Access to Justice Intermediaries: Role and Basic Operating Principles

The Role of an Access to Justice Intermediary

Enabling individuals with a disability to participate equally and fairly in judicial procedures is necessary to ensuring fundamental human rights. Access to Justice Intermediaries play an essential role in achieving this goal.

• Access to Justice Intermediaries will assist persons with a disability to participate in an optimal manner in the judicial process and maximize the ability of individuals to present their version of events, without directing or influencing the content of that version.

• The Intermediary will mediate between person with disabilities and the judicial system, dismantling obstacles in language and communication, as well as in the physical and social environment, in order to enable them to understand the processes in which they are involved and to be understood by the other participants.

• Accommodations will be provided, when required, for a complainant, a witness, a suspect, a defendant, or other person using the legal system. This could be during criminal, civil or quasi-judicial procedures, at any stage of the process from first contact with the police, through arrest, pre-trial, testimony, sentencing, and serving a sentence. Accommodations are also relevant in the interaction between a person and his/her lawyer or a third person who has issued a summons for the giving of testimony.

Examples of accommodations

- The Access to Justice Intermediary will alert the police investigator or court to overly open or complex questions that are not suited to the cognitive skills of the person with an intellectual disability and will suggest ways of simplifying the questions.

- The Intermediary will ensure a calm environment during testimony by a person whose disability affects his/her attention, that distractions are kept to a minimum, and, as necessary, that breaks are provided during testimony.

- The Intermediary will assist a person with a psychosocial (mental) disability to overcome anxiety by advance preparation, including a visit to a courtroom and observation of a court hearing.

The Intermediary will not recommend accommodations if a person is able to give optimal testimony without their use.

Basic Operating Principles

1. Consent of the person: Accommodations will be provided only with the consent of the person. The Access to Justice Intermediary will explain to the person the implications of using accommodations and of refraining from use, in a way that will enable the person to choose to agree or not agree. Consent is required at every stage of the process.

2. The Intermediary’s neutrality: The Intermediary is a neutral party, with no interest in the proceedings other than ensuring the right of a person to full and fair participation in the process. It is not the role of the Intermediary to secure a conviction or an acquittal or the acceptance or rejection of evidence by a witness. The Intermediary will not express a position or make suggestions relating to the person’s credibility.

3. Avoid directing a person: Accommodations relating to communication or language differ on the extent to which they direct the person. The least directive accommodation is one that enables a person to express him/herself using unlimited vocabulary or symbols and to construct sentences on one’s own. The more the accommodation limits the vocabulary or symbols used (e.g., when a person answers questions by pointing at a limited set of pictures placed before him/her), the chance of leading the person increases. As a rule, the accommodation that is the least directive, within those that respond to the person’s communications abilities, should be used; if no option exists but to use an accommodation that offers a limited number of symbols, words or sentences, it should be used as minimally as possible, for example only to clarify a specific point in question.

4. Avoid contaminating an investigation: The Intermediary will ensure that none of his/her interventions will cause contamination of the investigation. This is relevant to all action relating to a case. For example, the Intermediary should avoid talking about the event which is being investigated with the person for whom accommodations are being provided, unless an official is present (such as a police investigator, or a person’s defence lawyer). The Intermediary should avoid interference in the content of a person’s version, even when alerting the court to the mismatch between a question posed to the person and the person’s communication ability or when suggesting an alternative way of asking a question. The Intermediary shall not change or correct a version provided in the investigation or during testimony. The Intermediary shall inform the court or the other side of every action s/he undertakes to ensure that the proceedings are understood by the person or that others understand what the person has communicated.

5. Transparency: Every aspect of the Intermediary’s involvement, including his/her interaction with the person to whom accommodations are provided, will take place in the presence or approval of the appropriate official, such as a police investigator, prosecutor, defense lawyer (in the case of accommodations for a suspect or defendant), or the court.

6. Accommodations that will facilitate understanding and expression: The Intermediary will identify and suggest accommodations in the environment, language and communication that will enable the person full and fair participation in the procedures while maximizing the person’s ability to convey his/her version of events. This should not be contingent on a formal assessment or diagnosis of a disability. It is not the Intermediary’s role to raise or relate to elements of the disability (including medical history) that are not directly connected to the person’s participation in the given judicial procedure.