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Section Three The role and remit of Intermediaries if made statutory

4. What would be the function and remit of an 'intermediary' if it were added as a statutory special measure under the Act?

44. Two judges and ACPOS saw no reason to make intermediaries statutory, and claimed there was no evidence of need. However the majority of respondents who disagreed instanced a substantial body of research to back their views (see appendix E at end).

45. 17 respondents saw the function and remit of an "intermediary" as a trained "go-between" who could elicit the best evidence from the witness using professional communication techniques which were not available to the legal profession. Of those, 10 respondents instanced directly the South African model, either in its entirety, or, more frequently, modified slightly by the English and Welsh model. A further 3 of the 17 specifically suggested, without reference to the South African model, that the intermediary's role would be to translate the questions to the vulnerable witness, but not the answer.

46. Those who advocated the South African model considered that this model would allow the judge and jury to assess the witness's answers and demeanour without interpretation by the intermediary. They also felt that agents could object if it were felt that the intermediary had misrepresented the question.

47. The English type of model was referred to by 9 respondents who suggested that the intermediary's role should be to advise the court on the communication levels of the witness and agree a communication strategy. The intermediary would assist with the preferred method of communication.

48. 8 respondents preferred to have the child witness removed from the court altogether, in line with the South African model. These were Justice for Children and its advocates.

49. Additional comments included:

• The roles of intermediary, supporter and appropriate adult should be clearly defined to avoid confusion - SCRA
• "Within a statutory context, there is merit in a more wide-ranging role and remit to limit inappropriate exclusion (from justice)" - Strathclyde Police
• "Inability to communicate should be cited in legislation as another example of vulnerability, and an intermediary is vital for such people" - Victim Support Scotland

5. Should an intermediary be available for the accused?

Yes No

50. All those who commented agreed that an intermediary should be available for the accused. The SSCCYP felt that " the age of criminal responsibility should be raised and to move towards a system in which no child was tried in an adult court." They cite the European Court ruling in the Bulger case to support their view. A couple of respondents only wished to see a clearly demonstrated need for the accused to have the use of an intermediary.

6. Should an intermediary be available in civil as well as criminal proceedings?

Yes No

51. All respondents who commented agreed that intermediaries should be available in civil courts.

7. How would the costs associated with the use of an intermediary be met?

52. The majority of respondents (n=24) who commented felt that the funding for intermediaries should be centrally funded. This could be broken down to about half of whom (n=10) felt that in civil cases the parties citing the witness should pay. 2 suggested specifically that the Scottish Court Service should meet the costs. It was evident however, that many respondents were unaware of current funding practices, in civil courts in particular.

53. Another two felt that the citing parties should pay for the intermediaries, and another 1 admitted that they had no idea. It could be suggested that some of the 6 who did not comment did so because they were unsure how funding worked in general.

54. The Family Law Society stated that one of their main concerns is the provision of Civil Legal Aid to cover for solicitors dealing with cases where there are vulnerable witnesses.

55. The Faculty of Advocates pointed out that in England the introduction of intermediaries increased the number of cases coming to court which was encouraging from an access to justice perspective but would increase the financial burden in the courts.

56. The Scottish Legal Aid Board offered comments on this one question alone. It does not have a view on any of the other issues. Its conclusions are as follows:

"If it was shown to be necessary to introduce intermediaries as a specific statutory special measure then the Board would suggest, on the information available at present, that the costs for these intermediaries be met centrally at least at the outset for the reasons given earlier in this response.

Whatever the eventual option decided upon, however, it is essential that the Government also introduce regulations or rules relating to the agreed payment scheme to prevent ambiguity and costs simply falling upon the Legal Aid Fund as a result of no clear understanding of where they should in fact fall."

57. The SLAB response has been added in full at Appendix C.

8. a) What skills and background would an intermediary need to have?

b) Would they have to be specifically trained and accredited?

Yes No

58. It was generally considered that the skills needed for intermediaries should be specialist and professional (such as speech and language therapists, psychologists, occupational therapists etc) and relevant to the needs of the vulnerable witness. They should also receive additional training for their role in the criminal justice system. The two respondents (a police force and a member of the judiciary) who saw no need for intermediaries at all saw them as parental figures who would not need any special training.

59. It was not possible to separate out the views of most respondents on the issue of accreditation as the question conflated specific training and accreditation.

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