Intermediaries are communication specialists who 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.
The intermediary role was introduced by section 29 of the Youth Justice and Criminal Evidence Act 1999 which provides for the examination of an eligible witness in criminal proceedings (other than a defendant) to be conducted through an intermediary. The provision of intermediaries to vulnerable defendants has been extended by the courts through their own inherent powers, and is not embodied in legislation. The Witness Intermediary Scheme (WIS) was rolled out nationally in 2008 by the Ministry of Justice (MoJ) to match registered intermediaries (RIs) to complainants and witnesses. The WIS will not appoint intermediaries for defendants.
In the MoJ’s 2019/2020 Annual Report on the WIS, the scheme was considered to be a vital service which advances equal access to justice across England and Wales: “an asset to the criminal justice system”. The MoJ’s management of the WIS has been guided by three core principles for 2019/2020: (i) strategically increasing WIS capacity; (ii) strengthening governance; and (iii) increasing RI involvement in decision-making. The MoJ is also undertaking a review of intermediary provision across the justice system in order to better understand the use, scope, quality, regulation and means of providing intermediaries with a view to making recommendations about the future of intermediary provision. However, questions continue to be asked as to whether by denying vulnerable defendants access to the WIS, the MoJ is denying equality of arms to defendants who would benefit from the expertise and guidance of a communication specialist in presenting their evidence and in ensuring effective participation in proceedings in order to receive a fair trial.
As part of its ongoing commitment to transparency of the WIS, the MoJ now produces annual reports which set out its analysis of the operation and performance of the WIS for that year. The 2019/2020 report was published in September 2020, and the performance analysis notes that the overall number of requests for RI assistance has increased by 10% since 2018/2019. RI assistance has been used in over 6700 cases this year; more than half of which concerned children (some 69%). Of all requests for RIs in 2019/2020, 35% were made for children without concurrent vulnerabilities (i.e. their sole vulnerability is being under the age of 18), making it the most frequently cited vulnerability. This was followed by requests for children with learning disabilities (22%), children with a mental disorder (4%) and children with physical disabilities (1%).
Police forces make up the substantial majority of requests (84.4%) with the CPS accounting for 15.6% of requests. Of all 6,907 requests for assistance, 91.8% of the requests fell into the ‘Victims’ category, with the remaining 8.2% being for ‘Prosecution Witnesses’.
The WIS will not appoint intermediaries for defendants, 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’ (see R (OP) v Secretary of State for Justice and others  EWHC 1944 (Admin)). The 2019/2020 annual report reveals the overall success and use of the scheme for victims and witnesses, and it would undoubtedly be a resource of great use to vulnerable defendants. However, the 2019/2020 Report does not suggest that the scheme will be so extended in the near future.
Of the developments in the WIS scheme set out in the 2019/2020 Report, the MoJ has been working on six measures to support its central objective of providing access to justice for vulnerable victims and witnesses, namely:
- increasing WIS capacity – demand for RI assistance from the police and CPS has increased substantially and the MoJ has responded with three recruitment rounds to meet this demand;
- increasing transparency – through the publishing of annual reports and through the review of the RI Procedural Guidance Manual on an annual basis with input from the RIs that use it;
- recruiting more accredited RIs – responsibility for recruitment and training has been transferred to the Witness Intermediary Team (WIT) (part of the National Crime Agency) and from April 2020 the WIT will plan and implement recruitment schemes based on their independent analysis of skill sets and demand;
- improving governance – a refresh of the role played by the Quality Assurance Board, which has oversight over all RIs, introduced several new policies including fitness to practice, sanctions and complaints policies;
- implementing a skills based recruitment strategy – concentrating recruitment efforts on specialist skills where there is evidence of need for additional RIs (such as mental health disorders) meaning that more victims and witnesses can be assigned an RI with the right skills to assist them; and
- providing more roles for experienced RIs – providing opportunities for RIs to become involved in corporate activities delegated by MoJ and involving them in the governance of the WIS (its policies and guidance) and with training and recruitment.
The MoJ perceives that the WIS scheme has been highly successful in respect of witnesses and complainants. However, the report is silent on expanding the scheme to defendants.
The 2019/2020 report concludes by setting out the MoJ’s aims going forward, namely to: (i) enhance quality assurance; (ii) meet rising demand; (iii) complete a review of intermediary provision across the justice system to understand the use, scope, quality, regulation and means of providing intermediaries with a view to make recommendations about the future of intermediary provision (due to be completed in late 2020); and (iv) develop more senior RI roles.
Although providing intermediary support for defendants is not in force in statute, case law makes it clear that intermediaries must be provided to certain defendants under the court’s inherent powers where 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  EWHC 3088 (Admin)).
It is hoped that the MoJ’s planned review of the intermediary provision across the justice system will include a detailed consideration of whether it is appropriate to extend the WIS to vulnerable child defendants, who would benefit immensely from the expertise of RIs in navigating the justice system. However, there is no express indication from the MoJ to date that it will do so.