‘I was flying blind a wee bit’: Professionals’ perspectives on challenges facing communication assistance in the New Zealand youth justice system

Article
The International Journal of
Evidence & Proof
‘I was flying blind a wee bit’:
2020, Vol. 24(2) 104–120
ª The Author(s) 2019
Professionals’ perspectives on
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challenges facing communication
DOI: 10.1177/1365712719877893
journals.sagepub.com/home/epj
assistance in the New Zealand
youth justice system
Kelly Howard
The University of Auckland, Auckland, New Zealand
Clare McCann
The University of Auckland, Auckland, New Zealand
Margaret Dudley
The University of Auckland, Auckland, New Zealand
Abstract
Communication assistance is a form of specialist support for witnesses and defendants in justice
settings who have been identified as having communication difficulties. This relatively new role in
New Zealand is modelled on the role of the intermediary in England and Wales. This research
provides a qualitative analysis of professionals’ perspectives (n ¼ 28 participants) on the chal-
lenges of communication assistance for young people facing criminal charges in the New Zealand
youth justice system. The findings of this study do not question whether or not communication
assistance should exist, but rather how it might best function in practice. The overall implications
are that more education and guidance for youth justice professionals is needed.
Keywords
Communication assistance, defendant, Evidence Act, family group conference, intermediaries,
vulnerable, youth justice
Introduction
Communication assistance is a form of specialist support for witnesses and defendants who have been
identified as having communication difficulties, and is modelled on the role of the intermediary in
England and Wales (Henderson, 2016). The study presented here is a response to Cooper and Mattison’s
Corresponding author:
Kelly Howard, The University of Auckland, Private Bag 92019, Auckland, 1142, New Zealand.
E-mail: kelly.howard@auckland.ac.nz

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Howard et al.
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(2017) call for more research into the role of the intermediary in jurisdictions outside England and
Wales. Northern Ireland, New South Wales (NSW), Australia and NZ have all adopted intermediary type
roles based on the England/Wales intermediary (see Cooper and Mattison, 2017 for an overview), but
very little has been written to date about the intermediary roles that have developed in these three
jurisdictions.
Communication assistance: A brief overview
The history of communication assistance and what it may entail in the NZ criminal justice system have
been written about elsewhere (Henderson and Bonetti, 2018; Howard, McCann and Dudley, 2019b). In
essence, it is one-on-one assistance for a witness or defendant in justice processes based on specialist
assessment and recommendations. Assistance is provided if a witness or defendant has insufficient
proficiency in the English language or a communication disability which has an impact on their ability
to sufficiently give evidence; or, in the case of a defendant, sufficiently understand proceedings (ss 4, 80
and 81 Evidence Act 2006). Recommendations typically include the simplification of language, the use
of visual aids, tools to minimise stress and anxiety and/or changes to the environment such as different
seating arrangements or taking breaks (Bonetti and Henderson, 2018; Howard et al, 2019b). In the case
of a witness, the communication assistant is typically present at court to alert the judge if the witness is
having difficulty understanding what is being said. If the judge directs, the communication assistant can
also explain or put questions directly to the witness. In the case of a defendant, the communication
assistant is typically present in court to facilitate the defendant’s understanding of proceedings in real
time and during breaks. Communication assistance can also occur pre-trial, for example to assist counsel
to take instructions or to enable a defendant to understand charges.
Communication assistance in NZ, like its counterpart in England and Wales, arose out of concern for
the treatment of and evidence given by vulnerable witnesses in the adult jurisdiction, especially child
witnesses in sexual offence cases (for a discussion of these concerns see, for example, Davies et al, 2011;
Hanna et al, 2010; Ministry of Justice, 2010; New Zealand Law Commission, 1996, 2012). The first NZ
court case to utilise a communication assistant was R v Hetherington [2015] NZCA 248) (with the
original trial decision being in 2012). The complainant in this case was a young girl with Down
syndrome (13 at the time of the alleged sexual and violent offences). The use of communication
assistance for vulnerable witnesses has grown in NZ since this time. Since December 2016, for example,
the need to consider communication assistance for witnesses has been included in best practice guide-
lines for a sexual violence court pilot (Ministry of Justice, 2019b). During the pilot, communication
assistance was increasingly utilised as stakeholders become more aware of its existence and potential
benefits (Ministry of Justice, 2019b).
Communication assistance has not only been utilised for vulnerable witnesses in NZ, but also for
defendants in both the adult and youth jurisdiction. Overall however, it is still considered ‘rather
novel’ in the NZ justice system (R v Aitchison [2017] NZHC 3222 at [1]). There is a small, but
growing, body of case law on communication assistance in NZ (for an overview, see Henderson and
Bonetti, 2018) and it is referred to in a handful of policy documents (Ministry of Justice, 2019b; New
Zealand Law Commission, 2018, 2019). Otherwise, very little has been published on communication
assistance in NZ to date.
It is important to note that, unlike its counterparts in England, Wales, NSW and Northern Ireland,
communication assistance in NZ has not been a government initiative, rolled out pursuant to the
successful findings of a pilot (for details of the pilots in other jurisdictions see Cashmore et al, 2017;
Cashmore and Shackel, 2018; Department of Justice (Northern Ireland), 2015, 2016). It has been a
bottom-up initiative led by professionals with knowledge and experience of the England/Wales inter-
mediary and utilising existing sections of a piece of legislation (ss 4, 80 and 81 of the Evidence Act
2006) that were drafted widely enough to allow its inclusion.

