Dr Tina Pereira, a member of The Intermediary Cooperative and Hon Res Fellow, City Law School, recently co-presented research she has carried out with a colleague, Professor Lucy Henry, entitled ‘Vulnerability and Judicial Directions – Judges’ Assessment of Vulnerability’.
They presented their findings at the Intermediaries for Justice online Conference, at the end of June 2024.
Deliberations around appointing an intermediary for the whole trial vs evidence-in-chief and cross examination have been increasing, and the recent Lieven judgement has thrown a particular spotlight on this subject.
Tina and Lucy asked participating judges what worked and what did not work in relation to this area. Opinion was divided, and judges raised a range of relevant factors when considering whole trial intermediary appointments. These included the moral and ethical imperative of providing full trial support, financial/cost considerations, practical issues, and the severity of a vulnerable person’s communication difficulties.
Many judges demonstrated an awareness that communication vulnerability is all pervasive. They reported that intermediary appointments for the whole trial worked effectively, enabling it to run smoothly, allowing a vulnerable person to access justice in an equitable manner.
However, many more judges reported that appointing an intermediary for specific aspects of a trial such as evidence-in-chief and cross examination worked more effectively.
The main arguments against the appointment of an intermediary for the entire trial were stated as being the lack of tangible activity by an intermediary at the trial, and/or the view that the intermediary role could be replaced by a parent, carer or similar.
Since, in theory, all the evidence is already known pre-trial/hearing, unless there is a compelling need for an intermediary’s input for the whole trial, judges felt that the financial aspect needs to be given due consideration.
Tina and Lucy also asked judges ‘what worked’ in relation to intermediaries attending pre-trial or pre-hearing conferences. Judges cited the ethical and financial positives as well as the severity of communication difficulties faced by service users.
Some judges reported that intermediary input prior to a hearing or trial worked because a professional with specialist and personalised knowledge of a vulnerable person’s difficulties would enable those individuals to understand their case more completely than a lay person. Intermediary input also had the potential to save money because of the possibility of an early plea.
The reverse position taken by some judges was that the appointment of intermediaries at the pre-trial /hearing stage could increase costs that they could not justify. These judges reported it worked better for a parent, carer or spouse to fulfil that role instead, unless some tangible benefits could be demonstrated.
Tina and Lucy recommended awareness raising as their key learning point, targeting four different stakeholders: judges, advocates, the police, and intermediaries. They said: “In all cases, training should focus on different aspects of co-working.”
They went on to suggest that judicial awareness raising could include non-linguistic aspects of vulnerability that impact greatly on understanding and communication, i.e., power, context, sensory hyper/hypo sensitivities, mental health, etc. Awareness raising for advocates and the police, in addition to the above, would ideally include early identification of vulnerability. Awareness raising for intermediaries should focus on practical, tangible assessment-linked recommendations, explaining “participating judges noted that client-focussed, more discerning, and evidence-based reports and recommendations worked well.”
Tina and Lucy said that field testing with intermediaries was carried out prior to commencing the research to determine key issues of importance. Online (and subsequently anonymised) interviews with practising criminal and family court judges were carried out in Autumn 2023, with the Judicial Office being closely involved in the research design. Thematic analysis was used to examine the data produced.
Tina and Lucy concluded: “We hope that the results and learning points will be useful to all relevant audiences interested in vulnerability.”
Tina Pereira is an accredited Registered Intermediary with the Ministry of Justice, an HMCTS Appointed Intermediary, and an Honorary Research Fellow in the School of Health and Medical Sciences, City St George’s University of London.