Ireland
In Ireland, the term registered intermediary is used to refer to professionals involved in this work.
Following the O’Malley Report; A Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences in 2020 and the subsequent Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases, Ireland’s Department of Justice decided they needed to develop an intermediary scheme. Around the same time, other stakeholders such as Ireland’s National Disability Authority were also thinking about intermediaries and contributing recommendations about what an intermediary scheme could offer.
From the beginning, the Department of Justice knew they wanted the training programme for intermediaries to be accredited so they called for expressions of interest from tertiary education providers. They also decided they only wanted to recruit the intermediary workforce from professions such as speech and language therapy, occupational therapy, social work and psychology. The University of Limerick’s School of Law and School of Allied Health’s combined submission to develop an intermediary training programme was successful, and they have now graduated thirty-five intermediaries.
The Department of Justice has also consulted with key stakeholders to create the Guidance Document for Registered Intermediaries to help them understand their role in the criminal justice system. They are also planning an evaluation of the pilot intermediary scheme soon.
As Ireland is in the early stages of establishing its intermediary scheme’s, many aspects of the scheme are still being explored and discussed to ensure the scheme is robust and fit-for-purpose. For example, it is unclear what Ireland’s intermediaries will be called. The relevant legislation refers to intermediaries whilst the O’Malley report refers to registered intermediaries (RIs). Similarly, it is evident the Department of Justice wants its intermediary scheme to be registered but there has been no decision about who will hold that register as yet.
The Department of Justice has been consulting with key stakeholders and is currently finalising the scope of practice for the intermediary role, guidance for judges around when to appoint intermediaries, referral pathways, pay rates, policies, procedures and so on. It is anticipated this work will be complete by the time the first cohort of intermediaries complete their accredited training programme.
The Law
Currently, s14 Criminal Evidence Act 1992 is the only legislation providing a legal basis for intermediary assistance e.g., “the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.” So, Ireland’s intermediary scheme will be limited to assisting children or vulnerable adults who are complainants and witnesses initially.
However, there is widespread acknowledgement that legislation must be amended to allow defendants to access intermediary assistance and ensure equal access to justice. Strengthening this desire for legislative amendment is the fact that there have been ad hoc appointments of intermediaries to provide assistance for defendants during criminal cases and to provide assistance to witness prior to the investigative interview.
The Intermediary Role
The intermediary role is neutral and impartial. When a referral is received, the intermediary will meet with the witness or complainant after they have pre-recorded their evidence to carry out an assessment and make recommendations. (Though, as mentioned earlier, there have been occasions when intermediaries have been engaged to carry out a pre-interview assessments). Whilst there is currently no legislative basis for Ground Rules Hearings in Ireland, they do happen. However, there is no standard approach and the intermediaries’ experiences in these hearings vary considerably. Sometimes, the ground rules hearings go ahead without the intermediary present. The intermediary is then involved at the point of giving evidence and cross-examination in court to enable the evidence to be as clear, complete and coherent as possible. And, like many other schemes across the world, the intermediary role is viewed as different and separate from roles such as expert witness or those involved in shared or supported decision-making.
Most referrals are made by the Director of Public Prosecutions and relate to very young children or children with very obvious communication difficulties or adults with intellectual disabilities or acquired brain injuries. However, the Director of Public Prosecutions is hopeful that it will become possible for every witness under 14 years of age to be assessed for eligibility for intermediary assistance.
Other supports available within legal settings:
Interpreters
Sign language interpreters
Victim Support Services
Appropriate adult – Children under 18-years-old can have an appropriate adult such as a parent or guardian present when they are being questioned by Garda/Police.
Training
The Department of Justice has stipulated that to be eligible to train and work as an intermediary applicants must be registered with CORU – an entity that regulating health and social care professionals in Ireland. The speech and language therapy, occupational therapy and social work profession are already registered with CORU. However, the psychology profession is not. Psychologists will not be eligible to train as intermediaries until this is resolved.
The Department of Justice has also provided funding to set up and run the Intermediary Studies Professional Diploma at the University of Limerick and the first cohort of trainee intermediaries is underway.
When selecting applicants for the diploma, teaching staff at University of Limerick considered the person’s profession (speech and language therapy, occupational therapy or social work) and years of experience. They also invited applicants to discuss any relevant interests or experience e.g., previous experience assisting communication or exposure to legal contexts. The teaching staff were also keen to recruit applicants from across the country and across a range of specialist areas e.g., working with children, working with adults, working in mental health settings and so on. In future, they hope to continue to broaden the range of gender as well as cultural and linguistic diversity reflected within the intermediary workforce.
The Professional Diploma is a part-time interfaculty programme that runs throughout the academic year. There are two modules relating to the law and two modules on the role of intermediary including guest lectures from RIs from other jurisdictions, live court simulation, assignments and so on. Students who complete the programme successfully will be able to be registered for intermediary work.
It is hoped there will be ongoing continuing professional development opportunities for intermediaries such as communities of practice or Special Interest Groups but the ways these will be offered and structured have yet to be decided.
Once students have graduated from the programme they are eligible to add their name to the publicly available Register of Court Intermediaries . This has proven a fairly straightforward process for intermediaries with a background in speech and language therapy as they have been able to access affordable professional indemnity insurance. However, intermediary graduates with a background in social work and occupational therapy are finding it much more difficult to access affordable professional indemnity insurance.
Funding
Ireland’s intermediary scheme is off to such a positive start because of the Department of Justice’s recognition of the need for the intermediary role and the funding they have provided to set up the training programme.
The Department of Justice also set the payments rates for intermediaries and this information is publicly available Fees Payable Registered Intermediaries. So, regardless of who is funding the intermediary e.g. the Director of Public Prosecutions or Legal Aid, intermediary work is paid at the same rate. .
Pressing issues and future perspectives
Scope of practice – There is some urgency around finalising the scope of practice for intermediaries and the policies and procedures to be used when appointing them.
Building capacity – As mentioned earlier, it is hoped that legislative changes will extend the remit of intermediaries to include work with defendants, the provision of assistance in a broader range of jurisdictions and at more points of the legal process. Whilst some progress is being made in this area, it is on a case-by-case basis rather than systemic. The intermediary workforce will need to continue to grow to meet these increased demands and so work needs to be done to recruit the right people and ensure intermediary work is an attraction option e.g., job security, pay rates and so on.
Embedding intermediaries into Ireland’s judicial system – There is consensus about the need for intermediaries and Ireland’s judiciary have been very open to and positive about their experiences working alongside Northern Irish RIs who have assisted in their courtrooms. This bodes well for Ireland’s fist cohort of intermediaries. However, the intermediary role is new and not well understood. A significant amount of training for legal stakeholders will be required to ensure everyone knows how to identify when someone would benefit from intermediary assistance, how to refer, what intermediaries do/don’t do, how to work alongside intermediaries and so on.
Professional Indemnity Insurance costs – Difficulty accessing affordable professional indemnity insurance is a major barrier to graduate intermediaries getting their name on the Court Intermediaries Register.
Useful documentation and references
O’Malley Report; A Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences in 2020 https://www.gov.ie/en/publication/0964e-review-of-protections-for-vulnerable-witnesses-in-the-investigation-and-prosecution-of-sexual-offences-omalley/
Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases https://www.gov.ie/en/publication/bb42e-supporting-a-victims-journey/
S14 Criminal Evidence Act https://revisedacts.lawreform.ie/eli/1992/act/12/section/14/revised/en/html
Intermediary Studies Professional Diploma https://www.ul.ie/gps/courses/intermediary-studies-professional-diploma