‘Slowly, I established a connection…’

Forensic psychologist Dr Brendan O’Mahony on his work as a registered intermediary.

I applied for the role of Registered Intermediary in 2007, while I was nearing completion of my training as a forensic psychologist in a medium secure unit where patients all had a diagnosis of intellectual disability. As a facilitator on a sex offender treatment programme, I had been developing my skills in adapting language according to people’s differing communication needs. I had previously trained police officers in investigative interviewing. This experience, together with my increasing knowledge and skills as a developing psychologist – for example, in understanding the comorbid diagnoses many of these patients had – enabled me to gain accreditation as an intermediary.

So, what is the intermediary role, and why might psychologists be particularly suited to it?

Vulnerable witnesses

The 1999 Youth Justice and Criminal Evidence Act (YJCEA) defined vulnerable witnesses as all children, along with any witness whose quality of evidence is likely to be diminished due to a mental disorder, significant impairment of intelligence and social functioning, or physical disability / disorder. The YJCEA introduced a raft of Special Measures to assist such witnesses giving evidence in criminal trials in England and Wales. These measures include screens to shield the witness from the defendant, a live link to enable a witness to give evidence during the trial from outside the courtroom, removal of wigs and gowns by the judge and barristers, video-recorded evidence-in-chief, the examination of the witness through an intermediary and permission to use aids to communication to enable a witness to give best evidence.

Registered Intermediaries are recruited by the Ministry of Justice. They attend a training course which focuses on the criminal justice system, the relevant legislation and the unique role of the intermediary. Registered Intermediaries have a Code of Conduct and they must submit an annual log evidencing that they have undertaken a minimum number of referrals and completed relevant Continued Professional Development. While Registered Intermediaries usually have a professional background as speech and language therapists, social workers, SEN teachers, mental health nurses, occupational therapists or applied psychologists, this level of training is not mandatory. It is essential, though, that prospective intermediaries are familiar with, and can informally assess communication (both receptive and expressive).

Some of my intermediary peers and police officers seem to think that a psychologist will be appropriately qualified to accept any referral related broadly to ‘mental health’. I have had to explain that registered psychologists will only act within their own skillset. I personally accept police referrals for cases where the witness has a diagnosis of mild/moderate intellectual disabilities, personality disorder, depression or anxiety, or a combination of these. Many of the people I assess have a history of complex trauma. I have developed an interest in dissociative disorders in recent years. I accept intermediary referrals primarily for adults, with the occasional case for older adolescents. There is clearly a role for psychologists across the applied areas: if you can picture how vulnerable witnesses may experience difficulties with communication and how you would assess this, advise others, and enable effective communication, then this role might be of interest. Alternatively, if you are completing an Expert Witness report for the court you may consider that an intermediary assessment would also be beneficial (you can’t be both).

The intermediary completes a full assessment of communication needs at the investigation stage in criminal proceedings or prior to court proceedings. The intermediary provides written advice to the interviewing officer prior to the Achieving Best Evidence (ABE) interview and/or to the court to assist when the witness gives evidence or is cross-examined. The intermediary will make recommendations in their report about the adaptions and/or communication aides that will be required to enable effective communication at court, and these recommendations will be discussed at a Ground Rules Hearing at court prior to the trial. The jury should not get to hear the contents of the intermediary report as it is not evidence.

While Registered Intermediaries should have expertise in assessing communication, the work differs from Expert Witness work in a number of ways. The intermediary should never be left alone with the vulnerable witness in case the witness mentions anything evidential (which would in turn place the intermediary as a witness). The intermediary assesses communication need in the presence of a responsible third party, usually the police officer who will conduct the interview. This offers the opportunity for the intermediary to model an appropriate pace of questioning and use of language whilst conducting the assessment (something I point out to the interviewing officer).

The entire focus of the intermediary assessment and report is to provide guidance to the police and the courts about communication needs. The recommendations made by the intermediary are likely to be more finely focused to the task than those in other professionals’ reports, (including those completed by teachers, speech and language therapists, psychiatrists or psychologists). They may even disagree. For example, an expert witness may state that a witness can give oral evidence with an intermediary present. Following a focused comprehensive communication assessment, the intermediary may advise the court otherwise, although in most cases the intermediary can make recommendations to enable effective participation. A significant function of the role is to intervene during the police interview, or oral testimony at court, if there is miscommunication between the vulnerable witness and the person asking questions.

A flexible approach

In many of the referrals that I accept, anxiety is a key issue that I encounter. Establishing rapport is essential. I make decisions about who should be in the assessment room, including a family member or other support person (or, indeed, support dogs to reduce anxiety). I recall one case where the initial assessment, scheduled for two hours, only lasted 20 minutes due to the elevated anxiety of the witness. In another, there was no eye contact or verbal communication when I entered the room… slowly, I established a connection via a TV programme the witness was watching. The police officer with me had wanted the TV switched off but I advised otherwise on this occasion.

