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Executive Summary

There were 32 responses available for analysis to the SG consultation on the use of intermediaries. These were received from members of the wider justice system, including voluntary organisations, professional social workers, the legal profession and various official professional organisations. Because the numbers were small none could be regarded as representative of their interest group, with the exception of those who endorsed the Justice for Children's response.

Barriers to communication with child and adult vulnerable witnesses

• 24 respondents considered that there were currently barriers to communicating effectively with child and adult vulnerable witnesses in the Scottish court system. 1 partly agreed and 3 felt there were no such barriers. The majority of those who thought there were barriers felt strongly that the demands of the adversarial system prevented vulnerable witnesses from communicating effectively and were therefore denied access to justice. In addition, if the witnesses made it to court at all, they were intimidated into giving less effective evidence than they were capable of. It was also felt that there were severe limits to understanding the communication needs of vulnerable witnesses by court practitioners.
• 17 respondents believed that the main way to address these barriers was through the use of intermediaries. 15 of these volunteered the view that intermediaries should be made statutory "as, like the status of special measures before the Vulnerable Witnesses Act", it is claimed, "they would not be otherwise used" and "These are currently available on application to the court, therefore the extent to which they are utilised depends on the prevailing attitude of the judiciary", COPFS.
• The most effective way to improve the system was considered to be better training (25 respondents), however the majority of those 25 believed that this measure alone would be insufficient to address the problem (17 respondents). 19 respondents specifically mentioned judicial training, and many believed that this should be compulsory.
• Some felt that the judges' powers of intervention should be addressed, though one respondent declared that this might be counter productive. Other suggestions included better and more effective equipment and an extension to the use of Appropriate Adults.

The role and remit of Intermediaries if made statutory

• 17 saw them as trained "go-betweens" who could elicit the best evidence from the witnesses using professional communication techniques. A modified version of the South African model was favoured by a number of respondents, with elements taken from the English and Welsh model. In addition 9 respondents added that they saw the intermediaries' role as advising the court on communication levels and agreeing a communication strategy, similar to the English model. The Justice for Children proponents wanted child witnesses out of the court altogether.
  
• It was generally agreed that the skills needed for intermediaries should be specialist and professional (such as speech and language therapists, psychologists etc). A very small number (n=2) saw intermediaries as parents or guardian supporters, in which case normal parental skills would be sufficient.
• There was a plea that the roles of Appropriate Adult and Intermediary should be clearly defined and not confused.
• All agreed that if intermediaries were used at all they should be available to the accused and in civil proceedings.
• Costs should be met centrally in most cases.

Possible status of intermediaries within the Scottish criminal justice system

In summary the majority thought that if the use of intermediaries were to become a statutory special measure:

• The individual needs of the witness (child or adults) should be assessed in advance and taken into account in deciding whether to appoint an intermediary, though some felt that all children should have an automatic right to one, regardless of their needs.
• These needs should be the deciding factor whether or not to appoint an intermediary for a child (n=16, though 8 thought that there should be an automatic right for a child to have one).
• There was a fairly even split as to whether the use of an intermediary should be a "standard" special measure for all child witnesses or a "further" special measure. 8 respondents felt that there should be an automatic right for all children to have an intermediary.
• 17 respondents felt that intermediaries should be available on application to the court for adult vulnerable witnesses.

The impact of the use of intermediary on the court process

• Views on the impact of an intermediary on the court process fell into two camps. The majority view was that a fair hearing would be better achieved through the use of intermediaries (n=19) ( though only 15 respondents indicated that they wished to see intermediaries as a statutory special measure). They would assist a witness to proffer their best evidence in a manner which allowed the court to understand it, increase the credibility of the witness, and give a voice where otherwise there would be none. Conversely, a view was held, mostly by members of the legal profession, that an intermediary would dilute the evidence, prevent the judge/jury from assessing the witness's credibility and extend the length of the proceedings (n=10). Much of the divergence lay in the concept of a "fair hearing". On the one hand there was a belief that cross-examination allows the judge and jury to assess the evidence in order to effect a fair hearing. On the other hand there was a view to the effect that the witness becomes so intimidated by the court process, and in particular by cross-examination under the adversarial system that they either refuse to testify or they give misleading evidence out of fright or confusion, causing the trial to collapse.
• It was felt by a number of respondents that adding the use of intermediaries as a statutory measure would allow set procedures to be put in place, ensure funding and resources were available, provide a better experience for witnesses, thus increasing trust in the system, and would manage communication problems.
  
  
• A view held by 3 respondents was that the current measures should be allowed to bed down before changes were made.

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