A big well done to intermediary, Rebecca, for her (almost certainly exhausting!) work as a Youth Leader at Newday Christian Youth Festival. Each year, Communicourt staff can take up to two paid volunteering days to support causes they are passionate about. Here’s what she got up to…
“This summer, I had the immense privilege of serving my youth group at “Newday”, one of the largest Christian Youth Festivals in England! The (very wet and windy!) week saw over 8,000 teens come together at the Norfolk Show Ground for a week of camping, worship, and biblical teaching. As a 12-14s youth leader, I had the joy of joining our young people each day at their various meetings, hanging out in the afternoons drinking the best milkshakes, and exploring the word and their faith with them. The week brings up many issues and difficulties, but as leaders we are there to support them pastorally, safeguard our teens, and offer unconditional support. Being a leader can be tough, but seeing the growth of our amazing young people makes every difficult moment worth it!
Despite the awful weather, I had an amazing time working with our incredible young people and am so thankful for the chance to be with them, answering all kinds of questions from the everyday to the big life questions. Whilst my fellow leaders may have heard me say “I hate camping” 10,000 times a day, I am already counting down the days for next year!”
Interested in working as an intermediary? Learn more about staff benefits (including Volunteering Days) and the intermediary role here.
Have you ever wondered what a ‘typical’ working week looks like for an intermediary? To give you a glimpse into the intermediary world, Laura has shared her experience of a final hearing at Newcastle Family Court, where she assisted a service user named Mandy*.
*Names, locations, case details and other identifying information have been changed
A bit of background…
I first met Mandy before her final hearing, in fact, I was the assessor who met with Mandy and recommended that she was assisted by an intermediary throughout her case. The assessment was carried out with the assistance of an interpreter, as English wasn’t Mandy’s first language.
The assessment
During her intermediary assessment, I noted Mandy had difficulty in a number of communication domains, which would likely affect her engagement and participation in court proceedings. For example, she had difficulties with concentration, she often digressed at length from the topic of conversation to discuss unrelated topics, and she did not always recognise when she needed a break. I also observed her to have literacy difficulties, limited understanding of court vocabulary and limited understanding of less commonly used words in general.
The assessment took three hours. Working with an interpreter always requires more time, as more communication is required to share information. In addition, Mandy often moved away from the topic at hand, to discuss unrelated matters at length. She required support to refocus upon the current subject. These two factors meant that the assessment tasks were not all completed within our three-hour meeting. For this reason, I carried out the remaining assessment task at court (just prior to the Case Management Hearing).
Preliminary hearings
I assisted Mandy at a Case Management Hearing and then returned for the Issues Resolutions Hearing, where I was able to assist the court during a short Ground Rules Hearing. This step is to ensure that measures are put into place and agreed to ensure Mandy has a fair trial.
Thanks to our regular encounters, Mandy became comfortable around me, and we were able to build a good rapport in advance of the Final Hearing. I was pleased I was assigned to assist her during her Final Hearing as I already knew her case and understood her communication needs well.
The final hearing
The final hearing started off as normal. I was required to attend court at 9am. Luckily, it was only a short train trip for me as I am already based in the local area. This was a case where the Local Authority was seeking a care order for the children (foster care)*. The guardian agreed with the Local Authority’s proposals. Mandy opposed the social worker’s plans and wanted her children back in her care.
On the first day, we listened to the current social worker give evidence. On the second day, we heard from the social worker who completed Mandy’s parenting assessment.
Whilst in court and conferences, I worked with Mandy to ensure she understood the evidence. She had difficulty understanding legal terminology, following lengthy legal discussions and understanding written information. I used strategies including visual aids, simplifying information, repeating key points and asking her to repeat what she understood in her own words (to check her understanding). These strategies were helpful in this case. After discussion with the court, I also asked the interpreter not to directly translate everything that was being said as this would overload and confuse Mandy. Instead, I provided simple explanations throughout, which were then interpreted to Mandy.
Evidence from the professionals began to paint a picture which suggested that Mandy should have been provided with additional support to learn parenting skills (as recommended in the parenting assessment), which had not been provided. This appeared to be the theme of the case and it was becoming a concern for both Mandy’s barrister and the guardian.
Unfortunately, the next day was adjourned due to one of the social workers having health issues*. I went back home on this day and used it as an admin day (which included updating case notes and replying to emails). I also worked on one of my targets. This target was on researching the effects of strokes upon communication, specifically dysarthria (slurred or unclear speech), and creating an information sheet that included some strategies intermediaries can use when working with individuals who are affected by this condition.
A change in direction
After listening to more witnesses from the Local Authority, the guardian asked the Local Authority to reconsider their position. This meant that, if the Local Authority took the guardian’s suggestion, they would have to do a new parenting assessment with Mandy, providing her with the right support and education as part of that process. Proceedings would be adjourned until this work had been undertaken.
The next day, the Local Authority decided that Mandy should be re-assessed and they were no longer asking for a care order. Court was then adjourned to allow the Local Authority to make enquiries about how the assessment would be carried out.
After the hearing
That afternoon, I spent time with Mandy, her barrister, and the interpreter. Due to her learning difficulties and language barrier, I decided it would be a good idea to construct a visual aid to help her during contact sessions.
I created a document with pictures of healthy food, a parent hugging their child, game boards etc. The purpose of this was to give a printed version to Mandy to look at before contact sessions, to remind her of what to do and what to bring. Through working with the interpreter, we were able to come up with simple words we could put below each picture in Mandy’s first language, so Mandy had some extra context. Mandy was really happy with this resource and was able to clearly explain what to do at contact, when her understanding was checked.
