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Court in the storm



When the rape of a Manchester woman with learning difficulties came to trial in 2012, everything hinged on her memories of the ordeal.

In the cold light of the courtroom, under intense scrutiny from the defence barrister, her muddled mind began letting her down. Timelines became skewed, details foggy and responses inconsistent. Yet somewhere inside was the now proven truth about the cruel attack she endured.

Enter Louise Sheffeld, a registered intermediary, accredited by the Ministry of Justice (MoJ) to support vulnerable witnesses. “A man she knew had been to her at in the afternoon, with his dog,” she says.

“He’d sat outside drinking cider and she was inside, talking to him through an open door. He returned that evening when it was dark without his dog, went into her at and sexually assaulted her.

“The barrister was flitting between the afternoon and the evening and I could see she was getting really mixed up. She couldn’t tell the difference between which event he was
talking about.

“I intervened and spoke to the judge, and then the jury stepped out. I asked if I could use a different approach to help her understand exactly what she was being asked.”

An intermediary is an impartial servant of the court whose role is to ensure children and vulnerable adults are able to give coherent and accurate evidence.

In this instance, Louise explained the four facts from the afternoon – the man, dog, cider and sunshine – to the woman and wrote them on a piece of paper. On a separate sheet, she wrote the evening’s key words; dark and man. The sheets were placed at opposite ends of a table.

Every time the barrister referred to a time period, Louise made an exaggerated hand movement to draw attention to the relevant piece of paper.

“From that point on her evidence was crystal clear, consistent and utterly compelling. She knew exactly where his hands had been and how her clothes had been taken off and could describe the assault in vivid detail. The jury took two hours to convict the man.”

Intermediaries for vulnerable adults – including those with brain injuries – are currently only the right of witnesses in a criminal court. Much to Louise’s concern, criminal court defendants and vulnerable adults in civil courts are not entitled to intermediaries.

“People with acquired brain injury are statistically more likely to be the victim of a crime, but also to be accused and convicted of crimes, so we need intermediaries all round.”

Hate crimes in England and Wales against people with disabilities surged by 45 per cent to 3,629 in 2015/16.

Meanwhile, disproportionate amount of brain injured people in the prison system is well documented.

Various studies put the proportion of adult prisoners with a history of traumatic brain injury as high as 60 per cent. Neutral intermediaries on either side of the courtroom divide are therefore needed, says Louise.

As one of the first cohort of intermediaries trained in 2004 following legislative changes, she has seen many examples of the power of the role to ensure trials are fair.

“Most intermediaries are speech and language therapists or occupational therapists like me. Some are also teachers and social workers. We bring together legal training with our understanding of communication.

“A barrister might have a series of ‘do you’ questions, for example. If they’re reeled off one after the other, a vulnerable person might develop a pattern and say ‘yes’ even if that’s not what they mean. That’s the type of questioning we’d intervene on.”

Intermediaries are strictly impartial and must never talk about the details of the case with their client beforehand. They do take them through a courtroom familiarisation process and look to eradicate anxiety where possible.

While access to intermediary services is limited by a current lack of legislation, there are signs that things could change.

“The Coroners and Justice Act 2009 mentions intermediaries for vulnerable defendants. But this section of the legislation has never been enacted. It’s written about in the law but has never been rolled out.”

Recently published Criminal Practice Directions (CPDs) – supplemental protocols to court procedures – also reference intermediaries for defendants. So far, however, Louise believes current guidelines fall short. Although intermediaries are not a right for defendants, access to them is increasingly being gained via the Human Rights Act.

 But a CPD introduced last year stated that only in exceptional circumstances should a defendant have an intermediary throughout a trial.

“This in itself is a problem. You have a brain injured defendant sitting in the dock. He sees the backs of the barristers’ and solicitors’ heads and the judge and the jury.

“He might have six weeks of evidence, with different witnesses coming in and out and all of this information to take on board. Then he goes to give his evidence. He might not have a clue what’s going on and could be so easily led.

“Having an intermediary there while he’s giving evidence is better than nothing, but what about the weeks leading up to it when he’s been sitting listening to stuff that he’s not understood – stuff that he’ll be cross-examined on?”

