Vulnerable defendants should get the same protection in court as victims and witnesses, the High Court has ruled.
Judges held that the Ministry of Justice’s refusal to appoint a registered intermediary (RI) to an accused with Asperger’s syndrome was unfair.
Section 29 of the Youth Justice & Criminal Evidence Act 1999 empowers a court to order the use of a RI to facilitate communication between a vulnerable witness or victim and others in the court process.
RIs work through the Witness Intermediary Scheme, run by the Ministry of Justice, which maintains a register of intermediaries, providing training and matching them with witnesses or victims.
The legislation currently excludes defendants from using RIs. Instead they have to rely on what the High Court called ‘private and unregulated’ helpers.
The court ruled that denying defendants use of RIs, when these were available to victims and witnesses, would result in ‘inequality of arms’ and the ‘risk of unfairness’.
Lady Justice Rafferty 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 High Court was not persuaded that a vulnerable defendant would in most cases require a RI throughout the trial, but said it was ‘unarguable’ that they should have one if they give evidence.
The court set aside the Ministry’s decision to refuse the claimant a RI and ordered it to reconsider the decision.
The case, 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 said he should have an intermediary to help him during the magistrate’s court hearing.
Shauneen Lambe, the director of Just For Kids Law, which intervened in the case, said: ‘This decision will provide vulnerable children and young people who go through the criminal courts equal access to the government’s intermediary scheme.’
Welcoming the ruling that an RI must be provided, where needed, to a vulnerable defendant when giving evidence, Lambe said many 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,’ she said.
An MoJ spokesman said the ministry is considering its ‘next steps’ following the decision. He said: ‘The government is committed to ensuring all defendants receive a fair trial, and measures are already available to courts to secure this basic right.’
Prior to this case, he said the ministry was already looking into how the provision of intermediaries for vulnerable defendants might be ‘formalised’.
The claimant OP was represented by Stephen Knafler QC and Felicity Williams, both of Garden Court Chambers, instructed by Hine Solicitors.
Michael Bowes QC of Outer Temple Chambers, and Joanne Cecil of Garden Court Chambers acted pro bono for Just For Kids Law.
Christopher Staker of 39 Essex Street, instructed by Treasury Solicitors represented the secretary of state for justice.
Read the full decision here.