The Scottish Government

« Previous | Contents | Next »

Listen

CONSULTATION PAPER ON THE USE OF INTERMEDIARIES FOR VULNERABLE WITNESSES IN SCOTLAND

Introduction

1. The purpose of this consultation paper is to invite views on the use of intermediaries as a special measure for vulnerable witnesses in Scotland. To this end it firstly sets out the Scottish context for the consideration of the use of intermediaries including:

• the policy background to the Vulnerable Witnesses (Scotland) Act 2004;

• the current policies and practices of the Scottish justice system in addressing the communication needs of vulnerable witnesses;
• options for the future, and their possible implications, advantages and disadvantages.

2. The paper concludes by setting out a number of questions on which we would welcome your views. These views will be taken into account when recommendations are made to the Cabinet Secretary for Justice on how the Scottish Government might wish to proceed.

International comparisons

3. It is clear that when discussing intermediaries and their use in Scotland, many draw on the experiences of their use in other parts of the world. For this reason the paper includes an Annex which summarises how intermediaries are used in a number of comparable jurisdictions and outlines the results of a recently published evaluation of the piloting of intermediaries in England and Wales

A general definition of intermediary

4. For the purposes of this paper the following general definition of an intermediary is used:

• In general, an intermediary is a third party who may act as a go-between to facilitate communication between a vulnerable witness and the court.

The Scottish context

The Vulnerable Witnesses (Scotland) Act 2004

5. The Vulnerable Witnesses (Scotland) Act 2004 (the 2004 Act) allows for certain special measures to help provide support for 'vulnerable witnesses' when giving evidence in court. Children under the age of 16 are treated as automatically vulnerable and are therefore entitled to use 'standard' special measures (the use of a screen, a live TV link from another part of the court building, and a supporter when used with a screen or TV link). On application, a child witness may also be entitled to use a 'further' special measure (taking evidence by a commissioner, a remote TV link, a supporter alone and the use of a prior statement as evidence in chief). The 2004 Act also creates a presumption that child witnesses under 12 in certain categories of case ( e.g. murder and certain sexual offences) will not have to give evidence in the court building itself.

6. Adult witnesses may be classed as 'vulnerable' on application to the court if there is a significant risk that their evidence will be diminished by mental disorder (as defined in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003) or fear and distress in connection with giving evidence, which the court would assess according to a number of factors, such as the nature and circumstances of the offence, and the witness's age, maturity and background.

7. The 2004 Act did not specifically provide for intermediaries as a special measure, but the option to introduce other special measures such as intermediaries into the legislation was left open. The 2004 Act allows at section 271H of the Criminal Procedure (Scotland) Act 1995 for 'such other measures as the Scottish Ministers may by statutory instrument, prescribe' for the taking of evidence from vulnerable witnesses

8. On 2 December 2003 the then Deputy Minister for Justice indicated to the Justice 2 Committee that the Scottish Government was not opposed to the introduction of intermediaries in principle, but that further work needed to be done before a firm proposal could be produced to suit the needs of witnesses in Scotland. Subsequently, Ministers in the previous administration said that they would want to take into account the evaluation of the piloting of intermediaries in England and Wales as part of their consideration of their applicability in Scotland. This is now available and is summarised in the Annex.

9. Preceding the 2004 Act and its passage through parliament, the question of the use of intermediaries was raised as part of the 2002 Scottish Government consultation on how support for vulnerable witnesses might be improved - 'VITAL VOICES - Helping Vulnerable Witnesses Give Evidence'. In that consultation document, 'intermediaries' were defined very specifically as follows:

'Rather than being questioned in the traditional way by lawyers representing the parties to the case… the witness would instead be interviewed by someone with specialist qualifications or experience relevant to the witness's age or capacity… Lawyers from each side would then be able to submit questions which would then be 'translated' into language appropriate to the witness by the intermediary, with the intermediary in turn 'interpreting' the witness's answers if necessary.'

10. The resultant responses from consultees suggested that opinion on the question of intermediaries was divided.

Current Policy and Practice

11. Not only does the 2004 Act provide for certain named special measures, it also allows the court to order for such other special measures as it might find appropriate to enable a witness to give evidence. The court also has similar powers at common law and can order specialist reports about the needs of a witness and ensure that the information they receive is used properly.

12. Interpreters of languages other than English, sign language, lip-speakers and speech therapists have all been used, and the judge can re-phrase questions, or ask others to do the same, in addition to ordering time to be allowed for a child or learning-disabled witness to answer questions. A non-statutory scheme is in widespread practice whereby 'appropriate adults' (often social workers or mental health practitioners) are used to assist communication with adults (accused and witnesses) with mental health difficulties. As well as often being used during police interviews, appropriate adults are occasionally used to facilitate communication in court. In some areas of Scotland, a similar scheme using responsible adults is practiced to assist child witnesses and accused with communication.

Options for the Future

13. In considering how to proceed in relation to better meeting the communication needs of vulnerable witnesses, it is important to assess whether the current system leaves any gaps or barriers, both in the court's powers and how they work in practice. If it is considered that there are shortfalls, it then falls to consider how these can be most effectively remedied. There appear to be two main options to seek to address any shortfalls that may exist. These are:-

• work within the current legal framework, aiming to improve practice where needed;
• introduce intermediaries as a statutory special measure under the 2004 Act.

