We are delighted to welcome this guest post from John Taggart. John is currently completing his barrister pupillage in The Bar Library in Belfast.
Since the promulgation of The Youth Justice and Criminal Evidence Act 1999 certain witnesses have been recognised as ‘vulnerable’ thus making them ‘eligible for assistance on the grounds of age or incapacity’ (Section 16). A range of measures were included in the legislation in a bid to create an atmosphere in court which could ultimately be more conductive to the needs of particularly vulnerable witnesses. Among the most utilised in both England & Wales and Northern Ireland have been the use of evidence by live link, screening of the witness from the accused and the more esoteric removal of wigs and gowns from counsel. However, perhaps the most interesting (and challenging) aspect of this support for practitioners has been s.29 of the Act which specifically provides for ´examination of witness through intermediary´ whose role is squarely placed within the traditionally adversarial system of courtroom advocacy. In 2003 The Home Office began the recruitment of a cohort of ´registered intermediaries´ who could demonstrate special skills in communication to facilitate those who have significant communication difficulties. Over ten years has now passed since s.29 came into effect with a plethora of research looking at its impact of the accused, the victim and the public, known as a ´triangulation of interests´. True to form, Northern Ireland has taken that big longer to align itself with legislative developments and on 13th May 2013 the DOJ announced an 18 month pilot scheme using intermediaries in Crown Courts. A number of cases which have utilised the intermediary scheme demonstrate both the advantages and complications with the special measure and should be considered when it is decided how the scheme is to be fully implemented.
Whilst Northern Ireland is indeed a number of years behind in relation to the intermediary scheme, the concept of a pilot scheme with a view to full implementation is not without precedent. In 2004 in England and Wales the Witness Intermediary Scheme (WIS) was created and helped significantly in the existing scheme´s implementation through the knowledge gained and lessons learned. What became abundantly clear through that transition process and indeed similar experiences in Australia and New Zealand was that irrespective of the time and effort dedicated to the training of intermediaries, the courses had to be delivered prior to anyone seeing how it would actually work in practice. Indeed, this was a problem which Plotnikoff and Wolfsson similarly recognised in their evaluation of the scheme in 2013. To a large extent Northern Ireland is in a much more advantageous position since how intermediaries ´work in practice´ can already be seen from the examples from England and Wales. A principle factor in the imperative that registered intermediaries are sufficiently trained is due to the ´assessment report´ which each must compile containing guidance on how to best meet the witness´s specific communication needs. Moreover, as opposed to being a supporter or a witness profiler an intermediary can assist the court by flagging up individual witness issues and suggesting the best means of ameliorating them. A poignant example of this was highlighted recently by David Wurtzel of City Law School, London when providing guidance on how the new system could be best implemented in Northern Ireland. He cited an English case in which such was the intermediary´s knowledge and awareness of a five-year old child´s communication difficulties that he recommended that the barrister actually conduct his cross examination face-to-face in the live link room. To everyone´s knowledge this was an unprecedented move, but the method was hugely successful and conveys how an intimate knowledge of a particular witness´s needs can illicit the best quality evidence. Without the obvious skills developed in the intermediary´s training it is axiomatic that the child´s evidence would have been greatly devalued.
Extent of the role on an intermediary
The specific provision for the special measure of an intermediary is provided for in Art.17 of Criminal Evidence (Northern Ireland) Order 1999. What is clear is that the Northern Ireland legislation intended to impose the same limitations on intermediaries which is ´to assist communication and understanding´ and nothing further. The imperative that this function of the intermediary is tightly worded is understandable and the New Zealand Law Commission similarly proscribed that intermediaries ´cannot change the substance or meaning of evidence or questions´. One recommendation suggested in the Australian intermediary process consultation was that the role of the intermediary could be to ´advise´ the judge on the appropriateness questioning and even suggest rephrasing. However, the intention behind the England & Wales and Northern Ireland system is clear: the intermediary is nothing more than an assister. Indeed, what has been termed a ´Ground Rules Hearing´ is a necessity under the system whereby prior to the witness giving evidence the trial judge and advocates all come to a common understanding on all matters concerning the intermediary´s involvement. The case of R v Edwards (2011) is a good depiction of the importance of such a hearing as the judge made it clear to defence counsel that his ´traditional form of cross-examination´ was not appropriate and so the judge took control of the proceedings and used the pre-hearing meeting for its intended purpose.