On the final day, we came back to court for a short hearing which confirmed the local authority plans for Mandy’s re-assessment.
Final thoughts
As an intermediary, there’s no such thing as ‘typical’ day or week. Sometimes we may work with service users we have previously assisted and other times we meet new ones. Everyone we work with has differing communication strengths and needs. As intermediaries, it’s important to recognise this and think of ways to improve their participation and communication.
In my case, I enjoyed working with Mandy at different stages – from the assessment stage to the Issues Resolution Hearings, down to the Final Hearing. I managed to build a good rapport with her, which helped her to become more comfortable around me, engage well with my strategies and allowed me to recognise how to better assist her.
I was also able to implement effective strategies to work with the interpreter, without overloading Mandy. Approaches like discussing the boundaries of our overlapping roles (at the outset of proceedings) and the importance of verbatim translation of intermediary simplifications, helped to ensure Mandy’s needs were being met throughout.
What are special measures and when are they implemented in legal proceedings? Intermediary Georgia Fleming explores the adjustments family and criminal courts can make to improve access to justice for court users with communication difficulties.
When talking about “special measures” in court, most people immediately think about large screens concealing witnesses and children giving evidence via video link. Whilst those strategies are perhaps the most well-known, they are not the only measures that we, as intermediaries, recommend to improve an individual’s participation in legal proceedings.
In simple terms, special measures are adjustments to typical court practices, which are made to help court users (particularly vulnerable witnesses and family court respondents with communication needs) participate fully in court proceedings. Special measures are sometimes also available to defendants with identified needs.
Special measures can vary whether you are in a family court or a criminal court. It is our job, as intermediaries, to look at a service user’s communication profile and determine what strategies or measures would assist to ensure that they can engage fully in proceedings, in the relevant setting. It’s also important to note that special measures can be implemented at any stage of proceedings, they are not restricted to during a court user’s evidence.
In this blog post, we will be looking at special measures in courts and how they can assist service users. We will also explore some of the different ways that we, as intermediaries, ensure best participation and engagement in court, including our role in recommending special measures to the court, following intermediary assessment of the individual concerned.
Special Measures and Criminal Court
Special measures in criminal court were first introduced in the Youth Justice and Criminal Evidence Act 1999 (YJCEA). This act outlined a range of measures that can be applied to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses.
Not everybody can ask for special measures, however. In court, a witness or defendant may request special measures if:
They are under the age of 18
They have a mental health difficulty
They have a learning disability
They have a physical disability
They are an intimidated witness
They are a victim of a serious crime
Or a combination of the above
Just because a person is eligible, does not mean the court will grant special measures. The court has to be sure that the use of special measures will assist defendant or witness to participate fully in proceedings and give their “best evidence”.
Special Measures and Family Court
The guidelines regarding special measures in family court are similar. Special measures are granted for “vulnerable” individuals in family court proceedings under the Family Procedures Rules 2010A. The 2010 Family Procedures Rules (FPRs) were updated in 2017 to ensure that vulnerable individuals were treated more fairly in family court. Previous reports had suggested that the family justice system lagged behind the criminal justice system in its procedures protecting vulnerable individuals. The updated FPR sets out more clearly what constitutes a vulnerable individual and notes that it is imperative that individuals who may be vulnerable are identified as early as possible in the court process. The updated FPR recognises that there are several ways in which an individual might be considered vulnerable. Vulnerabilities may relate to:
the social and cultural background and ethnic origins of the party or witness
the domestic circumstances or religious beliefs of the party or witness
the ability of the party to understand proceedings, make informed decisions and give instructions.
The criteria for special measures in criminal court (above) also apply to family proceedings, e.g., age, mental health difficulty, learning difficulties etc.
Special measures are not restricted to respondents in a family case, but also apply to intervenors, witnesses and child witnesses who are involved. The FPR also state that a Ground Rules Hearing is essential to ensure fairness throughout the trial. The Ground Rules Hearing is also a great opportunity for us intermediaries to speak to the court and make our recommendations.
Examples of Special Measures
There are many examples of special measures which can be implemented in court. Such as:
Intermediary assistance – The assistance of an intermediary during a trial or a family court hearing is an example of a special measure. The role of an intermediary is to facilitate communication between the courts and the service user. This involves the intermediary assessing someone’s communication profile and considering different strategies which can assist them with the court process, then implementing these strategies to support the service user’s understanding, engagement and participation.
Screens – These can be used so that a witness is only seen by the barristers, the judge and the jury (if in criminal court). This can help alleviate anxiety and help the witness to better engage in proceedings. Anxiety can impact an individual’s participation and concentration in court, as well as their ability to focus and answer questions accurately when giving evidence. Moreover, screens can help shield a witness so that they do not have to see certain people in court, which can help manage anxiety levels and improve their engagement.
Live link – This enables the individual to give evidence during the trial or hearing from outside the court through a video-link to the courtroom. This can take place from different locations, such as in a video-link room at court, in the individual’s house or from their solicitor’s office.
Evidence given in private – (Criminal court only) This involves excluding members of the public and sometimes even the press from the courtroom during an individual’s evidence. Again, this helps to ensure “best evidence” as well as best possible engagement.
The removal of wigs and gowns by judges and barristers – (Criminal court only – N.B. legal professionals do not wear wings and gowns in Youth Court). This measure can help support the emotional management of a court user who may find these accessories intimidating, confusing, distracting and/or anxiety-inducing.
