Descripción Del Proceso

Since the introduction of PACE (Home Office, 1984), the Memorandum of Good Practice (Home Office & Department of Health) was introduced as a guidance document in 1992, which provided specific guidelines for use when interviewing child witnesses. Following on from this, the Home Office published a report, ‘Speaking up for Justice’ (Home Office, 1998) which provided recommendations for the effective treatment of vulnerable witnesses and victims who access The Justice System. The report highlighted the need for effective support for vulnerable adults in addition to the support currently in place for children and young people. In response to this report, the Youth Justice and Criminal Evidence Act (Home Office, 1999) was introduced, which aimed to ensure that all those who provide evidence receive equal access to fair justice at the hands of The Justice System.

Of further relevance, the Youth Justice and Criminal Evidence Act (Home Office, 1999) introduced ‘Special Measures’, which become active when vulnerable victims and witnesses, including those with learning disabilities, give evidence. The list of special measures include: the use of frequent breaks which can be used to ensure the accused is able to follow the proceedings; screens in court to shield the witness from seeing the accused; the provision of evidence in court by way of a live video link; provision of evidence in private; the removal of wigs and gowns whilst the witness’ evidence is being given; the video recording of evidence

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in chief in a venue away from the court; the video recording of cross examination evidence; the use of communication aids and finally for evidence to be provided using a registered intermediary (Youth Justice and Criminal Evidence Act, part II, chapter I).

According to this Act, the primary function of the registered intermediary is to facilitate effective communication between the vulnerable witness and the various members of the court. The intermediaries themselves act as an impartial party within all stages of The Justice System and their service is to the court and to the individual whom they are supporting (O’Mahony, 2009).

The responsibility for making a recommendation for a registered intermediary falls to the police officer involved during the initial stages of the police interview. If it is recognised that the witness or victim is vulnerable (i.e. has a learning difficulty), the officer contacts the Intermediary Referral Board to conduct an initial assessment in order to effectively plan the police interview. Following this, the police interview and any subsequent court appearances take place with the intermediary present. Research suggests the CJP should establish the identification of a vulnerable individual with learning difficulties by a professional with relevant experience and qualifications (O’Mahony, 2009). This difficulty is discussed later in the literature review, when discussing barriers to support for YPLDs.

In 2007, Plotnikoff and Woolfson conducted a study to evaluate six ‘Pathfinder’ projects that initially implemented the intermediary scheme across various areas in the UK. Results of the evaluation were promising, where it was identified that the overwhelming majority of those who encountered the work of an intermediary stated that it was a positive experience. Research identified that the intermediary helped to bring offenders to justice, aided individuals to access equal levels of justice, helped to identify the individual needs of the witnesses and provided useful recommendations regarding effective interviewing of vulnerable witnesses. Specifically,

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57% of those individuals who accessed the intermediary scheme did so on the grounds of their poor communication skills and intellectual difficulties, where the remainder of the offenders gained access due to their age or the experience of physical difficulties. Such findings thus further emphasise the large cohort of victims and witnesses who may experience difficulties during the interview process due to the existence of a learning difficulty. Furthermore, it is important to note that referrals to the service were lower than would be expected, which could be due to insufficient identification of the vulnerable nature of certain victims and witnesses by police officers during initial stages of the process as previously suggested.

Further studies that examine the use of registered intermediaries have raised concern about the exclusivity of special measures, particularly that an intermediary is mainly used when interviewing witnesses and victims, as opposed to interviewing defendants and suspects (Fyson & Yates, 2011; O’Mahony, 2009). One might argue that regardless of whether an individual has committed a crime, or has witnessed or been a victim of it, if he/she experiences communication and comprehension difficulties associated with learning difficulties, then he/she should equally be supported through the use of an intermediary to provide the best possible evidence. It is within the power and jurisdiction of the Judge to suggest that vulnerable defendants be questioned with support from an intermediary, however in only a small number of cases have defendants with learning difficulties been granted access to an intermediary during their trial (Jacobson, 2008).

Most recently, and perhaps the most substantial positive steps for defendants, has come with the implementation of the Coroners and Justice Act (Home Office, 2009). Section 104 of the Act states that any examination of the accused through an intermediary can take place where: “the accused suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a ‘significant impairment of intelligence and social function and the accused is for that reason unable to participate effectively in the proceedings as a witness giving

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oral evidence in court”. As this legislation is relatively recent, the research surrounding the use of intermediaries with defendants with learning difficulties is somewhat limited. However, it does seem to be a positive step towards achieving the best evidence from vulnerable defendants.

In conclusion, the support and provisions in place for individuals who have learning difficulties has progressed considerably over the past twenty years. PACE (Home Office, 1984) still remains important in highlighting the need for the use of an appropriate adult to ensure fair treatment of suspects with learning difficulties during police interviews and the Youth Justice and Criminal Evidence Act (Home Office, 1999) has been decidedly influential in allowing special measures to be implemented when learning difficulties are identified. Furthermore, the intermediary has proven particularly beneficial in facilitating effective communication between the witness/victims and professionals encountered during the criminal justice process.

However, there is still some way to go in effectively supporting those with learning difficulties who encounter The Justice System, as O’Mahony, Smith and Milne (2011) argue that the largest barrier yet to be overcome is the early identification of vulnerable victims, witnesses and suspects who have a learning difficulty and implementing an appropriate level of support. This role tends to fall to the police, who first encounter these individuals and it is often their duty to recognise difficulties in order to make referrals and secure the appropriate safeguards, including access to appropriate adults and registered intermediaries. O’Mahony et al. (2011) argue that such inadequate levels of early identification by police could be due to a lack of appropriate guidance, knowledge and training. This might ultimately lead to a lack of awareness and confidence in recognising the signs of a learning disability, which may remain the largest barrier for those who encounter The Justice System.

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