Rukiya Stein, PhD Student, University of Newcastle School of Law and Justice, Australia

Vulnerable defendants are over-represented in the criminal justice system with approximately 60% having speech, language and communication needs or a type of learning disability.[1] Defendants with Autism Spectrum Disorder, also known as Autism, experience significant difficulties in the criminal justice process due to difficulties with understanding and reading body language, reading and recognizing facial expressions and susceptibility to anxious or impulsive behaviours.[2] Autism can be a ‘hidden disability’ and often difficult to identify, particularly for legal professionals with limited training and understanding of the characteristics of Autism.[3] Communication difficulties can be apparent in a defendant’s limited understanding of what is said by the judge and lawyers and in communicating effectively with the legal team.[4]

In New South Wales (NSW), Australia, legislation exists for intermediaries to work with vulnerable child victims and witnesses in sexual assault matters, yet parallel legislation is lacking for intermediaries to work with defendants who are equally disadvantaged in the process.[5] The role of the intermediary is “to facilitate communication between a witness or defendant and others in the justice process”.[6] Generally this entails advising justice professionals on effective communication strategies to elicit complete, coherent and accurate evidence[7] from a vulnerable person. Intermediaries have a strict obligation of neutrality as officers of the court and must facilitate communication impartially. Research in England and Wales showed intermediaries made it easier to identify witness communication needs and provided information to professionals on appropriate questioning techniques. [8] In addition, judges and advocates believed that access to justice increased with intermediary presence as well as fairness of trials for vulnerable defendants.[9]

The intermediary role is multi-faceted involving a thorough communication assessment, writing a detailed report outlining the main communication needs and recommendations for appropriate questioning, attending a ground rules hearing with the judge and advocates to discuss the recommendations, and facilitating communication when the vulnerable defendant gives evidence. Intermediaries may intervene when recommendations are not adhered to.

On 13th September 2023, I presented a case study at The Vulnerable Accused in the Criminal Justice System Conference in Birmingham. The case study described my role as the intermediary facilitating communication for an adult defendant with Autism. This was a novel case in NSW as an intermediary had not previously assisted an adult defendant, only child victims and witnesses.[10]

I highlighted the difficulties the defendant had with tag questions, statements as questions, complex vocabulary and complex propositions and inability to seek clarification leading to acquiescence. The defendant required someone to assist him with emotional regulation and asking for breaks. During evidence in chief and cross-examination, when the lawyers asked simple questions the defendant provided clear and complete evidence. When the lawyers reverted to asking statements as questions or complex questions, the defendant misunderstood the questions.[11] As the intermediary, I intervened when a lawyer asked a question that did not follow the recommended format, relayed any responses that the defendant pointed to on his visual aids or provided advice to the judge and lawyers on effective questioning when confusion was noted. Examples of assistance included the use of Post-it notes for signposting different topics, assisting the defendant with reading due to his distractibility and low literacy skills and recommending the best structure to use when the Crown Prosecutor needed to ‘put the case’ to the defendant. On several occasions, I did not intervene during both phases of the defendant’s evidence. This resulted in confusion and questions to be withdrawn or rephrased. I indicated that intervening is a balancing act between allowing the defendant to assert himself and not interrupting the flow of questioning.[12]

The presentation described a novel case study where an intermediary facilitated communication for a defendant with Autism in NSW; something that had not previously occurred due to lack of legislation allowing for intermediary assistance with defendants. The case study highlighted the multi-faceted role of the intermediary pre-trial and during the defendant’s evidence. Analysis of the data is ongoing, but preliminary results show that intermediary presence assisted the lawyers in asking simpler questions and the defendant providing complete and clear evidence. Further analysis is being conducted and the results will be published in a journal in due course.[13]

Vulnerable defendants with Autism in NSW are just as disadvantaged in the justice process as vulnerable victims and witnesses. Intermediaries provide vulnerable people an opportunity to participate in a system that previously excluded them. The dearth of research into intermediary special measure uses in Australia limits the acceptance and extension of their role. Further research is needed to advance intermediary use in NSW to vulnerable defendants..

[1]  Jenny Talbot, ‘Seen and Heard: Supporting Vulnerable Children in the Youth Justice System’ (2010) Prison Reform Trust; Alex Jane Smethurst and Kimberley Collins, ‘Mock Jury Perceptions of Vulnerable Defendants Assisted in Court by Intermediaries- Are Jurors’ Expectations Violated?’ (2019) 15(1) Applied Psychology in Criminal Justice 24-40.

[2] Clare S Allely, Autism Spectrum Disorder in the Criminal Justice System: A Guide to Understanding Suspects, Defendants and Offenders with Autism (Routledge 2022).

[3] Sophia Calton and Guy Hall, ‘Autistic Adults and their Experiences with Police Personnel: a Qualitative Inquiry’ (2021) Psychiatry, Psychology and Law 1-19.

[4] Jane McCarthy, Eddie Chaplin, Susan Hayes, Erik Søndenaa, Verity Chester, Catrin Morrissey, Clare S. Allely & Andrew Forrester, Defendants with Intellectual Disability and Autism Spectrum Conditions: The Perspective of Clinicians Working Across Three Jurisdictions (2021)

Psychiatry, Psychology and Law DOI: 10.1080/13218719.2021.1976297

[5]  Penny Cooper and Michelle Mattison, ‘Intermediaries, Vulnerable People and the Quality of Evidence: An International Comparison of Three Versions of the English Intermediary Model’ (2017) 21(4) The International Journal of Evidence and Proof 351-370.

[6]   Ministry of Justice ‘The Registered Intermediary Procedural Guidance Manual’ (2012).

[7]   Penny Cooper, ‘Highs and Lows: The 4th Intermediary Survey’ (2014) Kingston University London.

[8]   Joyce Plotnikoff and Richard Woolfson, ‘The ʻGo‐Between’: Evaluation of Intermediary Pathfinder Projects’ (2007). London UK: Ministry of Justice.

[9] Emily Henderson, ‘A Very Valuable Tool’: Judges, Advocates and Intermediaries Discuss the Intermediary System in England and Wales (2015) 19 Evidence & Proof 154–171.

[10] R Stein, J Goodman-Delahunty and T Sourdin, “A Communication Intermediary, An Autistic Defendant and Cross-Examination: A Novel Australian Case” (2024, manuscript under review).

[11] R Stein, J Goodman-Delahunty and T Sourdin, “A Communication Intermediary, An Autistic Defendant and Cross-Examination: A Novel Australian Case” (2024, manuscript under review).

[12] R Stein, J Goodman-Delahunty and T Sourdin, “A Communication Intermediary, An Autistic Defendant and Cross-Examination: A Novel Australian Case” (2024, manuscript under review).

[13] R Stein, J Goodman-Delahunty and T Sourdin, “A Communication Intermediary, An Autistic Defendant and Cross-Examination: A Novel Australian Case” (2024, manuscript under review).