Pre-recorded interview – This is usually permitted for those who are vulnerable or who would not be able to give their “best evidence” in person. The practice allows them to record their evidence in advance, with questions put to them in an agreed manner by an agreed individual. This removes the need for them to give live evidence during proceedings.
What are the advantages to Special Measures?
There are many advantages to having special measures. In some cases, their implementation can completely transform the way in which a person participates in legal proceedings and can help them to give evidence to the best of their ability.
Without special measures, the fairness of a court case can change drastically. For example, if a defendant who suffers from severe anxiety is denied the use of a screen in court, it is likely that their evidence will be seriously affected. They may inadvertently forget key information, have difficulty accurately processing questions put to them, struggle to challenge incorrect assertions put to them or misremember important facts, all due to the effect of their anxiety on giving evidence in front of a courtroom and public gallery. Adaptations, such as the use of a screen or live-link, can allow the defendant to better manage their anxiety and give their best possible evidence to the court (which benefits justice as a whole).
Case Study: 17 year old defendant in Crown Court
I once attended Crown Court to assist a young defendant called Jamie [false name]. We met in the cells with his barrister, and it was clear from the offset that he was extremely nervous. He was restless in his seat, fidgeting with his hands and swinging his feet. Having read his intermediary report (which noted his diagnosis of ADHD), I was expecting him to present in this way.
He made little eye contact, and his breathing was rapid. Whilst making superficial conversation, he turned to me and said, “You know what scares me the most? The stuff they wear. I’ve seen it on TV”. I asked what he meant, and he replied, “The stuff they put on their heads and the black gowns. Feel like I can’t look at them”. This is not uncommon. For many people, court is daunting, however as a young defendant, you are under particular pressure, due to your age and the unfamiliarity of your surroundings.
I began thinking about ways to make the process easier for him. The trouble is, court is never easy nor straightforward, regardless of individual difficulties. However, due to his age, and particularly his ADHD diagnosis, the trial was going to be especially difficult for Jamie. After 30 minutes in a pre-trial conference with his legal team, it was evident that he was fatigued and disengaged. I could only imagine how he would feel after a full day in court.
In preparing a list of suggested Ground Rules, we always read the intermediary report whilst also considering our own experience of working with the service user. From my meeting with Jamie, I already knew the type of special measures I would recommend in the Ground Rules Hearing. In court, I outlined Jamie’s communication difficulties and recommended the following measures (among others):
Gowns and caps to be removed in the courtroom to help minimise Jamie’s anxiety and support his emotional management.
All counsel to refer to Jamie by his first name, to aid his engagement throughout proceedings.
Jamie to be permitted to use a fidget aid, both in the dock and whilst giving evidence, to assist his concentration.
The judge immediately approved all these measures. When I informed Jamie of this, his demeanour completely changed. It was like a weight had been lifted from him. Just like that, his outlook on the whole trial had transformed. He presented as being more relaxed and focused. It also improved my rapport with Jamie. He began to ask more questions and would let me know if he didn’t understand something. His presentation at the end of the trial was completely different from the beginning, which is testament to the special measures put in place to help his participation.
Unusual special measures
While some special measures are widely recognised and applied, others require greater creativity or may be more unusual. They may be bespoke, in response to the specific court user’s individual needs and difficulties. For example:
Altering the lighting in the courtroom, if a person has sensory sensitivities which can impair attention or adversely impact emotional management.
Allowing the individual to attend court in clothing (or with a particular item) which assists their emotional regulation (for example, I once assisted an autistic person whose slippers were a special sensory item, which considerably aided his emotional regulation).
Allowing the individual’s therapy animal in the courtroom to alleviate anxiety.
As intermediaries, we are always grateful to the court for considering and permitting measures we recommend. Although they can be effortful to implement, these special measures can be vital in ensuring an individual is able to participate as effectively as possible in proceedings.
To learn more about special measures, Ground Rules Hearings and the intermediary role, visit The Access Brief, a free library of resources, developed by intermediaries for legal professionals. Here you will also find free, bite-sized guides to assisting court users who have a range of diagnoses and common communication difficulties.
From writing your dissertation to creating a snappy business tagline, ChatGPT is the latest piece of Artificial Intelligence poised to steal your job. Created by Open AI, the tech allows users to ‘chat’ with its system and to ask it to complete an endless range of text-based tasks, from producing copy for a website, to writing poems:
Limerick written by ChatGPT
According to Business Insider, “Chat bots like GPT are powered by large amounts of data and computing techniques to make predictions about stringing words together in a meaningful way. They not only tap into a vast amount vocabulary and information, but also understand words in context. This helps them mimic speech patterns while dispatching an encyclopedic knowledge”.
Intermediaries vs. AI
So, how do ChatGPT’s simplification skills stack up, and could the intermediaries of the future be generated by artificial intelligence? We decided to put it to the test.
Before we put the bot through its paces, it’s important to remember that every person Communicourt supports is unique, with their own, individual profile of communication strengths and difficulties. Intermediaries carefully assess each person’s communication skills, producing bespoke intermediary reports which recommend specific adjustments and strategies to improve the individual’s participation in legal proceedings.
The intermediary role is a person-centred role, which relies heavily on human connection. Rapport building, exploring strategies creatively and responding empathetically to service user needs are core intermediary skills. It is difficult to imagine artificial intelligence replicating these skills any decade soon.