The reason for this apparent unfairness in the criminal justice system is obvious to Louise: “To be really cynical, I think it’s a financial argument. The MoJ has trained intermediaries for vulnerable witnesses, not defendants. So, it would have to fund the training to meet a sudden rise in demand.

“Currently there are only about 120 registered intermediaries in England, Wales and Northern Ireland. That’s 120 people for every child and vulnerable adult involved in a crime.”

The average cost of intermediary assignments could also spiral: “An intermediary for a witness will do a half-day assessment, then write a report, which is another half a day.
A witness will then give evidence over a day or two.

“A defendant’s trial could last six weeks, so the costs of providing an intermediary for a defendant and a witness are poles apart. It’s not fair for vulnerable defendants but it’s cheaper.”

The push to get a fairer deal for vulnerable people in the courts system is also hindered by good, but misplaced, intentions by judges.

Various training courses are available to the judiciary in how to better understand the challenges faced by people with brain injuries.

“This can be a double-edged sword. We find that when an intermediary request comes through, judges that have been through that training will think ‘it’s okay, I’ve done the training, I can handle this’.”

Such training may be adequate in explaining the basics, says Louise. They will learn to give the vulnerable person frequent breaks and to avoid pre-ambles like ‘I put it to you that’ in questioning. Yet it is not detailed enough to explain the many nuances of eliciting factual information from vulnerable people.

“For example, tag questions – where a statement is made to set the scene, followed by a question – are generally avoided because they are seen as leading you to a certain answer. Actually, tag questions can be helpful if handled correctly.

“When the delivery is properly paced, slowly, with pauses, it helps the person to become orientated and delivers the question in chunks. That would be something like, ‘you live in London (pause), with your daughter (pause), what is her name?’

“The danger with a bit of training is that it covers things with a broad brush. There have been three-year-olds cross-examined in the Old Bailey after intermediaries were refused because the judges said they’d done the training. The transcripts are shocking.”

The case for intermediaries in the criminal justice system is also muddied by misconceptions about appropriate adults.

“I feel really passionately that case managers and therapists working with people with acquired brain injury should know about intermediaries.

“I’m also a case manager and have used intermediaries four or five times when my clients have been arrested or in danger of it. I’ve been told so many times by case managers that ‘we’re just going to get an appropriate adult instead’.

“They do a good job but are not trained communication specialists. They are concerned with the general wellbeing and rights of the individual; have they been to the toilet, had regular breaks or been offered a phone call? They are not focused on how questions are being posed.”

In the civil courts, a number of factors are conspiring to create demand for intermediaries; although, to date, only one civil case involving an intermediary has made it to court.

That was in January 2016, with Louise supporting a vulnerable claimant. She has had a further seven written reports accepted by civil judges on cases that have been settled before trial.

The new discount rate could play its part in bringing more intermediaries into civil courts. When victims of life-changing injuries accept lump sum compensation, the amount they receive is adjusted according to the interest they can expect to earn by investing it.

Courts apply a calculation called the discount rate – with the percentage linked to returns on the lowest risk investments, typically Index Linked Gilts. In March this year, this rate was lowered from 2.5 per cent to minus 0.75 per cent.

Compensation pay- outs will rise as a result. With more to fight for, defendant and claimant teams will potentially be looking to bolster their armoury with the use
of intermediaries.

“I think it’s likely that we’ll see more defendants pushing aggressively to hear what the claimant has to say. In the civil case I was involved in, the defendant wanted the claimant on the stand as they thought he was making his story up and wanted to expose him as a fraud.

“We need more claimant solicitors to ask for intermediaries and to see putting the claimant on the stand as an option, rather than a risk.

“Currently many solicitors see it as being far too dangerous. They need to know that it can be done safely and fairly.

“I think we will see the emergence of more specially-trained civil court intermediaries in the future. They would need to be very knowledgeable about the civil litigation process and understand the objectives of different parts of the case, but I think it will gradually happen.”

Louise also envisages a role for intermediaries in other courtroom processes: “In future intermediaries could possibly facilitate expert witness assessments with the claimant. Often the experts for the claimant and defendant will get very different results, for obvious reasons. Perhaps an intermediary could ensure these assessments are fair.”

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