Leaving lockdown: the changing Covid-19 landscape at court

The effect of COVID-19 restrictions has been seismic across UK justice system. Lockdowns and reduced court capacities have contributed to the backlog of Crown court cases which is now in excess of 57,000 cases. In a bid to clear this backlog, the Ministry of Justice has recently announced they are removing the cap on judicial sitting days for the next financial year. As restrictions ease, it will be interesting to see how working practices will change for the courts as we all try to recover.

On 17th March 2021, the Lord Chief Justice published a message concerning the evolving COVID-19 landscape at court, following the lifting of the latest national lockdown. After a year of restrictions, the Government has issued a new recovery roadmap. If this roadmap can be safely followed, the courts could see further change in COVID-19 policy in the coming weeks and months, as regulations gradually relax.

The Lord Chief Justice notes, “Over the next few weeks and months as the number of people who have been vaccinated against COVID increases and restrictions begin to ease across England and Wales, it will be possible and desirable to increase attendance in person where it is safe and in the interests of justice. This will be important to maximise the throughput of work”.

Returning to court – a “mixed bag”

Evidently, many in the legal professions are keen to return to in-person working. Fewer technical difficulties, less opportunity for miscommunication and greater capacity are among the many benefits of court-based hearings. For others, however, a return to court will mean an increase in health concerns, greater demands on legal professionals’ time (due to travel) and a less flexible approach to working.

These sentiments are echoed by some at Communicourt. While a great number of clients with communication difficulties undoubtedly benefit from attending court in-person, remote working has broadened options for assisting vulnerable defendants and respondents. For instance, courts have been more open to allowing respondents in family matters to attend remotely, which can assist those whose communication difficulties are exacerbated by anxiety (for example, those with Autistic Spectrum Condition, who may find new environments emotionally dysregulating).

In other cases, intermediaries working with clients who benefit from live simplification during proceedings have felt somewhat stymied by the two-metre distancing rule and by mask-wearing. Live simplification requires intermediaries to explain complex vocabulary and concepts in real-time, using whispered explanations, simple notes and drawings. COVID-19 measures often hamper live simplification, as whispering and sharing notes or diagrams is impractical at two metres.

In such cases, working with a respondent in a private conference room (at court or at a solicitors’ office) allows intermediaries to provide live explanation, without disruption to the court. In some instances, this ‘conference room’ working style allows for more dynamic communication between the client and intermediary, improving overall understanding.

While there is no doubt that returning to court will be of benefit to many vulnerable respondents and defendants, a possible reduction in flexibility regarding their attendance may be an unexpected downside to relaxing regulations.

Current and changing COVID-19 court practice

Whatever your views on the return to courtroom, it is imminent (bar fresh lockdowns and restrictions). So, what awaits legal professionals and service users returning to court after months of remote hearings? Current cross-judicial guidance (as per the 23rd March 2020) and updating guidance from January 2021 is as follows:

  • Mask-wearing is required when:
    • In public areas of the court buildings
    • When moving around the court building
    • In court, unless they are a witness giving evidence or lead advocate for prosecution or defence. Other courtroom personnel may wear a mask at this stage, at their discretion.

  • Measures ensuring safety when entering court buildings include:
    • Two metre distances between all individuals queuing to enter court buildings (and between court users and court security).
    • Direct access for court professionals upon presentation of an ID badge (at some courts) to reduce contact with security.
    • Security to wear gloves and regularly to clean trays for visitors’ belongings.

  • Handwashing and court hygiene measures include:
    • Sufficient supply of hand wash and paper towels (or automatic hand dryers) for all who will be in the building.
    • Judges to permit a break to accommodate handwashing, approximately every two hours.
    • Regular cleaning of all surfaces touched by people using the building: bannisters, doors and door handles, counsel’s bench, conference room furniture (approximately every two hours)

  • Other measures:
    • No sharing of documents, iPads, holy books, oath laminated sheets etc.
    • If the public galleries can’t accommodate two metre distancing, a queuing system is recommended (unless video link is available). If it isn’t possible there will be fewer people in the public gallery.
    • No court-supplied water carafes anywhere. Although courts now provide bottled water, court users should bring their own bottles to ensure they can stay hydrated.

In addition to these measures, court users could see further changes, including:

  • More testing from mid-April 2021
    The national capability for COVID-19 testing has increased. HMCTS is now encouraging all court users to access testing available to them, on a regular basis. All courts and tribunals will soon offer home test kits for collection for all professional court users, legal professionals, judiciary, contractors, jurors, witness services and staff who attend scheduled hearings. Read HMCTS testing update here.

