The amended Criminal Practice Directions 2015 (in force on 4 April 2016) contain a revised practice direction on the appointment and use of intermediaries during criminal trials (para 3F). The new practice direction has attracted criticism because it suggests intermediaries for defendants will be ‘rare’.
Details
The Criminal Procedure (Amendment) Rules 2016 came into force on 4 April 2016. On the same day the amendments to the Criminal Practice Directions 2015 and to the Practice Direction (Costs in Criminal Proceedings) came into force.
The amendments to the 2015 Criminal Practice Directions1 include a replacement practice direction on intermediaries2. The revised practice direction contains a considerable shift in emphasis in relation to the recommended use of defence intermediaries:
- ‘In light of the scarcity of intermediaries, the appropriateness of assessment must be decided with care to ensure their availability for those witnesses and defendants who are most in need.’ [para 3F.5]
- ‘The court should adapt the trial process to address a defendant’s communication needs (R v Cox [2012] EWCA Crim 549) and will rarely exercise its inherent powers to direct appointment of an intermediary.’ [para 3F.12]
- ‘Directions to appoint an intermediary for a defendant’s evidence will thus be rare, but for the entire trial extremely rare.’ [para 3F.13]
- ‘Directions for intermediaries to help defendants may be ineffective due to general unavailability, lack of suitable expertise, or non‐availability for the purpose directed (for example, where the direction is for assistance during evidence, but an intermediary will only accept appointment for the entire trial).’ [para 3F.19]
- ‘A trial will not be rendered unfair because a direction to appoint an intermediary for the defendant is ineffective.’ [para 3F.20]
- ‘..the appropriateness of an intermediary assessment for witnesses and defendants under 18 must be decided with care.'[para 3F.25]
For child defendants an assessment by an intermediary should always be a consideration given the high proportion of child defendants with recognised communication needs. As the revised Criminal Practice Direction sets out –
- ‘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.'[para 3F.26]
The amended Criminal Practice Directions [2015] EWCA Crim 1567 consolidated Amendment No. 1 to the Criminal Practice Directions 2015 [2016] EWCA Crim 97.
Commentary
The amended Criminal Practice Direction (CPD) suggests the use of intermediaries should be discouraged for defendants. This does not reflect any legislative change or guidance in recent case law.
Practitioners should be aware of case law and guidance on the use of intermediaries for vulnerable defendants. See for example the guidance in the Equal Treatment Benchbook, November 2013 (paragraph 79). Also, the case of R v Walls [2011] EWCA Crim 443 makes it plain that the appointment of an intermediary is one mechanism which allows defendants to stand trial in circumstances where they may otherwise be unable to effectively participate and where the jury may not otherwise understand the defendant’s limitations.
Other cases include:
- R v H [2003] EWCA Crim 1208
- R(D) v Camberwell Green Youth Court [2005] UKHL 4
- R(TP) v West London Youth Court [2005] EWHC 2583 (Admin)
- R (AS) v Great Yarmouth Youth Court [2011] EWHC 2059 (Admin)
The Criminal Bar Association (CBA) has requested practitioners to share their experience of defendants who have been badly disadvantaged by the Court’s failure to appoint an intermediary, read more.
- Criminal Practice Directions 2015 Amendment No 1 [2016] EWCA Crim 97 (back)
- CPD I General Matters 3F: INTERMEDIARIES (back)