By Olwen Cockell, 18th June, 2020

As a speech and language therapist I am well aware of the disproportionate number of people with ‘hidden disabilities’ who come before the courts charged with an offence.  Despite the right to a fair trial enshrined in law too often those navigating the justice system find the language and processes complex and inaccessible precluding ‘effective participation’.  Courts have the capacity to make the necessary adjustments and enact special measures to facilitate effective communication for all parties but this is not yet commonplace.

One of a number of special measures that courts can deploy is the provision of an intermediary.  Intermediaries use their skills as communication specialists to assist vulnerable people to make informed choices, give their best evidence and understand the language and processes of the justice system – watch this video to learn more about the intermediary role.

Having worked as a paediatric speech therapist for many years I side-stepped into registered intermediary work in 2015.  I assist preschool and primary aged children who have witnessed crimes to give their most ‘complete, coherent and accurate’ evidence to the police and then later at court should the case come to trial.

Whether it’s because of working with children for such a long time…….or more likely because I’m not quite as smart as I’d like to think I am……my initial response was that of cold-blooded fear when Celia suggested that I might like to make gainful use of my lockdown free time to observe a hearing within the Court of Protection. 

Members of the public can observe public hearings in the Court of Protection but the system doesn’t make this terribly easy.  The daily court lists get published late in the afternoon the day before the hearings and even with that short notice those lists can still change.  For instance, Celia identified a potential hearing that might interest me and texted me about it but by the time I received the text and sat down to email the court to request permission that hearing had disappeared!  Finding Court of Protection hearings can also be tricky – they pop up in the dedicated Court of Protection list which covers hearings at First Avenue House in London,  but some are listed under the Family Division list and most appear in a very user-unfriendly form (for users who are members of the public) at CourtServe.  You need to be pretty obdurate.

But I persevered.  I had set aside a Tuesday morning to observe a hearing so that was what I was determined to do.  On Tuesday morning there were two potential hearings listed but with precious little information available about the nature of the hearings and the potential issues to be resolved I wasn’t really sure which hearing to select.  In the end the decision was made for me.  Having consulted Celia’s detailed advice about how to request access to the Court of Protection hearing I emailed the court clerk about my first-choice hearing but was promptly informed that this hearing had been rescheduled to mid-afternoon (when I was not available) and in any event was more than likely going to be vacated. So, with only 15 minutes to spare, I emailed again about my second choice hearing. 

Success!  Permission was granted for me to attend this other hearing and after a quick scramble to download Microsoft Teams, I holed up in my dining room to try and view the remote hearing undisturbed……and I achieved this for 35 minutes but my viewing of the hearing was then interrupted by my 13 year old son.  Being disturbed by a request from a hungry son for morning toast may sound trivial but it’s a breach of confidentiality.  Even though you’re in a virtual courtroom you are still in your own home – and I know that the issues of family life spilling over into professional lives are being experienced by many remote court participants – judges, barristers and witnesses alike – up and down the country. 

The Court of Protection has measures in place for guarding the privacy of the applicants.  Celia advised me that I should expect to be requested to complete a transparency order prior to my admission to the remote hearing – in my case this didn’t happen but the judge did give a verbal direction pertaining to privacy before the hearing commenced.  On the screen I could see the various parties, their names and the clerk did give a run-through of the ‘who’s who’ but this was brisk.

I’d heard terrible stories of remote hearings – tech drop outs and parties having to rely on phones being held up to screens so I was pleasantly surprised by how smooth this experience was from the technological perspective.  At all times I could hear everyone.  At all times I could see everyone.  Participants were very accommodating to one another, the judge inviting each participant to contribute in turn and there weren’t any interruptions or people talking over one another.

However, even though I could hear and see the hearing perfectly I still found the hearing hard to comprehend.  I think the best way of me explaining my experience of the hearing is by way of analogy.  When I was a teenager I fell ill with some sort of wretched bug and I missed 10 days of school.  Upon return to chemistry class I found that I’d missed the whole week covering the basics of titrations and I sat in the class trying to apply context and my existing knowledge to quickly get to grips with this new topic. 

It was clear to me from what participants were saying that the young man being discussed had a fairly unique set of issues: references were made to damage in childhood, trauma even indoctrination and that he required a ‘tailor-made solution’.  However, had the advocates been invited to give a short summary of the case and issues to be resolved, as recommended by Mr Justice Hayden, Vice-President of the Court of Protection, this would have considerably helped my understanding.

I think I was left with more questions after the hearing had concluded than before it had begun.  I could see justice being done.  I could hear justice being done.  But, hand on heart, I can’t say I fully understood the justice being done.  The steps being made towards transparency in justice are very positive but there’s still some way to go.    

Olwen Cockell is a dual-qualified speech and language therapist and primary school teacher.  Olwen is based in Kent and has supported children with language and learning for over 20 years.  Since 2015 Olwen has worked as a Registered Intermediary and assists children with speech, language and communication needs when communicating evidence to police and to the courts.