Despite the greatest intentions that the substance and style of advocacy would remain unaffected, perhaps unsurprisingly there have been cases in which the lines between an assister and a disruption have become blurred. Wurtzel suggests that a proactive intermediary who can suggest alternatives and intervene to ensure proper communication is congruous with the legislation, but one must surely question how the art form of advocacy and the ´flow of questioning´ can be threatened by an intermediary. The 2013 of R v Bridger which saw the conviction of Mark Bridger for the egregious killing of the five-year old April Jones saw the use of a number of special measures for the crucial evidence of a seven-year old girl . The removal of wigs and gowns and evidence by video-link was accompanied by regular breaks every fifteen minutes to ensure that the witness did not ´tire or lose concentration´. There can be no question that generating an atmosphere that achieves the best evidence from such a young witness is desirable. However, the utilisation of an intermediary in the case caused genuine concern. It was felt, by some, that far from simply assisting the witness with her evidence that the intermediary acted ultra vires and exceeded the powers bestowed upon them to merely assist communication. Consequently, defence counsel in the case had an extremely difficult time in illiciting the information he sought as a direct consequence of the intermediary going over and above their actual role in the case. Whilst cross examination of a child witness necessarily requires a less adversarial, more cooperative style of advocacy it was clear that at times the intervention of the intermediary went as far as to reformulate the substance of questions which invariably contributed to a distorted and ultimately less effective line of questioning. The overarching question for the interests of justice must be: was the best quality evidence adduced? If the answer is in the negative then serious doubts must be raised over the effectiveness of intermediaries in such situations.
Whether the experiences of the Bridger case have been encountered elsewhere is unclear. In relation to developments in the area of intermediaries there are a number of question marks which hang over their use as a special measure. Whilst there was a comprehensive training scheme implemented in England & Wales prior to the introduction of intermediaries, perhaps lessons such as that from R v Bridger should require a reflection on how intermediaries have actually worked in practice. The recent Northern Irish case of R v Axon (unreported) was the first in the jurisdiction to utilise a registered intermediary and whilst their presence may well have been reassuring for the young witness involved, the intermediary was almost completely silent and unrequired throughout the cross-examinaton. This, of course, is no indictment on the use of an intermediary in the case but instead demonstrates the varying degrees of involvement which will be required of an intermediary depending on the case, the witness and the particular circumstances.
Intermediaries in Northern Ireland: Future developments
There can be no doubt that special measures have the ability to create an atmosphere to improve the quality of evidence heard in court. There can also be little doubt that intermediaries, used properly, can enable witnesses who ordinarily may be completely incapable of giving evidence, to do so. The format of the registered intermediary scheme in Northern Ireland is likely to closely match that in England & Wales including the need for a ´Ground Rules´ meeting and the comprehensive training of all intermediaries. How the objectives of adequately supporting a vulnerable witness and preserving the traditional flow of advocacy in court can be achieved is a very difficult question indeed. The role of the judge in achieving the optimum balance is surely an important one and their role in setting the tone of the trial and examination of witnesses should not be underestimated. Quite aside from the necessary training for intermediaries themselves, there is significant merit in the case for comprehensive training for the judiciary as to their role in the implementation of the special measure.
´Achieving best evidence´ is undoubtedly one of the most important considerations when any alterations are made or any special measures are introduced to the criminal justice system. The role of an intermediary within that paradigm should not be underestimated and the Northern Irish courts are really only beginning to come to terms with registered intermediaries are a reality within the system. As the use of intermediaries for vulnerable witnesses becomes more prevalent in our courts, there is a real need to ensure that their role in ´assisting with communication and understanding´ is properly monitored to fully realise the advantages of the special measure.