O

O R I G I N A L A R T I C L E

The emerging role of the Registered Intermediary with the vulnerable witness and offender: facilitating communication with the police and members of the judiciary

Brendan M. O’Mahony, Registered Intermediary, and Forensic Psychologist, CJS Psychology, PO Box

325, Diss, Norfolk, IP22 1WT. (E-mail: [email protected]), Professional doctorate student, Institute

of Criminal Justice Studies, University of Portsmouth, Portsmouth, PO1 2QQ, UK

Accessible summary • Many people with a learning disability are frightened when they are interviewed

by the police.

• They are worried that the police will not understand their story and sometimes

keep quiet because they do not understand what is happening.

• It can also be very worrying for a person with a learning disability if they have to

attend court and give evidence.

• The law allows for vulnerable witnesses to have access to support from a

professional known as an intermediary.

• The law does not yet support vulnerable offenders in this way, but It may now be

possible to get professional support from an intermediary if you are an offender.

• The intermediary might be able to help you communicate with the police and with

people at court if you are a witness or an offender.

Summary Being interviewed by the police as a witness or as a suspect can be a frightening

experience for many people; these feelings can be multiplied for many people who

have a learning disability and who do not understand the legal proceedings.

Intermediaries were introduced by the Youth Justice and Criminal Evidence Act

1999 as one of the special measures available to help facilitate communication

between the police, the courts and the vulnerable witness. Research has shown that

this measure has been valuable in assisting the vulnerable witness to testify. This

study was an exploratory examination of the recent use of intermediaries with

defendants. The defendant does not by law have the right to an intermediary;

however the Coroner’s and Justice Bill (2008–09), is attempting to amend this

situation. Meanwhile judges are starting to request an intermediary for vulnerable

defendants, in the interests of justice. Using a mixed methods approach this study

found that intermediaries were very positive about the need for vulnerable

defendants to have support. The intermediaries also highlighted that they

doi:10.1111/j.1468-3156.2009.00600.x ª 2009 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 38, 232–237

British Journal of

Learning Disabilities The Official Journal of the British Institute of Learning Disabilities

required additional training and they raised concerns about how their role was

viewed by the courts when they were assisting defendants.

Keywords Cognitive impairment, criminal justice, learning disability, registered inter-

mediary, special measures, vulnerable offender, vulnerable witness

Introduction

There seems to have been a number of reasons historically

that have disallowed the fundamental right of witnesses

with a learning disability to provide testimony in court. One

report suggests that the police did not always treat crimes

against people with learning disabilities seriously with one

concern being that they would make unreliable witnesses

(Sharp 2001). This concern can be removed if witnesses with

a learning disability are questioned appropriately as it has

been shown that they can produce accurate reports of events

(Milne & Bull 2001). It seems that the police service

welcomed recent legislation that would assist them to

manage vulnerable witnesses entering the criminal justice

system although researchers cautioned the reader about the

ability of the police service at putting theory and good

intentions into practice (Nield et al. 2003).

The skill of interviewing has to be mastered by lawyers in

the courtroom as well as by the police in the police station.

Research undertaken into the types of questions posed by

lawyers at court revealed that people with learning disabil-

ities were subjected to questions containing negatives and

double negatives, as well as multiple questions (Kebbell

et al. 2000).

Prior to the commencement of any investigation practi-

tioners in the criminal justice system have another barrier to

overcome; that of identifying vulnerable witnesses as they

enter the police station. (Vulnerable witnesses include those

with mental illness; all witnesses aged under 17; those with

a physical disability or physical disorder and those with a

learning disability). One estimate of the number of vulner-

able persons who were prosecution witnesses, which

includes those with a learning disability, was as high as 24

per cent of witnesses (Burton et al. 2007). If correctly

identified, these vulnerable witnesses may be more respon-

sive to questions if they are posed by skilled and specially

trained interviewing officers.

