Intermediaries in the justice system for people with communication disability: Enacting Sustainable Development Goal 16 in Ireland, Northern Ireland, and New Zealand

Abstract

Purpose

Individuals with communication disabilities often face barriers when engaging with justice systems. Such barriers pose a material risk to the individual in relation to their right of equal access to justice. These barriers also pose a risk to the relevant State in potentially breaching Sustainable Development Goal 16 peace, justice and strong institutions (SDG 16). To mitigate these risks, many adversarial criminal justice systems have identified the need for accommodations to facilitate the participation of individuals with communication disabilities.

Result

At the forefront of this movement has been the introduction of intermediaries. By facilitating effective communication between vulnerable persons and stakeholders within the legal system, intermediaries play a pivotal role in ensuring active participation in legal processes. They can also improve the forensic accuracy of the fact-finding inquiry. In this article, we outline case examples of intermediary schemes across three common law countries. As various terms are used to describe the intermediary role including communication assistants and registered intermediaries, the term intermediary will be used throughout.

Conclusion

Although the scope of the role of intermediaries varies across settings in line with policy and legislative frameworks, we draw on shared learning across these countries to guide others in designing an intermediary scheme. We highlight the importance of knowledge sharing across contexts to realise equal access to justice for all (SDG 16).

Keywords:

• Sustainable Development Goals (SDGs)
• communication disability
• registered intermediaries
• communication assistants
• justice
• participation
• peace, justice and strong institutions (SDG 16)

Introduction

“I sometimes sit in court and go ‘far out, I don’t know how anyone understands in this place’.” (Makker, Clendon, & Doell, 2022, p. 6)

When engaging in a justice system which relies heavily on an oral tradition (Lount et al., 2018), characterised by complex and formal vocabulary and grammar as well as specific social communication conventions, children and vulnerable participants often face barriers due to their difficulties in understanding and using spoken language. Whether the participant is a defendant, a complainant, victim, or third party, the legal process is enhanced when communication occurs in ways that allows optimal participation and clear communication between parties (Davies, 2016; Plotnikoff & Woolfson, 2015). Communication has been recognised as “essential to our humanity” (McEwin & Santow, 2018, p. 1) and as a right that must be upheld for individuals interacting in everyday life “in order to enhance quality, justice and human dignity” (McLeod, 2018, p. 4). However, many individuals including young children and those with communication disabilities require additional consideration, assistance and support so that their voices can be heard (Beckene et al., 2020; Lount et al., 2018). The importance of assisting individuals with speech, language and communication needs when navigating justice systems is recognised in Sustainable Development Goal 16: peace, justice and strong institutions (SDG 16), one of seventeen SDGs that are core to the United Nations’ Agenda for Sustainable Development (United Nations, 2015) and is critical to achieving Target 16.3 “Promote the rule of law at the national and international levels and ensure equal access to justice for all”. At a national level, the introduction of legislation to allow special accommodations for children and vulnerable participants will support the enactment of SDG 16 but this alone is not sufficient. Implementation of accommodations in relation to communication requires complex infrastructural, attitudinal and practice changes for those involved in the justice system (Hoyano & Rafferty, 2016; Mirfin-Veitch et al., 2014; Plotnikoff & Woolfson, 2019). In recognition of the complexities of the task of ensuring equal access to justice, a new professional role has been developed.

A new professional role to ensure effective communication in justice systems

A new communication specialist role has emerged in justice systems, the “first active new role at trial for hundreds of years” (Plotnikoff & Woolfson, 2015, p. 4). This role is known by different names in different countries including registered intermediary (Northern Ireland, England, and Wales), communication intermediary (Canada), communication assistant (New Zealand) and facilitador (Spain and Mexico). In some countries, specific laws are in place that regulate the role (England and Wales, New Zealand, Northern Ireland, Republic of Ireland) while others apply general accessibility or non-discrimination acts (USA and Canada). The training, scheme setup and monitoring of the role varies across countries and the professional background of those in the role is not set out in legislation. However, dominant professional profiles are noted in some countries. In Northern Ireland, New Zealand, and Canada, the predominant professional background is speech-language pathology; whereas in Spain the role is mainly filled by qualified psychologists. The intermediary role facilitates effective communication during legal proceedings by supporting the participant to understand information and to make informed decisions, and neutrality is expected and legally required. The provision of Procedural Manuals in some countries (e.g. Northern Ireland), which act as a reference document, provide explicit guidance to the professional regarding the remit of the role in that jurisdiction. Most schemes cover victims, complainants and witnesses, while some also include defendants (e.g. New Zealand and Northern Ireland) and/or are trying to expand the service in equal terms to them (Hoyano & Rafferty, 2016; Taggart, 2022). Intermediaries are independent; their duty is to the court not to any side of the case, and their role is to assist everyone’s communication (Plotnikoff & Woolfson, 2015). An important aspect of the intermediary role in some jurisdictions (e.g. Northern Ireland) is to aid the police and the court to communicate with the vulnerable participant to obtain the best-quality evidence possible (Cooper & Mattison, 2017). To do this, intermediaries possess specialist skills to assess participants’ communication abilities and needs and they provide advice to support professionals when questioning them. At a broader level, the role focuses on enabling the participant to understand, and have agency in, the legal process (Howard et al., 2020a).

