By Paula Backen

For fair justice, our aim is to maximise effective participation.  In all jurisdictions, there is a tendency to focus on the role of the intermediary in the courtroom. Pre-proceedings refers to conferences and meetings that occur before attendance at court.   In many cases our role can be more vital pre-proceedings, which in effect, may result in the court not seeing the work of the intermediary at all.

How an intermediary assists with effective participation in criminal pre-proceedings

On many occasions intermediaries work with vulnerable defendants who have not understood the evidence against them, and despite their solicitor’s explanations, continue to plead not guilty.  

Often one short conference with an intermediary results in clarification, using visual aids, simplified language and explanations where the solicitor has assumed understanding.  

In other cases, the solicitor requires our assistance to ensure that a guilty plea is fully understood by a person with a very low IQ. In those cases, the courts will only know there has been a guilty plea and not the work of the intermediary in reaching this plea.  

This is not to suggest that our role is to encourage guilty pleas – in some instances a defendant may have thought the easiest route was a guilty plea, but with our help understands the pros and cons of both choices, leading to an understanding of their rights to a fair trial. One intermediary met a defendant many years ago who was so frightened of entering the court building, and so sure that a charge was the same as a verdict, he wanted to plead. With help, he fully understood the process.

Where there are several counts on the indictment, verbal discussion alone will often be unproductive, and the defendant will become confused.  In a recent case, with 14 counts to discuss, the intermediary noted each count with graphics, and colour coded post-its were used as he decided each plea.  The defendant was able to look back at the list and review his decisions.  He would not have been able to do this without visual reference.  He was then told by his counsel that he should follow her lead when asked to enter his pleas in court.  The intermediary suggested taking the list into court, with each count numbered and in that way he could make his own response without referring to counsel each time.

How can an Intermediary assist in pre-proceedings in a family court?

There are usually many complex reports and documents for the respondent to understand. The intermediary can simplify and read aloud (in real-time),  perhaps adding pictures, to ensure effective understanding. This results in much clearer instruction to counsel.  Decision making about complex conceptual matters will often be beyond the level of comprehension of the vulnerable person without this assistance.

For others, it will be the difficulty with emotional regulation that will affect their ability to process the information provided by counsel. An intermediary can assist with a variety of strategies to reduce anxiety while the solicitor focuses on the legal aspects.  The intermediary will recognise when breaks are needed and use that time effectively.  The intermediary is skilled in a variety of emotional regulation techniques.

If an intermediary is only appointed for finding of the fact hearings or trials, this vital work will not have ensured effective participation, and in many cases may lengthen court time, or result in unnecessary trial days.

However, recommending our involvement for court and / or conferences is a complex issue. There are cases where an intermediary is needed just for pre-proceeding conferences and not for court. On other occasions, the vulnerable person is particularly affected by the environment and their communication is appreciably better in one-to-one conferences than in a courtroom, so that an intermediary is only required for court appearances.

“In conferences, the intermediary gave very useful pointers on how we, as the client’s solicitors, could structure the meeting and address the client to ensure they were engaged and did not feel overwhelmed.” (Quote from a solicitor after working with a TIC Intermediary).

Every client is unique.  Referring for an intermediary assessment and report recommendations is the simplest and clearest way to find out how to maximise communication and effective participation.  Go to www.theintermediarycooperative.co.uk and click on the purple button to make a simple referral.  An allocated TIC intermediary will contact you directly to make plans and provide a quote.

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