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29 Feb 2020Legal updatesIntermediaries Intermediaries
Intermediaries for child defendants: How to identify whether a child defendant needs an intermediary and how to apply for one.
Published October 2020
Online content below updated March 2021
Downloadable PDF guide updated November 2021
Lawyers representing children in the criminal courts need to recognise when a child defendant may require an intermediary and know how to ensure that the child gets one.
This legal guide is to assist practitioners in identifying when an intermediary may be necessary and in navigating the legal resources and case law relevant to this often-misunderstood niche area of work.
‘Assessment by an intermediary should be considered for witnesses and defendants under 18 who seem liable to misunderstand questions or to experience difficulty expressing answers, including those who seem unlikely to be able to recognise a problematic question (such as one that is misleading or not readily understood), and those who may be reluctant to tell a questioner in a position of authority if they do not understand.’1
This guide addresses the parts of the Criminal Practice Directions (CrimPD) and the Equal Treatment Bench Book that apply when a child defendant may need the support of an intermediary. It also considers the case law relating to the use of intermediaries in the youth court, adult magistrates’ court and Crown Court.
Rules on when and how to apply for intermediary support can be found in the CrimPD. These, along with the Criminal Procedure Rules (CrimPR), are law, binding on all criminal courts.2 The CrimPD para 3E.4 emphasises that a defendant should be able to give his best evidence and para 3F deals specifically with children.
Consider getting an intermediary assessment and applying for intermediary support for a child defendant if they seem to you to:
This guide sets out the steps you need to take in order to prepare an application to the court for an order granting intermediary support. It also offers practical advice on working with intermediaries in criminal proceedings.
Intermediaries are communication specialists, often speech and language therapists. They are specially trained and qualified to facilitate communication between vulnerable defendants, complainants or other witnesses on the one hand, and the decision-makers and professionals involved in the legal process on the other.
Intermediaries are independent of the person they are assisting; their duty at all times is to the court.4
An intermediary will assess the communication ability and the needs of vulnerable defendants or witnesses, and advise lawyers and the court about how best to facilitate accurate and coherent communication with them.
Defendants have the right to a fair trial. Although the supply of intermediary support for defendants is not provided for in statute, the CrimPD and case law make it clear that intermediaries must be provided to certain defendants under the court’s inherent powers where this is necessary to ensure effective participation and a fair trial under Article 6 of the European Convention on Human Rights (see R (C) v Sevenoaks Youth Court).5
This was confirmed more recently in R (TI) v Bromley Youth Court (2020):
‘The essential point is that any defendant in any criminal proceedings must have a fair trial. Where a defendant cannot participate effectively in the proceedings, whether in whole or in part, he will not have a fair trial.’6
Defendants may need the support of an intermediary not just during the proceedings, but beforehand as the defendant’s lawyers prepare for trial. The Equal Treatment Bench Book notes ‘the vulnerable person is likely to need help not only during hearings but also away from court...’.7
The defendant must be given such help as he
To ensure a defendant gets the intermediary support that is needed, it is best to make the application to the court once there has been an assessment of needs undertaken by an intermediary as well as a mental health expert report prepared.
Funding for these assessments is likely to be required from the Legal Aid Agency (LAA) (see Funding for an Intermediary Report below). The application to court will also need to be supported by relevant evidence and submissions quoting the CrimPD, the relevant case law and the Equal Treatment Bench Book.
Technically intermediaries should be available to help facilitate communication when interviewing child suspects with speech and language difficulties at police stations. However, this is less likely to be authorised by the police as it is not a provided for in statute.
Intermediaries are available at the police station for child witnesses and complainants.9
Protection from disability discrimination could entitle a suspect to intermediary support at the police station. The chapters on children and disability in the Equal Treatment Bench Book are relevant here. See also the United Nations Convention on Rights of Persons with Disabilities. Appropriate adults and defence representatives should consider asking for an intermediary at an interview for a disabled child suspect at the police station.
Some factors to consider when assessing whether a child defendant may need the support of an intermediary include:
Make the court aware a defendant may need an intermediary as soon as you can. You may want to seek an adjournment on first appearance without the court taking a plea. To preserve a defendant’s credit for a guilty plea, you need to explain to the court that you cannot take instructions until an intermediary has assessed what type of communication support a defendant may need to effectively participate in the proceedings.
The Equal Treatment Bench Book states ‘appointments should be considered in obvious cases [such as] those in which the defendant was a young child or a person with complex problems of the sort that defendants in the reported cases have suffered from.’11
The CrimPD at 3F covers appointments of intermediaries for defendants regardless of age. Sections 3F.24 – 3F.26 of the CrimPD relate specifically to children in the criminal justice system.
Defendants have the right to a fair trial. Be prepared to argue that if your client does not have an intermediary to help them, their ability to participate will be affected.12 This concern is highlighted in R (TI) v Bromley Youth Court.