Some people with a diagnosis of learning disability may

deny that they have had a formal diagnosis; they may not

understand what the term means or perhaps they are aware

of the stigma attached to such a label and deny it if they

have contact with a criminal justice agency such as the

police (Murphy & Clare 2006). Police officers need to be

made more aware of these issues in training workshops,

although sadly, the pressures are so high on police training

at this time that the initial student police training package

does not run a specific session on cognitive impairment and

learning disabilities.

Research shows that there are four main barriers to

people with learning disabilities accessing the criminal

justice system as a witness (Murphy & Clare 2006). These

are named as difficulties coping with police interviews;

difficulties with eye-witness testimony; difficulties with

understanding court proceedings; difficulties with decision

making tasks.

Special Measures were introduced by the Youth Justice and

Criminal Evidence Act 1999 to enable vulnerable witnesses to

have support measures in place whilst they provide testi-

mony. The category of vulnerable witnesses includes ‘any

witness whose quality of their evidence is likely to be

diminished because they have a learning disability’ (Inter-

mediary Procedural Guidance Manual 2005). These special

measures assist the vulnerable witness by allowing for the

provision of evidence from a separate room within the court

building via a CCTV link and the video recording of evidence-

in-chief at a police station. Another measure, the Intermedi-

ary, has recently been evaluated (Plotnikoff & Woolfson

2007). Commencing in 2004, the use of the Registered

Intermediary was piloted in six areas in England and Wales.

Following a successful evaluation it was announced in June

2007 that a national rollout of the scheme would take place

across England and Wales. The Registered Intermediary can

be asked by the prosecution or the defence to carry out one or

more of the following tasks:

• Assist the police in communicating with witnesses at the

investigation stage, especially when a video is made or a

statement taken

• Take part in pre-trial meetings and court familiarisation

visits

• Assist communication with the witness at trial

Registered Intermediaries are trained professionals with

backgrounds such as psychology, speech and language

therapy, social work, nursing and teaching. Most impor-

tantly the intermediary role is an impartial one and they do

not work for the police or the defence. Registered Interme-

diaries have attended a 5 day training course arranged by

the Ministry of Justice where they will have had instruction

on the rules of evidence. They will have been assessed on

their knowledge and function of the intermediary role

within the criminal justice system.

Referrals are currently made to the scheme by the

investigating officer prior to the investigative interview. In

Registered Intermediaries 233

ª 2009 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 38, 232–237

this scenario, having identified the vulnerable witness, the

officer makes contact with the Intermediary Referral Board

which is currently located at the National Policing Improve-

ment Agency – Specialist Operations Centre. A matching

service exists where the skills and location of intermediaries

are matched with the referral (Intermediary Procedural

Guidance Manual 2005). Ideally, the intermediary completes

a full assessment of the witness prior to the interview and

has the opportunity to liaise with external providers so that

a comprehensive report can be completed prior to any court

date. This report will outline the ‘ground rules’ should the

witness testify in court. The intermediary will attend the

police interview and facilitate communication as required.

At court the intermediary will accompany the vulnerable

witness in the witness box or in the separate live link room.

The intermediary will facilitate communication between

counsel and the witness and must intervene when necessary

if complex questions are asked or if the agreed ‘ground

rules’ are not adhered to.

Emerging findings from the pilot project included the fact

that carers felt that intermediaries offered support to

witnesses in terms of coping with stress, in addition to

facilitating communication (Plotnikoff & Woolfson 2007).

This report also highlighted that one of the remaining

challenges is that the police service still has difficulty in

identifying vulnerable witnesses who have a learning

disability. This is not surprising given that previous findings

suggest that prison service medical officers and psychia-

trists have overestimated the cognitive ability of defendants

with a mild learning disability (Gudjonsson 2003).

Previous reports have identified several questions which

might help the police to identify a witness with a learning

disability (Cooke & Davies 2001) Questions such as ‘where

did the witness go to school?’ might identify that a special

school was attended. Such questions may assist the police to

identify the vulnerable suspect as well as the vulnerable

witness.

