Forensic Psychology
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(Le Roy, undated, in Esam, 2002, pp. 309–310).
Mary’s experience highlights a number of concerns about the barriers to disclosure and the treatment of vulnerable witnesses in the criminal courts, which we will return to later. Box 14.2 illustrates the range of cognitive, developmental and socio-emotional factors that vulnerable witnesses may encounter. The extent of their influence on any particular witness (for instance, an elderly woman, a young man with learning difficulties or a traumatised rape victim) needs to be considered on an individual basis. Further reading giving more detail pertaining to these factors and their implications for safeguarding vulnerable witnesses, as well as case examples, is provided in the annotated reading list at the end of this chapter.
BOX 14.2 COGNITIVE, DEVELOPMENTAL AND SOCIO-EMOTIONAL FACTORS IN RELATION TO VULNERABLE WITNESSES
Memory factors:2 marked, negative effect of delay on memory; problems with source-monitoring in relation to memories; susceptibility to misinformation effects on memory (e.g. through the influence of questioning); limited free recall; problems associated with script memory
Language factors:3 less developed vocabulary and understanding of complex grammatical structures; limited vocabulary for sexual offences; unfamiliarity with, and confusion caused by, the use of legalese; use of non-verbal communication systems.
Authority effects:4 particular sensitivity to the need to give socially desirable responses; heightened susceptibility to leading questions; acquiescence and naysaying; reluctance to talk; fear and anxiety
14.3 PREPARING WITNESSES FOR COURT: PREPARATION AND SOCIAL SUPPORT IN THEORY AND PRACTICE
Preparation and the provision of social support can ameliorate the effects of pre-trial stressors if they are provided to vulnerable witnesses in the period before a court appearance – and hence safeguard the witness by reducing anxiety and promoting effective testimony. The current official guidance, Achieving Best Evidence in Criminal Proceedings (Ministry of Justice, 2011), emphasises that witnesses should be properly prepared and supported from the very beginning of their involvement with the criminal justice system including preparation for the initial investigative interview (see Chapter 7 ). Research suggests that perceiving such support to be available might serve to reduce attrition in cases involving vulnerable witnesses (Avail Consulting, 2004).
What activities are incorporated into witness support and preparation? Box 14.3 summarises some of the key tasks. In brief, support and preparation activities are concerned with assessing the needs of the witness, providing support, liaising and communicating, and preparing for the trial.
BOX 14.3 SUPPORT AND PREPARATION ACTIVITIES PRE-TRIAL
Provision of emotional support and liaison with professionals providing therapy or counselling before trial
Provision of information and education (e.g. the Young Witness Pack)
Understanding and conveying the witness’s views, wishes and concerns about testifying
Familiarisation of the witness with the court and court procedures
Provision of a pre-trial visit to court
Liaison between the witness, family, friends and professionals
Communication with professionals who may have special expertise related to a witness’s particular vulnerabilities (e.g. interpreters)
Facilitating witness’s attendance at court by arranging transport, ensuring dependents are looked after and so on
PHOTO 14.1 The purposes of pre-court preparation include helping child witnesses to feel more confident about giving evidence and helping them to understand the legal system.
Source: © Monkey Business Images/Shutterstock
The development of support and preparation activities outlined in Box 14.3 has stemmed mostly from work with child witnesses, and has not been without controversy. Opponents have been concerned that supporters may coach the child or rehearse their testimony, a concern that has been fiercely denied. Similar concerns have been raised at those who engage with the child in therapy or counselling pre-trial; the official guidance for therapists working with abuse complainants includes measures designed to minimise this risk (CPS, 2016).
There are now national standards for child witness preparation, which are reproduced in an Appendix to Achieving Best Evidence (Ministry of Justice, 2011, Appendix K). It describes the purpose of preparation as helping child witnesses to feel more confident about giving evidence, helping them to understand the legal system and encouraging them to share any fears or apprehensions they may have about giving their evidence. The standards are explicit in warning against coaching or rehearsing evidence with children. The document defines the required characteristics for a person undertaking this work, which include an ability to relate to children, to remain independent and to focus entirely upon the child’s welfare. Key tasks for the supporter include assessing the child’s needs; liaising with other agencies such as the Crown Prosecution Service; and the provision of age/development-appropriate materials. Materials such as the Young Witness Pack (NSPCC/ChildLine, 1998) and a companion DVD entitled Going to Court5 are available in the UK, though plans to update the material have been postponed due to budgetary constraints at the Ministry of Justice (Plotnikoff & Woolfson, 2011).
Evaluations of child witness support schemes have generally been positive (Plotnikoff & Woolfson, 2007a; see Nathanson & Saywitz, 2015, for a recent review of provisions in other countries). Young witnesses themselves have reported favourably on the materials and their supporters. For example:
I had a witness adviser just to help me out. He tells you everything, I had a tour of the court, he tells you who is going to be sitting where and obviously I felt a bit more at ease about what was going to happen. I got this support in both the magistrates’ court and the Crown Court.