However, with a suite of endlessly adaptable tools behind the scenes, it is theoretically possible to ‘teach’ tools like ChatGPT to explain legal proceedings using a range of different approaches (simplified vocabulary, defining complex terms, using analogy, using ‘flow charts’, using short sentences, using bullet points etc.) which could assist a range of court users with diverse communication needs.
Let battle commence…
To test out the tech, we asked both a Communicourt intermediary and ChatGPT to complete some short simplification tasks. Here are the results:
Round 1: An extract from a court order
Original: All parties must immediately inform the allocated judge as soon as they become aware that any direction given by the court cannot be complied with and to seek in advance an extension of time to comply. In the event that a party fails to comply with directions and/or fails to attend any hearing without good reason the court may make final orders including care orders and placement orders at that hearing.
ChatGPT simplification: All parties must tell the judge if they can’t follow a court order and ask for more time. If they don’t follow the order or show up to a hearing without a good reason, the court may make final orders (decisions) about care and placement.
Intermediary simplification:
Everyone in the case must tell the judge if there are any problems with:
Finishing the parenting assessment by 10th February 2023.
Getting Dr [NAME] to write down his opinion by 10th February 2023.
Doing the drug test by 14th February 2023.
If there are any problems, they must tell the judge and ask for more time.
The judge can make a final decision at the next hearing, even if:
You don’t do the tasks the court asked you to do (like the drug test).
You don’t come to the next hearing without a good reason.
The judge’s final decision could be:
Making a care order (deciding CHILD can’t live with you).
Making a placement order (deciding social services can look for a new family for CHILD).
*(invented examples for context).
Round 2: Simplification of court concepts – Threshold
ChatGPT simplifications:
Request: Explain “threshold” in care proceedingsin simple terms:
Threshold in care proceedings is a legal term used to describe the level of harm or risk of harm that must be met before the court can make an order taking a child into care. It is based on the principle that it is only in exceptional circumstances that a court should interfere with a family’s right to look after their own children.
Request: Use a flow chart to explain “threshold” in care proceedings in simple terms:
Start: Is there evidence of significant harm to the child?
Yes:→ Proceed to court No:→ End
Proceed to court Are there any other factors that suggest the child is at risk of significant harm?
Yes:→ Court will consider threshold criteria No:→ End
Court will consider threshold criteria. Does the court believe that the child is likely to suffer significant harm if no action is taken?
Yes:→ Court will make a care order No:→ End
Intermediary simplification:
Threshold is a word used at family court.
It means that the parents* have ‘crossed a line’ and put their child at risk.
Social services have to prove to the judge that you have ‘crossed a line’ and put Millie at risk.
If the judge believes them, she could decide that Millie can’t live with you anymore.
These are the things social services say ‘crossed a line’ and put Millie at risk:
*(invented examples for context).
Round 3: Simplification of complex concepts – Joint Enterprise
Request: Explain joint enterprise to a person with learning difficulties
Joint enterprise is when two or more people work together to commit a crime. It means that each person involved in the crime is responsible for the actions of the other people involved. For example, if two people rob a bank together, they are both responsible for the robbery even if one person did not actually do anything.
Intermediary simplification:
Joint enterprise is used when two or more people do a crime together.
It means you can be guilty of a crime, even when you didn’t do it yourself.
This is why the police say you stole Kate’s phone*:
You didn’t touch the phone or talk to Kate.
But you were there when John threatened Kate and took her phone.
Your texts show that you knew what John was going to do.
You didn’t try to stop him.
Because you were standing next to John, Kate felt more scared (there were two of you).
This helped John to steal her phone.
This means that the jury can decide you are both guilty of stealing the phone.
*(invented examples for context).
And the winner is…
ChatGPT offered some good, rapid simplification of some concepts and legal documents. However, many lower-frequency words (e.g. “significant harm” and “final order”) and longer sentence structures still appeared in the bot’s simplifications (although it is possible to further refine the app’s output).
However, for time-strapped solicitors working with a client who has difficulty reading complex court documents with understanding (and do not have an intermediary), this technology is certainly something which could prove helpful in future. Of course, AI-simplified documents would require careful review before provision to clients, however, the technology could potentially assist solicitors to provide more accessible court documents to their clients, without needing to simplify the text themselves.
One important aspect of simplification (making concepts, vocabulary and information relevant and concrete for the service user) was particularly absent from the simplifications offered by artificial intelligence. A human intermediary can quickly assimilate information about a case, apply it to their understanding of court concepts and develop simplifications which are accessible for each individual court user in their specific case – all while taking into consideration a very wide range of factors (the environment of the explanation, the service user’s response to intermediary assistance, their emotional regulation, their attention, their communication difficulties and strategies which assist them).
AI certainly has the capacity to eventually attune its output depending on a wide range of variables (like those listed above). However, human connection, responsiveness and adaptability lie at the heart of the intermediary role. So, don’t expect IntermediaryBot3000 to be taking the affirmation in the courtroom any time soon.
Learn more about the intermediary role
To learn more about simplification or other aspects of the intermediary role, visit The Access Brief (our free library of resources for legal professionals working with a client who has communication needs). You could also tune into the Accessing Justice Podcast to listen to discussions about ensuring equal access to justice for court users with a wide range of diagnoses and difficulties.
How does Emotionally Unstable Personality Disorder (EUPD) impact court users involved in legal proceedings? And how can an intermediary assist? Communicourt intermediary, Rhianna McGreevy, takes a closer look at this diagnosis and strategies to improve access to justice.
Emotionally Unstable Personality Disorder [EUPD] (also known as Borderline Personality Disorder [BPD]), is a complex and misunderstood condition. Individuals who carry this diagnosis may experience longstanding pervasive difficulties in relating to others and themselves. The difficulties that individuals with EUPD experience will usually be apparent in multiple situations across their personal and professional lives.
