What is CF? – Communication facilitators

The role of the communication facilitator in Bulgaria

Introduction

“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” This is stipulated in Article 13 of the UN Convention on the Rights of Persons with Disabilities¹, ratified by Bulgaria in 2012.

The procedural accommodations referred to in the Convention are measures that should be provided to persons with disabilities to ensure their access to justice on an equal basis with others. It is important to be aware that such measures are assessed on a case-by-case basis, but also that there are globally recognised good practices as well as international instruments² that outline a range of such measures.

Ensuring effective communication with persons with disabilities in contact with the justice system is a key both to realizing their right to participation and protection, and to uncovering the objective truth and conducting a fair trial. In this regard, communication facilitators (CFs) are independent experts who facilitate communication between justice authorities and persons with disabilities involved in justice proceedings. By nature CFs’ role may contribute towards compliance with Article 13 of the CRPD and provision of procedural accommodations.

1 The text of the Convention is accessible on: https://lex.bg/bg/laws/ldoc/2135791921

2 The UN International Principles and Guidelines on Access to Justice for Persons with Disabilities can be found in various languages here: https://www.ohchr.org/en/special-procedures/sr-disability/international-principles-and-guidelines-access-justice-persons-disabilities

Communication facilitators around the world

The role of CF currently exists in about 13 countries around the world, including the UK, New Zealand, Australia, Mexico, Spain, Ireland, Kenya, USA (Vermont), Canada, etc. Each country has a different model. In some countries there is explicit legislation, in others the role has been introduced on the basis of general provisions for accessibility or non-discrimination. England and Wales has perhaps the longest tradition, including detailed statutory regulation, certified training and professional standards. The role of the CF (intermediary) has been established there to support justice authorities in communication with children and vulnerable adults. In some countries, the role of the CF sits alongside other moves to enhance effective participation. In New Zealand, for example, a judicial-led framework is currently being implemented that encourages the use of plain language and effective communication for effective participation of all persons. The name of that role varies from country to country (justice intermediary, communication assistant, communication facilitator) and is performed by different types of professionals (speech-language therapists, social workers, psychologists ). In countries with more experience, such as the UK and New Zealand, it is mainly speech and language therapists who are trained for the role.

Further information on how the role of the CF is regulated and functions in different countries, together with various materials on the subject of communication, disability, procedural accommodations, etc. may be found on the international website: https://justiceintermediary.org/, and a map of the countries that have introduced the service, with a brief history, may be found here: https://justiceintermediary.org/countries/. Recently, Bulgaria has also been present on the map as a “work in progress” on introducing the role of the CF.

Communication facilitators in Bulgaria

Training

In 2023, in Bulgaria a training for communication facilitators was delivered to five communication specialists (speech and language therapists by background). The trainer was Paula Backen, who is a certified communication facilitator (justice intermediary) in England. The training took place in a series of in-person and online sessions, including visits to Bulgarian courts and observation of real court trials. Local lawyers also took part, introducing the group of trainees to basic legal concepts and procedural roles and to the operation of the justice system in Bulgaria. As a follow-up to the training, supervision of real cases is foreseen as well as expert support from organisations implementing the CF role in England/Wales, Mexico and New Zealand. The Bulgarian experts are already part of the international CF network and will have the opportunity to share experience on an ongoing basis.

Scope of work of the CF

From a substantive point of view, the work of the CF could be successfully applied in different areas involving communication with persons with specific communication needs. However, the role of the CF has been created and broadly understood as a specialist who serves the justice system. Respectively, the Bulgarian group of CFs were trained as experts for court trials and pre-trial proceedings. More specifically, this group of CFs were trained to work with adults in criminal cases, whether being witnesses, defendants or victims.

Without generalising, persons with communication difficulties or atypical communication may often be persons with a physical, intellectual or psychosocial disability.

How the CFs work?

