This month, members of the Communicourt team attended the Vulnerable Accused Conference at the University of Birmingham, attended by academics from a range of backgrounds (including law, criminology and speech and language therapy). Over the two-day event, speakers presented their research on a range of topics relevant to the intermediary role and vulnerabie defendants. ‘Intermediaries’ were a real topic of interest at the conference, with calls from academics for intermediary support at many more stages of proceedings, including at the police interview stage and in parole hearings.

We’ve digested some of our favourite ‘take homes’ below. If you’d like to explore any of the research below in more detail, extended abstracts will be published on a rolling basis on the Defending Vulnerability blog (which is great source for research in this area).  You can also check out the work of many of the speakers via their Twitter feeds (linked in each talk title below).

Below you’ll find digested read versions of:

• Key Note Speech, Penny Cooper
• Cross-examination of a Vulnerable Defendant with Intellectual Disability, Joanne Morrison
• ‘Good’ Lawyering for the Neurodivergent Accused, Tom Smith
• Experiences of Vulnerable Defendant vs. Non-defendant Witnesses, Jonathan Doak, Debbie Cooper, Candida Saunders & David Wright
• Analysis of Intermediary Support during Cross-Examination, Rukiya Stein
• Use of Intermediaries at Parole Hearings, Brendan O’Mahony, Becky Milne & Kevin Smith
• Use of Intermediaries at Police Interview, John Taggart
• Identifying the Need for and Obtaining Appropriate Adults, Jennifer Holmes & Harriet Pierpoint

Keynote speech from Dr Penny Cooper

To open the conference, Dr Penny Cooper delivered a keynote speech exploring defendant vulnerability in the Criminal Justice System and sharing the progress made, lessons learned and future endeavours.

Dr Cooper commented that vulnerability goes far beyond a formal diagnosis, and beyond speech, language and communication needs (SLCN). She noted, “There are vulnerable moments as well as vulnerable people”, which can impact any court user who is attending an unfamiliar, intimidating court setting where processes are not clear, customs are alien, emotions are heightened and language is complex.

This view informed her call for universal reform of the criminal justice process, which included the implementation of Universal Ground Rules which should apply in all cases, not only those in which the defendant or witnesses are identified as vulnerable. These Universal Ground Rules, Cooper posited, should include a shift to succinct, plain and simple language (avoiding Legalese), which would benefit all lay parties, irrespective of their communication skills.

She also highlighted many of the barriers to effective participation faced by defendants in general (and specifically those with SLCN), for example the layout of the typical English courtroom, “I’ve seen many a defendant struggle to hear in [the dock in] an English courtroom. They disengage. Why is this setup tolerated in this day and age?”, and the use of inquisitorial cross-examination in which witnesses are “told rather than asked about their evidence”. Cooper noted, “Anyone who thinks this is the best way to get to the truth is very much mistaken”. She additionally touched upon the very high likelihood that defendants (and especially those with SLCN) will agree they understand when they do not, and will not indicate when they have not understood.

Ground Rules, screening & professional attitudes

Discussing Ground Rules Hearings (GRH), Cooper cited a judge who remarked, “A GRH, well-timed, with the judge and advocates present, makes the case go smoothly”. Cooper went on to add, “There are two kinds [of GRH], one where the judge just skips through the recommendations and the other when there’s a genuine discussion about the witness and the recommendations”. She added, “Even where there’s no intermediary, Ground Rules for the questioning ought to be set. Legal practitioners do have the training and toolkits to fall back on, but it’s no substitute for the advice of a trained intermediary”.

Cooper highlighted the importance of improved screening for SLCN and vulnerability in the Criminal Justice System, at the earliest possible stage (ideally the custody stage). Currently, no such screening tool is used consistently across English and Welsh custody suites. Cooper explained that the courts are, therefore, often reliant on the defendant self-declaring a difficulty or diagnosis, or upon vulnerability being noticed by the judge or legal professionals involved in the case.

Cooper stated that “the attitude of judges and advocates is the single most important factor in changing practice” and underscored that it is vital that legal practitioners “understand that vulnerability and how it affects participation is outside their scope – this is the role of the intermediary”. 

Touching on the recent HMCTS Managed and Approved Service Provider framework for intermediaries, Cooper commented that it is “too early” to comment on its effectiveness. She explained that “growing demand for services inevitably poses challenges”, noting that one often hears “about lawyers seeking services of intermediary but unable to find one suitable for their client”. Despite current difficulties fulfilling demand, she was of the view that “there’s even more work intermediaries could be doing. If only England was like Ireland and had intermediaries for vulnerable suspects” adding that, “For all the challenges of the role, the use of intermediaries is here to stay”. 

Future endeavours

Looking to the future, Cooper felt that universal reform of the system is required, alongside lived experience-informed overhaul of the courtroom. She summarised: “What we have not yet seen is a universal shift in language in the courtroom. Universal changes must be implemented [as well as] a screening mechanism for suspects and defendants. That’s long overdue.”

