The changing role of an intermediary: criminal court vs family court

Intermediaries have to adapt their practice to accommodate the environment they are working in. Holly talks about the changing role of an intermediary.

The legal landscape has changed considerably over the past ten years, and the role of the intermediary has evolved since Communicourt was founded in 2011. Criminal courts are increasingly electing to assign intermediaries to support service users only during their oral evidence, while family courts make ever-greater use of intermediaries throughout proceedings.

In 2016, 81% of Communicourt referrals were related to criminal cases, and just 19% related to family proceedings. In August 2021, family proceedings accounted for 54% of our referrals, with 43% coming from criminal cases and 2% from other types of proceedings (e.g. medical tribunals and deportation hearings).

In every setting, the skills and strategies which intermediaries employ to improve communication and understanding are largely universal. Yet, in criminal and family courts, our practice must adapt to accommodate the very different legal arenas.

The early stages

In many criminal cases, a Ground Rules Hearing on the first day of a trial is the first time an intermediary will be assigned. In contrast, family cases more often have intermediaries allocated for a number of Case Management and Issues Resolutions Hearings prior to a Fact Find or Final Hearing.

Criminal court

Following assessment, our first interaction with a defendant and their case is at a Ground Rules Hearing. In Youth and Magistrates courts, a Ground Rules Hearing is typically rolled into the first day of trial and it is usually the case that the intermediary will be granted to assist during proceedings (often because the defendant is a child, or because the trial is due to take place over the course of that one day, for which the intermediary has already been booked).

In criminal proceedings, an intermediary is often granted on the first day of trial or booked to assist from the first day of a defendant’s evidence. With such limited time, the intermediary assigned will need to rapidly build rapport with the defendant and establish effective communication strategies, drawing on the contents of the intermediary report. At this stage there may be a number of barriers to contend with, including time constraints, limited access to the cells (depending on the court), limited conference rooms and higher levels of emotional dysregulation in the defendant (who may be facing their first day of trial).

In exceptional circumstances, an intermediary may be approved to attend conferences with the defendant prior to trial. These rare pre-trial conferences are often invaluable in terms of assisting communication. Here, intermediaries can start to build a working relationship with the defendant (away from the immediate stresses of a courtroom), assess their communication skills in an organic environment (rather than a supportive assessment environment), dynamically assess their response to intermediary strategies and collect crucial information to inform intermediary practice during the trial itself.

Family court

While the first hearing we attend in a criminal case is often the first day of trial, the first post-assessment appointment we attend in a family case is less predictable.

Often, we first meet respondents or intervenors at a Case Management Hearing (CMH) or Issues Resolution Hearing (IRH). In other cases, our first interaction with a respondent may be at a conference at a solicitor’s office.

Conferences may have been arranged to assist a service user to give instructions, to prepare a statement or to read through documents ahead of proceedings.

These preliminary hearings and conferences allow us to gain a better sense of the service user’s communication skills and difficulties, prior to a Fact Find or Final Hearing. This is in marked contrast to criminal proceedings, in which intermediaries typically must ‘hit the ground running‘, absorbing key case information, rapidly building rapport and swiftly identifying communication needs and effective strategies (albeit with the assistance of the intermediary report).

We take detailed case notes, adding to the understanding of the person’s communication needs and honing the strategies implemented for them. Meeting people in early conferences and hearings often allows intermediaries to build more effective rapport and trust, prior to any more significant hearings in the case. While the intermediary who attends conferences may not be the intermediary assigned to hearings, a wealth of helpful information can be gathered and shared during handovers, to maximise effective working with the individual. Although even short CMHs can be emotionally difficult for someone, at this stage in proceedings people are often more relaxed, allowing communication strategies to be explored more freely and helping the individual become more comfortable with receiving intermediary assistance.

COVID-19 has had a more marked effect on our early interactions with service users in family cases, than service users in criminal proceedings. In the majority of cases, early CMHs and IRHs are now held remotely. This impacts how intermediaries meet service users for the first time and affects our practice in the remote courtroom. The remote setting poses a particular barrier to rapport building, while also requiring the intermediary to liaise with the service user to establish a method of communication during the hearing (and any pre- or post-hearing conferences with counsel).

The Ground Rules Hearing

The experience of delivering a Ground Rules Hearing in family court is typically quite different to a Ground Rules Hearing in a criminal trial. While an intermediary may be questioned very closely regarding the necessity for intermediary allocation in a criminal trial, this is rarely the case in family proceedings. Similarly, questions regarding the intermediary’s qualifications and the necessity of specific measures are less common. While advocates and judges may still query the need for ‘meatier’ measures such as questions in advance at a family Ground Rules Hearing, the process generally feels more collaborative than adversarial.

Criminal

In Crown Court trials, the Ground Rules Hearing may take place at a separate hearing, prior to the trial. These hearings often include an application for the defendant to be assisted by an intermediary during the proceedings, whether that’s for the duration of trial or during their evidence. At this juncture, the intermediary is typically asked questions about the findings and recommendations of the report, to assist the judge in making a decision regarding intermediary provision.

