Joanne Eley explores how intermediaries can and should be used when a defendant is not of adult age or capacity

The voice of the child in the Criminal Justice System.

Children should be enabled (legally empowered) to play active roles before, during and after Judicial proceedings.

Children in the criminal justice system present with a higher rate of learning disabilities, PTSD, ADHD, speech, language and communication needs and learning disabilities, along with language disorders.  A child has distinct vulnerabilities, greater developmental needs and evolving capacities.  Many live in chaotic and dysfunctional households.

A criminal court is an intimidating place for an adult charged with a serious crime, but imagine being a child defendant facing the prospect of a trial in a criminal court.

The child is told that the prosecution witnesses will be eligible for special measures on the grounds of age or incapacity, but what does that mean?  It means, those meeting the criteria under section 16 of the Youth Justice and Criminal Evidence Act 1999 are entitled to a range of measures to make them feel more comfortable when giving evidence before the court.  In many cases some may be entitled to be assisted by a Registered Intermediary to facilitate communication and reduce their stress and anxiety about giving evidence.

However, there are no such statutory measures available to the child defendant. There is a complete absence of statutory provisions when it comes to the child defendant.

Section 16 specifically excludes ‘the accused’.

Section 104 of the Coroners and Justice Act 2009, creates a new section 33 BA of the Youth Justice and Criminal Evidence Act 1999 ‘examination of the accused through Intermediary’ to assist the young/child defendant, the criteria differs to the criteria for witnesses under section 16, and only applies to measures during the giving of evidence.  Section (5) provides; Where the accused is aged under 18 when the application is made the condition is that the accused’s ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by the accused’s level of intellectual ability or social functioning.

The provisions of the 2009 Act marked ‘prospective’ and are still yet to be implemented.  So where does that leave the vulnerable child defendant?

The UN Committee Rights of a Child General Comment No.24 Children’s Rights in the Child Justice System 2019, sets out the following; proceedings need conducting in an atmosphere of understanding to allow the child to participate.

All courts rely on spoken instructions, this requires a young person to understand the basics of linguistic communication.  Many children with vulnerabilities present with a greater risk of suggestibility and can be over compliant, given their inadequate communication and language skills.  An Intermediary is therefore an important resource to mediate the power between the state and the child.

The trial process is of course able to use its inherent jurisdiction to authorise special measures for a young defendant, and allow the appointment of an approved, although NOT registered Intermediary.  The defendant does not have the same rights of access to those operating as Registered intermediaries; for the young defendant an approved intermediary has to be identified. Even where an Intermediary can be found, such Intermediaries assist the child defendant in an unregistered capacity.  They can therefore act without minimum qualifications, without the guidance of a code of practice, continuing professional development or complaints procedure to ensure a minimum level of competence.

The court has a duty under the inherent powers and the Criminal Procedure Rules to take whatever steps necessary to secure a fair trial, it is important to bear in mind that youth court proceedings are by their nature adapted to accommodate the participation needs of young defendants, simplified language is used, proceedings are closed to the general public, and the defendant sits in the well of the court with a parent or guardian. However, there are young defendants who have more substantial participation needs, there are also proceedings in the crown court requiring more adjustment by a young defendant.

The case of C v. Sevenoaks Youth Court [2009] EWHC 3088 (Admin) – confirmed the use of Intermediaries in the Youth Court, to help “C” a 12 year old boy with complex mental health issues, to prepare for the trial in advance of the hearing, and during the trial so he may effectively participate in the trial process.   The Court of Appeal Criminal Division also recognised the decision in R v H 2003 EWCA Crim 1209, that the courts have an inherent right, indeed a duty, to appoint an Intermediary to help a defendant follow the proceedings and to give evidence, if without such assistance he would not be able to have a fair trial.

There are clear risks to a young and vulnerable defendant of not having a fair trial without the assistance of an intermediary. There are no statutory presumptions that the defendant is to be assisted by an Intermediary, even if it assists the trial process, the appointment is not mandatory… this was clearly demonstrated in OP v Secretary of State for Justice [2014] EWHC 1944 (Admin). Directions to appoint an intermediary for a defendant’s evidence will be rare, but for the entire trial extremely rare…’

Paragraphs 3F.11-18 of the Criminal Practice Directions deal with the position of intermediaries for defendants in general. Paragraph 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. Terms of appointment are for the court and there is no illogicality in restricting the appointment to the defendant’s evidence (R v R [2015] EWCA Crim 1870), when the ‘most pressing need’ arises.

In R (AS) v Great Yarmouth [2011] EWHC 2059 (Admin) the court’s decision to refuse an Intermediary for a youth was quashed. The issue was not whether he had the ability to communicate to the court but rather that he should be able to give his best evidence.

TI v Bromley Youth Court [2020] EWHC 1204 (Admin) is a recent decision on the way in which a court should approach the appointment of an intermediary.  It considers the decision of the Divisional Court in which a District Judge’s decision not to grant an intermediary to a 14 year-old boy with learning difficulties facing trial in the youth court was quashed by the High Court, who have ordered the appointment of an intermediary for the entirety of his trial. There are a number of principles that arise from the judgment:

• a decision whether or not to grant an intermediary must be made on a case by case basis.
• Whilst there is reference to such appointments being ‘rare’ in the Criminal Practice Directions, that does not equate with their being a high threshold for such appointments, at para 39: ‘the District Judge’s reference to the bar being a high one is not obviously consistent with the application of careful scrutiny to the particular circumstances of the claimant in order to decide whether an intermediary was necessary’.
• The court confirmed that the relevant principles are set out in the Criminal Procedure Rules and Practice Directions 2020 part 18, and refer to those specific to intermediaries for child defendants (Criminal Practice Direction 3F.24-26). The judgment throughout emphasises the need for individualised assessment in each case.
• The court confirmed the need for a defendant to participate throughout the entirety of the trial, and not just the giving of evidence. Whilst it does not follow that this will lead to the appointment of an intermediary for the whole trial in every case, it is important that judges consider carefully whether or not an individual can participate throughout the 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.

An application for an Intermediary must be made in writing as soon as practicable, and in any event, not more than 20 business days after a not guilty plea in the Magistrates Court or 120 business days after a not guilty plea in the Crown Court. Rule 18.15 of the Criminal Procedure Rules 2020, deals specifically with the content of the application for a defendant’s evidence direction, reference is made to s33A and section 33BA of the Youth Justice and Criminal Evidence Act 199, however section 33BA is not yet in force.