THE ROLE OF INTERMEDIARIES IN CRIMINAL LITIGATION PROCEEDINGS

Introduction

In ordinary circumstances, a complainant in criminal proceedings is usually the primary witness and testifies in their own stead. However, the law takes cognizance of the fact that in certain circumstances, the complainant is rendered incapable of testifying before court. Does that mean that the complainant shall fail to tender their evidence in court? The answer is NO. In such a scenario, the Laws of Kenya permit the complainant who may be a minor, person with disabilities, elderly etc to testify through an intermediary.

THE LAW

The Constitution of Kenya in its solemn and progressive nature provides that, “In the interest of justice, a court may allow an intermediary to assist a complainant or an accused person to communicate with the court.” Although the foregoing article is not exhaustive as to the guidelines regarding the conduct, limits and practice of the role of intermediaries, various decisions of the court have provided guidance on the same.

In State v Onyore (Criminal Case E036 of 2021) [2022] KEHC 11070 (KLR) (30 June 2022) (Judgment) the court noted that;

“Thus it is clear that the role of an intermediary cannot be to offer evidence on behalf of a vulnerable complainant and or an accused person, but to assist such vulnerable person or accused present their own case or position in court by way of evidence. In such cases, it is the witness who will be cross examined through the intermediary and not the intermediary. ……. “The intermediary’s role is to communicate to the witness the questions put to the witness and to communicate to the court the answers from the victim to the person asking the questions, and to explain such questions or answers, so far as necessary for them to be understood by the witness or person asking questions in a manner understandable to the victim, while at the same time according the victim protection from unfamiliar environment and hostile cross-examination; to monitor the witness’ emotional and psychological state and concentration, and to alert the trial court of any difficulties.”

The court of appeal in appreciating this position, in Criminal Appeal No. 52 of 2015 of John Kinyua Nathan v Republic [2017] eKLR, expressed itself as follows:

“The expertise, possession of special knowledge or relationship with the witness must be ascertained by the trial court through examination of the prospective intermediary before the court appoints him or her. It goes without saying, in view of that role, that an intermediary must subscribe to an appropriate oath ahead of the witness’ testimony, understanding to convey correctly and to the best of his/her ability the general purport of the evidence. The trial court must then give directions to delineate the extent of the intermediary’s participation in the proceedings.”

Intermediaries in Sexual Offences Cases

Section 31 of the Sexual Offences Act provides for instances when a witness can be declared as vulnerable and as such the scenario would necessitate the intervention of an intermediary. The provision takes note that the court may declare a child or a person of mental disabilities as a vulnerable witness. The court shall factor in considerations inter alia “(a) age; (b) intellectual, psychological or physical impairment; (c) trauma; (d) cultural differences; (e) the possibility of intimidation; (f) race; (g) religion; (h) language; (i) the relationship of the witness to any party to the proceedings; (j) the nature of the subject matter of the evidence; or any other factors that the court considers relevant.”[4]

Section 31 of the Sexual Offences Act provides that once the witness is declared vulnerable, they may be summoned to appear before court and shall give their evidence through the appointed intermediary.

Additionally, where the court is uncertain as to the vulnerability of the witness, it may summon the intermediary to appear and advise the court on the said vulnerability. These provisions underpin the need for the witness to testify on their own, but through the intermediary.

Protection of a Vulnerable Witness

In practice, the courts have adopted into practice various ways of protecting the identity and securing the witnesses’ testimony;

• allowing such witness to give evidence under the protective cover of a witness protection box; (b) directing that the witness shall give evidence through an intermediary; (c) directing that the proceedings may not take place in open court; (d) prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; or (e) any other measure which the court deems just and appropriate.

The court shall further consider circumstances such as;

“a) any views expressed by the witness, but the court shall accord such views the weight it considers appropriate in view of the witness’s age and maturity;

(b) any views expressed by a knowledgeable person who is acquainted with or has dealt with the witness;

(d) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.”

