By Joanna Campbell

What is the role of the intermediary at court?

The role of the intermediary at court is to facilitate two-way communication between the service user (the person whom we are assisting) and court professionals and to enable the service user to effectively participate in the court process (as is their right under Article 6 of the Human Rights Act, 1998).

In order to effectively participate, the service user should be able to understand the general thrust of what is said in court, follow what is said by witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees, and make them aware of any facts which should be put forward in his defence (C v Sevenoaks Youth Court, 2009).

It is important to note that the duty of the intermediary is not to the service user. The duty of the intermediary is to the court. An intermediary is impartial and is not part of the service user’s legal team.

When the service user gives evidence, the role of the intermediary is focused on improving the quality (completeness, coherence and accuracy) of the service user’s evidence. As set out in the Youth Justice and Criminal Evidence Act (1999), the function of the intermediary at this stage is to communicate questions put to the service user (explaining such questions so far as is necessary to enable them to be understood) and to communicate the answer given by the service user in reply (if needed).

This article seeks to address some of the misconceptions and myths about the role of intermediaries at court by examining the many practical ways that we assist service users to effectively participate in the process. Common misconceptions about the intermediary role include:

Myth 1: Intermediaries do nothing and do not consistently add value

Myth 2: Intermediaries intervene too much

Myth 3: Intermediaries slow down trials and evidence

(Paraphrased from “Lost in Translation? Perceptions of Defendant Intermediaries in the Legal Profession” – Fairclough, Taggart & Backen, 2023)

Tackling Myth 1: Will the intermediary do anything or add value?

Much of the work that the intermediary does within the courtroom takes place quietly, out of earshot or sight of other court professionals, whilst we are sitting beside the service user at the back of court. For this reason, it can appear that the intermediary is not doing very much to assist. In addition, intermediaries play a crucial role in preparation for hearings outside of the courtroom, such as facilitating communication during conferences, simplifying documents and questions, and producing appropriate visual aids.

The intermediary’s precise role will depend on the specific communication needs of the service user (ascertained through the intermediary assessment).

If our assessment has shown that the service user’s communication needs will have an impact on their ability to follow the evidence and proceedings, we will have a role in assisting with this. Sitting beside the service user in court, we can help them to follow what is happening in real-time by simplifying the language used in court. This may involve explaining court terminology, summarising key points and helping the person understand the “thrust” of the proceedings.

We may produce simplified written notes of the evidence and proceedings. This will assist the service user to follow what is happening (as they can refer to the notes if they have missed a particular point, for example) and will also assist with recapping during breaks or producing memory aids for the service user to take away. We will also write down any comments made by the service user to help with providing instructions.

We will develop visual aids as and when needed, to explain certain concepts, help with decision making or enable understanding of the evidence by providing a simple reference point (such as a body outline to help with medical evidence).

We will assist the service user to follow written evidence, particularly where this is complex; finding the page, simplifying the terminology, highlighting or underlying key points and adding notes or drawings to convey meaning.

Through our continuous interactions with the service user, we will carry out dynamic assessment of the service user’s communication needs so that we can keep the court updated on their level of participation and any further adjustments which may be required.

Tackling Myth 2: Will the intermediary intervene too much?

As noted previously, the duty of the intermediary is to the court. It is not our aim to be disruptive or intervene too much. We will only intervene if we feel that there is an issue which needs to be brought to the court’s attention. Relevant issues would include a breach of any ground rules which have been agreed at the ground rules hearing, the service user requiring a break (due to emotional dysregulation or a loss of concentration) or a concern relating to the effective participation of the service user.

Our interventions throughout most of the court proceedings will be minimal. We may intervene more frequently when the service user gives evidence, to draw attention to any questions which are problematic or do not adhere to the agreed ground rules, to facilitate the use of a visual aid, or to repair a communication breakdown. Even then, our aim is to ensure that court proceedings progress as smoothly and efficiently as possible. Our role is not to protect or shield the service user from challenging questions; rather to ensure that questions are asked in a way which ensures the highest quality of evidence and to enable the most challenging questions (in terms of content) to be put in a way that can be understood.

We will often ask to review questions in advance, so that we can highlight any problematic questions and offer suggestions for rephrasing. The aim of this task is to minimise the need for intervention in real-time and to ensure the most efficient use of court time.

Tackling Myth 3: Will the intermediary slow down the trial or evidence?

The involvement of an intermediary should increase the efficiency of the court process. This is achieved by enabling the service user to understand and participate in real-time (whilst the evidence and proceedings are ongoing) so that large amounts of time will not need to be spent on explanation and recapping during breaks.

Where the service user has issues with emotional regulation or attention and concentration, the intermediary can play a crucial role in keeping them calm and focused so that court proceedings are not delayed by a constant need for breaks to regulate and recover.  

If the service user has difficulties with emotional regulation (perhaps due to a mental health condition), we will implement strategies to keep the service user calm. This is important because, if the service user is dysregulated, this will have a detrimental impact on their ability to process language and therefore to follow the court proceedings. Strategies which we can implement in real-time (with very little disruption to the court process) may include “checking in” (using an emotion chart or scale), grounding techniques or breathing exercises.

If the service user has attention and concentration difficulties (perhaps due to an attention deficit disorder), a large part of our role may involve assisting the service user to remain focused and utilising their concentration span as effectively as possible. For example, we may divert their attention during repetitive or administrative parts of the proceedings (such as setting dates for the filing of evidence or future hearings), providing basic updates on what is happening so they know they do not need to engage their full attention again yet. We will then cue them in to the more important and relevant parts. Without this assistance, some service users would quickly become fatigued trying to follow parts of the evidence which are irrelevant or less consequential for them and would then have “switched off” during the more important parts.

We may also provide fidget aids or activities such as doodling or colouring; strategies which have been found to help with both concentration and emotional regulation and which can be used quietly whilst also listening to the proceedings.

The aim of these strategies will be to maximise the service user’s capacity so that fewer and shorter breaks are required. A break will be needed if the person is becoming overloaded, fatigued or emotionally dysregulated to a degree where this can no longer be managed by strategies within the courtroom. Without intermediary involvement, the service user would be likely to reach this point of overwhelm much sooner, which would cause delays to the court process (if noticed) or (if not noticed) in the service user not effectively participating.

What do I do if I feel my client may require intermediary assistance at court?

Your client would first need to be assessed by an intermediary. Through the assessment process, the intermediary will be able to ascertain your client’s communication needs. They will then be able to say whether an intermediary is required to overcome those needs in the court setting and, if so, what the specific role of the intermediary would be in assisting your client. The intermediary can also make recommendations in relation to how best to communicate with your client and what other adjustments they may require at court. You can refer to TIC for an intermediary assessment by visiting our website homepage (www.theintermediarycooperative.co.uk), clicking the “Make a Referral” button, and completing our simple referral process.

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