The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.

Intermediaries were first introduced by the Youth Justice and Criminal Evidence Act (1999) to facilitate communication between individuals with communication needs and the criminal justice system. Yet, despite increased academic attention into this new criminal justice actor, the content of the role remains unclear. Findings from 31 interviews with intermediaries in England and Wales and Northern Ireland as well as judges in Northern Ireland indicate that two distinct systems of intermediaries have emerged between the jurisdictions. The picture is complicated by an inequality in intermediary provision between witnesses and defendants. In England and Wales, the statutory intermediary scheme covers only witnesses whereas the ‘unitary’ system in Northern Ireland covers both witnesses and defendants. Drawing on the data collected, this article highlights key themes which underpin differences in intermediary practice and suggests that lessons can be learned in how we conceptualise the role and its work.

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The intermediary special measure was introduced by the Youth Justice and Criminal Evidence Act 1999 (YJCEA) to assist vulnerable witnesses to give evidence in court. This article focuses on the role's relationship with its underpinning value of neutrality. Findings from 31 interviews with intermediaries in England and Wales and Northern Ireland, as well as judges in Northern Ireland, suggest that this aspect of the role is problematic and deserves critical examination. Though there is a broad commitment to neutrality among intermediaries, the role's practice reveals latent tensions and contradictions that contribute towards what I term the ‘neutrality paradox’. This article uses the Bourdieusian concept of ‘illusio’ as an explanatory tool to examine deviations from the normative expectation of neutrality. It focuses on how intermediaries experience and conceptualize their own neutrality and explores how this can aid understanding of the role's scope and position within the criminal justice system.