The Court of Appeal in John Kinyua Nathan vs. Republic [2017] eKLR exhaustively pronounced itself on this issue as follows;

“There can be no argument about the stress child complainants in sexual offences suffer when they testify in courts where they are required to relive the horror of the crime in open court. At times they are subjected to the most brutal and humiliating treatment by being asked to relate the sordid details of the traumatic experiences that they had gone through. In many countries of the world including South Africa, this apparent treachery on the child has been mitigated by Constitutional, statutory, judicial and administrative reforms. See for example the South African Constitutional Court case of Director of Public Prosecutions, Transvaal versus Minister For Justice and Constitutional Development & Others. Case CCT 36/08 [2009] ZACC 8. Kenya is also progressively making efforts of her own through the Constitution, statutes and administrative reforms to project the paramountcy of the rights and interests of the child which are universal. Various legal enactments including the CPC, the Children Act, the Witness Protection Act, the Victim Protection Act, the SOA and the Constitution itself, attest to that effort. Nevertheless, the child is still obligated to undergo the voire dire under Section 19 of the Oaths and Statutory Declarations Act when called to testify to determine whether the child understands the nature of an oath; or if the child, in the opinion of the court does not understand the nature of an oath, whether the child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. In either case the child is liable to cross examination. They must also appear before the court for determination of any issue on the appointment of an intermediary. In the case before us, the child was a necessary witness both in determining the third element of the offence as to whether the appellant was responsible, and also in determining whether she was a vulnerable witness and therefore needed an intermediary to speak on her behalf. No reason was given for the failure to call the complainant in this case and the trial court made no finding on that crucial aspect of the case. The High Court on its part, as already stated, misdirected itself. If PW2 was to be believed, the child was able to inform her about her injury and the person responsible and so, as argued by the appellant, she was capable of stating so to the court directly or through an intermediary. In the circumstances, the evidence of PW2 was at best hearsay as she was not the appointed intermediary. Only, part of her evidence was corroborated by medical evidence and findings thereon correctly made.”

Because of the reality that a child of tender years, or an extremely old person, or a person affected by disease of the body or mind or even a lunatic may have difficulties relating to the trial court events in a crime, the role of an intermediary in such situations is imperative. Indeed, in jurisdictions such as South Africa, England and Wales, intermediaries are professionals whose services are sourced by the court when the need arises. Perhaps that is what the framers of section 2 of our Sexual Offences Act had in mind when they included experts, psychologists, counselors and social workers in the definition of ‘intermediaries’.

The whole object of the proceedings through an intermediary is to achieve fairness in the determination of the rights of all the people involved in a trial and to promote the welfare of a child or vulnerable witness.” (Emphasis added)

As seen in the foregoing decision, the testimonial evidence has to be tendered by the witness through the intermediary. In the event that a person purports to testify without appointment by the court as an intermediary, their evidence thus becomes hearsay and lacks probative value unless the same is corroborated by other evidence.

Scope of the Role of an Intermediary

Section 31(7) of the Sexual Offences Act provides that;

“If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may—

(a) convey the general purport of any question to the relevant witness;

(b) inform the court at any time that the witness is fatigued or stressed; and

Revocation/Discharge of an Intermediary from proceedings

The role of an intermediary is temporary and is dependent on various factors which shall lie for the court’s consideration and the prosecution. Section 31(9) of the Sexual Offences Act provides that;

“The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.”

CONCLUSION

As succinctly observed above, the role of intermediaries is to assist vulnerable witnesses such as the elderly, children of tender years and persons with diabilities who would require assistance in testifying in court. The court has first to be satisfied that the witness is a vulnerable witness. If not, it will summon the intermediary to appear before court to satisfy the court of the said vulnerability.

Additionally, the court will ensure protection of the vulnerable witness; adducing evidence through an intermediary being one of the pivotal protections under law. The courts however exercise caution not to rely solely on the testimony of the intermediary as the same may be hearsay if the same is not made directly by the complainant through the intermediary. This is to avert reliance on hearsay evidence which may render the judgement and sentence as defective, in the absence of any corroborative evidence.

DISCLAIMER

This article is solely for educational purposes and should not be construed howsoever as legal advice. In case of any queries or consultation, feel free to reach the litigation department through the email

Blog