  • Fluid Resistant Surgical Masks (FRSMs) in custody suites
    These masks will be supplied to professional court users on entry to custody suites. They are to be used in conjunction with the existing safety measures.

Epilepsy and how it affects communication

By Sarah Smith

Today (26) is Purple Day, set up by The Epilepsy Society to raise awareness and vital funds for research and support. Most people think they know what epilepsy is and that it causes seizures, but these seizures can also lead to temporary loss of function in one or more parts of the brain. These parts are often involved in understanding, organisation, and communication processing.

We often work with vulnerable people in the court system who have epilepsy, and they need support in a number of ways. There are more than 40 different types of epilepsy syndromes and many have associated language difficulties.

Communication difficulties may include:

  • Comprehension – Difficulty understanding what someone is saying. A person may struggle to understand environmental cues or routines.
  • Expression – It may be difficult to communicate with other people using body language or facial expressions. This could be because a person has slurred speech, or difficulties with social interaction.
  • Listening – Some people may find it hard to pay attention and listen to a person or an activity.

Communication difficulties can also arise suddenly, due to changes in a person’s medication. They can be connected to stress or other trigger factors. They may be due to epileptogenic activity in the brain that doesn’t necessarily appear as a seizure.

How can an intermediary help?

An intermediary needs to understand how epilepsy affects the person they are working with. Do they have seizures? What type of seizures do they have? Do they know of any triggers? What is their concentration like? What medication do they take and when? Are there any side effects?

Some people have insight into their difficulties, for others it’s a learning curve, and a very quick one that we need to adapt to. Exploring this with them so we can make recommendations on how best to adapt the court room, is crucial.

It can be beneficial to arrange a preliminary visit to the court room to reduce any anxiety surrounding the court environment. It also gives us an opportunity to work out the best seating arrangements for the vulnerable person. Going through the roles of court professionals and a simplified witness template to reduce any anxiety around the proceedings is also something we can do in advance.

We need to consider the lighting and any other triggers in the room, and if there are any hard surfaces around that might cause an injury if the vulnerable person is susceptible to atonic seizures.  

What can be put in place?

The Ground Rules Hearing is typically when we would cover the formalities. Can we ask for emergency break if the vulnerable person is showing signs of the onset of a seizure? If so, do we have a room they can be escorted to where they are safe and there are no triggers. For example, does the room have automatic lights or is there a switch we can turn off?

Often, having the reassurance of regular breaks and court professionals being made aware of their epilepsy can reduce the anxiety around having a seizure. This will also help the person to focus on the discussions in court. It can also afford that person time to take their medication or for someone who may have difficulty processing information quickly, time to absorb what has happened in each court session.

Our role is to ensure that vulnerable person is able to participate in proceedings, and for them to do so effectively, we need to monitor their presentation closely to notice any cues for a seizure. It could be a slight change in body language, a scrunching of the hands or a blank stare. Although we try our best, we may not always be aware when a seizure has happened, so being there to fill in the blanks during conferences outside of court is important. We can develop a court diary so the person, who may have poor retention, is able to reflect on the day’s events and come to court the following morning with questions.

If a seizure happens, this can affect a person’s communication abilities in a number of ways. The main point being their concentration. Some court users are not able to return to court that day, some, need 20 minutes to process what has happened. Our role is to update the court on the person’s presentation and make recommendations such as shorter court days, or later starts, to ensure they are able to concentrate and engage in proceedings.

Our reports and updates to the court are personalised to the needs of the vulnerable person we are working with. The strategies we develop are constantly being reviewed to ensure that person is given the fairest opportunity to participate in their proceedings, have the best opportunity to understand what is happening and achieve their best possible evidence. 

Find out more about the Epilepsy Society’s Purple Day

Neurodiversity: difference or disability?

Sophie Tompson and Jen Clark

Judy Singer first coined the phrase ‘neurodiversity’in the late 1990’s. Singer was a sociologist who had a diagnosis of autism, but he didn’t believe this to be a disability. He believed that all minds are unique and there are infinite numbers of variations on how the mind is works. He believed that variations from ‘neurotypical’ did not automatically mean a disability, but rather a difference.

This week is Neurodiversity Celebration Week and we are admiring how all of our beautiful minds differ. For some neurodiversity is a disability, but for a lot of people it is a difference that should be acknowledged and accommodated.

As part of our work as intermediaries, we are always working to accommodate people’s diverse communication needs. To mark this week, we are sharing two experiences of our work with neurodiverse people to ensure they were able to participate in their legal proceedings.