The work of a CF as a specialist appointed to a case involves several stages:

Assessment of the person’s profile of communication skills and barriers of the justice system

Through the assessment, the CF gathers information about the person’s speech and expressive skills, including narrative skills, their skills in comprehending language, including questions of different types, their concentration, attention and listening skills, and what types of communication strategies and resources will keep their attention and participation. Those skills are assessed objectively, without being related in any way to the facts or other specifics of the case.

Drafting a report with recommendations to the investigative authorities/court for effective communication with the person

In a brief report, the CF shall describe the results of the assessment under item 1 and make recommendations to the appointing authority on how and where to communicate with the person for the communication to be as effective as possible. Some guidance and accommodations for the communication are proposed, such as: speed and tone of delivery; simplifying the questions and vocabulary and grammar used; times and breaks; orientation, time and distance related questions; level of literacy; additional support for comprehension and for expressing views – technical, visual, presence of a support person (who may be a professional or a significant other, relative); organisation of the physical space where the communication takes place – seating arrangements, lighting of the room, venue, etc.

At the end of the report, the CF also makes a recommendation on whether or not the CF needs to be involved in future proceedings and to facilitate real-time communication. If the recommendation is that there is no need for further involvement of the CF, then it is considered that the guidance provided in the report for the communication with the person is sufficient for the authority to conduct a successful communication by themselves.

If necessary, the CF shall participate in the proceedings in real time and shall facilitate communication with the person

The CF may have indicated in the report under item 2 that there was no need for his/her further involvement. However, the final decision rests with the appointing authority and they may decide that the CF is needed and should be involved. And vice-versa, if the CF recommends in their report that he/she should be involved in the proceedings, the appointing authority may decide that the guidance in the report is sufficient to continue with the communication by themselves and not involve the CF as a facilitator.

Basic working principles of the CF work

Consent – the initial assessment and further involvement of the CF in the proceedings is only done with the consent of the person.
Impartiality – The CF considers only the communication needs of the person in the context of the particular case aimed at conducting effective communication between the person and the court/investigative authority. In this regard, CF:

does not form/does not express an opinion on the case
is not a party to the proceedings and is not interested in the outcome of the proceedings
does not judge the act or the guilt of the person
does not evaluate the work of judges, lawyers, prosecutors
does not assess or take any view as to the person’s witness credibility or sanity/capacity to stand trial
does not interpret the will of the person
does not represent the person
does not provide decision-making support per se but support the decision-making process in terms of communication
should not be a relative or otherwise closely related to the person
may not have any other professional relationship with the person, for example having worked or working with them in therapy.

Individual approach – the recommendations that the CF makes in his/her report and the methods of work in the course of actual proceedings are strictly individual, tailored to the specific needs and features of the person’s communication, as well as to the specific context in which the communication takes place.
Proportionality – the accommodations offered by the CF must be sufficient and tailored to the person’s circumstances to the degree these accommodations ensure effective participation during proceedings.
Be achievable – the accommodations offered by the CF are feasible and follow evidentiary based approaches and strategies. Their effectiveness however is being monitored and assessed for each individual case.
Confidentiality – CF shall maintain complete confidentiality of the information made known to him/her in this capacity. The CF may discuss cases he/she is working on with other CFs for the sole purpose of supervising the work and while maintaining the anonymity of the persons.

