There will be occasions in court when, despite your best efforts, specialist communication support is necessary to ensure the defendant is able to participate effectively in proceedings. Such support can be provided by an intermediary.

The role of an intermediary is to facilitate two-way communication between the vulnerable individual and other participants in the legal process, and to ensure that their communication is as complete, accurate and coherent as possible. Intermediaries can assist the courts to meet their obligations to ensure that a vulnerable defendant is able to participate in court proceedings in a number of ways.

They can:

• assess the defendants communication skills
• help a defendant to follow court proceedings, the course of a trial and the case against him or her
• assist prosecutors and defence solicitors or barristers rephrase questions that the defendant does not understand, and help to communicate their answers to the court.

The court has inherent powers to take such steps as are necessary to ensure that any defendant has a fair trial. The judgement in R (on the application of C) v Sevenoaks Youth Court [2009] EWHC 3008 makes it clear that the court can appoint an intermediary to support a defendant to follow proceedings and to give evidence if, without such assistance, they would not be able to have a fair trial.

Citing this particular case, the Crown Prosecution Service website notes that the appointment of the intermediary was:

...not made pursuant to a special measures direction under the Youth Justice and Criminal Evidence Act 1999, but is part of the court’s duty to take such steps as are necessary to ensure that a youth has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial (Crown Prosecution Service, June 2013).

Courts can appoint intermediaries to support children and vulnerable adult defendants who require specialist help to assist their communication and comprehension during court proceedings. You should consider using an intermediary, as early as possible, where difficulties become apparent. It can take time to secure an intermediary who is appropriately matched to deal with the defendant’s particular communication needs. The need for an intermediary should therefore be addressed well in advance of trial proceedings.

The Advocates Gateway Toolkit 8 addresses how to appoint an intermediary, and Annex A of the Tookit gives examples of ways in which an intermediary may assist a defendant during the trial process (see the ‘further reading’ box at the end of this section). HM Courts and Tribunals Service guidance is available on the use of intermediaries for defendants and guidance should be sought from the legal adviser.

Section 104 of the Coroners and Justice Act 2009 will insert into the Youth Justice and Criminal Evidence Act 1999 the provision to enable the court to appoint an intermediary to assist certain vulnerable defendants when giving oral evidence as a witness. This provision has not yet been brought into effect.