The Impact of the Registered Intermediary on Adults’ Perceptions of Child
Witnesses: Evidence from a Mock Cross Examination
Abstract
Registered intermediaries are communication specialists appointed to facilitate the
communication of vulnerable witnesses participating in the criminal justice system in
England and Wales. Intermediaries assess the vulnerable individual’s communication and
provide recommendations to practitioners for how to obtain the individual’s ‘best evidence’
during police interviews and in court. The scheme was implemented nationally in 2008, but
has not been subject to rigorous research. The aim of the current article is to provide an
account on adults’ perceptions of the vulnerable individual when an intermediary assists their
communication in court. In the present study one hundred participants viewed a mock cross
examination of a child witness either with or without an intermediary present. Participants
rated the child’s behaviour and communication, and the quality of the cross examination,
across a number of different variables. The age of the child was also manipulated with
participants viewing a cross examination of a four or a thirteen year old child. The results
showed the children’s behaviour and the quality of the cross-examination were more highly
rated when the intermediary was involved during cross-examination. The older child’s cross-
examination was rated as more developmentally appropriate, however no other age
differences or interactions emerged. The findings have positive implications for jury
perceptions of children’s testimony when they are assisted by an intermediary in court,
regardless of the age of the child witness. The success of the intermediary scheme in
England and Wales may encourage the implementation of intermediaries internationally.
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The use of intermediaries in England and Wales to facilitate the communication of
vulnerable individuals is now commonplace. The witness intermediary scheme was
implemented nationally in 2008 and currently on average 13 requests for intermediaries are
made per day, and in the year 2014, 3332 requests were made in total. This is an increase in
81% from 2013 to 2014 (Smith, 2015). The success of the scheme is supported by the
increase in the numbers of referrals since its conception and the positive comments provided
by carers, and practitioners such as police officers and barristers (Plotnikoff & Woolfson,
2007). Anecdotal information has indicated that practitioners feel more confident in their
work with vulnerable witnesses due to the assistance of the intermediary. However, what is
not clear is the effect the scheme has on the fairness of criminal proceedings. In particular,
how the presence of the intermediary affects juror perceptions of the vulnerable witness in
court (O’Mahony, 2010). In England and Wales intermediaries can be seen over the live link
sitting next to the vulnerable witness whilst they are being cross examined or sitting/standing
next to the witness when they are being cross examined in the courtroom. At the discretion
of the judge they are also permitted to intervene during questioning if their communication
recommendations for the vulnerable person are not adhered to (Ministry of Justice, 2015).
Because of the possible invasiveness of the presence of the intermediary in court, it is
important to consider the effect that this has on jury perceptions of the vulnerable person the
intermediary is assisting.
According to legislation a witness is considered ‘vulnerable’ if they are under the age of
18, and/or have a mental disorder or impairment of intelligence, social functioning or
physical disability/disorder (Youth, Justice and Criminal Evidence Act 1999). With regards
to the empirical investigation of vulnerable witnesses, the majority of research has focused on
the communication and perception of children in court (e.g. Davies, Henderson, & Hanna,
2010; Sumner-Armstrong & Newcombe, 2007). The importance of accommodating
children’s testimony has been well documented (Cossins, 2006; Davies, Devere, &
Verbitsky, 2004; Doherty-Sneddon & McAuley, 2000; Powell, 2005). Children are stressed
when providing their evidence and the accuracy of the information they produce may
decrease during cross-examination (Righarts, Jack, Zajac, & Hayre, 2015). In addition,
children can change the content of their testimony even if the accuracy of the information
held in memory remains intact (Righarts et al., 2015). Such inconsistencies in the victim’s
account can decrease the likelihood of a conviction (Berman & Cutler, 1996). Furthermore,
jury members have been found to have a negative perception of children’s testimony and this
can have a detrimental impact on the perceived credibility of their account (Quas, Thompson,
& Clarke-Stewart, 2005). Age has proven to be a consistent indicator of witness
believability, with adults and older children deemed more accurate providers of information
than younger children (e.g. Holcomb & Jacquin, 2007; Nikanora & Ogloff, 2005; Pozzulo,
Lemieux, Wells, & McCuaig, 2006). In addition, Henry, Ridley, Perry, and Crane (2011)
found the credibility of testimony from children is even further reduced in the eyes of the jury
when children present with a learning disability.
In the past twenty years different measures have been implemented in courts
internationally to assist the accounts of vulnerable individuals and enable them to provide
their ‘best evidence’. In England and Wales these are referred to as ‘special measures’ and
include video recorded evidence in chief, testimony via live link, use of screens to shield the
witness from the defendant, removal of wigs and gowns and the use of an intermediary
(Youth, Justice and Criminal Evidence Act 1999). When these measures were first
introduced a number of studies were produced that examined the effects of these new
measures on children’s communication and behaviour. Hamlyn, Phelps, Turtle, and Sattar
(2004) carried out an extensive review of the measures and found that they can reduce
children’s feelings of anxiety and improve their experience when providing evidence.