Is Cross-examination of a Vulnerable Defendant with Intellectual Disability a Fair Communicative Exchange? – Joanne Morrison

A lecturer in Intellectual Disability, Morrison also works as a Registered Intermediary in Northern Ireland. Her presentation analysed the communication ‘exchange’ between a prosecution barrister and a vulnerable defendant with intellectual disability, concluding that this communication could not, in fact, be called an exchange, due to the one-way, leading, adversarial questioning process, heavily steered by counsel and governed by the many unspoken power dynamics at play in the courtroom.

Morrison highlighted that the “rules of advocacy” are to “lead and tell – don’t ask questions”, in order to control the witness. She drew attention to a range of power disparities, from small physical examples (such as advocates standing to cross-examine a seated witness), to larger, more global differences, such as the often contrasting educational and cultural backgrounds of advocate and witness.

Most importantly, she highlighted that, while a defendant with an intellectual disability is likely to be wholly unfamiliar with complex courtroom communication and customs (and likely to have communication difficulties in everyday life), advocates have trained and practiced for many years to become expert court communicators. These courtroom expertise mean that, while counsel may put a ‘question’ (or, indeed, a statement) to a defendant, this question is in fact a message to the decisions-makers in the case (judge or jury). The true purpose of this ‘non-question’ is likely to be unclear to the defendant (e.g., drawing the jury’s attention to a discrepancy in their testimony).

The talk went on to unpack a range of commonly used cross-examination question styles which lead witnesses, and can prove particularly problematic when used with defendants who have an intellectual disability, due to the increased likelihood of suggestibility and poorer communication skills. Morrison noted, however, that “It’s not [just] a matter of question style – that’s just one factor”. This final point is a very helpful and deceptively simple observation, which can get lost once we, as intermediaries (and other professionals), begin to experience the courtroom environment as ‘everyday’.

“Missing the Signs”: A Legal-Ethical Analysis of ‘Good’ Lawyering for the Neurodivergent Accused – Tom Smith

Tom Smith (Associate Professor in Law, University of West England) explored the concept of ‘good lawyering’ for the neurodivergent accused, finding that lawyers are “obligated to ensure being neurodivergent is not a disadvantage” in the Criminal Justice System. His research sets out principles for good lawyering for neurodivergent clients, including:

• The ability to recognise neurodivergence.
• Understanding the communication differences and difficulties a wide spectrum of neurodivergent people may have.
• The ability to responsively adapt their practice in order to communicate effectively with their neurodivergent client.
• Understanding the available adaptations and services which may support the effective participation of a neurodivergent defendant.
• Understanding that the police and courts may not implement the necessary adaptations an adjustments.
• Proactively acting to implement adjustments, when other bodies do not do so, to ensure neurodivergent clients are not disadvantaged in the CJS.

Cross-Examination Compared: The experiences of vulnerable defendant and non-defendant witnesses – Jonathan Doak, Debbie Cooper, Candida Saunders & David Wright

This talk identified a hierarchy of ‘deservingness’ when it came to the outlook of legal professionals regarding support and adaptations for witnesses during cross-examination.

MOST DESERVING
– Child Witnesses
– Vulnerable Adult Witnesses
– Vulnerable Adult Defendants
LEAST DESERVING

The study found that this hierarchy results in “clear distinctions in approach”, such as limited intermediary support for vulnerable adult defendants and limited use of Ground Rules Hearings for these individuals.

This research surveyed many legal practitioners in the criminal justice system, who contributed interesting insights on the topic, including:

• “Defendants do not get the same treatment as complainants, regardless of their need”
• “As a [legal] practitioner, the culture […] is really very different and very far behind the way that we treat witnesses”.

The research also explored the evolving role of the intermediary when working with a vulnerable defendant, which is moving away from an “interpreter” model to a “facilitator” model, as a secure understanding of the proceedings in their entirety is essential to ensuring a defendant’s effective participation in trial. One legal professional commented, “How [is the defendant] going to answer questions about a case where he hasn’t understood what the prosecution evidence is?”

The study posited that some of the disparities between the treatment of vulnerable non-defendant and defendant witnesses boiled down to financial concerns. It also considered approaches taken in other jurisdictions. For example, “Northern Ireland has a much better model of practice. The identification of vulnerable suspects is much better. Because it’s a small jurisdiction, the intermediaries know each other, they know judges, there’s more bottom up activity”. 

The authors commented that, in Northern Ireland, an intermediary service was more recently implemented and, when it was, “There was a real sense of, ‘fairness demands that intermediaries should be available for defendants and witnesses’”. 

An Intermediary, a Defendant with Autism and Cross-Examination: A Novel Australian Case Study – Rukiya Stein

Stein is an intermediary working in Australian courts. After assisting a defendant with autism during his evidence, she requested court transcripts and analysed the interaction, exploring when she intervened, when she did not intervene, complex question types put to the defendant and simple question types asked of him. The judge did not grant permission for Stein to review the questions in advance of the defendant’s evidence.