Publicity surrounding the Intermediary scheme is slowly

emerging. The press have reported how an intermediary

assisted a 16-year-old female with learning difficulties to

testify against a gang of rapists which led to a successful

conviction (Telegraph Newspaper 2009). Paradoxically, and

although not related to learning disabilities, the press

highlighted a case where a 4-year-old child was cross-

examined in court without the presence of an intermediary

which raised questions about the judicial system in terms of

utilising support that is already available (Observer News-

paper 2009). Learning Disability Services need to be made

aware that the intermediary scheme exists so that the correct

information can be passed to the police and the need for an

intermediary highlighted at the earliest opportunity in the

criminal justice process. Therefore, information about the

scheme needs to be disseminated outside of the Criminal

Justice System, as well as more thoroughly within it.

Police suspects and defendants

As of 2007 there was still no routine screening made to

determine the ‘nature and extent’ of learning disabilities in

the offender population (Talbot & Riley 2007). However one

prevalence study based on research at HMP Liverpool

indicated that approximately 30% of prisoners have an IQ of

less than 80 (Hayes et al. 2007) Whilst this does not meet the

criteria for having a diagnosis of learning disability it

demonstrates that many prisoners have impaired cognitive

functioning.

In recent months it appears that the effective use of the

intermediary scheme with witnesses is paying dividends

for defendants too. Judges and barristers are now high-

lighting that vulnerable suspects also need support at

court and this echoes the finding of a report that called

for the statutory support for suspects with learning

disabilities to mirror the support in place for witnesses,

at least in terms of providing an intermediary to facilitate

communication (Jacobson 2008). The Coroners and Jus-

tice Bill (2008–09) seeks to amend the law so that

vulnerable defendants have access to an intermediary

whilst at court.

Whilst it appears that intermediaries may currently be

used in court, at the judge’s discretion, to assist vulnerable

defendants, there seems to be limited opportunity for such

assistance to be made available in the police investigative

interview. This is due, in part, to the time scales within

which the police can hold suspects, following arrest, in

custody. Currently, the only likelihood of accessing an

intermediary for a suspect interview is if the suspect,

following arrest, was bailed to return on a subsequent date.

This matter needs to be considered by professionals tasked

with reviewing the Police and Criminal Evidence Act

(PACE) (1984); an examination of the latest public con-

sultation reviewing PACE, (Home Office 2007), high-

lights the need for greater input from Learning Disability

Services.

The Care Services Improvement Partnership (CSIP) has

circulated a handbook aimed at practitioners working in the

criminal justice system who have contact with offenders

with learning disabilities (Department of Health, 2007). This

publication highlights best practice but appears to have

missed the opportunity to highlight the existence of

the Registered Intermediary Scheme in sections specific to

the police and the courts. Whilst it is acknowledged that the

intermediary scheme was still being piloted and evaluated

in 2007 it may have been useful to introduce the scheme to

practitioners at that time.

Finally, some courts have diversion schemes in place with

the aim of diverting offenders with mental illness or

learning disabilities away from the criminal justice system,

if appropriate. However, many of the schemes do not have

learning disability expertise (Department of Health, 2009)

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and so it would appear that the wider use of Registered

Intermediaries with vulnerable defendants must be priori-

tised.

Exploratory Study

Method

A mixed method approach was used in this study

(Johnson & Onwuegbuzie 2004). Participants were rec-

ruited by accessing a professional support website for

Registered Intermediaries. There were only 150 Registered

Intermediaries in England and Wales at the time of

completing this research and it was necessary to adopt a

strategy of purposive sampling, thereby choosing a spe-

cific sample in order to answer the research question

(Robson 1993). Five respondents indicated that they had

been instructed by the Intermediary Referral Board to

work as an intermediary with cases involving defendants.

Unstructured interviews were conducted with these par-

ticipants and the interviews were audio recorded and

transcribed.