The first intermediaries were trained in England and Wales in 2003 and the Witness Intermediary Scheme was piloted in six locations in 2004 (Cooper & Mattison, 2017). In 2006, the scheme was recommended for national roll-out (Plotnikoff & Woolfson, 2015). Jurisdictions in other countries have introduced intermediary schemes based on the Witness Intermediary Scheme including Northern Ireland, Australia and New Zealand (Howard et al., 2020a). The role is entirely publicly funded. The Witness Intermediary Scheme is noted to have provided a “template but not a blueprint” for the development of the Registered Intermediary Scheme in Northern Ireland (Cooper & Wurtzel, 2014, p. 39). While Northern Ireland has learned from the experiences in England and Wales, there is learning to be gained from the Northern Ireland system (Taggart, 2021). A complex “two-tier” system (Henderson, 2015, p. 157) has developed in England and Wales with an inequality in intermediary provision where defendants, although entitled to intermediary assistance, do not have access to the same registered intermediary service as Crown Witnesses. This has resulted in a distinction between witness work and defendant work which is in contrast with the “unitary” system of intermediary provision in Northern Ireland (Taggart, 2021, p. 15), where both witnesses and defendants are eligible for registered intermediary services and therefore this distinction does not exist. Indeed, there is learning to be gained across the globe. While many of the schemes and services have been evaluated informally, there is limited research evidence as to the effectiveness of the role (Cooper & Mattison, 2017). There is some evidence to suggest that the role has resulted in positive communication experiences from the perspective of young people and their families in youth justice processes (Howard et al., 2021). It is worth noting that once introduced into legal systems, legal professionals’ perspectives of this new role are reported to be largely positive (Henderson, 2015; Howard et al., 2020b). However, challenges have also been recognised including the misinterpretation of eligibility criteria and poor levels of awareness of the role (Cooper & Wurtzel, 2014).

Sharing learning and experiences across countries

Exchanging experiences and sharing learning within and across countries can support and enrich professional practice. When developing an intermediary scheme within a country, there is learning to be gained from the experiences of others with established schemes. This was the case with the Republic of Ireland. Those involved in developing the first training program in the Republic of Ireland looked to near neighbours in Northern Ireland, England and Wales and further afield to New Zealand during the development process. Northern Ireland, although part of the United Kingdom has a distinct legal jurisdiction separate to England, Wales, and Scotland. The Northern Ireland Registered Intermediary unitary scheme has benefitted from the experiences of pre-existing intermediary schemes, in England and Wales (Taggart, 2021). The scheme supports inclusion, as it provides registered intermediary services to vulnerable witnesses (child and adult) and the vulnerable accused, promoting fairness and improving the vulnerable person’s access to Northern Ireland’s justice system.

In New Zealand, those involved in developing the processes and practices for communication assistance formed working groups with legal professionals and academics and paid attention to how similar roles were operating overseas. They received immense support and advice from practitioners, evaluators, and researchers within and outside of New Zealand as the awareness grew that many people involved in justice processes need accommodations to ensure effective participation (Lount et al., 2018; Mirfin-Veitch et al., 2014). Values of equal access to justice and rangatiratanga (autonomy) led to advocacy for communication assistants to be available to complainants, witnesses, and defendants and the wording of the Evidence Act has enabled courts to support this.