The High Court made clear in TI that for the judge to reject an application for intermediary support, the onus is on the court to explain how it will support the defendant to participate effectively at every stage of the proceedings, without the help of an intermediary:
‘...where the evidence demonstrates that the defendant lacks the capacity to participate unaided in the trial process, it is incumbent on the judge to explain how the court will enable the defendant effectively to participate in the proceedings despite that evidence.’13
The CrimPD at 3F.12 makes it clear that there is ‘no presumption that a defendant will be so assisted and, even where an intermediary would improve the trial process, appointment is not mandatory (R v Cox  EWCA Crim 549)’ and that the court ‘will rarely exercise its inherent powers to direct appointment of an intermediary’.
This addition to the CrimPD is reflected in a series of judgments that encourage restraint in the appointment of intermediaries for defendants. See R v Rashid  EWCA Crim 2, R v Biddle  EWCA Crim 86 and R v Thomas  EWCA Crim 117. However, the majority of decisions about intermediaries for defendants relate to adult defendants.
It was recognised in R (TI) v Bromley Youth Court14 that where the defendant is a child, the court has additional duties. These include considering the child’s welfare under section 44 of the Children and Young Persons Act 1933, and their best interests in reference to the United Nations Convention on the Rights of the Child (UNCRC article 3(1)) when reaching any decision.15 As Lord Steyn found in R v G,16 the UNCRC ‘imposes both procedural and substantive obligation on state parties to protect the special position of children in the criminal justice system.’
The CrimPD also states in 3F.12 ‘where a defendant is vulnerable or for some other reason experiences communication or hearing difficulties … the court should consider sympathetically any application for the defendant to be accompanied throughout the trial by a support worker or other appropriate companion who can provide that assistance.’ This is not intermediary assistance.
The CrimPD at 3F.13 states: ‘The court may exercise its inherent powers to direct appointment of an intermediary to assist a defendant giving evidence or for the entire trial’ but that ‘there is no illogicality in restricting the appointment to the defendant’s evidence (R v R  EWCA Crim 1870), when the “most pressing need” arises (OP v Secretary of State for Justice  EWHC 1944 (Admin)). Directions to appoint an intermediary for a defendant’s evidence will thus be rare, but for the entire trial extremely rare’. However, R (TI) v Bromley Youth Court provides clarification in the context of a child defendant as to how to interpret rare and extremely rare. The High Court said ‘rare’ and ‘extremely rare’ are in the context of all cases that come before the criminal courts: in that context ‘most cases will involve defendants who do not require the assistance of an intermediary. Therefore, the appointment of an intermediary will be rare. It does not follow that there is a high hurdle to overcome for the appointment of an intermediary if one is necessary for the effective participation of a defendant in the trial process.’17 The CrimPD at 3F.25 states that ‘the decision should be made on an individual basis in the context of the circumstances of the particular case’.18
Intermediaries are the communication specialists tasked with assessing functional communication needs for court. A well-documented history of a child defendant’s communication or other difficulty may be sufficient for an intermediary to undertake their assessment for the court without an additional expert report. However, in many cases, you will need to instruct a mental health expert (usually a child and adolescent forensic psychiatrist or psychologist) to do a full assessment of the defendant’s needs and write up a report. The intermediary report will be independent, objective and evidence-based. However, the courts may believe the intermediary has a vested interest in being appointed and therefore view the mental health expert report as more objective.
It is also important to note that a child psychologist may not be considered to be a medical practitioner if the report is also sought to be relied upon where fitness to plead is an issue, but their report may be the one that is most helpful to an intermediary’s assessment.
For a child defendant who has legal aid funding, a solicitor will need to obtain ‘prior authority’ from the LAA for a mental health expert to do their assessment and write their report. It may be easier to obtain funding if you have written legal advice from counsel as to why it is required. Once you have the written advice from counsel it will help to include it when submitting a CRM4 form to the LAA.19
If a child defendant does not have legal aid, expert reports will have to be paid for privately.
Once you have prior authority from the LAA, ask the mental health expert to consider:
These organisations may be able to match a child defendant with a suitable intermediary:
The court may also have a list of intermediaries that are available locally – ask the clerk, the legal adviser or the list office. The Witness Intermediary Scheme (WIS) run by the Ministry of Justice (MoJ) matches registered intermediaries (RIs) to complainants and witnesses. The WIS will not appoint intermediaries for defendants. This is despite a decision in 2010 that refusing access to the WIS to identify an RI for a defendant gives rise to an equality of arms argument and ‘a risk of unfairness or at its lowest a perceived risk of unfairness.’27
Registered Intermediaries (technically available for complainants and witnesses only)
As part of the WIS scheme, RIs are trained and accredited by the MOJ to assist complainants and witnesses who need communication support when giving evidence. They can assist both when a witness is being interviewed at the police station and/or is giving evidence in court. As mentioned above, the WIS scheme will not provide an intermediary for a defendant.