If an intermediary is approved by the judge, they will often be required to outline the full recommendations of the report and request the adaptations to proceedings which were suggested by the assessor.

In Youth and Magistrate trials, the Ground Rules Hearing is more likely to be rolled into the first day of proceedings.

Family

Ground Rules Hearings in family proceedings are often less formal and more flexible than those held as part of criminal proceedings. As intermediaries often attend hearings prior to a Final Hearing of Fact Find, Ground Rules may be ‘sprinkled’ throughout early hearings, with intermediaries raising suggested recommendations as required. Some Ground Rules may need to be agreed early in proceedings (e.g. the frequency of breaks), while others may not become pressing until a Final Hearing (those regarding question style during a respondent’s evidence, for example).

In some cases, Ground Rules may already have been lifted from the intermediary report, agreed by advocates and written into the order. In other cases, an intermediary may provide a list of suggested Ground Rules for advocates to review and discuss in hearings, as necessary. On the first day of a Fact Find or Final Hearing, an intermediary may still be asked to deliver a more conventional Ground Rules Hearing. In fact, this is often a helpful step, particularly given the likelihood of changes in advocates and judge, as a hearing progresses. A dedicated Ground Rules Hearing at the start of a longer hearing ensures all parties are on the same page about measures and strategies to assist a respondent.

In the courtroom

During trials and hearings, our role becomes almost wholly focussed on the service user. For this reason, there are fewer differences between the intermediary role in criminal and family courts at this stage. This stage in proceedings is the intermediary’s ‘bread and butter’; where we use strategies from visual aids and live simplification, to comprehension checking and anxiety rating scales, in order to assist people with a very wide range of communication difficulties.

During a person’s evidence too, our roles differ little in family and criminal courts (despite the more formal atmosphere of a criminal courtroom). Here we must intervene when questions are likely to be confusing or overly complex for someone, monitor their attention, monitor their emotional management and make recommendations to the court (where appropriate) to assist them to give their best evidence.

If you’d like to learn more about the strategies an intermediary uses during proceedings with a service user, these recent posts offer some excellent insights:

Perhaps the biggest difference between criminal and family proceedings at this stage, however, is closely connected to COVID-19 and the increase in remote Fact Finds and Final Hearings.

While criminal trials are almost exclusively conducted in person, family hearings are now often held remotely or in a hybrid manner. COVID-19 forced the courts to become more agile regarding technology, which means that the majority of Case Management Hearings and Issues Resolution Hearings are now held remotely. Although courts are now increasingly encouraged to return to in person Fact Finds and Final Hearings, the recent learning curve around remote hearings allows courts to be more flexible regarding the format of hearings.

For some service users, in person hearings are essential to improving participation. In person, a service user can access live simplification (among other strategies) from an intermediary and direct communication with their legal team, sitting with them in the courtroom and conferences. In this setting, judges and advocates are better placed to monitor a service user’s presentation, while intermediaries can more easily intervene and communicate with other court professionals.

For people with mental health difficulties and difficulties surrounding emotional management, however, attending a physical courtroom can result in elevated anxiety, which often has a detrimental impact upon communication skills. In the latter scenario, the option of remote attendance can in fact benefit participation. Permitting service users to attend court remotely from a neutral location (such as a solicitor’s office) with the on-site assistance of an intermediary, allows them to receive direct intermediary support without the increased anxiety of court attendance.

In rare cases, intermediaries must work remotely from service users throughout a Fact Find or Final Hearing. This is perhaps the most challenging arrangement in terms of implementing intermediary strategies. Ideally, intermediaries will have a direct line of communication with the service user via a separate CVP interpreter room (which comes with its own limitations), an open phone line or a messaging app. Some of these methods are more useful than others, but all limit an intermediary’s ability to monitor a respondent’s attention, emotional regulation and understanding. In this environment, other key intermediary strategies including whispered simplifications, simple notes and visual aids during proceedings is often not possible. More frequent breaks and conferences are, therefore, essential.

Conclusion

The biggest differences between the intermediary roles in family and criminal proceedings relate to the practical considerations of each setting, the conventions of these different legal landscapes and their differing rules. The increased formality and (often) greater rigidity of a criminal courtroom often means intermediaries have less flexibility in terms of the strategies they can implement. In family settings, greater contact with the service user over a number of hearings often allows intermediaries to hone communication strategies to a greater extent.

The move to virtual hearings in the wake of COVID-19, however, has made a difference to how intermediaries operate in family and criminal settings, with remote working still prevalent in the early stages of family cases.

Overall, once the differing conventions and atmosphere of family and criminal courts are accounted for, an intermediary’s role and strategies remain the same – focussing wholly on measures which improve a person’s understanding of their hearing or trial, and assisting them to give their best evidence.