The themes that emerged from these interviews were then

used in the design of a questionnaire comprising of 17

questions, each requiring a response on a likert scale. This

questionnaire was disseminated to 33 intermediaries who

indicated that they wished to participate in the study. 58%

of the sample was Speech and Language Therapists, 12%

psychologists and the majority of the other participants

were professionals from teaching, occupational therapy and

nursing backgrounds.

Key Findings – Qualitative Interviews

Analysis of the interview transcripts revealed three emerg-

ing broad categories:

1) The role of the intermediary as perceived by other parties

in the criminal justice system

• Perception of a hidden agenda where the intermediary

may be used as a means to influence members of the jury

by their very presence with the accused

2) The practicalities of the intermediary attending court

trials with a defendant case

• The positioning of the intermediary within the court does

not always allow the intermediary to monitor the non-

verbal communication of the defendant. For example,

sitting next to the defendant in the dock, or behind them

in the witness box

3) Remuneration

• Concerns about who would fund the intermediary claim

as well as concerns about who would fund the interme-

diary if loss of earnings were claimed if a trial was

cancelled at short notice

Key Findings- Questionnaire

• The majority of the participants believed that the

intermediary scheme should be used for defendants as well

as victims and witnesses. Some participants noted that the

practicalities of holding down full time employment in their

professional practice would restrict their availability to

accept referrals for defendant cases

• There was a mixed response as to whether the defendant

is going to want emotional and social support in addition to

assistance with communication needs

• Many intermediaries felt that they required additional

training in order to feel confident to undertake intermediary

duties with defendants

• There was a mixed response to a question asking

whether the defendant should have access to other special

measures such as providing evidence via a live link

• There was a strong indication that intermediaries felt

that they should sit with the defendant throughout the trial,

in the dock if necessary, in order to facilitate communication

of the court proceedings

Discussion

Evidence suggests that a significant number of people

entering the criminal justice system as either witnesses or

defendants meet the criteria of being vulnerable persons.

The introduction of Special Measures appears to be having a

positive effect on the management of cases entering the

criminal justice system where witnesses have a learning

disability. One measure, the use of the Registered Interme-

diary, is being used more frequently with witnesses as the

scheme achieves more publicity. However, the wording of

the legislation seems to exclude persons with a cognitive

impairment who do not meet the threshold for a diagnosis

of learning disability.

There have also been cases where judges have used

discretion and have recommended that defendants be

assessed by an intermediary in the interests of justice. It is

likely that this discretion by judges will be used more

frequently and that more defendants will have support with

their communication needs and their understanding of

court proceedings. It is encouraging that the Coroner’s and

Justice Bill, currently before Parliament, recommends legis-

lation to enable the use of intermediaries to assist with the

communication needs of defendants at court. To date it

appears that little use has been made of opportunities to use

an intermediary at the investigative interview stage with a

suspect, albeit, it is acknowledged that this practice is not

mentioned in the Police and Criminal Evidence Act 1984

(PACE).

The PACE codes of practice do recommend that a

person with a mental handicap has the right to have an

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appropriate adult in attendance at the police interview in

addition to having legal representation (Williamson 2006).

However, neither appropriate adults nor solicitors are

necessarily appropriately trained or skilled to facilitate

communication between the police and a suspect with

learning difficulties. Research has demonstrated however

that the presence of an appropriate adult in a suspect

interview has an impact on police interviewing practice

regardless of the actual interventions made by the appro-

priate adult (Medford et al. 2003). This positive influence

can only be advanced if a trained intermediary were to be

available during an investigative interview with a police

suspect especially as there is some evidence that some

police suspects have expressed dissatisfaction with the

support given by an appropriate adult during an investi-

gative interview (Leggett et al. 2007).