Intermediaries need to be very flexible in their approach, and prepared to be creative in supporting communication needs. Not all witnesses are verbal, and will require augmentative and alternative communication. I regularly encourage the use of drawing and timelines. I always carry Post-It notes and stress balls. During my early assessment of the interviewee’s anxiety levels and coping strategies to manage elevated emotions, I’ll often be noting vocabulary, whether abstract language is being used, and the interviewee’s understanding of concepts such as time and distance.

I constantly monitor the witness’s level of attention, look out for trigger words and events, and offer breaks as required. I encourage witnesses to tell me if they are guessing an answer, or if they don’t understand something, reassuring them that it is my job to monitor this and to check understanding. I do not ask the question ‘do you understand?’ because I know how acquiescence and compliance can effect responses. I advise the police and the court that an interviewee may not recognise that miscommunication has occurred and therefore the professional cannot always rely on an interviewee identifying a misunderstanding and seeking clarification. It takes time to establish this level of interaction. I am always mindful of the power dynamics, and that I am yet another stranger asking questions. I try to make the communication as natural as possible, without appearing to be administering a test. I think these are fundamental skills that we as psychologists develop in our training, but I also think that being an intermediary has helped me become a better psychologist. I have developed a heightened sensitivity to communication difficulties, which I use in my other roles.

Sometimes, the seemingly trivial things are incredibly important – I recall a bee in the room with one vulnerable witness who had attentional deficits. I am always scanning the environment for things that may impact on effective communication such as sounds, smells, sights and the materials used in room decoration and the size and location of furniture. My attention on communication issues enables the interviewing officer to focus on the investigation strategy and evidence gathering – undoubtedly a cognitively demanding role. Police officers want to obtain the best evidence at the first opportunity, and a fuller understanding of communication needs following a comprehensive assessment should enable this. I can advise on interviewee fatigue, and seek to create and monitor a ‘safe space’ for the interviewee, either within the room or elsewhere. I ensure that the interviewee knows how to exit the interview room quickly as this can offer a sense of reassurance.

Internationally

So far, I’ve focused on prosecution witnesses attending the police interview stage and/or the courtroom. Over time, researchers have identified the inequality that exists in the provision of communication support to vulnerable defendants in England and Wales (O’Mahony, 2012). In Northern Ireland legislation permits the use of intermediaries in police suspect interviews as well as during oral testimony at court. In England and Wales, intermediaries are rarely used in police suspect interviews and the responsibility lies with Appropriate Adults to facilitate communication (Farrugia & Gabbert, 2019). Whilst there is legislation for the use of intermediaries with vulnerable defendants at court in England and Wales, it has never been implemented. Judges do have discretion to appoint an intermediary for vulnerable defendants, for oral testimony only, or throughout the trial, but the higher courts have recently directed that this use of intermediaries will be rare. Intermediaries are also used in the family courts in England and Wales and there is a broader definition of ‘vulnerability’ here, including the duty of the court to consider the ability of the witness to attend the hearing without significant distress.

Internationally, intermediaries may be known by other names, for example, Court Communication Assistant in New Zealand. I was asked recently to deliver training about Access to Justice to senior police and corrections officers in Zambia, in addition to senior staff from the Ministries of Justice, Health and Home Affairs. While there is no intermediary scheme in Zambia, professionals are keen to learn about how intellectual disabilities and mental health can impact on communication. I also sit as a Member of the Parole Board in England and Wales – the use of intermediaries to facilitate communication is yet to be examined in terms of the benefits to prisoners attending oral hearings. There may well be a role at adjudication hearings in prisons too – a proven adjudication can be significant in terms of assessing risk at later Parole Board hearings.

Time for more psychologists

Intermediaries have made a significant impact in the criminal justice sector during the 15 years since they were piloted in England and Wales. Yet there have been relatively few psychologists undertaking the role and there have been difficulties recruiting professionals with the relevant expertise to assess how mental health can impact on communication. The intermediary does not provide therapy. The role is to assess communication needs and confidently advise police officers and/or lawyers on the communication process to enable effective communication. Why not consider whether you might be interested in this role, as a way to help vulnerable people and to further promote the value of applied psychology to the criminal justice sector?

Key sources

Farrugia, L. & Gabbert, F. (2019). The ‘appropriate adult’: What they do and what they should do in police interviews with mentally disordered suspects. Criminal Behaviour Mental Health [Advance online publication].

Ministry of Justice (2011). Achieving best evidence in criminal proceedings: Guidance on interviewing victims and witnesses, and using Special Measures. London.

O’Mahony, B.M. (2009). The emerging role of the Registered Intermediary with the vulnerable witness and offender: Facilitating communication with the police and members of the judiciary. British Journal of Learning Disabilities, 38, 232-237.

O’Mahony, B.M. (2012). Accused of murder: Supporting the communication needs of a vulnerable defendant at court and at the police station. Journal of Learning Disabilities and Offending Behaviour, 3(2), 77-84.

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Comments

You can find additional information about the work of intermediaries on the following website

https://www.intermediaries-for-justice.org

You can also find a really helpful free resource of communication 'toolkits' to download on the following link

https://www.theadvocatesgateway.org/toolkits