Working with people with ADHD during assessments

ADHD (Attention Deficit Hyperactive Disorder) is one of the most common neurodivergent diagnoses in children and can often continue through adolescence and adulthood. Inattention, hyperactivity, and impulsivity are the key behaviours that a person with ADHD is likely to exhibit.

A typical Communicourt intermediary assessment takes between one and three hours, and concentrating for this period of time will be challenging for a person who is diagnosed with an attentional disorder such as ADHD. When you throw in the fact that we have had to conduct many of our assessments remotely via a video platform during the last 12 months, the task becomes increasingly difficult. 

During a face-to-face assessment, the intermediary would ensure the environment is best suited to the formal assessment. This would include removing physical objects which are likely to distract the neurodivergent person. Asking someone with ADHD to attend an assessment remotely from their home gives us limited control over the environment. We can’t guarantee the person will be in a private room, free from disruptions or distractions.

“For some neurodiversity is a disability, but for a lot of people it is a difference that should be acknowledged and accommodated.”

Keeping focus

A person with ADHD is likely to have more difficulty in controlling their impulses than a person who is neurotypical. For example, where a neurotypical person may feel compelled to sit in a fixed position for the duration of the assessment, a person with ADHD may be less able to control their urge to wander around their home and pick up their belongings.

At the outset of the meeting, the intermediary will ask the neurodivergent person to go to a private space and ensure that they are available for the expected duration of the meeting. They will be encouraged to make themselves comfortable and prop up their device so that they do not have to hold it for the entire length of the meeting. The hope is that once the device is in a more ‘fixed’ position, they will be less inclined to wander around their home.

If they move into an unsuitable setting during the assessment, the intermediary may implement a break and ask them to return to the private setting before they continue.

The intermediary may create a visual checklist of the assessment topics and show this to the neurodivergent person when explaining the process of the assessment. After each task, the intermediary may refer them back to this visual checklist and cross off the task that has been completed.

Evidence suggests that people with ADHD may be assisted to maintain focus if they are given a small object to fiddle with. The intermediary may encourage a neurodivergent person to find a small household object to fiddle with during the meeting, for example, a piece of blue tac, an elastic band, or a pen. This strategy occupies their hands and makes it less likely that they will be compelled to pick up other (more distracting) objects or carry out other tasks.

The intermediary will implement frequent, short breaks throughout the meeting to assist with attention and concentration. Should the neurodivergent person become particularly distracted, the intermediary may enforce a longer break and encourage them to turn their camera off or leave the room to allow them a full rest break.

Sam’s assessment

This is an example from a remote assessment with Sam*, a young man diagnosed with ADHD. During an expressive language task, the intermediary asked Sam to detail “every little step” involved in making a cup of tea. Sam took this request particularly literally and responded, “Well why would I tell you when I could show you?” and proceeded to take the intermediary through to the kitchen (on their iPad). Once in the kitchen, Sam became increasingly distracted by the environment and gave the intermediary a ‘tour’ of his kitchen cupboards. The intermediary prompted Sam to talk them through the steps whilst he was making his cup of tea.

Once the task was complete, Sam began making himself some toast. The intermediary implemented a short break and asked Sam to return to his previous seating position once he had eaten. Upon Sam’s return, the intermediary showed Sam the visual checklist and explained there were only two more tasks to go. Sam was able to refocus his attention and participate for the remainder of the assessment.

Working with people with autism at court

Autism is a diagnosis which is attributed to three main characteristics: social interaction, social communication, and repetitive behaviours. It is more prevalent for men and can present with different characteristics for women.

We do not implement communication strategies based on diagnoses, we focus on our assessed communication and mental health profiles for each person. Here are some of the areas where autistic people may need support, and the strategies we may employ to help them. 

Social communication:

An autistic person may find it hard to process nonverbal cues, such as facial expressions and tone of voice. So it is essential these nuances in communication are explained within court. For example, if someone is being sarcastic, some autistic people will find this difficult to identify.

Additionally, some autistic people have strong language skills, but find it hard to understand what is expected of them within a communication exchange. They may repeat information using the same words or become tangential on a topic they prefer. When supporting vulnerable people to either give instructions or during evidence, it is important to signpost topics to focus their attention and when required prompt them to use their own words.

Some autistic people find it easier to understand and process information, but might struggle to express themselves. Multiple strategies can be initiated for people with expressive difficulties, such as more frequent breaks, being given an adequate time to process and answer questions, using more specific prompt questions to elicit more detail and so on.

“We do not implement communication strategies based on diagnoses, we focus on our assessed communication and mental health profiles for each person.”

