Intermediaries, vulnerable people and the quality of evidence
| Author | Michelle Mattison,Penny Cooper |
| DOI | 10.1177/1365712717725534 |
| Published date | 01 October 2017 |
| Date | 01 October 2017 |
| Subject Matter | Articles |
Article
Intermediaries, vulnerable
people and the quality of
evidence: An international
comparison of three versions of
the English intermediary model
Penny Cooper
Birkbeck University of London, London, UK; 39 Essex Chambers, London, UK
Michelle Mattison
Department of Psychology, University of Chester, Chester, UK
Abstract
Since 2004, witness intermediaries have been utilised across the justice system in England and
Wales. Two witness intermediary schemes based on the English model have also been
introduced in Northern Ireland (2013), and more recently, in New South Wales, Australia
(2016). The purpose of the intermediary in these jurisdictions is to facilitate the questioning of
vulnerable witnesses, but there are clear differences in the application of the role. This paper
presents the first comparative review of the three related intermediary models, and highlights
the pressing need for further research into the efficacy and development of the role in practice.
Keywords
cross-examination, evidence, ground rules hearings, intermediary, vulnerable witness
Introduction
The trial process must, of course, and increasingly has, catered for the needs of child witnesses, as indeed it
has increasingly catered for the use of adult witnesses whose evidence in former years would not have been
heard, by, for example, the now well understood and valuable use of intermediaries.
1
Corresponding author:
Penny Cooper, Birkbeck University of London, ICPR, 42 Store Street, London WC1E 7DB, UK and 39 Essex Chambers,
London, UK.
E-mail: penny.cooper@39essex.com
1. Lord Judge, the Lord Chief Justice of England Wales, in RvB[2010] EWCA Crim 4, para 42.
The International Journalof
Evidence & Proof
2017, Vol. 21(4) 351–370
ªThe Author(s) 2017
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DOI: 10.1177/1365712717725534
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In 2010 in a landmark Court of Appeal (England and Wales) judgment about the questioning of
vulnerable witnesses, the Lord Chief Justice of England and Wales highlighted the role of the witness
intermediary. In England and Wales the intermediary was first used in the criminal justice system in
2004. Witness intermediaries are now utilised across the justice system in England and Wales. Witness
intermediary schemes based on the English model have also been introduced in Northern Ireland since
2013 and, more recently, in New South Wales, Australia since 2016. Across all three jurisdictions, the
purpose of the witness intermediary is to facilitate communication with, and specifically the questioning
of, vulnerable people. Despite having a shared purpose and origin, there are marked yet unexplored
differences in the ways that the intermediary schemes operate. This article analyses the origins of the
role, compares the intermediary roles in these three jurisdictions, and considers the impact of research on
the evolution and future development of the role.
‘Interlocutor’ to ‘intermediary’: The origins of the intermediary role
in England and Wales, Northern Ireland and NSW, Australia
In 1989, the Pigot Report
2
(Pigot) envisaged exceptional cases where the court could order ‘that
questions advocates wish to put to a child should be relayed through a person approved by the court
who enjoys the child’s confidence’ (Home Office, 1989: Summary of Recommendations, para. 6). Pigot
referred to this person as the ‘interlocutor’ and recommended:
2.32 ...the judge’s discretion ...should extend where necessary to allowing the relaying of questions from
counsel through the paediatrician, child psychiatrist, social worker or person who enjoys the child’s confi-
dence. In these circumstances nobody except for the trusted party would be visible to the child, although
everyone with an interest would be able to communicate, indirectly, though the interlocutor.
2.33 We recognise that this would be a substantial change and we realise that there will be unease at the
prospect of interposing a third party between advocate and witness. Clearly, some of the advocate’s forensic
skills, timing, intonation and the rest would be lost, and it is of course possible that a child might be confused
by being subjected to testing questioning from someone regarded as a friend (Home Office, 1989: paras 2.32
and 2.33).
The Pigot ‘interlocutor’ role for child witnesses was not implemented. However, something similar
was considered in Speaking up for Justice.
3
The role was referred to as a ‘communicator or intermediary’
(Home Office, 1998: 59, Recommendations 47 and 48) and was being contemplated to assist vulnerable
adults as well as children:
...while measures are in place to assist child witnesses, many adult victims and witnesses find the criminal
justice system daunting and stressful, particularly those who are vulnerable because of personal circumstan-
ces ...Another area of concern relates to people with learning disabilities. (Home Office, 1998: 1)
Speaking up for Justice noted ‘The Western Australia Experience’, where legislation had already
given the court discretion to appoint a communicator for a child under 16 to explain questions to the
child and explain the evidence given by the child, though the role was still at that time ‘unexplored’
(Home Office, 1998: 58). The report acknowledged that the new role might be similar to that of an
interpreter and might ‘involve the intermediary/communicator putting supplementary questions to the
witness’ (Home Office, 1998: 59). Speaking up for Just ice noted the danger that a communicator/
2. Home Office (1989). Note that the Chairman of the Advisory Group was His Honour Judge Thomas Pigot QC, hence the report
became known as The Pigot Report or Pigot for short.
3. Home Office (1998). The report was subtitled the ‘Report of the Interdepartmental Working Group on the Treatment of
Vulnerable or Intimidated Witnesses in the Criminal Justice System’.
352 The International Journal of Evidence & Proof 21(4)
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