Stakeholders' perceptions of the benefit of introducing an Australian intermediary system for vulnerable witnesses
| Author | Phoebe Bowden,Michelle Mattison,Martine B Powell |
| Date | 01 December 2015 |
| Published date | 01 December 2015 |
| DOI | 10.1177/0004865814543391 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2015, Vol. 48(4) 498–512
Stakeholders’ perceptions
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of the benefit of introducing
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DOI: 10.1177/0004865814543391
an Australian intermediary
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system for vulnerable witnesses
Martine B Powell
Deakin University, Australia
Phoebe Bowden
Deakin University, Australia
Michelle Mattison
Lancaster University, UK
Abstract
Vulnerable witnesses (e.g. children and adults with communication impairment) face many
barriers to testifying and achieving justice when participating in the criminal justice system. To
date, reforms have been implemented in Australia to address these, yet the barriers remain.
Several other countries have implemented an intermediary scheme, whereby an independent
third party assists vulnerable witnesses to understand the questions and processes encoun-
tered during interviews and trials, and helps witnesses to be understood. This study provides
a qualitative analysis of stakeholders’ (N ¼ 25 professionals) perceptions regarding the poten-
tial benefits of implementing an intermediary scheme in Australia. While all participants
demonstrated an open-minded attitude to new reform in this area, their perspectives did
not support the introduction of an intermediary scheme at this time. Stakeholders highlighted
the need for improved use and effectiveness of current measures, and expressed concern
about adding further complication to the system.
Keywords
Intermediaries, intermediary scheme, investigative interviewing, special measures, vulnerable,
witnesses
Vulnerable witnesses, such as children or people with a physical, cognitive, social or
communication impairment, face many barriers when accessing the criminal
justice system. These difficulties have been well-articulated in previous research.
Corresponding author:
Martine Powell, School of Psychology, Deakin University, 221 Burwood Hwy, Burwood 3125, Australia.
Email: martine.powell@deakin.edu.au
Powell et al.
499
Specifically, children and other vulnerable witnesses may struggle to understand the
police interview or courtroom processes (Leggett, Goodman, & Dinani, 2007). Deficits
in expressive or receptive language, attention and memory may impact a witness’ ability
to answer questions, or they may be unable to give complete testimony due to anxiety
(Leggett et al., 2007), inappropriate or complicated questioning (Cederborg, Hultman,
& La Rooy, 2012; Cederborg & Lamb, 2007; Cossins, 2009) or delay between the alleged
incident and testifying (Davies, Henderson, & Hanna, 2010). Equally, police officers and
prosecutors may underestimate the ability of vulnerable witnesses to provide credible
testimony, leading them to abandon cases rather than proceed to prosecution
(Gudjonsson, Murphy, & Clare, 2000; Keilty & Connelly, 2001). For those cases that
make it to court, juries may have unfair perceptions of the witness or their testimony,
ultimately reducing the likelihood of conviction (Davies et al., 2010; Stobbs & Kebbell,
2003; Sumner-Armstrong & Newcombe, 2007). Furthermore, it is well established that
current judicial processes can be stressful for children and other vulnerable witnesses,
thereby negatively impacting their ability to answer questions (Cossins, 2006; Davies,
Devere, & Verbitsky, 2004; Davies et al., 2010; Goodman et al., 1992; Hoyano, 2007;
Leggett et al., 2007; Powell, 2005).
Over the years, a range of special measures have been implemented in Australia to try
and address the barriers faced by vulnerable witnesses when engaging in the criminal
justice system. Many of these reforms have focused on minimising the amount of time
that a witness spends in the courtroom, such as the introduction of legislation no longer
requiring child witnesses to testify at committal hearings, and allowing vulnerable wit-
nesses to provide pre-recorded evidence, or to testify via closed-circuit television, rather
than face-to-face (Richards, 2009). Further measures to reduce the trauma experienced
by child witnesses include modifying the courtroom environment to make it less intimi-
dating (for example, by placing a screen between the complainant and the suspect,
requesting that the judiciary remove their wigs and gowns, and clearing the public
gallery during a child’s testimony), and restricting the rights of the accused to personally
cross-examine child witnesses (Richards, 2009). Reforms have also led to improved
investigative interview techniques, new offence categories for cases where a child witness
has difficulty particularising multiple offences, and the establishment of specialist sexual
assault jurisdictions (Richards, 2009) and ‘one-stop-shop’ multi-agency sexual offence
response centres (Powell & Cauchi, 2013).