Social Interaction

Some autistic people may find it difficult to recognise other people’s feelings and emotions, or to express their own. If this is the case with someone we are supporting, it is usually raised within the report and during the ground rules hearing, so those within court do not draw negative inference due to difficulties displaying or processing emotion. Also, in court sometimes it is appropriate to ask what emotions a witness is displaying, to check that the autistic person is processing this additional information, and if not it can be explained.

Another presentation for autistic people is feeling overwhelmed by social interaction and difficulty forming close connections. Within court this can be managed with more regular breaks to ensure they can have rest time where they are not required to communicate with anyone. On top of this the intermediary can request additional time to get to know the autistic person to try and build a rapport with them before court starts.

Repetitive behaviours

Autistic people may favour a routine and do not like to deviate from this. For example, they can prefer to eat the same meal for breakfast, lunch and dinner or walk a certain way to work.

To try and support this, intermediaries can request either a timetable of proceedings (family court) or an order of scheduling (criminal court) which outlines the flow of proceedings. This can be transformed into a visual timeline that can be edited to try and support any difficulties with change. We explain that the timetable may change (and often does) but being able to edit a document so they know what is happening each day can support.

Working with Linda in court

Linda* was a first-time young mother who had a diagnosis of autism. We worked together on a week-long family case with the support of her advocate (an advocate is an individual who has worked with Linda for longer and is there for emotional management).

Linda could process information well, but had difficulty understanding the intricacies of conversations, retaining information and taking language at its literal meaning. 

As an intermediary, it is crucial that we don’t just look at a diagnosis, but instead consider the differences in communication profiles for each person and tailor our support to that. It was essential that information could be repeated for Linda, and that we had the opportunity to talk whilst court was in session in case she misinterpreted information.

Due to Covid restrictions, the case was being held remotely using video conferencing. At a Ground Rules Hearing the Judge presiding over the case agreed that Linda and I could be in the same room when joining the hearing remotely. Other strategies of support were also discussed, such as the advocate attending in person, the frequency of breaks and how I would update the court as to the usefulness of these strategies.

One area where Linda required more support was interpreting and understanding figurative and complex language used within court. Linda often processed figurative language at its literal meaning. For example, during the court hearing they were discussing arriving at a house. Linda was adamant that this was not true, as they did not arrive at the house but were on the road outside. This meant that she was fixating on a detail that was not as important as the point being made.

I requested a short break so I could clarify the point to her. I was required to explain this difference in meaning to Linda and refocus her attention to the point being raised. I reassured her that I would highlight this difference to her barrister, who later in court clarified the point that they came to the road outside the house. This example shows a difference in interpreting and understanding information that is not wrong, but could lead to a breakdown in communication. Our role is to be aware of when these miscommunications may occur depending on our vulnerable person’s needs and implement strategies to ensure information is not misinterpreted.

*Names have been changed to protect identities

Working as a Court Appointed Intermediary

Laura Kington

There is no such thing as a ‘typical’ day in the life of an intermediary. Our roles vary hugely from day to day, working with vulnerable people with a variety of communication issues, and in numerous settings.

We work across youth, criminal and family courts, mainly with defendants and respondents, but we occasionally work with child witnesses and in civil law cases. We also assist in conferences between vulnerable people and their legal team to prepare for a court case.

The first thing you learn as an intermediary, is you have to be flexible. Our daily schedules can change drastically up to 5pm the night before, and even sometimes on the day. This is due to the frequent changing of court listings, but also due to the nature of the vulnerable people we support. For instance, difficulties in understanding or anxiety may mean people avoid attending appointments, or they cancel at the last minute.

“Being an intermediary is a challenging role, but it is incredible to know
the difference you are making to someone’s life”

My average day could involve working on an assessment or working in court. If I have an assessment planned, my ‘day’ will start the night before as I check my calendar to make sure the plans have not changed for the next morning.

Today, it is an early start as I travel by train to meet the vulnerable person, this will usually be in their solicitor’s office. I use the journey time to re-read any previous reports and finalise my prep for the assessment.

When I arrive, the person I need to see is already there. Simon* is a 23 year old man who is facing charges of theft. He struggles with diagnoses of post-traumatic stress disorder, depression and anxiety. He was assessed by a psychologist who found that he also has a low IQ, putting him within the range of a mild learning disability. My assessment will need to determine how these diagnoses affect his communicative abilities, and how we can support him in court during his trial.

