Whether a defendant requires the assistance of an intermediary depends upon the complexity of the proceedings he or she faces, as well as the defendant’s particular needs. In this particular case the absence of an intermediary had not prevented the appellant’s effective participation.
The appellant’s car hit a cyclist on a roundabout, who later died from his injuries. Tests at the police station revealed high levels of the drug produced when the body metabolises cocaine in the appellant’s blood. During police interview, the appellant said he had not seen the cyclist, he had looked both ways before entering the roundabout but the sun had been in his eyes and his driving had not been affected by drugs. The main issue at trial was whether the collision was the fault of the appellant. He was convicted of causing death by careless driving whilst over the prescribed limit.
At a pre-trial review the defence applied for an intermediary to assist the appellant, relying upon the contents of a report from a psychologist and intermediary, the latter of whom concluded it was ‘essential’ for the appellant to be so assisted. The application was refused. By the day of trial, a psychiatrist had also assessed the appellant and concluded that given his very low IQ, he was unfit to stand trial unless assisted by an intermediary. The judge ordered the appellant was permitted an intermediary, if he chose to give evidence and one was available but would not grant from the court’s inherent powers. The judge therefore refused to fund the intermediary from the court’s central funds ruling it was a matter for the legal aid agencies and inappropriate in the circumstances for the court to do so. . The defence were unable to secure funding in the time and the appellant did not give evidence.
The Court of Appeal undertook a review of the authorities and the guidance in the Criminal Practice Directions. Observing that ‘The experience of the courts as reflected in the Practice Direction is, therefore, that there will be cases when the needs of the defendant and the circumstances of the trial will be such that an intermediary will be required for the entire trial, whilst in others, notwithstanding the defendant’s difficulties, a fair trial can be secured without the appointment of an intermediary for any stage of the proceedings. There are of course other variations coming somewhere between these two extremes. An intermediary may only be necessary for a particular part or for particular parts of the trial process, such as the defendant’s evidence.
The Court of Appeal found, ‘intermediaries are not to be appointed on a “just-in-case” basis’  but ‘because there are compelling reasons […] it being clear that all other adaptations to the trial process will not sufficiently meet the defendant’s needs to ensure he or she can effectively participate in the trial’ . Noting that criminal proceedings vary in complexity and the appointment of an intermediary is a ‘fact-sensitive decisions that call for not only an assessment of the relevant circumstances of the defendant, but also the circumstances of the particular trial.’
Dismissing the appeal, the Court of Appeal held that in this case an intermediary was not necessary to enable this particular appellant to give evidence: ‘the issues he needed to address were notably straightforward and were relatively few in number […] with clear, precise questioning and with appropriate breaks [the issues] could have been addressed successfully without the assistance of an intermediary’ .
The Court of Appeal undertook a review of the authorities to highlight that the appointment of an intermediary is a fact sensitive decision based on the individual defendant and the particulars of the case they are facing. ‘Criminal cases vary infinitely in factual complexity, legal and procedural difficulty, and length. Intermediaries should not be appointed as a matter of routine trial management, but instead because there are compelling reasons for taking this step, it being clear that all other adaptations to the trial process will not sufficiently meet the defendant’s needs to ensure he or she can effectively participate in the trial.’
The trial judge in this case permitted the appellant the assistance of an intermediary for the giving of his evidence had the defence been able to secure funding either themselves or from the legal aid agency but did not grant under it’s inherent powers. This approach leads to a funding difficulty given the funding position set out in the Criminal Practice Direction at 3F.16 where the legal aid agency grants prior authority for the pre-trial assessment of a publicly funded defendant but sets out the payment for the attendance of the intermediary at court are the responsibility of court staff from Central Funds, when granted under the court’s inherent jurisdiction.
Arrangements for funding intermediaries for defendants depend on the stage of the appointment process. Where the defendant is publicly funded, an application should be made to the Legal Aid Agency for prior authority to fund a pre-trial assessment. If the application is refused, an application may be made to the court to use its inherent powers to direct a pre-trial assessment and funding thereof. Where the court uses its inherent powers to direct assistance by an intermediary at trial (during evidence or for the entire trial), court staff are responsible for arranging payment from Central Funds. Internal guidance for court staff is in Guidance for HMCTS Staff: Registered and Non-Registered Intermediaries for Vulnerable Defendants and Non-Vulnerable Defence and Prosecution Witnesses (Her Majesty’s Courts and Tribunals Service, 2014).
Written by Ruth Broadbent of QEB Hollis Whiteman Chambers and Shauneen Lambe in collaboration with YJLC