Further down the line in a prosecution case, special

measures with defendants raise several issues that differ

from witness cases. Firstly, the impartiality of the inter-

mediary may be questioned if the intermediary were to

facilitate communication between defence counsel and the

defendant. These meetings are usually subject to legal

privilege which protects the communications between the

defendant and the solicitor or barrister (Ede & Edwards

2002). There is also the issue of how jury perceptions may

be influenced by the presence of an intermediary sitting

next to a defendant in the dock. New research needs to be

conducted with mock-jurors in order for criminal justice

agencies to understand how this ‘impartial relationship’

affects jury decision-making. Importantly, what happens if

the views of an intermediary conflict with those of the

defence counsel? For example, towards the end of a trial

an intermediary may recommend that a defendant needs a

break from court proceedings after the prosecution case

has been summed up. Defence counsel may wish to

proceed immediately with their closing speech believing

that it is in the defendant’s best interest for the jury not to

dwell on the prosecution case during a break.

This exploratory research has identified that the majority

of intermediaries sampled support the extension of the

intermediary scheme for use with defendants. However,

comments were made about the practicalities of extending

the scheme to defendants because of the logistics of being

available for trial for extended periods when required.

Similarly, many intermediaries are currently employed in

the National Health Service (NHS) and consideration

should be given to the longer term impact of abstractions

from duty, for intermediaries to attend lengthy trials,

particularly if the judge asks the intermediary to be present

throughout the trial. This would have ramifications on

staffing levels in the various NHS departments, such as

Speech and Language Therapy, and may erode the current

goodwill offered by employers in releasing staff to attend

court. Problems will also arise for self-employed interme-

diaries who find that they are financially penalised if they

have allocated diary space for a Crown Court trial but are

de-warned at the last minute. This research has also

highlighted that intermediaries may require additional

training and support to increase their confidence at

applying their professional skills to facilitating communi-

cation between the courts and the defendant, whilst

maintaining impartiality, throughout a lengthy trial. Hypo-

thetically, intermediaries may find that their interventions

(or lack of interventions) are scrutinised by the higher

courts if appeals are raised that the intermediary failed to

intervene, when appropriate, during any cross-examina-

tion. The intermediaries may also find themselves reflect-

ing on whether someone is now in custody as a result of

their lack of intervention, which some may argue, gives an

added responsibility to the intermediary role. Finally, how

will the extension of the intermediary scheme affect the

matching of intermediaries to witnesses and defendants?

Will witnesses be prioritised over defendants if there are

shortages in available intermediaries?

This exploratory study has limitations in that the sample

size was very small. However, it provides a baseline for

further studies to research the extension of the intermediary

scheme for use with defendants. It also highlights the need

for a closer examination of the Appropriate Adult Scheme

as applied to vulnerable suspects attending police custody,

in order to see what function, if any, the Registered

Intermediary scheme should have at this early stage in the

criminal justice process.

Recommendations

• Further training needs to be made available to police

officers and other professionals in the criminal justice sector,

such as lawyers, which covers the role of the intermediary,

in addition to training about cognitive impairment and

learning disabilities.

• Ongoing research is required measuring the impact of

the use of intermediaries with defendants at court both in

terms of the value to the defendant as well as the effect on

jury decision making.

• The wording in the legislation should be amended so

that the term vulnerable person explicitly includes more

general cognitive impairments and not only diagnoses of

learning disability.

• Additional training is required for intermediaries who

are assigned defendant cases.

• An examination should be made of the function that

intermediaries may have at the investigative interviewing

stage with police suspects and how such a function may

overlap with the appropriate adult scheme.

• Enhanced consultation with Learning Disability Services

in further reviews of PACE (1984).

236 B. M. O’Mahony

ª 2009 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 38, 232–237

References

Burton M., Evans R. & Sanders A. (2007) Vulnerable and intim-

idated witnesses and the adversarial process in England and

Wales. Int J Evid Proof, 11: 1–23.

Cooke P. & Davies G. (2001) Achieving best evidence from

witnesses with learning disabilities: new guidance. Br J Learn

Disabil, 29: 84–7.

Department of Health (2007) Positive practice – positive outcomes: a

handbook for professionals in the criminal justice system working with

offenders with learning disabilities. London, Care Services

Improvement Partnership (CSIP).

Department of Health (2009) The Bradley Report; Lord Bradley’s

review of people with mental health problems or learning

disabilities in the criminal justice system. London.