Intermediary support for vulnerable defendants is currently not provided for in statute. Intermediary support for defendants has been developed through common law case decisions, under the court’s inherent powers.28
Intermediaries who have been trained and accredited under the MOJ WIS scheme can act outside of the scheme as intermediaries for defendants. You can find out which intermediaries have been trained as RIs through organisations that provide intermediaries to defendants. The Equal Treatment Bench Book states ‘any intermediary appointed to assist a defendant is considered to be ‘non-registered’ even though the individual carrying out this role may be a Registered Intermediary in respect of witnesses.’29
For more information, contact the organisations listed in Finding an intermediary above.
Once you have found an intermediary for the defendant, you need to apply for funding again from the LAA via a CRM4 form, so the intermediary can prepare a report. You can apply to the court for the appointment of an intermediary without a report but it is likely to be harder to persuade the court that your defendant needs an intermediary.
The LAA pays for a non-registered intermediary’s assessment, report and pre-trial involvement, subject to prior authority. The intermediary’s attendance at trial, should one be appointed, is paid for by HM Courts and Tribunals Service from Central Funds.30
Prior authority from the LAA may need to be extended to cover the costs of the attendance of the intermediary while taking instructions, at conferences with counsel, at pre-trial hearings and at court familiarisation visits.
Once funding for an assessment has been granted, the intermediary will review the mental health expert’s report and any other relevant evidence, meet the defendant to assess their communication needs, and write a report on the support that is needed so the defendant can effectively participate.
Ask the intermediary to cover these points in their report:
Some intermediaries will only agree to support defendants if they can be present for the whole trial, not just the defendant’s giving of evidence. Courts have been critical of this approach and the CrimPD states at 3F.5 that in light of the scarcity of intermediaries they should be reserved for the defendants and witnesses most in need.
Intermediaries who will only act for the whole of trial believe that attending just to support with the giving of evidence
These factors could both prevent a defendant from participating effectively and affect a defendant’s ability to give a reliable account when giving evidence.
In a judicial review hearing in 2020, the High Court recognised that a defendant’s effective participation is required for the whole of a trial, finding that a situation where a defendant is unable to follow the trial proceedings without the support of an intermediary ‘is not consistent with a fair trial’.33
If the intermediary believes their attendance is needed for the whole of trial, or for the preparation of trial, to ensure a child defendant’s effective participation, the intermediary should carefully explain this in their report. In doing so, they should make clear the relevant circumstances particular to this defendant, the elements of the offence charged, and the circumstances of the particular trial.
In 2020, a decision overturning a conviction where an intermediary order was refused, the Court of Appeal stated 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.’34
When the intermediary’s report is complete, you need to apply to the court to grant the defendant intermediary support in court, if that is the recommendation. As stated above, the court can grant an intermediary for a defendant using its inherent powers (see R (C) v Sevenoaks Youth Court).8
Apply as soon as possible to put the court on notice, particularly if a defendant needs intermediary support while giving instructions or in conference with counsel. If necessary, apply for extra time for serving the defence statement or for credit to be preserved.
‘Ground rules hearings provide an opportunity to plan any adaptations to questioning and/or the conduct of the hearing that may be necessary to facilitate the evidence of a vulnerable person.’37
A GRH should take place as early as possible, ideally before the first day of the hearing,38 and the intermediary should be present if they have been granted by the court.39 The intermediary will be required to answer questions, but not take an oath, as to the recommendations in their report and their reasoning. If the court decides that limitations on questioning are necessary and appropriate, they must be clearly defined40 and the questions may be written down in advance.41
Where an intermediary is appointed, the purpose of the GRH is ’to establish how questions should be put to help the witness understand them and how the intermediary will alert the court if the witness has not understood or needs a break.’42
CrimPD 3E.2 says ’discussion of ground rules is required in all intermediary trials where they must be discussed between the judge or magistrates, advocates and intermediary before the witness gives evidence’.
GRHs are therefore mandatory in all trials using intermediaries, and constitute good practice even if an intermediary is not being used. A GRH is good practice in all cases where there is a young witness or a vulnerable defendant with communication needs41 and is also appropriate where a defendant is unrepresented.43
Failure to hold a GRH for a vulnerable defendant, where an intermediary was not present but had previously emphasised in their report that the defendant has learning disabilities, was a factor in making a finding of unsafe conviction at the Court of Appeal in R v Pringle.44
In practice, the judge can invite the advocates to share the proposed questions with the intermediary in advance of the GRH. The intermediary then reviews the questions and makes suggested changes to the language and structure as appropriate.