The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) identifies 10 personality disorders, which are subdivided into three ‘clusters’. These clusters group the disorders in terms of their defining characteristics. EUPD is one of four personality disorders in Cluster B, all of which are defined by their “dramatic, emotional or erratic” nature.
What causes EUPD?
It is hard to determine what causes EUPD, but studies have suggested that it is likely a combination of genetic and environmental factors. The heritability of EUPD is estimated to be around 46%. However, while genetic pre-disposition may increase your likelihood of diagnosis, there are many other factors that contribute to someone’s overall risk of developing EUPD. The individual, their environment and their personal circumstances are all extremely influential.
It is common for people with EUPD to have experienced a significant trauma. Common environmental factors that have been experienced by people with EUPD include being the victim of sexual, physical, or emotional abuse, or the experience of adverse childhood experiences (ACEs) which can include growing up in a neglectful environment, growing up in fear, or living in the shadow of a relative with poor mental health or substance abuse issues.
Stigma and labels
EUPD is heavily stigmatised as a condition, and individuals with the diagnosis are often deeply and profoundly misunderstood. Using the word ‘disordered’ to describe an individual’s personality can denote a sense that there is something wrong with the very essence of who they are. The individual with EUPD may find that others do not view their behaviour in the context of their diagnosis, but rather see the individual as being wilfully and deliberately unreasonable or selfish.
This simplifies a very complex subjective experience and disregards the deeply rooted causes of EUPD. Our brains are constantly trying to adapt and survive, and personality disorders are often developed in response to difficult circumstances. Emotionally unstable personality disorder, and the thoughts, feelings and behaviours that accompany it, are more helpfully viewed as the brain trying to adapt in order to survive the abandonment, abuse, or neglect it has experienced in the past, and to protect the self from experiencing similar traumas in the future.
Symptoms of EUPD
Individuals with EUPD often live with an intense fear of abandonment. They may carry a deep-rooted belief that they are inherently ‘bad’, and that others are ‘good’. They may also be hypersensitive to the possibility of rejection. If they feel as though there is a threat of being abandoned, whether this threat is real or imagined, this can cause them to spiral into self-destructive patterns.
The emotions that accompany rejection or abandonment can be incredibly painful for individuals with EUPD to process, and the resultant behaviours may explode outwards in the form of lashing out at others or sabotaging interpersonal relationships. Individuals may also internalise rejection as confirmation of their essential ‘badness’, or ‘worthlessness’, and this may manifest as feelings of deep self-loathing, disassociation from the self, or even self-harm and suicide. Between 3% and 10% of people diagnosed with EUPD take their own lives, a figure that is 50 times higher than the suicide rate in the general population.
Another common feature of EUPD is unstable and tumultuous personal relationships. There may be intense and abrupt changes in how they perceive and relate to those closest to them. A person with EUPD may have unrealistic perceptions of others, lurching between seeing someone as an idealised version of themselves who can do no wrong, to an enemy who is vindictive and cruel. The emotional inner life of individuals with EUPD is very complex and intense, which means that they can find it difficult to understand other people’s perspectives. This can be unpredictable and difficult to deal with and consequentially makes it very difficult for people with EUPD to sustain long-term, healthy interpersonal relationships. Their personal lives may be characterised by patterns of instability and volatility.
Relationship to self
In the same way that individuals with EUPD may struggle to relate to others, they can equally have difficulty relating to their own sense of self. They may behave impulsively, suddenly shifting their identity, career, outlook or plans. They may be self-destructive or reckless and engage risky behaviour, such as substance abuse, gambling or self-harm.
Emotional regulation
Individuals with EUPD are highly sensitive, and can experience intense emotional shifts, which may be triggered by relatively small stimuli. Analogously, if a person had experienced a serious injury to their leg, it would only take the slightest of impacts for the wound to be re-opened, and for the intense pain to return. Similarly with EUPD, what may seem a minor incident to others, can result in an all-consuming and apparently disproportionate emotional response. In particular, individuals with EUPD may have difficulty managing conflict in relationships and regulating their anger. They may have outbursts which escalate out of control. They may find it difficult to calm down and self-soothe, and their anger may eventually collapse inwards into feelings of shame and guilt, which intensifies their negative self-view.
EUPD is often characterised by chronic feelings of emptiness. This may manifest as a feeling of numbness and an unsettling sense of disconnection, both with others and with the self. In these periods of emptiness, people with EUPD may appear restless and seek external distraction. In times of extreme emotional distress, this sense of disconnection may deepen into a state of de-personalisation or de-realization. This is a temporary state of extreme dissociation, where the individual detaches from reality completely. The individual may feel as though they are not a real person or that they don’t exist at all.
In addition to the specific challenges of EUPD, the diagnosis has a high rate of comorbidity, which means that individuals with EUPD often live simultaneously with other mental health issues. The most common comorbid diagnoses with EUPD are depression, anxiety and substance abuse. This adds a separate and distinct layer of challenge for the individual, which could further impact their ability to manage the challenges of their diagnosis.
EUPD in court proceedings
Living with emotionally unstable personality disorder can be intense and challenging at the best of times. These difficulties are only heightened in the court environment, which can be relentless, stressful, and highly emotional. Without adequate support, there may be a significant negative impact upon individuals with EUPD who have to attend court. The experience may have destructive consequences for their emotional wellbeing, and their ability to fairly participate in the court process may be impacted as a result.