What a communication facilitator IS NOT	What IS a communication facilitator
CF has no legal training nor does he/she take a position on legal matters.	CF is a qualified speech and language therapist, expert in speech/language and communication skills and their disorders. The CF is familiar with basic legal concepts and procedural roles, as well as the general framework of trial and pre-trial proceedings, but the CF is not a lawyer, nor does the CF form opinions or take positions on legal matters, including the legal evaluation of the facts of a case.
CF is neither an expert witness nor an interpreter.	CF is an expert who can assist the court and the investigative authorities in their communication with persons with communication difficulties or atypical communication, in real time and through recommendations to the authorities.
The CF does not interpret the will and wishes of persons, nor does he/she provide decision-making support other than helping the process from communication perspective.	The CF only provides accommodations to maximise understanding in communication between persons with communication difficulties or atypical communication and other participants in criminal proceedings.
CF does not defend nor represent persons with communication needs.	CF is an independent expert who, like expert witnesses and interpreters, may be appointed by the court or investigative authorities at the request of any of the parties to the proceedings. The guiding principle in the work of the CF is impartiality, and for that the CF should not be otherwise related to the persons, he/she is appointed to work with.
CF does not assess the witness credibility or sanity/capacity to stand trial of persons.	The work of the CF is limited to conducting effective communication with persons with communication difficulties or atypical communication. Sometimes, after involvement of CF, it becomes clear that challenges faced while interacting with the person relate rather to communication and that a forensic expertise on credibility/competency might not be necessary. Even if determined to be incompetent to stand trial or a unreliable witness, CF might still be involved in the person’s participation through whatever proceedings take place before or after any such finding.

Identifying a person with communication needs

How may we know that a CF is needed in a case:

The person speaks unintelligibly or has difficulty articulating speech
The person talks about issues unrelated to the questions
His/her speech is slurred or incoherent
Difficulty understanding the questions is observed
Visible mental and/or physical discomfort (makes nervous repetitive body movements similar to tics or rituals, or other atypical gestures, specific phrases or words repeated extremely often, etc.)
The memories of what happened might appear unreal, illogical, without clear consistency
Other atypical behaviours that clearly make it difficult to have effective communication with the person.

The evidence of an existing medical diagnosis may be a guide to some specific needs of the person, however such needs may not necessarily relate to the person’s ability to communicate. Accordingly, the absence of a diagnosis should not be decisive and should not automatically exclude the need for support in order to carry out communication.

Something important to be noted: Some communication disorders may appear to be of a nature that affects the credibility of what is being said. But it might not be the case. The CF could assist the process by distinguishing communication needs from other conditions, and could also recommend the involvement of other professionals.

Legal grounds on which CFs may be appointed

The role of the CF is not explicitly regulated in the Bulgarian legislation. However, this is not an obstacle to the appointment of CFs as supporting external independent experts when there is a need for this type of expertise.

The following provisions could be used as legal grounds for the appointment of a CF in the proceedings (non-exhaustive list):

Article 11 (non-discrimination), Article 15 (2)(3) (for affording all procedural means necessary for the defence, explaining the rights and ensuring the possibility to exercise them), Article 142 (concerning interpreters, by analogy) of the Criminal Procedure Code (CPC);
Article 67 (1) of the Persons with Disabilities Act (PDA) on the provision of all support measures necessary for effective access to justice;
Article 13 (again on ensuring effective access to justice through the provision of procedural support measures at every stage of the proceedings) in conjunction with Article 12 (full legal capacity of persons with disabilities) of the Convention on the Rights of Persons with Disabilities (CRPD);
Principle 3 of the International Principles and Guidelines on Access to Justice for Persons with Disabilities¹: provision of procedural accommodations that, among others, should facilitate effective communication to ensure understanding of the rights, the documents on the case file and the participation in proceedings (e.g. use of augmentative and alternative communication methods, use of communication facilitators);

as well as some specific ones:

Article 55(5) of the CPC on the provision of information to defendants in a language and manner they understand, taking into account their specific needs;
Article 74(4) of the MoI Act on the provision of information to detainees in a language and manner they understand, taking into account their specific needs;
Article 106a of the MoI Act concerning the exercising of powers, informing on the actions taken and explaining the rights of persons and the use of an interpreter, sign language interpreter or other person in this regard (by analogy).

1 International Principles and Guidelines on Access to Justice for Persons with Disabilities, adopted in 2020 by the UN High Commissioner for Human Rights: https://www.ohchr.org/sites/default/files/Documents/Issues/Disability/SR_Disability/GoodPractices/Access-to-Justice-EN.pdf