Fair point

Special measures directions in the cases of vulnerable and intimidated witnesses can be made by virtue of the Youth Justice & Criminal Evidence Act 1999, as substantially amended by the Coroners & Justice Act 2009.

Sections 16 and 17 lay down the category of witnesses who may apply for these special measures, either on account of their age or incapacity, the new age now being under 18 (section 16) or through fear or distress at the prospect of testifying (section 17).

Such special measures, as well as including the use of screens, live link, removal of wigs and gowns, and video recorded evidence, provide for intermediaries to assist in the provision of quality evidence (section 29).

Sections 16 and 17 of the amended 1999 Act were provided to assist both prosecution and defence witnesses, but not defendants. This clearly presented an equality of arms argument, because, on the face of it, defendants were deprived of appropriate assistance in giving their evidence which other categories of witness could, in appropriate circumstances, receive.

This was obviously recognised by those who drafted the Coroners & Justice Act 2009 when it was enacted, and, by virtue of sections 33BA and 33BB which were inserted in the 1999 Act, defendants were allowed to give evidence through an intermediary if the court considered it necessary. It is anticipated that this assistance could continue throughout the process. But these sections have not been brought into force.

In such circumstances where a defendant is considered by those advising him as needing the help of an intermediary, case law remains the legal route by which it can be obtained.

In R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), a young offender aged 12 faced trial upon charges of assault with intent to rob and theft. There was evidence that he had complex mental health issues, including autistic spectrum disorder and Asperger's syndrome. It was argued on his behalf that he required an intermediary for five reasons:

(a) to properly understand the evidence;

(b) to give instructions;

(c) to prepare for the trial;

(d) to follow the trial; and

(e) to give evidence at trial.

Importantly here, there was no argument propounding that the defendant was unfit to plead. What was at issue was the effective participation of the defendant in his trial.

The distinction between fitness to plead and effective participation is a controversial area. The Law Commission is about to make recommendations in this respect later this year when it will propose an overhaul of the fitness to plead regime.

Importantly, those who examined C considered that he did not have the mental ability to concentrate during his trial, listen to evidence, nor instruct his solicitor about what parts of the evidence he accepted and what parts he disagreed with.

A chartered clinical psychologist went on to say that C may be able to respond to sympathetic questioning but would find it difficult to cope with cross-examination and that there was a risk that he would respond impulsively and inappropriately. However, the psychologist thought he would be able to cope with the trial process provided that he had regular breaks and if the court used 'simple language'. He suggested that an intermediary might assist with these matters.

Openshaw J, in the Divisional Court on application for permission to apply for judicial review, stated that the court has a duty under its inherent powers and under the Criminal Procedure Rules 'to take such steps as are necessary to ensure that [the defendant] has a fair trial, not just during the proceedings but beforehand as he and his lawyers prepare for trial. He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story.'

The court also went on to state that a defendant could be given assistance in the drafting of his proof of evidence and to assist in his giving of instructions upon whether certain witnesses should be questioned. But the court went further in opining as to what help an intermediary may give in these circumstances and central to this is that the intermediary should be appointed at the earliest possible time in the life of a case.

Openshaw J said: 'He needs someone to befriend him and help him, both during the trial itself and in preparation for it'¦ if an intermediary is to be effective 'C' must know the intermediary and have confidence in him or her. Such trust will not be established if their first meeting is on the morning of the trial.' This is an important observation and one which has practical implications for those who defend.

Although the use of intermediaries to assist defendants is still rare, experience in the field suggests that funding will be difficult and time consuming to obtain. It may not be until a trial has begun that the funding authorities will agree to the provision of an intermediary. In taking such a protracted approach to funding, it is difficult for defence teams to comply with the observations of the Divisional Court that intermediaries should be appointed at the beginning of a cases' development, rather than at the last minute.

The harsh reality is that there is a friction between the imperative that vulnerable witnesses should be assisted, including the defendant, and the money to deliver it.