14. Each of these is taken in turn.

Work within current legal framework

15. By clarifying or enhancing what is currently available under Scots law, there are various options that may assist with addressing the needs of those vulnerable witnesses who require additional assistance to ensure that they are able to communicate effectively with the court and vice versa. These options may include:

• Production and promotion of further or revised guidance materials and more systematic training for the legal profession, and other practitioners on identifying and responding to the special needs of certain categories of witnesses by using an equivalent of 'intermediaries' within the current framework of Scots law. This could include the establishment of accredited panels of practitioners to act in cases with child witnesses and, where appropriate, adult vulnerable witnesses, ensuring that they have successfully completed appropriate training.
• Production of Code(s) of Practice or other non-statutory standards/guidelines to cover the use of, for example, speech therapists, communication experts, communication aids and interpreters for those involved in providing services to children and adult vulnerable witnesses . Guidelines might include clarification on the role and duties of someone who is expected to provide an expert report to inform the use of measures (special or otherwise) or to assist a witness with communication difficulties giving evidence in court.

• Greater awareness and use of appropriate adults or other communication experts in court.

16. Some, or all, of these options could be taken up, whilst leaving the door open to review progress later when the full effects of the implementation of the 2004 Act, along with the reforms of solemn and summary justice are known. A possible advantage is that this approach would not restrict the use or categorisation of the use of 'intermediaries' to any statutory regime, and may facilitate more flexibility over use, administration and funding.

17. However lack of statutory provision may be perceived as failing to give sufficient impetus to communicating effectively with children and adults with communication difficulties and may result in less consistent use.

Introduce Intermediaries as an additional statutory special measure under the Vulnerable Witnesses (Scotland) Act 2004

18. It would, of course, be possible to introduce the use of an intermediary as an additional special measure under the 2004 Act by means of a statutory instrument approved by a resolution of the Scottish Parliament.

19. In doing so, it would be necessary to define the function, role and remit of the intermediary, as well as the types of witness and circumstances in which it might be available. The overview of the use of intermediaries in other jurisdictions shows that no two models are the same (see Annex). Within the statutory option, there is also the possibility of testing the introduction of intermediaries initially by way of a pilot scheme, only in certain court jurisdictions, along similar lines to the pilot in England and Wales (see Annex).

20. There is an argument that the introduction of a specific legislative provision would push forward the improved awareness of and cultural change towards vulnerable witnesses being sought within the justice system and put the use of intermediaries in the same legislative context as other special measures available under the 2004 Act.

21. However, a counter-argument might be that despite best intentions, a legislative provision may create a more restrictive and formal regime as opposed to the open-ended nature of what might be made available under common law and existing legislation.

22. This view might add that there is a risk that the introduction of intermediaries as a statutory special measure may not address the concerns raised about poor questioning of children and other vulnerable witnesses. It may imply a 'get out clause' for raising the standard of questioning witnesses in court by practitioners and may create confusion between the responsibilities of the various parties in court.

23. If intermediaries were introduced as a special measure under the 2004 Act, consideration would have to be given as to whether this would be as a 'standard' special measure for children (or at least those under a certain age) without the requirement for their use as a special measure to be justified by an assessment of the individual child and/ or the factors present in the individual case.

24. However, the appointment of an intermediary as a standard special measure for giving evidence without any assessment of the child's needs may result in an intermediary working with a child with little or no knowledge of that child's needs. The manner of questioning of the child by the lawyers, and the judge's overall control of the process, might also suffer as a result of lack of knowledge of the child's individual needs.

25. Witness 'initiative overload' could be one of the disadvantages of introducing an additional special measure without the benefit of a full assessment of the impact of existing special measures and other reforms in the criminal justice system, so it could be argued that there are sound policy reasons for awaiting this information to inform fully the consideration of introducing intermediaries as a special measure.

Conclusion

26. Assessment of how best to address the communication needs of vulnerable witnesses in the context of the Scottish justice system gives rise to a number of questions for consideration. Your answers to the questions below will help inform our recommendations to the Cabinet Secretary for Justice and Communities on how the Scottish Government might wish to proceed.

Annex

INTERMEDIARIES IN OTHER JURISDICTIONS

England and Wales - summary of evaluation of intermediary pathfinder projects

1. The Youth Justice and Criminal Evidence Act 1999 covering England and Wales made available a range of special measures to help vulnerable witnesses give their best evidence. Amongst those is the use of an intermediary to assist with communication by explaining questions and answers between the court (or interviewer at the investigative stage) and the witness where a witness is under 17, is an adult whose quality of evidence is likely to be affected by a mental disorder, impairment of intelligence and social functioning, or has a physical disorder or disability. Although there should be an automatic initial assessment of a child witness's need for an intermediary, the use of an intermediary as a special measure is based on the (child or adult) witness's needs and is not automatic. Since 2004 this special measure has been piloted in 6 pathfinder areas.