Overwhelmingly the majority of research on special measures has focused on the impact of
the live link on children’s testimony. Children report being less nervous and more capable of
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providing their evidence over the live link (Landstrom & Granhag, 2010; Goodman et al.,
1998; Wilson & Davies, 1999) and a number of studies have found younger children produce
more errors in response to misleading questions when communicating face to face than via
live video link (Doherty-Sneddon & McAuley, 2000; Goodman et al., 1998).
Despite these improvements, findings for juror perceptions of children testifying over the
live link have been less favourable. Some research studies report no differences for jury
perceptions when comparing live link versus open court testimony (Orcutt, Goodman, Tobey,
Batterman-Faunce, & Thomas, 2001; Ross, Hopkins, Hanson, Lindsay, Hazon, & Eslinger,
1994). However, the majority demonstrate that jurors view testimony more positively and
are better convinced when they observe children in court than across a video link (Landstrom
& Granhag, 2007, 2010). Jurors perceive children as less credible (Eaton, Ball, &
O’Callaghan, 2001), accurate and believable when they testify via live link and some
research indicates this may affect conviction rates with a bias in favour of the defence
(Goodman et al., 1998). McAuliff and Kovera (2012) propose that this bias may occur
because jurors have expectations about children’s behaviour and when these expectations are
violated this leads to a negative perception of the child. For example, jurors expect children
who testify to be nervous and less coherent. If children do not present this way, because of
an improvement in demeanour as a result of the live link, then the jury may choose not to
believe their version of events.
Other accommodations have not been subject to such extensive research, including the
use of intermediaries for vulnerable witnesses. This may be due to the fact that the
intermediary scheme is used in only a small number of countries and this development has
occurred recently. The role of the intermediary is to facilitate communication between
vulnerable witnesses and practitioners working in the criminal justice system (Ministry of
Justice, 2015). In England and Wales intermediaries are trained and accredited by the
Ministry of Justice and are called Registered Intermediaries (RIs). RIs perform a number of
different tasks to assist the police during forensic interviews and other professionals in court
(please refer to the Registered Intermediary Procedural Guidance Manual, Ministry of
Justice, 2015, for a comprehensive overview of the role of RIs in England and Wales). RIs
assess the vulnerable person’s communication abilities, and afterwards write a full report
providing recommendations for how to communicate and gain best evidence from the
vulnerable person when they participate in criminal proceedings (Ministry of Justice, 2015).
If the intermediary has accepted a referral for court then the recommendations outlined in the
report are summarised to the judge and counsel in a ‘ground rules hearing’ prior to the
commencement of the trial. At this point the judge decides which recommendations will be
implemented during the proceedings. However, it is important to note the focus is on
facilitating the communication of ‘best evidence’, not on assisting practitioners with the
evidential content of their questions (Ministry of Justice, 2015). RIs act as officers of the
court and must take a neutral stand in their approach to their work (Ministry of Justice, 2015).
After the ground rules hearing the intermediary is present to assist the vulnerable person,
and the practitioner, when the vulnerable person is being questioned in court. During cross-
examination they sit next to the witness and must be visible on camera or visible in the
witness box. RIs are also permitted to intervene during cross examination, if the
communication recommendations granted during the grounds rules hearing are not being
adhered to, or they notice something about the vulnerable witness that may be affecting their
ability to communicate effectively (e.g. if the witness is tired and needs a break).
The practice of intermediaries also varies dependent upon the country in which the
scheme operates (Powell, Bowden, & Mattison, 2014). In South Africa the intermediary acts
like an interpreter by listening to the questions put forward by counsel and translating these
into words that the vulnerable person will understand (Criminal Procedure Act, 1977). In
Norway specialist child interviewers question children for prosecution and defence and this
interview is video recorded and played later at trial (Hanna, Davies, Henderson, & Hand,
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2013). In Israel a specially trained child interviewer also carries out a video recorded
interview with the child. If the case proceeds to court then the interviewer can translate
questions similar to the work of South African intermediaries (Henderson cited in Spencer &
Lamb, 2012).
The work of intermediaries has not been subject to extensive research. Plotnikoff and
Woolfson (2007) conducted a major review of the new intermediary scheme in England and
Wales when it was first implemented. One of the most prominent findings was that carers
and witnesses felt RIs assisted their communication and helped them cope with the stress of
providing testimony. Intermediary work in South Africa has been praised for maintaining the
fairness of the South African justice system (Matthias & Zeal, 2011). The idea of the
intermediary scheme has not been as well received by some practitioners in Australia.
Powell et al (2014) carried out interviews with criminal justice practitioners and asked their
views on the benefits of introducing an intermediary scheme there. Whilst the practitioners
could see the positive implications for vulnerable witnesses they discussed a number of
concerns. These included adding a further complication to an already complex legal system,
concerns over perceptions of the role, and questions about training and maintaining
professional competency. In contrast, in their review of the support for individuals with
learning difficulties in the Australian criminal justice system, Hepner, Woodward, and
Stewart (2015) argue that the introduction of a witness intermediary scheme is essential to
facilitate access to justice for vulnerable witnesses in Australia.