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The International Journal of Evidence & Proof 24(2)
Communication assistance in the youth jurisdiction
One area in which communication assistance has particularly flourished in NZ is in the youth jurisdic-
tion. Communication assistance for young people who offend in NZ shares its core with the England/
Wales intermediary model, but the way it looks and functions in practice is different. One of the key
differences is that it did not develop out of concern for obtaining best evidence, but out of concern for the
high prevalence of communication difficulties in young people who offend. Most young people who
offend in NZ do not give evidence. The NZ youth justice system prioritises low level responses to youth
offending and aims to keep young people out of the formal court system where possible. Communication
assistants have had a role to play when young people appear in court, but have also been involved in
earlier stages of the youth justice system such as in meetings with lawyers and in Family Group
Conferences (FGCs). The FGC represents a lower-level response to youth offending; a more informal
decision-making forum that involves a number of people, including relevant professionals, the young
person, their family and often the victim (Henwood and Stratford, 2014).
Challenges facing the intermediary role in practice
The challenges facing the intermediary role in practice have been most extensively written about in
relation to the England/Wales intermediary, as the forefather of the intermediary models in other
jurisdictions (Cooper and Wurtzel, 2013; Henderson, 2015; Plotnikoff and Woolfson, 2006; Plotnikoff
and Woolfson, 2015; Victims’ Commissioner for England and Wales, 2018). Henderson (2015) found
that criticisms tended to relate to how the system in England and Wales was functioning in practice,
rather than whether intermediaries should exist in the first place. The main criticism was that there were
too few referrals and that too few eligible witnesses were being identified. At times, professionals also
considered that intermediaries were being engaged unnecessarily. Another criticism was that interme-
diaries did not intervene enough during the questioning and cross-examination of witnesses by counsel.
The disparity between the intermediary systems for witnesses versus defendants was also raised as a
concern. In England and Wales, there exists a regulated system for witness intermediaries and an
unregulated, ad hoc system for defendant intermediaries (Cooper and Wurtzel, 2013; Hoyano and
Rafferty, 2017).
Similar research to Henderson (2015) has yet to be conducted in Northern Ireland or NSW. However,
as Cooper and Mattison (2017: 366) state, ‘there is clearly scope for it’. Both the scheme in Northern
Ireland and NSW were subject to pilots before being rolled out in their respective jurisdictions (Cash-
more et al, 2017; Cashmore and Shackel, 2018; Department of Justice (Northern Ireland), 2015, 2016).
While evaluating a version of the same role in a different jurisdiction, both pilot evaluations reported
positive findings. Any criticism was in relation to how the system might best function in practice. In
Northern Ireland, for example, the main challenge related to referral...