Emotional management
Intermediaries can offer a level of assistance and support to individuals with EUPD which may improve their experience of court and increase their ability to participate. Intermediaries are not advocates, support workers or mental health professionals, and we are employed solely to assist the understanding and participation of the individual. However, there are circumstances in which intermediary assistance can positively affect emotional management. For example, if an individual is becoming distressed in court proceedings because they are struggling to understand what is happening, the support of an intermediary to understand what is being discussed may prevent them from becoming emotionally dysregulated.
Clear, consistent communication
When working with service users with EUPD, it is crucial that good communication is modelled by professionals. The most effective communicators will present information in an accessible way, with patience, dedication, and transparency as central principles. Anything less than this may leave the service user feeling left in the dark and confused. For individuals with complex emotional needs, clear and consistent communication is especially important. For example, language may be routinely used in court with which the service user is unfamiliar, or time constraints may mean that there is not an adequate chance within each hearing to process information. The service user may not be informed about the purpose of a specific hearing, or they may not have any concept of what to expect from the court day. For individuals with complex emotional needs, situations like these may leave them feeling left behind, unimportant or disregarded. This could be triggering for the individual and may cause them to spiral into an adverse emotional response.
The intermediary role, as a dedicated communication specialist who is ultimately impartial, can help to mitigate some of the risk of a negative experience for a service user with EUPD. In court, the intermediary will endeavour to make sure that the service user is fully informed about what is being discussed at all stages of proceedings, by using simplified explanations and visual aids. The intermediary can also create a court timetable, to manage expectations about what is happening within the court day. The intermediary can ensure that the service user has a clear sense of the purpose of each hearing, and that they feel included in the conversations which concern them. An intermediary’s presence can help to bridge the gap between the complex legal discussions that take place at court, and the unique emotional needs of a service user with EUPD.
Intermediaries are adept at building rapport, and this is central to a constructive working relationship with any service user, but particularly one who has a diagnosis of EUPD. Working closely with someone with this diagnosis can be an unpredictable experience, and the difficulties that individuals with EUPD have with emotional regulation will only be exacerbated in an emotional court environment. When rapport is established, this is a foundation of trust from which effective strategies can be implemented, and support offered in moments of dysregulation. For example, the intermediary can assist the service user by implementing grounding exercises, such as deep breathing. They could also offer the use of anxiety aids, such as fiddle objects, to assist the service user to remain calm. The intermediary can offer a level of emotional support to the service user if things reach a crisis point.
Boundaries
It is important, however, for clear emotional boundaries to be in place at all times. The balance needs to be appropriate, and the impartial role of the intermediary uncompromised. The intermediary must not be inflexible, if they are too rigid and stringent with their emotional energy, they may appear defensive or cold. Conversely, if the intermediary does not establish healthy personal limits, they may find themselves taking on the emotions of others, which may interfere with their ability to provide appropriate support.
Triggers
If an intermediary is able to build a strong rapport and working relationship with a service user who has EUPD, they may be able to anticipate the triggers which cause negative reactions and prevent them from occurring before things spiral out of control. The service user may function better at a particular time of day, or in a particular setting. The intermediary can make recommendations to the court based on this, for example, suggesting that hearings take place in the afternoon, or suggesting the service user attends from a familiar environment, such as their solicitor’s office. The service user may find it harder to regulate their emotions if they are fatigued, uncomfortable or hungry. Although this may sound relatively simple, these factors can have significant consequences and are easily avoided. The intermediary can monitor the service user’s wellbeing and alert the court to take breaks as needed. The service user may be triggered by coming into contact with specific individuals, and special measures, such as screens, can be used to prevent individuals from encountering other parties in proceedings.
Giving evidence
Often individuals with EUPD will find it difficult to remain calm when they feel they are being ‘attacked’. Whilst court is undeniably a tense environment, and giving evidence is doubtless a stressful experience, the intermediary can make recommendations to help make this process less fraught. For example, when giving evidence, it may assist the service user if they are asked questions in a neutral tone, as they may respond poorly to an adversarial approach. The service user may be more likely to give their best evidence if questions are pooled, and asked by one advocate, as this limits the number of people the service user will have to interact with and may remove an element of anxiety about the process. The service user may be assisted by frequent breaks whilst giving evidence, to manage the increased pressure on their communication skills, and the likelihood that they may become dysregulated if they have to confront difficult and distressing topics during questioning.
EUPD is a complex condition which is extremely challenging for those it impacts. The emotional turmoil that individuals with this diagnosis may experience can be a significant barrier to their understanding and participation in court. There is no simple remedy for the challenges that this diagnosis poses, but the assistance of an intermediary can offer dedicated support and strategies to assist individuals with EUPD throughout proceedings.
Communicourt resources
Learn more about mental health and communication difficulties on The Access Brief, a growing library of downloadable resources for legal professionals, developed by intermediaires. The collection includes guides to Attention Deficit Hyperactivity Disorder, Post-Traumatic Stress Disorder, creating visual aids to support clients with communication needs, writing easy read documents and more!
To learn more about ‘Hidden Disabilities’ like EUPD, tune into series 2 of our Accessing Justice Podcast. In this series, we talk to experts about conditions which affect communication, but may be overlooked at court, from stammering and trauma, to ADHD.
The saying, “Start them young”, has taken on a whole new meaning to me.
Hi, I’m Georgie and my younger brother has autism and I have been his ‘intermediary’ since I was five years old.
