOIhttp://doi.org/10.1177/13657127211002291
Subject MatterArticles
Article
‘I am not beholden to anyone ... I
consider myself to be an officer of
the court’: A comparison of the
intermediary role in England and
Wales and Northern Ireland
John Taggart
The London School of Economics and Political Science, London, UK
Abstract
Intermediaries were first introduced by the Youth Justice and Criminal Evidence Act (1999)
to facilitate communication between individuals with communication needs and the criminal
justice system. Yet, despite increased academic attention into this new criminal justice actor,
the content of the role remains unclear. Findings from 31 interviews with intermediaries in
England and Wales and Northern Ireland as wellasjudgesinNorthernIrelandindicatethat
two distinct systems of intermediaries have emerged between the jurisdictions. The picture
is complicated by an inequality in intermediary provision between witnesses and defendants.
In England and Wales, the statutory intermediary scheme covers only witnesses whereas the
‘unitary’ system in Northern Ireland covers both witnesses and defendants. Drawing on
the data collected, this article highlights key themes which underpin differences in inter-
mediary practice and suggests that lessons can be learned in how we conceptualise the role
and its work.
Keywords
effective participation, impartiality, intermediaries, special measures, vulnerability
Introduction
Described as ‘little short of revolutionary’ (Henderson, 2015: 155), the intermediary role has become an
integral part of the criminal justice system (Plotnikoff and Woolfson, 2015: 14). As one of the special
measures contained within the Youth Justice and Criminal Evidence Act 1999 (YJCEA), the intermedi-
ary has effected a ‘culture change’ (Cooper and Norton, 2017: 364) in the treatment of vulnerable
witnesses. The role exists to facilitate communication between individuals with communication needs
Corresponding author:
John Taggart, The London School of Economics and Political Science, Houghton Street, WC2A 2AE, London, UK.
E-mail: j.taggart@lse.ac.uk
The International Journalof
Evidence & Proof
2021, Vol. 25(2) 141–162
ªThe Author(s) 2021
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DOI: 10.1177/13657127211002291
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and the criminal justice system.
1
Yet, differences in how the role has been conceptualised have been
largely overlooked. For example, in the case of RvGrant Murray a divide between intermediary and
judicial conceptualisation of the role was apparent. It was contended that an intermediary assisting a
defendant had been ‘undermined and undervalued’ and treated as an ‘enemy of the court’ at trial.
2
The
Court of Appeal recognised that while intermediaries ‘provide a very useful service to the court’ they are
‘not to dictate to anyone what is to happen’ and are appointed to provide assistance ‘as directed by the
judge’.
3
The intermediary’s relative status within the criminal trial has also raised questions. In both Rv
Boxer
4
and RvBeards and Beards,
5
intermediaries were allowed to provide expert evidence on the
communication needs of vulnerable individuals. As is noted by the Advocate’s Gateway and the Crim-
inal Practice Directions 2015, this is contrary to good practice if the intermediary is at the same time
acting in his/her intermediary role.
6
It is recognised that intermediaries cannot operate effectively
without the confidence of other criminal justice actors which requires a degree of consensus as to the
role’s status and function (Plotnikoff and Woolfson, 2019: 17).
This article focuses on two similar intermediary schemes which operate in Northern Ireland and
England and Wales. It reflects on the conclusion reached by Cooper and Wurtzel (2014: 60) that
Northern Ireland could benefit from the ‘springboard’ of the intermediary experience in England and
Wales which was established ten years prior. By focusing on intermediary practice in both jurisdictions,
this article seizes the opportunity to examine the intermediary’s work by looking at key themes that
colour, shape and ultimately complicate this new role within the criminal justice system. It presents the
findings of an empirical, socio-legal enquiry based on 31 interviews with practising intermediaries in
England and Wales and Northern Ireland as well as members of the judiciary of Northern Ireland. While
research into intermediaries is increasing, this project is the first to explore understandings and perspec-
tives of practitioners in seeking to understand the role’s content. The findings, which relate to the role’s
neutrality, duration of appointment and cohesion/identity, support the conclusion that commonly recog-
nised features of ‘intermediary work’ obscure more nuanced differences in how the role is executed.
Crucially, how intermediaries are organised and overseen significantly impacts how the role is con-
ceptualised by those who perform it. This should cause us to reflect on where this new role fits into the
wider setting of the criminal justice system. By clarifying the role of the intermediary, this piece
contributes towards a better understanding of the social relationships in which it engages and lays a
foundation for further empirical work to be carried out. It is concluded that the ‘unitary’ system of
intermediaries in Northern Ireland, which sees provision of intermediaries to both witnesses and defen-
dants, could bring many benefits if implemented in England and Wales.
Background
The Witness Intermediary Scheme (WIS) was first piloted by the Home Office in England and Wales in
2004 and implemented the intermediary special measure contained in s. 29 of the Youth Justice and
Criminal Evidence Act 1999 (YJCEA). Section 29 outlines the intermediary’s function:
(2) The function of an intermediary is to communicate—
(a) to the witness, questions put to the witness, and
1. Criminal Practice Directions 2015 [2015] EWCA Crim 1567, 3F.1.
2. RvGrant Murray & Anor [2017] EWCA Crim 1228 [196].
3. Ibid. at [199].
4. [2015] EWCA Crim 1684.
5. [2016] EW Misc B14 (CC).
6. The Advocates Gateway, Cases: www.theadvocatesgateway.org/cases; Criminal Practice Directions [2015] EWCA Crim 1567,
3D.7.
142 The International Journal of Evidence & Proof 25(2)

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