Colin, 16 (Plotnikoff & Woolfson, 2004, p. 26).
Plotnikoff and Woolfson (2007a) found widespread variation in the availability of support for children in different parts of the United Kingdom and this variation will have been increased by the decision to abandon any national scheme in favour of the encouragement of local initiatives (Office for Criminal Justice Reform, 2009). The same variation is apparent in the support offered to adult vulnerable witnesses. In the United Kingdom, the Victim Support organisation aims to support witnesses of all ages prior to trial and encourage their attendance. Victim Support also supports the Witness Service: volunteers who operate from the court, answering witnesses’ questions and guiding them about the building. Involvement of vulnerable witnesses with these non-statutory services can significantly assist in the giving of best evidence, but the operation of such schemes at local level can be haphazard (Plotnikoff & Woolfson, 2007b; Laville, 2013).
Statutory support is provided through witness care units (WCU) operated by regional police authorities in conjunction with the CPS. These units were set up following a pilot project that found a 17% drop in “cracked” trials (trials that failed to go ahead on the desired date) and a 20% increase in attendance by witnesses at court through better witness care (Avail Consulting, 2004). Witness care units are tasked to provide a full needs assessment and a single point of contact for all victim witnesses. In addition, they should keep witnesses updated on the progress of their cases, including the outcome of any investigation and trial. Where the defendant is found guilty, they should relay the nature of the sentence to the victim. Officers are also required to identify any support needs, such as transport to court, child-care and pre-court familiarisation visits. Post-case support, too, should be available if required.
The Ministry of Justice has introduced its own overarching Code of Practice for Victims of Crime (Ministry of Justice, 2013b), a summary of what all victims might expect from the criminal justice system. The Code includes what it terms “enhanced entitlements” available to all vulnerable victims, including persons under the age of 18 years. These entitlements echo those currently available through Victim Support and witness care units, such as the need to keep the victim informed on
case developments. One distinctive feature of the Code is the opportunity for victims to make a Victim Personal Statement, detailing how the crime has affected them personally; this can be read at court in the event of a trial and conviction of an accused and will also be available to the Parole Board if the offender is being considered for release on licence.
While the renewed concern of so many different agencies for the plight of vulnerable witnesses is to be welcomed, there appear to be ample opportunities for a blurring of demarcation and the duplication of services; conversely, one agency may believe that a witness is being looked after by another and the consequent danger of the vulnerable slipping through the supportive net. Research provides some evidence to support this belief. The Victim and Witness Satisfaction Survey (CPS, 2015b) found that 67% of victims of crime were generally satisfied with the service offered by the CPS, but 11% were very dissatisfied. Concerns included: not being informed on the progress of a trial or its outcome; the nature of the sentence; and the reasons why any charges had been dropped or amended. Some 34% of victims remembered being contacted by officials, but were uncertain whether they had been from the CPS, the police or another voluntary agency. Contact with police witness care units also appeared patchy: just 47% of vulnerable witnesses reported receiving a needs assessment from a WCU. Likewise, as regards support during cross-examination, normally the province of Victim Support, nearly half (49%) of victims reported that they were not given enough support. The provision of literature on the court process was also somewhat haphazard; only 24% received it (though those that did found it useful).
A similar patchy picture emerges for children: Plotnikoff and Woolfson (2009) reported that 30% of the children in their sample failed to receive the Young Witness Pack. A report based on research undertaken for Victim Support (Hunter & Kirby, 2013) concluded that despite 15 years in which a series of policies and protocols have been introduced to address the plight of the vulnerable witness at court, there were still aspects of the court process that “continue to frustrate, confuse and cause distress” to witnesses (Laville, 2013). Support and preparation for witnesses/victims in rape cases leaves much room for improvement (Ellison, 2007; Laville, 2013). These problems may also have been exacerbated by recent cutbacks in government funding to the police and CPS, resulting in significant reductions in personnel devoted to witness support (McClenaghan & Wright, 2014).
14.4 PROTECTING WITNESSES AT COURT THROUGH SPECIAL MEASURES
In the UK and other countries that operate under the adversarial system of justice, recent years have seen increasing concern over the difficulties vulnerable witnesses face in giving their evidence at court. England and Wales have been at the forefront of efforts to introduce procedural modifications to ensure that magistrates, judges and juries receive an account at court that is consistent with their original statement to the police, often referred to as their best evidence. These facilities grew out of recent technological advances and were initially directed exclusively at the perceived needs of child witnesses.
PHOTO 14.2 The “live link” enabled children in England and Wales to sit in a separate room and have their live testimony relayed to the court via a closed- circuit television link.