Ridley, van Rheede, and Wilcock (2015) investigated the impact of intermediary presence
on mock juror, police officer and barristers’ perceptions of a forensic interview between a
police officer and a child. The participants read a written transcript with or without an
intermediary present. In the intermediary present condition the intermediary intervened five
times when the questions were not child appropriate. The interview quality was more
positively perceived when the intermediary was present however intermediary presence had
no impact on perceptions of the child. Furthermore, barristers tended to perceive the child
more negatively than police officers or mock jurors, and police officers found the child more
credible than barristers and mock jurors. However, the scope of the findings is limited as
participants read a transcript instead of observing intermediary and child behaviour.
Ordinarily barristers and jurors would watch a visual recording of the interview in court and
this would permit access to the behaviour and tone of the child and intermediary, which may
in turn result in different perceptions of the quality of the interview and credibility of the
child.
In other research, concerns have been raised by intermediaries about the training of
intermediaries who work with defendants (O’Mahony, 2010). In England and Wales
statutory legislation covers the work of intermediaries with vulnerable witnesses but not
defendants (Cooper & Wurtzel, 2013). Intermediary practice with defendants operates under
common law where the use of an intermediary for a defendant set the precedent for the use of
defendant intermediaries in criminal courts (Cooper & Wurtzel, 2013). However, the
practice is not standardized, training is not accredited and there is no quality assurance.
Registered intermediaries who have also worked with defendants have expressed concern
about how they would be perceived by the jury when assisting a vulnerable defendant in
court (O’Mahony, 2010).
Nevertheless, there has been no research on how intermediaries and vulnerable people are
perceived when cross-examined in court. Unlike the South African scheme there is no
empirical research to date that examines whether or not the involvement of the intermediary
during cross-examination in court influences the jury and undermines the fairness of the
criminal justice system. Given that the live link has been shown to affect jury perceptions of
children then it is also important to examine whether the work of the intermediary in court
has a positive or negative effect on the jury too. Negative perceptions may mean the jury has
to be provided with more detailed instructions about the role of the RI in court.
4
The present study investigated the impact of intermediary involvement on mock juror
perceptions of children and their communication when they were cross-examined in court.
Mock jurors watched a video clip of children being questioned either with or without an
intermediary and rated the children on a number of different dimensions. The age of the
child was also manipulated with participants viewing a clip of a 4 year-old child or a 13 year-
old teenager. Juror perceptions of children can vary dependent upon the age of the child and
we were interested to see whether this same effect occurred when an intermediary was
present or absent. We expect that juror perceptions of the children’s communication will be
better when an intermediary is present, but that ratings of their credibility and believability
will be lower as the juror’s expectations are violated if the children’s communication
improves (McAuliff & Kovera, 2012) when accompanied by the intermediary. We also
predict the older child’s communication and behaviour etc. will be scored higher than the
younger child as previous research indicates a bias in favour of older child witnesses (e.g.
Holcomb & Jacquin, 2007; Nikanora & Ogloff, 2005; Pozzulo et al., 2006).
Methods and Data
Participants and Design
The study involved 100 participants (35 males and 65 females) from an English
University who were recruited using the University’s online experiment sign up system. The
mean age was 21 years with an age rage of 18 to 57. All participants met the UK’s jury
eligibility criteria. Therefore all participants were aged between 18 and 70, listed on the
electoral register and did not have any criminal convictions.
The study was separated into two parts – a recorded mock cross-examination and an
evaluation of this cross-examination. For the first part the children watched a cartoon and
were cross-examined about the content of the cartoon. In the second part of the study
participants watched one of the cross-examinations and rated the children and the cross-
examination on a number of different variables. The first independent variable (IV) was the
involvement of an intermediary during cross-examination, with two levels: no intermediary
present and intermediary present. The second IV was the age of the child witness with two
levels: young child (four years old) and teenager (13 years old). Both IVs were independent
measures and participants were randomly assigned to a condition.
In order to measure people’s perceptions of the child witness, participants were asked to
rate the following variables: truthfulness, credibility, believability, vulnerability,
cooperativeness, responsiveness, comfortableness, confidence, consistency, accuracy,
suggestibility and stress level. In order to measure people’s perceptions of the cross
examinations as a whole participants were asked to rate the following: child centeredness,
child appropriateness, and the quality of the interaction. These variables were measured in the
form of a questionnaire, which was constructed by the researchers, based on the most
frequent variables used in other research to examine people’s perceptions of children in
forensic settings (e.g. Goodman et al., 1998; Holcomb & Jacquin, 2007; Nikanora & Ogloff,
2005; Pozzulo et al., 2006).
Materials and Procedure
Mock cross-examinations.
The researchers recorded four cross-examination video clips: young child without
intermediary, young child with intermediary, teenager without intermediary and teenager
with intermediary. Before producing the clips, parental consent was obtained for both
children. In all four cross-examinations, there was a mock child witness, a mock barrister,
and a mock judge. In addition to this, in two of the cross examinations, an intermediary was