Special Measures: Intermediaries (incl. engagement)
Principle
The use of an intermediary should be considered as part of the broader consideration of special measures.
The provision of an intermediary should be available to all eligible witnesses, subject to the court's discretion in deciding whether to make a special measures direction. The court may approve the appointment of an intermediary retrospectively when one is used during the statement taking phase or video recorded interview. The absence of an intermediary at the investigation stage does not preclude the use of an intermediary at trial.
Introduction
The intermediary provision is one of a range of measures which the courts may make available to vulnerable witnesses to assist them to give evidence in court (under the Youth Justice and Criminal Evidence Act 1999 ["YJCEA 1999"]).
An intermediary may be defined as a person who facilitates communication between the police, prosecution and defence legal teams and/or the court and a witness to ensure that the communication process is as complete, coherent and accurate as possible. The intermediary is impartial and neutral and their duty is to the court.
An intermediary is not a witness and, therefore, should not be witnesses summonsed to attend court.
An intermediary is not an expert witness. If evidence of competence or, in cases involving sexual offences, the capacity to consent is required, an appropriate expert should be commissioned to provide the necessary information.
An intermediary is not an interpreter or an appropriate adult.
The intermediary provision is set out in Section 29 of the YJCEA 1999, which states:
"(1) A special measures direction may provide for any examination of the witness (however and wherever conducted) to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”)
(2) The function of an intermediary is to communicate -
(a) to the witness, questions put to the witness, and
(b) to any person asking such questions, the answers given by the witness in reply to them, and to explain such questions or answers to far as necessary to enable them to be understood by the witness or person question"
Section 18 of the YJCEA 1999 limits the availability of intermediaries to witnesses eligible for special measures on the grounds of age or incapacity, under Section 16 of the YJCEA 1999.
The court's approval must be obtained when the intermediary is to be used to enable the witness to give evidence, either during the video-recorded interview at the investigative stage (for which the court's approval may be given retrospectively) or during trial. This approval takes the form of a Special Measures Direction.
Detailed guidance in relation to intermediaries and their use can be found in the Registered Intermediary Procedural Guidance Manual
