Divisional Court quashes Secretary of State for Justice's refusal to provide Registered Intermediary for defendant

Wednesday 25 June 2014

Stephen Knafler QC and Felicity Williams have successfully challenged the refusal of the Secretary of State to provide a Registered Intermediary (RI) for a defendant with Asperger's Syndrome and a significant learning disability. Michael Bowes QC and Jo Cecil intervened on behalf of Just for Kids Law.

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The Secretary of State for Justice contended that the claimant should have a non-registered intermediary. A RI is recruited, trained, registered and regulated by the Ministry of Justice. A non-registered intermediary is "private and unregulated".

The Divisional Court (Lady Justice Rafferty and Mr Justice Collins) noted that the use of intermediaries is to ensure "access to justice is improved for the most vulnerable members of society - children who need to be communicated with in developmentally appropriate ways and those with physical difficulties and mental disorders which adversely affect their communication". Lady Justice Rafferty underlined that the individual in jeopardy during a criminal trial is he who answers the charges.

It was held that when giving evidence a defendant should be provided with a RI. Without such provision there was an arguable "inequality of arms" and a "risk of unfairness". The Court concluded:

" . .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 as to why that was so."

The Court stated: "the Defendant must carefully consider whether to refuse to give equal provision for a prosecution witness and the defendant in enabling evidence to be given satisfactorily is justifiable".

The judgment is available online.

Stephen and Felicity were instructed by Mandy Hargun of Hine Solicitors. Jo was instructed by Shauneen Lambe of Just for Kids Law.

Stephen Knafler QC, Felicity Williams and Jo Cecil are all members of the Public and Administrative Law Team.

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