One of the most common complex question types put to the defendant was interrogative statements. The cross-examination also featured low-frequency vocabulary and tag questions. Stein found that her level of intervention was relatively low, but remarked, “There’s a balance you have to strike as intermediaries, you can’t intervene for every question, you can get into trouble for that”, adding that the defendant was often able to indicate when he had not correctly understood the question.

The Use of Intermediaries (Communication Specialists) at Parole Board Oral Hearings in England and Wales – Brendan O’Mahony, Becky Milne, Kevin Smith

O’Mahony is a parole board member, psychologist and intermediary for both witnesses and defendants in the criminal justice system. In this presentation, he explored the need for intermediary assistance in parole hearings and parole board attitudes to both communication needs and future possible intermediary usage.

The presentation reported that 18,248 cases were referred to the parole board in one recent year, of which 7,281 went to oral hearings, resulting in hundreds of parole hearings every month. O’Mahony reflected on the high prevalence of speech, language and communication needs (SLCN) within prisons, noting that, as a result, many prisoners attending parole hearings were likely to have SLCN which may impact their ability to participate effectively.

39 parole board members were surveyed as part of this research. The vast majority had attended a hearing where they felt the prisoner required communication support. However, none had attended a hearing involving an intermediary. O’Mahony explained that precise figures regarding intermediary assistance at parole hearings was difficult to find (as this was not routinely recorded), but the study was able to find evidence of intermediary usage in just 5-6 cases in total (over a number of years).

Effective Participation means Early Participation: The Case for Intermediary Assistance at the Investigative stage – John Taggart

Taggart’s ongoing project makes the case for intermediary assistance at the investigative stage (e.g., during police interviews). Hailing from Northern Ireland, where the more recently implemented intermediary scheme has included assistance in custody from the outset, Taggart suggested that, in England and Wales, “We’ve neglected police custody when we talk about participatory rights”.

The presentation highlighted the prevalence of communication difficulties in the criminal justice system, and sought to unpack the slippery issue of what ‘effective participation’ really means. While sources like SC v UK (2005) 40 EHRR 10 find that this requires a “broad understanding of the nature of the process” and “the general thrust” of what is said in court, other sources, like Owusu-Bempah (2018), conclude that it requires courts to reach the higher bar of “informed defence participation”.

Taggart also touched upon a difficult question which may arise in custody settings: When is someone vulnerable enough to need an Appropriate Adult? And then, when are they so vulnerable that they need an intermediary?

Identifying the need for and obtaining appropriate adults (case study, interviews and statistical review) – Jennifer Holmes & Harriet Pierpoint

Dr Jennifer Holmes and Professor Harriet Pierpoint spoke about their respective research and the resulting insights into the identification of vulnerability in police stations, and how appropriate adults are obtained for police interviews.

At the outset of their presentation, Pierpoint explained that the responsibility for identifying vulnerability before a police interview is dependent on the situation. In the case of a police suspect interview where the person is under arrest, it is the custody sergeant’s responsibility, whereas in a voluntary interview, it is the responsibility of the interviewing officer. In the case of suspects under the age of 18, an appropriate adult is mandatory during interviews.

As part of Holmes’ recent research, she reviewed the police suspect interviews and custody records for 27 vulnerable suspects, across 3 police forces. This was then followed by semi-structured interviews with police officers, appropriate adults and legal advisors, exploring the decision-making processes than had taken place when interacting with these vulnerable suspects.

Holmes found that, although suspects under 18 all received an AA, a third of the vulnerable suspects in her sample did not. This was despite the custody records of most of that third making reference to factors likely to render a person vulnerable, such as mental health conditions.

To offer a wider perspective, Pierpoint’s ongoing work involved reviewing statistics obtained via freedom of information requests from more than 40 UK police forces, regarding the provision of AAs and the use of pre-interview assessments to identify vulnerability. Pierpoint found that not all under 18s were receiving appropriate adults. The use of these pre-assessments in voluntary interviews varied greatly between forces, from 0% to 24% across different regions. The tools used to assess for vulnerability were also not standardised across the country, with different forces using different assessments.

Holmes’ interviews highlighted great variation in the way that AAs (appropriate adults) were obtained by the police. In one interview, a detective said, “We just stick to ones that we know, really, and we just call them up on a mobile and say ‘Oh, are you free?”, whilst another reported that a preferred AA’s directed phone number was displayed in the police station. Holmes’ highlighted the concerns this raised about the close working relationship between the detectives and the AA, and the impact on the AAs role as an independent safeguard.

If you’d like to learn more about any of the research above in more detail, extended abstracts will be published on a rolling basis on the Defending Vulnerability blog (which is great source for research going on in this area). You can also check out the work of many of the speakers via their Twitter feeds (linked in each talk title).