Autism is a type of developmental disorder that affects how a person communicates and interacts with the world. For my little brother, this world that so many others felt was normal, felt like living in a simulation. He didn’t start speaking until he was over four years old and, still to this day, struggles to understand the concept of sarcasm; this made basic day-to-day interactions very difficult.
My mother has always told me that I continually found a way to ‘understand’ my brother despite his difficulties, and I like to feel like I made even a small difference to his communication in early life. Her favourite story is from when my brother was three years old and could not verbalise what he wanted to eat. She told me how I drew out a picture of both items of food (a cheese string or a Babybel, probably!) and asked him to point to what he wanted. I now use visual aids as a strategy in my work as a court appointed intermediary.
Time at university
Studying psychology was a no-brainer to me. From a young age, I have always loved looking at the different ways our brains work and how autism affects the way my brother interacts with the world. For example, making small talk with a stranger on the bus, my brother would divert to his internal, learnt script. He would find it hugely distressing if anyone diverted from the script to answer the question, “How are you?”, with, “Not very good”.
I took modules in neuroscience, psychopathology and anything that would remotely relate to autism and how I can help my brother at home. However, it seemed that the research on autism is overshadowed by its negative connotations in relation to emotion, empathy, intelligence and crime etc. This made me extremely angry, as these things did not reflect the person I knew.
Did you know that the media produces disproportionately high-profile coverage for rarecriminal offences involving autism? For example, a 2021 headline read, “Autistic boy killed baby brother”. It is articles like this which contribute to the erroneous belief that there is a link between autism and offending.
Learning about the misconceptions that the public had about autism led me to writing a university paper for my eyewitness psychology module entitled ‘Autism and Police Interviewing’.The paper explored the different language and social communication difficulties which autistic people can experience, which can make it challenging to obtain relevant information from them in a standard police interview?
I found that the more I looked into autism, the angrier it made me that autistic people were being unfairly criminalised and punished for their atypical understanding in police interviews and in court.
However, it was not until my third year at university when I took a “Crime and the Criminal Justice System” module that I learnt about intermediaries. It became clear to me at this point, that an intermediary (whatever that meant to me at the time) was someone that my brother would need if he ever found himself in that situation. However, at this point, the research on intermediaries was only in relation to child witnesses and said nothing about adults, defendants or respondents. Although my brother is not a child, I knew that his autistic characteristics and atypical understanding would mean he would struggle in cross-examination, and I knew he would not understand how the court system works.
It was only after I graduated from university that I learnt about intermediaries in relation to defendants and respondents. I had been working in a rather boring accounts job for nearly two years and felt unfulfilled. I did not feel like I was making a difference or in a field of work I wanted to be in.
One of my close friends from university started working for Communicourt a short time after we graduated, and I learnt about all the wonderful things she was doing to make a difference to many vulnerable people in the legal system. I found myself lying awake at night thinking about that young woman at university, wanting to help people like my little brother. It was then that I decided to take a leap of faith – and the rest is history.
Now I work with people with communications difficulties just like my brother every day, using many of the skills I developed in childhood, at work. I am proud of the difference that I am making to our service users’ lives, and that I get to be a part of what is one of the most stressful and demanding moments in their lives. I am proud of the work that Communicourt do every day, and above all, I am proud of what my brother has been teaching me all my life.
Further reading
Brewer, N., Zoanetti, J., & Young, R. L. (2017). The influence of media suggestions about links between criminality and autism spectrum disorder. Autism, 21(1), 117–121. https://doi.org/10.1177/1362361316632097
Slavny-Cross, R., Allison, C., Griffiths, S., & Baron-Cohen, S. (2022). Autism and the criminal justice system: An analysis of 93 cases. Autism Research, 15( 5), 904– 914. https://doi.org/10.1002/aur.2690
Holly examines how questions in advance can help legal professionals and their clients.
At the vast majority of Ground Rules Hearings, both in criminal and family cases, Communicourt intermediaries request questions in advance. This practice involves all advocates submitting their intended questions for the respondent, intervenor, witness or defendant to the intermediary in advance of the service user’s evidence.
There are some common objections to the practice, which include the time demands it places upon advocates and concerns regarding the confidentiality of questions. However, in many cases, this measure (which ensures all questions remain strictly confidential) has a considerable positive impact upon service users’ ability to give their best evidence.
In this post, we’ll be taking a closer look at questions in advance, exploring how the process works and why it often assists individuals with communication difficulties.
What are questions in advance?
Questions in advance are frequently raised by intermediaries at Ground Rules Hearings. This measure is widely discussed in guidance and practice directions regarding vulnerable witnesses. Section 5.5 of the Family Practice Directions (3AA), for example, states, “The court must consider whether to direct that […] questions or topics to be put in cross-examination should be agreed prior to the hearing”.
Section 3 of The Advocate’s Gateway: Toolkit 1: Ground Rules Hearings and the Fair Treatment of Vulnerable People in Court, provides helpful information regarding questions in advance. This resource writes, “It is reasonable for judges to ask advocates to write out their proposed questions for the vulnerable witness and share them with the judge and the intermediary (where there is one): ‘So as to avoid any unfortunate misunderstanding at trial, it would be an entirely reasonable step for a judge at the ground rules hearing to invite defence advocates to reduce their questions to writing in advance.’(R v Lubemba; R v JP [2014] EWCA Crim 2064, para 42)”.