An assessment can take between one and three hours, depending on what support the person needs. During an assessment, I will first gain some further insight into the vulnerable person’s background. This is helpful to open up discussion regarding what support Simon may receive at home, or if he received support at school. This is also helpful in determining Simon’s insight into his own abilities. I will then move on to the assessment tasks, these look at the different skills and abilities involved in communication and are made as relevant as possible to the court environment. These include working memory, receptive and expressive abilities, attention skills and understanding time, number and sequencing concepts.

Assessment over, I head back to the train station and use my journey time home to start writing my report. When I arrive home, I quickly eat some dinner and then continue with my report. We allow seven days to get the reports written, peer reviewed, finalised and sent to the instructing solicitor.

After drafting my report and sending it to a colleague for a peer review, I check my calendar and see I am confirmed on a half day hearing tomorrow. I need to read the case notes of an intermediary who has worked with this vulnerable person before. I work out my travel plan for the next morning and head to bed.

“There is no such thing as a ‘typical’ day in the life of an intermediary.”

The next day it is another early start to get to court by 10am. Sometimes, we have to organise staying in a hotel if the court is far away and an early start. Travelling to court, I use my journey time to prep and read through the case notes again. 

When I arrive at court, I need to find the vulnerable person and their legal representative to introduce myself. Maria* is 42 and has a learning disability, she is appearing in court as she is involved in care proceedings relating to her third child. We have assisted her before in proceedings, so I have a good idea from the reports and case notes of strategies that she is effectively assisted by. We hold a pre-hearing conference to discuss the plan for the day and assist Maria to understand and instruct counsel for the day ahead.

Today is the Final Hearing. This is where the final decision about the care of the child is made. When the court hearing gets underway, it may start with Ground Rules. Here I can outline recommendations to help Maria during the day. This might include things like providing a stress toy to help with anxiety or attention difficulties. I also take my intermediary oath, promising to “make true explanations of all matters” to the vulnerable person.

There are usually plenty of breaks during the court sessions to allow time for me to explain things to Maria, or to allow for rest and recovery. After lunch, the hearing continues, and we start to hear evidence from witnesses. Throughout the evidence, I simplify any complex terminology, take notes of any questions or comments that Maria raises to discuss with her legal team in the next break, and monitor her emotional management and concentration in case there is need to request a break earlier than timetabled. Maria needs to give evidence as well, so I remind counsel of the Ground Rules in relation to phrasing their questions in a way that Maria can understand and respond to reliably. I draw some diagrams and use visual aids to help her understand what is being asked of her, such as a timeline to assist her in answering questions about how events are sequenced.

After the hearing, we go into a post-hearing conference to make sure Maria has understood all the questions asked, and the process so far.

Finally, at 5pm it is time to head for home. Again, on the train I use the time to write case notes and complete any admin tasks. Tomorrow is a writing day, so I can spend that time finishing my reports.

Being an intermediary is a challenging role, but it is incredible to know the difference you are making to someone’s life. It is brilliant to work with legal teams and other professionals who share the collective aim to make these highly stressful and emotional experiences more accessible to the vulnerable people at the centre of them.

*Names have been changed to protect identities

Celebrating 10 years of Communicourt

Ten years ago, a commitment was made within Section 104 of the Coroners and Justice Act to allow certain vulnerable defendants the assistance of an intermediary. This is the only part of the Act that has not yet been implemented, leaving a huge gap in support for people with communication difficulties. This gap has been felt by every vulnerable defendant coming through the court system since that time.

Communicourt has always believed that all people should be treated fairly by the justice system. All defendants should have timely access to information, and that information should be communicated in a way that is appropriate for them. This is why our founder Naomi Mason set up Communicourt in 2011. She started out working on her own from her dining room. Now we have more than 60 colleagues, based in our West Midlands office and remotely across the UK.

A lot has happened in 10 years and we have learnt an incredible amount. We have worked with police, family courts, child witnesses and defendants. We have worked with more than 10,000 vulnerable adults and children, gathering a huge amount of communications experience and expertise.

We have adapted our ways of working in a global pandemic and our team have been an incredible force, helping people with communication impairments to effectively engage in their proceedings.

We are excited about what challenges and opportunities the next 10 years may bring. We want to continue to grow our network by recruiting more full time intermediaries, and expand the delivery of high-quality intermediary provision across England and Wales.

We will also continue to campaign for regulatory change to ensure that all vulnerable people have access to a consistent, monitored and high-quality service, regardless of their role in court proceedings. The landscape of court proceedings is evolving, and we are keen to continue to work alongside the justice sector. We want to ensure the needs of vulnerable people are met, at what is often the most critical point of their lives.

William Scrimshire, Managing Director