Recognised right

The Court of Appeal has recognised that the courts have an inherent right, indeed a duty, to appoint an intermediary to assist a defendant in following the proceedings to give evidence, if without such help he would not be able to have a fair trial (see R v H [2003] EWCA Crim 1209).

The European Court of Human Rights laid down the principles in SC v the United Kingdom [2005] 40 EHRR 10. It established that the right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings.

The European court went on to develop the effective participation point, stating that 'effective participation'¦ pre-supposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary, with the assistance of, for example, an interpreter, lawyer, social worker, or friend, should be able to understand the general thrust of what is said in court.

'The defendant should be able to follow what is said by the prosecution witnesses and if represented to explain to his own lawyer his version of events, point out any statements with which he disagrees and make them aware of any factors which should be put forward in his defence.'

In R v Camberwell Green Youth Court [2005] UKHL 4, the House of Lords made it clear that the court has a wide and flexible inherent power to take such steps as are necessary to ensure that any defendant (but particularly a child) has a fair trial. Baroness Hale went on to state that 'if these are steps which the court can take in the exercise of its inherent powers to assist the defendant to give his best quality evidence, the 1999 Act does not exclude this'.

Dealing specifically with a young defendant, R (P) v West London Youth Court [2005] EWHC 2583 (Admin) held that the court should be 'pro-active in ensuring that the [defendant] had access to support'.

Improving your chances

There is no set protocol, but, given the practical difficulties in obtaining public funding for intermediaries for defendants, there are certain steps which defence teams are advised to take to maximise their chances of receiving funding:

(i) Identify the need for an intermediary to assist a defendant at the earliest stage possible '“ this can include at a police station interview. In appropriate cases, if it is the view of a defence representative that a suspect requires an intermediary and one cannot be obtained, then there is good reason, it is argued, to opt to take a 'no-comment' approach to the interview.

(ii) Apply for funding straight away.

(iii) Obtain an estimate of the cost of an intermediary from the Ministry of Justices' 'best trials unit'.

(iv) Although experts' reports are not obligatory, in appropriate cases the evidence of a clinical psychologist will assist both in funding and perhaps in evidence at trial. Remember, the appointment of an intermediary may be challenged by the prosecution or a co-defendant in a cut-throat defence.

(v) Inform the court and, if possible, the trial judge of the need for an intermediary. Obtain judicial support for the use of an intermediary if possible. Again, this should help with funding.

(vi) Define precisely the parameters in which you require the intermediary to assist. It may be that you do not need the intermediary to assist the defendant with the full panoply of steps available. It is not necessarily inappropriate for an intermediary to just be required to assist the defendant in giving evidence at trial, rather than in the dock while other evidence is given.

'Questions and challenges'

Those who champion the use of intermediaries fairly recognise that the provision of best evidence is a principle that should apply equally to all witnesses including defendants. They are also acutely aware that the government is balking at providing the money for defendants to receive equal assistance.

In their proposals for the reform of legal aid in England and Wales, the Ministry of Justice accepts that access to justice is pivotal for the health of 'civil society'. Civil society includes those who are accused of criminal offences who may be just as vulnerable as any other witness and just as in need of help '“ if not more given the consequences of conviction.

The law recognises that defendants should, in proper cases, be assisted by intermediaries and funding must be provided for it.

It is incumbent upon defence teams who are seized of these problems to strenuously pursue the appointment of intermediaries for defendants and to be aware of the breaches of fair trial rights if for any reason defendants are 'deprived'.

Laurence Clarke, a leading intermediary, commented: 'The increasing use of intermediaries to support defendants is to be welcomed. However, given the adversarial nature of our criminal justice system, it also raises many questions and challenges.'

Of course, the courts must adapt to this new measure but Mr Clarke wisely is not criticising the adversarial system, he is making the sound point that any system needs to be flexible to allow development.

This is precisely what the courts will do by allowing appropriate breaks, properly structured questions, no tagging, hypotheticals or double negatives and advocates becoming familiar with phrasing simple, clear questions. The profession is already doing this with witnesses in general '“ the same skills should be required for vulnerable defendants.