Source: © blyjak/iStockphoto
The “live link” introduced in the 1988 Criminal Justice Act enabled children in England and Wales to sit in a separate room and have their live testimony relayed to the court via a closed- circuit television link. The two-way link enabled counsel and the judge to communicate with the child and for the child’s responses to be broadcast to all in the courtroom without the need to enter the courtroom and give their evidence in the physical presence of the accused. The 1991 Criminal Justice Act permitted the courts to hear pre-recorded testimony from children. Child complainants of abuse could now be interviewed on camera prior to trial by specially trained police officers and social workers, and recordings of these interviews played at court in place of their live examination in chief by the prosecutor. The aim of these proposals was to provide greater social support for the child and through the early recording of testimony, capture the child’s spontaneous account for the benefit of the court. As these interviews were to be used as evidence, special guidance was developed to assist interviewers in asking questions in ways acceptable to the courts (The Memorandum of Good Practice, Home Office, 1992: see Chapter 7 ). Both these measure are generally available in other legislatures that follow the adversarial system of justice (see Davies, 1999 for a review), although their use in the United States is hampered by the Sixth Amendment to the Constitution, which upholds the right of a defendant to face his accusers at trial (Hall & Sales, 2008).
The Youth Justice and Criminal Evidence Act (1999) sought to address the needs of all vulnerable witnesses, irrespective of age. In future, all vulnerable groups were to be eligible for a range of special measures aimed at assisting vulnerable witnesses in England and Wales in giving their best evidence. Some measures, such as the live link and pre-recorded testimony, previously available only for children, were now, subject to the agreement of the presiding judge, to be available for vulnerable adults. Other measures, such as the removal of court dress and taking evidence in private from vulnerable witnesses, already seen as best practice, now became an option in all courts. However, other measures, particularly the use of intermediaries and pre-recorded cross-examination broke new ground and aroused considerable controversy among legal professionals (Spencer & Lamb, 2012). The special measures available under the Act are summarised in Box 14.5. In addition, restrictions were also introduced in cases of rape and other sexual offences regarding questions about the complainant’s previous sexual behaviour and a prohibition placed on cross-examination by the accused in person.
BOX 14.4 SUMMARY OF SPECIAL MEASURES PROPOSED UNDER THE YJCE ACT 1999
Giving of evidence by live link (CCTV) from outside the courtroom
Use of screens so that the witness is protected from being confronted by the defendant
Showing of pre-recorded evidence-in-chief
Removal of wigs and gowns by barristers and the judge
Giving of evidence in private – the press and public may be excluded (except for one named person to represent the press) in cases involving sexual offences or intimidation
Questioning through the use of intermediaries and aids to communication
Availability of pre-recorded cross- examination and re-examination
The existing guidance on interviewing witnesses for the purposes of criminal proceedings was revised and expanded and published as Achieving Best Evidence, often abbreviated to ABE (Home Office, 2002). The new guidance emphasised the value of careful planning of interviews and the importance of professional support, both pre-trial and at court for ensuring best evidence. Later revisions of ABE increased coverage of witnesses who feared intimidation (Office for Criminal Justice Reform, 2007) and took account of feedback from interviewers and prosecutors as to best interviewing practice (Ministry of Justice, 2011). Achieving Best Evidence remains advisory rather than mandatory, but significant departures from its recommendations have to be justified at court.
14.4.1 Screens and the Live Link
The presence of the accused in the dock when the witness is giving their account emerges as one of the most inhibiting features of the traditional adversarial system, particularly for those who allege intimidation from an accused or for children in abuse cases where the defendant may be a member of the witness’s family (Flin, Stevenson, & Davies, 1989; Goodman, Taub, Jones, England, Port, & Rudy, 1992; Quas & Goodman, 2011). In order to accommodate this concern, some courts had used screens to ensure that the witness was “shielded” from the defendant, who remained in view to others in the courtroom. Screens are widely available today for vulnerable witnesses who value their “day in court” and the opportunity to speak publicly of their experiences, but with a degree of protection from sight of the accused (Cashmore & De Haas, 1992). They appear to be popular with
those witnesses who have used them (Burton et al., 2006), but Hamlyn et al.’s (2004) survey suggested early take-up was limited to just 8% of vulnerable or intimidated witnesses.
Unlike screens, the live link not only shields the witness from the defendant but also removes them from the intimidating and unfamiliar environment of the courtroom altogether (Davies & Noon, 1991; Hunter & Kirby, 2013). The witness testifies from a small room, usually but not necessarily in another part of the court building. Witnesses are normally accompanied by a supporter: a familiar person approved by the court, who can keep them company but is under oath not to discuss the case. Initial evaluations of use of the live link in the UK and Australia with child witnesses (Cashmore & De Haas, 1992; Davies & Noon, 1991; Murray, 1995) reflected a generally positive reception for the technology, especially on the part of those concerned to safeguard children’s welfare. Many supporters felt the live link enabled witnesses who otherwise would not have been able to testify to provide their evidence to the court. Witnesses themselves have reported as much (Hamlyn et al., 2004):
I wanted to give [my evidence] that way. I couldn’t face him. I couldn’t see him. If I’d have had to see him, that would have been that. I wouldn’t have been able to go in. [But] I felt safe, not having to see him.
Caitlin, 16 years (Wade, 2002, p. 224)