The Equal Treatment Bench Book states:
‘Judicial interventions in questioning can be minimised if the approach to questioning is discussed in advance at a ground rules hearing and adhered to by the advocates. It is now quite common (and expected) for advocates to be directed to disclose their proposed questions in writing to the judge in advance of the ground rules hearing. Those are then discussed at the ground rules hearing and approved or amended as appropriate.’45 These discussions should involve
The Inns of Court College of Advocacy recommends that a ‘trial practice note’ is created following the GRH, indicating the agreed ground rules and boundaries are complied with. See The Advocate’s Gateway’s – Toolkit 1 – Ground Rules Hearings.32
‘When intermediaries are appointed to facilitate communication of witnesses or defendants at Crown Court, it is customary for the judge to explain their presence to the jury. The intermediary may also be asked to explain to the jury his or her role and qualifications and the purpose of any communication aids’.46
Subject to appropriate security provisions being available, child defendants should be permitted to sit outside the dock during trial, either with family members or other suitable supporting adults and close to their legal representative.47 It is best practice for the intermediary to sit with the defendant during the trial.48
Intermediaries should highlight to the court any other steps or measures that should be taken to ensure the effective participation of the defendant. The role of the intermediary should be explained to the jury.49
Intermediaries usually stand in or near the witness box when the defendant gives evidence, but this is a matter on which the court’s direction should be sought. Intermediaries should try not to intervene if counsel’s questions or the defendant’s answers are not clear but should indicate to the trial judge that this is the case. It is then for the court to decide how the matter should be handled. The manner in which the intermediary should intervene should be agreed at the GRH.
Questioning of a defendant with communication needs can include dispensing with normal practice and allowing the judge to ‘impose restrictions on the advocate ‘putting his case’40 to enable a defendant ‘to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross examination.’40 This should have been agreed at the GRH, see Intermediaries at Ground Rules Hearing above.
Intermediaries may attend any sentencing hearing to explain the sentencing process and the sentence imposed to the defendant. Intermediaries can also assist the Youth Offending Team (YOT) or other staff with information about the defendant’s needs. Such attendance will usually be appropriate where an intermediary has been granted for the whole trial rather than for evidence only.
R (AS) v Great Yarmouth Youth Court  EWHC 2059 (Admin)
A child defendant with ADHD was refused an intermediary by the youth court. On judicial review the High Court held that ‘there is a right, which might in certain circumstances amount to a duty, to appoint a registered intermediary to assist a defendant to follow the proceedings and give evidence if without assistance he would not be able to have a fair trial’.50
R v Walls  EWCA Crim 443
Appointing an intermediary is one mechanism which enables defendants to stand trial in circumstances where they may otherwise be unable to effectively participate and the jury would have been unable to understand the defendant’s limitations.
R (OP) v the Secretary of State for Justice and others  EWHC 1944 (Admin)
The High Court found that the Secretary of State was wrong to refuse a defendant access to a registered intermediary. The Secretary of State was ordered to reconsider his decision to refuse an RI to a defendant: ‘there are likely to be two roles during a trial for which an intermediary is fitted. The first is founded in general support, reassurance and calm interpretation of unfolding events. The second requires skilled support and interpretation with the potential for intervention and on occasion suggestion to the Bench associated with the giving of the defendant’s evidence. The first is a task readily achievable by an adult with experience of life and the cast of mind apt to facilitate comprehension by a worried individual on trial. In play are understandable emotions: uncertainty,
perhaps a sense of territorial disadvantage, nervousness and agitation. The second requires developed skills of the type contemplated by inclusion in
the WIS scheme’.51
R v Pringle  EWCA Crim 172257 (relying upon R v Beards and Beards  EW Misc B143)
In certain circumstances, even if an intermediary is not ultimately used at trial, the intermediary’s report, or parts of the report, can be put before the jury.
R v Dean Thomas  EWCA Crim 117
R v Biddle  EWCA Crim 86
R v Yahya Rashid  EWCA Crim 2
R v Cox  EWCA Crim 549 – appointment of an intermediary not mandatory even if helpful.
Equal Treatment Bench Book, Judicial College, March 202052
Registered Intermediaries Procedural Guidance Manual, Ministry of Justice, 202053
Government guidance at https://www.gov.uk/guidance/ministry-of-justice-witness-intermediary-scheme
Blackstones D14.24 – 14.25 Eligibility of Defendants for an Intermediary
The Law Commission’s Unfitness to Plead review (2016) states:
‘Although intermediary assistance is not a remedy for all participation difficulties, we consider that for many defendants with significant difficulties it offers the best mechanism for facilitating their effective participation in trial’.54
The Advocate’s Gateway Toolkits:55
Written by Shauneen Lambe in collaboration with Katya Moran and Laura Cooper at the Youth Justice Legal Centre. With thanks to Kate O’Raghallaigh (Doughty Street Chambers) and Professor Laura Hoyano.
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by Paul Hastings LLP.