In the Republic of Ireland, while formal legislative action in the realm of intermediary advancement may have been found lacking in recent years, policy engagement at a sub-legislative level has not (Cusack, 2020). Notably, in 2021, the Department of Justice in the Republic of Ireland invited expressions of interest to design and deliver an accredited intermediary training program. Graduates of the program would be qualified to work specifically within the context of the Irish justice system. A proposal for an inter-faculty offering across the School of Law and the School of Allied Health in the University of Limerick was successful in gaining the funding award from the Department of Justice, to design and deliver the only accredited intermediary program in the Republic of Ireland in September 2022. The proposal and subsequent program that has been designed has been informed by key findings from programs and schemes described in this article: Northern Ireland, England and Wales, and other common law jurisdictions including New Zealand.

See Table I for a summary of the role across the three jurisdictions.

Table I. Summary of key characteristics of the intermediary role across New Zealand, Northern Ireland and Republic of Ireland.

	New Zealand	Northern Ireland	Republic of Ireland
Terminology	Communication Assistant (CA)	Registered Intermediary (RI)	Registered Intermediary (RI)
Description of the role	“Communication assistance is available for participants who would be otherwise unable to effectively communicate with their lawyer or understand and answer questions in a court environment.” (Communication Assistance Quality Framework, 2021)	“The function of the RI is to facilitate communication during the police investigation and at trial between the vulnerable person and others in the criminal justice process.” (https://www.justice-ni.gov.uk/ri)	The role is being developed based on the description of the role in England and Wales from Cooper and Mattison (2017) “to assist the police and the court to communicate with the witness so as to obtain the best-quality evidence from the vulnerable witness.” (O’Malley Report, 2020)
Legislation	Section 80 of the Evidence Act 2006	Articles 17, 21BA and 21BB of the Criminal Evidence (Northern Ireland) Order 1999	Section 14 Criminal Evidence 1992 (as amended); section 19 Criminal Justice (Victims of Crime) Act 2017
Eligibility	Children, young people, and adults who need assistance to communicate in the court environment	All witnesses (including defendants) with communication needs, mental disorder, or significant impairment of intelligence and social functioning	Child victims under 18 years of age; adult victims with a “mental disorder” and any victim with “specific protection needs” for all offences. Also open to witnesses under 18 years of age and adult witnesses (who are not victims) with a mental disorder for specified sexual and violent offences (see Cusack, 2020)
Users/ Agencies (court, police interview etc.)	Mainly criminal courts (but also family courts, tribunals and coronial inquest) and police (to a much lesser extent) Also parole board and family group conferences	Courts (court stage victim/witness only), police (victims/ witnesses/ suspects at investigative stage) and solicitors (suspects at investigative stage/defendants at court). Will also receive requests from solicitors (suspects at investigative stage/ defendants at court)	Courts (planned for expansion to police on a non-statutory basis)
Program status	In 2012, the first case for a complainant using a speech-language pathologist as a CA based on the WIS model in England and Wales. First case for a defendant in 2015	In 2013, the Northern Ireland Registered Intermediary Scheme was launched	Since 2015, RIs from Northern Ireland and England have been engaged in court proceedings in the Republic of Ireland
Recent developments	The Ministry for Justice launched the Quality Framework in 2021 and contractual arrangements with two providers were formalised	The most recent recruitment call occurred in December 2021	The first cohort are due to graduate in 2023 these will be eligible to become RIs
Professional backgrounds	Speech-language pathology, psychology, occupational therapy, mental health specialist nursing, or specialist teacher Must have a current annual practising certificate with the relevant New Zealand governing/professional body	Speech-language pathology, behavioural therapy, clinical and forensic psychology, educational psychology, social work, and the mental health professions	Speech-language pathology, occupational therapy, social work, and psychology Must be registered with CORU, the health and social care professional regulator
Training and accreditation	Ministry endorsed communication assistance training modules – https://www.justice.govt.nz/about/lawyers-and-service-providers/service-providers/communication-assistance/communication-assistance-providers/	Department of Justice accredited masters level training – following successful completion of this training, professionals’ details are recorded on the Registered Intermediaries Register which is managed by the Department of Justice	Professional Diploma in Intermediary Studies delivery in the University of Limerick, funded by the Department of Justice – https://www.ul.ie/gps/courses/intermediary-studies-professional-diploma
Dominant professionals in practice	Speech-language pathologist	Predominantly speech-language pathologists, some social workers and psychologists	Not yet established
Number practising (includes full and part time practice)	Approximately 40	38	Scheme not yet established
Procedural manuals and court guides	Communication Assistant Quality Framework	The Registered Intermediaries Procedural Guidance Manual (Northern Ireland)	Not yet developed
Supporting materials	https://www.justice.govt.nz/assets/Documents/Publications/Communication-Assistance-Quality-Framework-FINAL.pdf	https://www.justice-ni.gov.uk/ri

