Vulnerable defendants must be afforded the same protection in court as witnesses, according to a new High Court ruling. The case (OP v Secretary of State for Justice) concerned a young man with Asperger’s Syndrome on trial for dishonestly receiving a stolen car.
The Court ordered that he be helped by an intermediary under the ‘registered intermediary’ scheme on the advice of a psychiatrist and psychologist. The Youth Justice and Criminal Evidence Act 1999, section 29 allows a court to order an intermediary defined as ‘a person who facilitates two way communication between the vulnerable witness and the other participants in the legal process’ to ensure that their communication is as ‘complete, accurate and coherent as possible’. The Ministry of Justice runs the Witness Intermediary Scheme comprising a register of intermediaries. The 1999 Act does not cover defendants. A criminal court may order that an intermediary be appointed to work with a defendant, victim, or witness.
Lady Justice Rafferty in the High Curt set aside the MoJ’s refusal to provide a registered intermediary.
‘We are not reassured that an arguable inequality of arms has not been revealed by a review of the legal framework and supporting information in this case. In any event there is either a risk of unfairness or at its lowest a perceived risk of unfairness. At the point, should he elect so to do, at which he goes into the witness box, the system in place should offer the claimant the best opportunity to do himself justice. A moment’s reflection shows why. The scheme as currently operated would allow a witness for the Crown to be supported by a registered intermediary but the defendant against whom he gave evidence denied one under the same scheme. The intelligent observer would be puzzled by why that were so.’
Lady Justice Rafferty
The charity Just for Kids Law intervened in the case. ‘This decision will provide vulnerable children and young people who go through the criminal courts equal access to the government’s intermediary scheme. Evidence shows that 60% of them have a communication disability, and a third have special educational needs,’ director Shauneen Lambe commented. ‘In Northern Ireland data shows that nearly 60% of people who require intermediary assistance are children.’ Whilst welcoming the court’s ruling, Lambe argued that many vulnerable defendants needed professional communication support throughout the trial. ‘Unlike witnesses, defendants have to understand and participate in the whole of the trial and many need a properly trained and regulated intermediary for the entire court process.’
‘Vulnerable defendants of course have different and often longer needs than witnesses. Witnesses only need communication help when they give their evidence or look at their own statement. Defendants are involved in the whole trial. They have a right to be able to effectively participate in their trial and that includes: understanding the evidence against them, understanding the court proceedings, understanding and being able to put forward a defence to the lawyers and challenge the evidence against them, and being able to give evidence on their own behalf if they wish (they also need to understand the decision as to whether or not to give evidence).’
For some vulnerable defendants with communication difficulties an intermediary was needed ‘not just for the giving of evidence but also for understanding the evidence and the case against them’, she added.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award