High court rules vulnerable defendants must get same level of help in court as prosecution witnesses


Ministry of Justice opposition to vulnerable defendants benefiting from its own ‘Registered Intermediary’ scheme ruled unfair

A case in which the award-winning children’s charity Just for Kids Law intervened means that vulnerable defendants with communication needs will now have the same protection in court when giving evidence or being cross-examined, as vulnerable witnesses and victims.

The Ministry of Justice (MoJ), which opposed the case, argued that defendants should not have access to its Registered Intermediary (RI) scheme – where intermediaries are vetted, trained and regulated before being allowed to assist people in court. The MoJ said its RI scheme is restricted to witnesses and victims, only; with defendants having to rely on what the High Court described as ‘private and unregulated’ helpers.

In rejecting the MoJ’s argument, the court ruled that denying defendants use of registered intermediaries, when these were available to victims and witnesses, would result in ‘inequality of arms’ and the ‘risk of unfairness’.

The court said:

‘…the scheme as currently operated would allow a witness for the Crown to be supported by a RI …but the defendant against whom he gave evidence denied one under the same scheme. The intelligent observer would be puzzled by why that were so.’

The case of OP v Secretary of State for Justice concerned a vulnerable adult, with ‘significant learning disability and Asperger’s syndrome,’ who was accused of receiving a stolen car. Two consultants (a forensic psychiatrist and a clinical psychologist) said he should have an intermediary to help him during the magistrates’ court hearing, and an order for an RI was made.

Just for Kids Law director Shauneen Lambe said:

‘This decision will provide vulnerable children and young people who go through the criminal courts equal access to the government’s intermediary scheme. Evidence shows that 60% of them have a communication disability, and a third have special educational needs. In Northern Ireland data shows that nearly 60% of people who require intermediary assistance are children.

‘While welcoming the court’s ruling that an RI must be provided, where needed, to a vulnerable defendant when giving evidence, Just for Kids Law believes many of those vulnerable defendants need professional communication support throughout the trial. Unlike witnesses, defendants have to understand and participate in the whole of the trial and many need a properly trained and regulated intermediary for the entire court process.’

For more information, contact: Fiona Bawdon or Mary-Rachel McCabe at Just for Kids Law: 020 3174 2279; fionabawdon@justforkidslaw.org; Mary-RachelMcCabe@justforkidslaw.org

Notes for editors

1. Just for Kids Law acted as interveners in the case. They were represented pro bono by Michael Bowes QC of Outer Temple Chambers, and Joanne Cecil of Garden Court Chambers.

2. Just for Kids Law is an award-winning charity which supports children and young people in difficulties with the law and campaigns for improvements in youth justice.

3. S29 Youth Justice & Criminal Evidence Act 1999 empowers a court to order the use of intermediaries for victims and witnesses. The legislation currently excludes defendants.

4. An intermediary is defined as ‘a person who facilitates two way communication between the vulnerable witness and other participants in the legal process, to ensure that their communication is as complete, accurate and coherent as possible’ (Registered Intermediary Annual Survey 2010).

5. A registered intermediary works through the Witness Intermediary Scheme, run by the Ministry of Justice. WIS maintains a register of intermediaries and matches them with witnesses or victims to ensure the provision of experience and expertise at a suitable standard. There is no equivalent matching of non-regulated intermediaries, who need have no specific qualifications and are unregulated.

6. The case can be found at http://www.bailii.org/ew/cases/EWHC/Admin/2014/1944.html