*Partner copy* Communicourt: Access to justice & court-appointed intermediaries

“In the Crown Court last time, people were talking over each other. It sounds really, how can I describe? Like a loud noise. I was in the dock. I couldn’t hear, and if I do, it takes a while to understand what they’re saying. Sometimes I won’t. Sometimes I just say ‘yes’. When you’ve got all those people watching you…”.

“They have the… the… loop, hearing loop, but sometimes the loop doesn’t work. They were speaking very fast. I couldn’t understand anything”.

These are the voices of people with communication needs, who all struggled to understand and take part in their family or criminal court proceedings without the help of an intermediary.

For most people, participating in court proceedings will be intimidating, bewildering and stressful, riddled with unfamiliar terminology, abstract concepts and emotive topics. When a defendant or respondent has a communication difficulty, the barriers to understanding and meaningful participation become far greater, potentially hindering their access to justice.

Communication difficulties don’t just impact defendants and respondents in the courtroom. Communication needs can also make it challenging for people in conference, resulting in unclear instructions, seemingly inconsistent accounts, breakdowns in client-solicitor relations, and underinformed decision-making.

What is an intermediary?

An intermediary is a communication specialist whose role is to facilitate communication and support someone’s understanding and effective participation through all stages of family and criminal court proceedings, including legal conferences. Intermediaries are centrally funded, either by HMCTS or Legal Aid.

Intermediaries are impartial professionals whose duty is to the court. An intermediary is not an expert witness, which means they cannot give an opinion on an individual’s capacity or ability to give evidence.

Communication matters

Research indicates that communication difficulties are more prevalent among defendants than in the wider population. The Criminal Justice Joint Inspection (2021) found that around 50% of individuals entering prison have neurodivergent conditions which impact their ability to engage. Statistics regarding respondents in family proceedings are less readily available, but suggest communication difficulties may also be more prevalent among this client group. Burch et al (2019) reports that, in March 2018, 11% of children who became ‘looked after children’ had a parent with a learning disability.

Does my client need an intermediary?

Although not an exhaustive list, some presentations which suggest a respondent or defendant has a communication difficulty include:

• They often agree when asked if they understand, but later demonstrate poor understanding. They frequently misunderstand or forget legal advice.
• They find it challenging to maintain attention, often losing focus, becoming fidgety, physically restless or easily distracted.
• They regularly digress from the topic of conversation, to discuss unrelated subjects.
• They often give “yes”, “no” or non-verbal answers which do not demonstrate clear understanding of or engagement with the conversation.
• They have difficulty providing clear instructions or accounts of events. Their responses appear inconsistent, jumbled or confused.

Intermediaries commonly work with individuals who have ADHD (Attention Deficit Hyperactivity Disorder), learning disabilities, dyslexia, ASC (Autism Spectrum Conditions), mental health diagnoses (such as anxiety and Post-Traumatic Stress Disorder), TBI (Traumatic Brain Injury) dementia and hearing impairments.

However, communication difficulties are not necessarily tied to formal diagnoses. An autistic defendant may be an adept communicator who does not require an intermediary, while a respondent without formal diagnoses may have significant difficulty processing verbal information.

How can an intermediary help?

The first step in obtaining intermediary assistance is to seek an intermediary assessment. A Communicourt assessment will provide the court with:

• Detailed information about the individual’s communication profile.
• A recommendation regarding the appropriateness of intermediary assistance.
• Further recommendations to assist communication during proceedings.

If an intermediary is approved, the service user can then access their support during proceedings. Each individual and case is different. For example, an intermediary may be allocated for ‘evidence-only’, or for all conferences and hearings in a case. As such, the communication strategies used by intermediaries will vary considerably, depending upon the setting and service user. The Communicourt blog provides insight into some common intermediary strategies, including creating visual aids and checking questions in advance.

The future of intermediary use

In April 2022, the new HMCTS Appointed Intermediary Service Framework was implemented, providing greater regulation in the field. Under these regulations, only intermediaries under the Managed and Approved Service Provider framework and the Approved Service Provider framework can be allocated. The implementation of the scheme demonstrates the courts’ increasing recognition of the need for high quality intermediary assistance for defendants and respondents with communication needs.

William Scrimshire is the Managing Director of Communicourt, a Managed and Approved Service Provider of intermediaries for defendants and respondents across England and Wales. To find out more about how we work with family and criminal law solicitors, visit our website at www.communicourt.co.uk/working-with-solicitors/