Challenges facing the new profession to ensure equal access to justice for all

The new intermediary role is a challenging one (Howard et al., 2020c). O’Mahony et al. (2016) proposed that intermediaries may struggle to understand their merging and converging identities as health and social care professionals and intermediaries. For example, the focus on facilitating participation within the legal process to ensure equal access to justice is a neutral and impartial role and not therapeutic in nature. Uncertainty as to the status of the role is also a challenge. While Plotnikoff and Woolfson (2015) identify intermediaries as a new profession, Taggart (2021) questions whether intermediaries constitute a distinct professional group due to the diversity in professional backgrounds of those involved, and the variation across jurisdictions in terms of remit. Further research on role identity and whether this changes after time spent working in the role may provide opportunities for shared learning for those starting out in the profession and across jurisdictions. The nature of the work itself also brings challenges. Exposure to distressing cases and involvement in lengthy trials means that self-care is vital. Ongoing opportunities to reflect on affective responses to maintain a critical distance from the work and remain effective in the role is also required but not easily available for intermediaries (Myklebust et al., 2015; O’Mahony et al., 2016).

A further challenge for intermediaries is the adversarial nature of legal processes and legal discourse which is in stark contrast to the collaborative nature of health and social care practice (Doak, 2005). Intermediaries must be able to navigate this unfamiliar set of cultural and linguistic norms for which there is no readily accessible codebook. Intermediaries must also be able to promote acceptance of their role across a diverse range of stakeholders, as their effectiveness is dependent on stakeholders’ understanding of the role and their willingness to adapt their own communication in response to the recommendations (Collins & Krahenbuhl, 2020; Henderson, 2015; Howard et al., 2020b).

While considering the broader organisational and cultural challenges for this new role, there is a clear need to build awareness of the role among relevant stakeholders, as well as the acceptance of it, as a recognised accommodation for not just vulnerable complainants and witnesses, but also for defendants (Hoyano & Rafferty, 2016; Taggart, 2022). There can be a lack of awareness about the role among legal professionals (Cooper & Wurtzel, 2014; Howard et al., 2020c) and Plotnikoff and Woolfson (2019) highlight that intermediaries cannot operate effectively without the confidence of other criminal justice stakeholders which requires a degree of consensus as to the role’s status and function.

Summary and conclusion

It was not until CAs (Communication Assistants) became involved in cases that I started to understand how language difficulties impact on young people who come before the Youth Court. That has led me to re-think how I communicate with all young people I meet in court and to see an urgent need to change the language, forms and processes we use to make them capable of being properly understood. This must go beyond simply removing the anachronisms and institutional language; New, fresh and meaningful approaches are required (HH Judge Fitzgerald, as cited in Metzger et al., 2018, p. 10).

The quote above highlights how a relatively new professional role within the legal system, with a focus on facilitating effective communication, has the potential for meaningful transformation within legal systems. We have presented an overview of the communication assistant/intermediary role, provided examples from three common law jurisdictions, and considered the current challenges that must be addressed to ensure the role is to be effective in ensuring that SDG 16, Target 16.3 “equal access to justice for all” is met for young children and those with speech, language and communication needs. Training should not only focus on legal material but also on psychological processes intrinsic to the development of professional identities (O’Mahony et al., 2016). Ensuring that professionals are supported is an important step forward, and one which has been highlighted as an ongoing role for the relevant Departments of Justice (Cooper & Wurtzel, 2014). Likewise, legal stakeholders need training and support to consider what they can do across the sector to bring about universal communication access rather than viewing accessible communication only as an issue for intermediaries to solve. Communities of learning, in the form of small peer groups have also been identified as important not only for support but also for maintaining consistency between practices (Taggart, 2021). In addition, establishing communities of learning, and continuing professional development opportunities specific to the role, can provide mechanisms for maintaining and improving knowledge, skills, and competence, as well as further developing the professional qualities required for the role. Finally, learning from others’ experiences may help to define and refine practice in countries around the globe. This is facilitated through the small but expanding evidence base and online resources such as https://www.intermediaries-for-justice.org/, https://justiceintermediary.org/ and https://www.theadvocatesgateway.org/ that provide information, training and peer support for this growing and evolving profession.

Declaration of interest

The authors report no conflicts of interest. The authors alone are responsible for the content and writing of this article. Four of the authors are engaged as Communication Assistants/Registered Intermediaries in their respective countries.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.