Recent reforms in the area of child and vulnerable witness testimony have been
instrumental in reducing the stress and trauma experienced by this witness group, and
thus increased their ability to provide testimony and answer questions reliably
(Cashmore & Trimboli, 2005; Richards, 2009). However, even these special measures
have not entirely removed the barriers faced by vulnerable witnesses (Eastwood &
Patton, 2002; Richards, 2009). Individuals with intellectual impairments and mental
health disorders are under-represented in the criminal justice system (Attorney-
General’s Department, 2013; McCausland, Baldry, Johnson, & Cohen, 2013).
A recent report has highlighted that witnesses with communication and cognitive impair-
ments still face an inability to access the support and communication aids needed to
provide testimony (Australian Human Rights Commission, 2013). The report also high-
lighted negative assumptions about the admissibility of witness testimony and a lack of
provision of specialist support for those considered unfit to testify. The impact of these
500
Australian & New Zealand Journal of Criminology 48(4)
remaining barriers is evidenced by the fact that there are poorer justice outcomes for
crimes against children and other vulnerable witnesses (Australian Human Rights
Commission, 2014; Richards, 2009).
One way of addressing the barriers to testimony still faced by vulnerable witnesses is
to introduce a third party, referred to as an ‘intermediary,’ to the justice system.
Intermediary schemes exist in a number of countries (Hanna, Davies, Henderson, &
Hand, 2013), but have not yet been introduced in Australia. Broadly speaking, the
intended role of intermediaries is to facilitate effective communication between vulner-
able witnesses and the people they encounter in the criminal justice system without a
diminution in defendants’ right to a fair trial (The Rt. Hon. The Lord Judge, Lord Chief
Justice of England and Wales, 2012). There are many ways intermediaries potentially do
this. For example, they may communicate to the witness questions that are put to them
during an investigative interview or cross-examination in court, or request that questions
be rephrased so that they can be adequately comprehended by the witness.
Intermediaries may also help the witness to understand the complicated judicial process
itself and become familiarised with the procedures and setting. Intermediaries may brief
interviewing officers or the court on the witness’ specific needs and limitations prior to
the interview or trial, and suggest ways to maximise the witness’ ability to provide
accurate testimony and minimise his or her anxiety and trauma. Finally, intermediaries
may assist investigating officers and the court to understand the witness’ responses to
questions, such as in the instance of witnesses with a speech impediment, language
deficit, or alternative means of communication such a communication board. The fun-
damental role of the intermediary is to assist the criminal justice system. Despite working
closely with witnesses, the police and the judiciary, intermediaries act as a neutral party
and their paramount duty is to the court (Victims and Witnesses Unit, Ministry of
Justice, 2012).
Intermediary schemes have been introduced to the process of interviewing and exam-
ination in several countries including England and Wales (Youth Justice and Criminal
Evidence Act, 1999), South Africa (Criminal Procedure Act, 1977), Israel (Law of
Evidence Revision, 1955) and some Scandinavian countries (Myklebust, 2012). There
are a range of models for the use of intermediaries, and their role during interviews or
trials vary.
In South Africa, an intermediary does not intervene in questioning, and works in a
similar way to an interpreter, listening to questions from prosecution and defence
through an earpiece before translating them into language that is appropriate for the
witness (Criminal Procedure Act, 1977). The aim is to reduce miscommunication by
translating questions (Matthias & Zaal, 2011). The South African scheme has won
praise and importantly, has been ruled to not undermine the fairness of the trial
(DPP (Transvaal) v Minister of Justice and Constitutional Development [2009] 4 SA
222; Davies et al., 2010, p. 356; Matthias & Zaal, 2011, p. 267). The intermediary is
usually a social worker (Coughlan & Jarman, 2002). Since its introduction in 1993, the
South African intermediary system has not overcome several hurdles including lengthy
delays, insufficient training to achieve consistency and recruitment and retainment pro-
blems (Matthias & Zaal, 2011, p. 181).
In England and Wales, intermediaries undergo a stringent recruitment process and an
intensive one-week training...
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