2. The findings of the evaluation of the English projects, 'The Go-Between: evaluation of intermediary pathfinder projects' (Plotnikoff and Wolfson, June 2007) can be summarised as follows:

• Implementation suffered initially from insufficient national and local leadership across criminal justice organisations.
• Few problems were encountered with recruitment, although when matching intermediaries to witness need, some gaps in the range of skills in the intermediary pool were identified.
• Adults accounted for 61 per cent of appointments and children 39 per cent; where grounds were provided, and taking into account witnesses eligible on several grounds, most appointments (57%) concerned witnesses with significant impairment of intelligence and social functioning, followed by 35 per cent suffering from a mental disability or disorder. Only 14 per cent were considered eligible due to age alone, even though children are the largest potential eligible group.
• It was not possible to state what influence, if any, intermediaries had on case outcomes. However, criminal justice participants considered that, in their opinion, at least half of the trial cases would not have reached the trial stage without the intermediary's involvement.
• In qualitative interviews, practitioners stated their belief that intermediaries' contribution at the investigative interview was greatest where they had adequate time for witness assessment and for assisting the police in planning. Contributions at trial were linked by respondents to pre-trial planning and agreed ground rules governing questioning by advocates and the intermediary role.
• The number of requests for intermediaries was lower than expected. Challenges to wider use of intermediaries included: poor levels of awareness; misinterpretation of eligibility criteria (particularly in relation to young witnesses); overestimating advocates' competence; and underestimating the extent of communication difficulties.
• The pathfinder projects indicated positive contributions of the intermediary special measure in providing vulnerable witnesses with access to justice and to furthering the government's objectives for the criminal justice system.
• However, operational difficulties and cultural resistance were identified among some in the criminal justice system. The report suggested that positive action will be required to meet these challenges and that if the intermediary special measure can be made to work well for witnesses with communication needs, this will assist in raising standards for all witnesses and the justice system as a whole will benefit.

3. In their report Plotnikoff and Wolfson concluded that the intermediary scheme should be introduced nationally across England and Wales over a two year transitional period, with national roll-out completed no later than the end of the first year and individual case costs borne centrally at least until the end of the second year.

4. By the end of the evaluation, it was not possible to forecast the eventual level of demand for intermediaries. In addition, insufficient information had emerged to propose a strategy to improve identification of eligible witnesses and challenge cultural resistance to the scheme.

5. Following on from the report, the Ministry for Justice has confirmed that the recommendations in the published evaluation have been broadly accepted and that intermediaries will be rolled-out across England and Wales, but it is presently awaiting approval on the detail of a roll out schedule.

6. Although the pathfinder projects in England and Wales provide a useful example of how intermediaries might operate, they are also available, or have been considered, in a number of other similar jurisdictions and provide helpful comparators.

South Africa

7. Intermediaries are only available to under 18s and it is only the questions to the witness, not the witness's answers, that the intermediary normally 'translates'. The witness will only hear the intermediary's questions, not those of the lawyers. The statutory criteria for appointment of an intermediary are: 'Whenever criminal proceedings are pending before any court and it appears to such court that it would expose any witness under the age of eighteen years to undue mental stress or suffering if he testifies at such proceedings, the court may… appoint a competent person as an intermediary in order to enable such witness to give his evidence through that intermediary.'

New South Wales, Australia

8. The Sexual Offences Bill, which came into force on 1 January 2007, contains a provision for the use of an intermediary for a witness who has a communication deficit, but only where the person uses an intermediary on a daily basis in order to communicate. Aside from this provision, there is no specific allowance for an intermediary, although the Vulnerable Witnesses Bill (debated in April 2007) allows for a support person to be present for children and 'intellectually impaired' persons, and the support person may act as an interpreter, for the purpose of assisting with any difficulty in giving evidence associated with an impairment or disability.

Western Australia

9. There is provision made by the Acts of Amendment (Evidence of Children and Others) Act 1992 for intermediaries, but with the sole purpose of preventing an unrepresented accused in a criminal trial from directly cross-examining a witness under 16 years of age, or a 'special witness (one who is likely to suffer severe emotional trauma; or to be so intimidated or distressed as to be unable to give evidence satisfactorily). In which case the questions will instead be put throughan intermediary. There is also provision for 'child communicators', that is, suitably qualified persons from whom counsel may seek assistance in communicating with a child witness who may have difficulty in understanding questions or framing answers which satisfy the questioner. This provision has very rarely been used and there is no recognised training course for child communicators.

South Australia

10. There is a general statutory power allowing the taking of evidence of any witness, in any proceedings, using special arrangements 'to protect the witness from embarrassment or distress, or from being intimidated by the atmosphere of the courtroom, or for any other proper reason.' Making specific allowance for an intermediary has been considered and deemed unnecessary.

Republic of Ireland

11. The Criminal Evidence Act 1999 allows for questions to be put through an intermediary for witnesses under 17 in certain types of case, if the court is satisfied that 'having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put through the witness be put through an intermediary'. However, in practice this provision is never used and does not feature in the Public Information Materials on special measures issued in Ireland.

« Previous | Contents | Next »