Ede R. & Edwards A. (2002) Criminal defence (2nd edn.) London, The

Law Society.

Gudjonsson G.H. (2003) The psychology of interrogations and confes-

sions: a handbook. Chichester, John Wiley & Sons Ltd.

Hayes S., Shackell P., Mottram P. & Lancaster R. (2007) The

prevalence of intellectual disability in a major UK prison. Br J

Learn Disabil, 35: 162–7.

Home Office (2007). Review of The Police and Criminal Evidence

Act (PACE) 1984; Summary of responses to the public consulta-

tion exercise. Available at: http://police.homeoffice.gov.uk/

publications/operational-policing/PACEReviewsummary310707.

pdf?view=Binary (last accessed on 2 October 2009).

Intermediary Procedural Guidance Manual (2005) London, Ministry

of Justice.

Jacobson J. (2008) No One Knows; Police responses to suspects with

learning disabilities and learning difficulties: a review of policy and

practice: London, Prison Reform Trust.

Johnson R.B. & Onwuegbuzie A.J. (2004) Mixed methods

research: a research paradigm whose time has come. Educ Res,

33: 14–26.

Kebbell M.R., Hatton C. & Johnson S.D. (2000) Witnesses with

learning disabilities in court: full report of research activities and

results. (End of grant report to the economic and social research

council): Birmingham, University of Birmingham.

Leggett J., Goodman W. & Dinani S. (2007) People with learning

disabilities’ experiences of being interviewed by the police. Br J

Learn Disabil, 35: 168–73.

Medford S., Gudjonsson G. & Pearse J. (2003) The efficacy of the

appropriate adult safeguard during police interviewing. Leg

Criminol Psychology, 8: 253–66.

Milne R. & Bull R. (2001) Interviewing witnesses with learning

disabilities for legal purposes. Br J Learn Disabil, 29: 93–7.

Murphy G.H. & Clare I.C.H. (2006) The effect of learning disabilities

on witness testimony. In: Heaton-Armstrong A., Shepherd E.,

Gudjonsson G., Wolchover D., editors. Witness testimony: psycho-

logical, investigative and evidential perspectives pp 43–59, Oxford,

Oxford University Press.

Nield R., Milne R., Bull R. & Marlow K. (2003) The Youth Justice

and Criminal Evidence Act 1999 and the interviewing of

vulnerable groups: a practitioner’s perspective. Leg Criminol

Psychology, 8: 223–8.

Observer Newspaper (2009). Baby P stepfather rape case raises

questions over impact on child witnesses. Aavailable at: http://

www.guardian.co.uk/society/2009/may/03/child-witnesses-

baby-p-stepfather (last accessed on 2 October 2009).

Plotnikoff J. & Woolfson R. (2007). The ‘‘Go-Between’’: evaluation of

intermediary pathfinder projects. London, Ministry of Justice.

Robson C. (1993) Real world research: a resource for social scientists and

practitioner-researchers. Oxford, Blackwell.

Sharp H. (2001) Steps towards justice for people with learning

disabilities as victims of crime: the important role of the police. Br

J Learn Disabil, 29: 88–92.

Talbot J. & Riley C. (2007) No One Knows: offenders with learning

difficulties and learning disabilities. Br J Learn Disabil, 35: 154–61.

Telegraph Newspaper (2009) Gang jailed for caustic soda rape of

girl with learning difficulties. Available at: http://www.telegraph.

co.uk/news/uknews/4291462/Gang-jailed-for-caustic-soda-rape-

of-girl-with-learning-difficulties.html (last accessed on 2 October

2009).

Williamson T. (2006). Towards greater professionalism: Minimizing

miscarriages of justice. In: Williamson T., editor. Investigative

interviewing. Rights, research, regulation. pp 155–6. Cullompton,

Wilan.

Registered Intermediaries 237

ª 2009 Blackwell Publishing Ltd, British Journal of Learning Disabilities, 38, 232–237