The Advocate’s Gateway goes on to list a number of clear rules which should apply to this special measure, including:
questions provided to the intermediary are strictly confidential and not to be shared or “telegraphed” to any other professional, party or the service user
the provision of questions in advance is a matter for the judge who will consider whether approving this measure is in the interests of justice
the judge has ultimate responsibility for determining the appropriateness of a question, but may be assisted by information from an advocate or intermediary in doing so
How do questions in advance work?
When questions in advance are agreed at a Ground Rules Hearing, a Communicourt intermediary will typically request that they are provided no later than 48 hours in advance of the service user’s evidence. This will allow sufficient time for the intermediary to review questions and provide feedback to all advocates. Questions are generally requested from all advocates who plan to question the service user.
Once received, the intermediary will review questions, drawing from the service user’s intermediary report (which will include recommendations regarding question style), their experience of the service user (who the intermediary may have spent considerable time with during proceedings), case notes written by previous Communicourt intermediaries and any other information which may be available (e.g. cognitive assessments).
The intermediary will augment each set of questions, providing suggestions for rephrasing, alongside a rationale for any changes. The following fictitious example with Ms X may provide an insight into this stage of the process:
On Sunday evening 8th June 2018 you all had dinner together?
This question is phrased as a statement which is advised against in the intermediary report. It contains time concepts , which may prove challenging for Ms X. This could be rephrased as:
On the day Child A went missing, did you all have dinner together?
Then the children had a bath, then Child B FaceTimed her mum, Is that right?
This is a tag question appended to a multiple part assertion. These question types are advised against in the intermediary report. This could be rephrased as follows:
What happened after dinner?
AND/OR
When did Child B FaceTime her mum?
Was it before or after the children had a bath?
The intermediary may add comments including suggestions regarding how to assist communication when:
asking a question containing time and date concepts
referring the service user to written information
the service user has expressive communication difficulties
the service user has difficulties with attention
Rephrasing question types the service user may not understand or may have difficulty responding to with clarity, including:
tag questions
interrogative statements
questions containing negatives
multiple part questions
lengthy questions
questions preceded by preamble
Or they may suggest simplification of questions containing vocabulary the service user may not understand.
The reviewed questions will then be returned to the relevant advocate. If any queries arise upon receipt of suggested rephrasing, the intermediary will be happy to assist advocates for all parties, as their role is neutral and simply to facilitate best practice communication with the service user.
Reviewed and, in some cases, simplified questions can then be put to the service user during their evidence. During evidence, additional questions may arise. In this situation, advocates can apply feedback from the reviewed questions or the intermediary can monitor new questions as they are put to the service user and intervene if they may be too complex.
The advantages of questions in advance
The key advantage of implementing this practice is that it reduces the risk that questions which may pose difficulty to the service user will be put to them. Although an intermediary can intervene when potentially problematic questions are asked, this approach can disrupt the flow of evidence and requires the service user to process the original complex question, the intervention and the new, simplified question – thus increasing the cognitive demands upon them.
It is often challenging for an intermediary to intervene rapidly enough to prevent a service user answering a complex question which they may not have fully understood or may have difficulty answering clearly. This means the service user may need to answer both the original question and the simplification, which can ultimately increase confusion and impact the clarity of their evidence. It can also increase anxiety for the service user if the intermediary has to intervene after a question, they may assume they have made a mistake and find it harder to continue with the process.
The provision of questions in advance often markedly reduces the need for intermediary intervention during evidence and helps to ensure that questions are put to services users in their simplest form on the first occasion, assisting them to give their best evidence in a clear, smooth and timely manner.
Common objections to questions in advance
While many judges and barristers are very happy to order questions in advance and provide these to an intermediary, a few common queries and objections arise:
Will questions be shared with the service user?
The intermediary’s duty is inherently to the court. All questions received from all parties are kept strictly confidential and are not to be seen by any other party, including the service user or their legal team. The intermediary will not notify the service user of any questions, topics, themes or areas of questioning which may arise, and will not in any way ‘prepare’ them to answer questions.
Counsel are experienced and are familiar with the Advocate’s Gateway
Although many advocates are highly skilled at questioning individuals with communication difficulties, the demands of examining a witness while also carefully monitoring each question for complex syntax, features and vocabulary are considerable. The practice of writing questions in advance to undergo intermediary review can assist all advocates.
The demand upon counsel’s time is too great
Requiring counsel to provide questions in advance certainly adds to advocates’ already considerable workloads. However, by minimising the need for intermediary intervention and the risk of difficulties arising during a service user’s evidence, an overall time-saving stands to be made by the court. If advocates have limited time to provide questions in advance, it may be helpful to agree for a smaller selection of sample questions to be provided. This will ensure there is opportunity for the intermediary to provide feedback on the structure and framing of questions, while reducing the demands placed on counsel.
Will topics in advance suffice?
At some ground rules hearings, topics in advance are suggested as an alternative to questions in advance. Although a list of topics in advance may assist service users with attention difficulties (who may benefit from resources such as ‘topic cards’ to remain focussed), they do not allow the intermediary to provide feedback on the structure of questions or the vocabulary they contain. Rather than topics in advance, a small selection of sample questions (as above) is often a more helpful alternative.
The question of whether to order questions in advance can be a challenging one for judges keen to strike a balance between making realistic demands of busy advocates, while assisting service users to give their best evidence. From an intermediary perspective, the practice is almost always worthwhile, resulting in smoother evidence which allows service users the best opportunity to attend to, process and respond clearly to questions in the first instance, thus saving the court time overall.
Learn more about court communication from experienced court intermediaries on The Access Brief. A growing library of free resources developed for legal professionals working with clients who have communication needs, including an information sheet on Questions in Advance.
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