03:05, October 28 66 0 theguardian.com

2020-10-28 03:05:04
‘Justice must be for all’: why court intermediaries are vital for vulnerable people

At Highbury youth court in north London, Elliott Rogers (not his real name), a 15-year-old boy with severe cognitive and communication difficulties, has been waiting three hours for his trial to start. He has been charged with the theft of an iPhone, but no magistrates have turned up, and the court clerk is scrambling to raise one to come in at no notice. The boy sits in a side room with his mum, his barrister who specialises in representing vulnerable clients, and Francesca Castellano, his intermediary.

Witnesses, including young children, whose communication difficulties mean they would struggle to give evidence, are entitled by law to the support of a registered intermediary. They help them to understand what is happening in court and to give the best evidence they can.

Olwen Cockell, a speech and language therapist and a registered intermediary, has supported children as young as three to give evidence. She says the intermediary’s role is to help work out what level of questioning the child can understand, and how long they can concentrate: “What I can do is ensure their account is as coherent, complete and accurate as they are capable of.”

She does an assessment to work out if a child understands prepositions, like “in” and “on” and “under”, and what names they use for body parts. Can they give an account of their morning routine in a sequential order? Can they describe objects using sensory words: spiky, smooth, squashy, wet? “I’ll see how long they can engage with me, at what point they become restless or fatigued. Then I’ll work with the barristers on designing questions the child will understand, and work out what sort of breaks they’ll need,” explains Cockell. “And I’ll be there while the child is cross-examined, whether over a live link or in court.”

At Highbury court, Castellano – who trained in forensic psychology – helps Rogers understand the charges against him, and supports him to give evidence.

Rogers is one of the lucky ones. While all witnesses assessed as needing an intermediary have a statutory right to one, no defendant has the same entitlement: it is up to the judge whether to appoint an intermediary or not.

Castellano says that judges often only permit her to support defendants to give evidence, and not to help them follow the full course of their trial. “I believe that someone has a right to understand what they are being tried for,” she says. “Justice needs to be for all, and we’re there to try to ensure that happens.”

Castellano supported two of the accused in the PC Andrew Harper murder trial. Despite professional assessments recommending that both should have an intermediary throughout, Castellano was only appointed to support the defendants to give their own evidence, rather than being able to help them understand the whole trial.

Jenny Talbot, director of the Prison Reform Trust’s Care Not Custody campaign, says: “If a defendant finds the case difficult to follow, their effective participation in the process is diminished, and that brings into question the fairness of the trial.”

In addition to the disparity between witnesses’ and defendants’ access to intermediaries, there are growing concerns that the service is being privatised and deregulated. Even when defendants are permitted an intermediary, the person appointed is likely to be less qualified than those appointed to support vulnerable witnesses, say campaigners.

At present, intermediaries supporting witnesses are professionally approved, registered and employed by the Ministry of Justice (MoJ) and paid by the Crown Prosecution Service or the police. There are around 200 registered intermediaries, who are paid £39.33 an hour. They are typically highly trained professionals, such as speech and language therapists, psychologists or teachers, and regulated by their own professional body. They must also pass a rigorous interview and then complete an MoJ training course.

But intermediaries appointed for defendants are supplied by two companies, Communicourt and Triangle. They also supply intermediaries for vulnerable adults in cases in the family courts where children might be removed and adopted, and for vulnerable adults in employment, mental health and immigration tribunals, as well as coroners’ inquests and Parole Board hearings.

There may soon be another private sector contractor for witness support, after the department put out a pre-procurement notice asking for expressions of interest to provide non-MoJ-registered intermediary services in England and Wales. Private sector intermediaries do not need to be registered by the MoJ, nor are they required to go through the government’s robust interview process.

While some intermediaries, like Castellano, who support defendants, are also government-registered to support witnesses, many are not.

“Unregistered people can set themselves up as intermediaries, and there is no way of vetting them,” says Jodie Blackstock, legal director at human rights charity Justice. She sits on the Criminal Procedure Rule Committee, which she says has been “very critical” of defendant intermediary services, and concerned about “how quality is to be determined”.

Catherine O’Neill, chair of the professional body Intermediaries for Justice, says the MoJ is perpetuating a two-tier system. “This tender will ingrain the lack of rigour for unregistered intermediaries, by comparison to registered intermediaries who have professional training, CPD [continuing professional development], keep a yearly log and adhere to other requirements to keep their registration.”

A spokesman for the MoJ said: “Our aim is to ensure standards and codes of conduct for all nonregistered intermediaries, providing a more consistent level of service.” He added that the government wants to “provide a better service for vulnerable court users”.

But Blackstock believes that anyone required to participate in a trial should have access to a registered intermediary service. “We need professional intermediary standards and a regulatory body, so that when a decision is taken to appoint an intermediary, that decision is trusted,” she says.

Back in Highbury, as the hours tick by, there is at least plenty of time for Castellano to explain to her client exactly what will happen in court, and help him communicate his instructions to his barrister. Once a judge has finally been found, everyone troops into court. Castellano sits in the dock next to the boy on trial. She whispers to him to stand before the charge is read out. “Do you plead guilty or not guilty?” he is asked. It’s a simple question, and the last few hours have been spent carefully negotiating his plea, but he glances at Castellano to check. She nods. “Er, guilty,” he says through his face mask.

Castellano stays by his side throughout his sentencing. He is given a supervision order under the local youth offending team. She whispers a condensed version of the judge’s words to help him understand terminology that may seem simple, but for someone with limited ability to grasp and retain information is not.

Leaving aside the desirability of prosecuting a child with severe cognitive and communication difficulties for a petty theft, it is clear that Castellano ensured that Rogers had a fair trial.



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