Guidance Twenty Six - ABE in criminal proceedings

Introduction

The Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children’ (The Home Office) describes good practice in interviewing vulnerable and intimidated witnesses, both adults and children, to enable them to give best evidence in Criminal proceedings. It implements the Speaking Up For Justice Report.

The Youth Justice & Criminal Evidence Act, 1999 recognises 5 categories of vulnerable witnesses:

Witnesses under the age of 17.
Learning disabled witnesses.
Physically disabled witnesses.
Witnesses with mental disorder/illness.
Witnesses suffering from fear and distress (intimidated witnesses).

Guidance

The Guidance:

Considers preparing and planning for interviews with vulnerable and intimidated witnesses, decisions about whether or not to conduct an interview and decisions about whether the interviews should be video-recorded or whether it would be more appropriate for a written statement to be taken.
Covers the interviewing of such witnesses both for the purpose of making a video-recorded statement and also for taking a written statement, their preparation for Court and any subsequent Court appearance.
Applies to both prosecution and defence witnesses and is intended for all persons involved in the investigations, including the Police, Social Workers and members of the legal profession.
Replaces the 1992 Memorandum of Good Practice on Video Recorded Interviews for Child Witnesses for Criminal Proceedings. The Guidance is advisory and does not constitute a legally enforceable code of conduct; however, practitioners should bear in mind that departures from the guidance may have to be justified in the courts.

Special Measures Available with the Agreement of the Court

Not all adults with disabilities will necessarily be vulnerable as witnesses and would not wish to be treated as such. However, those adults who are eligible for Special Measures fall into two groups. Firstly those who have a disability or illness that the Court considers is likely to affect the quality of their evidence, and secondly, those who because of age, personal circumstance and the nature of the alleged offence, satisfy the Court that their evidence is likely to be diminished by reason of their fear or distress. In reaching a decision on whether the Special Measures should be invoked, the Courts must take account of the wishes of the individual witness.

Special Measures available are:

Screens to shield the witness from the defendant.
The live link to enable the witness to give evidence during the trial from outside the courtroom.
Evidence given in private – exclusion from the Court of members of the public and the press.
Removal of wigs and gowns by judges and barristers.
A video/DVD recorded interview with the vulnerable witness before the trial may be admitted by the Court as the witness’ evidence in chief (This evidence is not currently available in the magistrates court).
Examination of the witness through an Intermediary who may be appointed by the Court to assist the witness to give evidence (The pilots for this measure are complete however timescales for the implementation in Nottinghamshire have not yet been published).
Aids to communication will be permitted to enable the witness to give best evidence through a communication aid or technique provided that the communication can be independently verified and understood by the Court.

The Police, in consultation with the relevant agencies (via the Safeguarding Manager), makes the CPS aware of the need for any Special Measures. The CPS will then apply to the Court, who will decide whether to grant permission or not for the Special Measures to be available.

Mandatory measures available are:

Mandatory protection of witnesses from cross-examination by the accused in person. An exception has been created which prohibits the unrepresented defendant from cross-examining vulnerable children and adult victims in certain classes of cases involving sexual offences.
Discretionary protection of the witness from cross-examination by the accused in person. In other types of offences, the Court has the discretion to prohibit an unrepresented defendant from cross-examining the victim in person
Restrictions on evidence and questions about complainant’s sexual behaviour. The Act restricts the circumstances in which the defence can bring evidence about the sexual behaviour of a complainant in cases of rape and other sexual offences.

Implications for Safeguarding Adults Practice

Access services and duty points may get referrals from the Police or the Crown Prosecution Service asking for assistance and/or support relating to Achieving Best Evidence. Such requests should be dealt with in line with the following protocol, which has been agreed with those agencies.

Protocol for Responding to requests from Police/Crown Prosecution Service Relating to Speaking Up for Justice. The Scope of the Policy, Procedure and Guidance

The Police or Crown Prosecution Service will request support from Services for the following reasons:

To help make the judgement about a witness’ vulnerability.
To advise the Police on how to undertake the interview
To be present as a support during the interview process (this is assuming no one else is available who is known to the witness).

Request for input from Health Personnel (in particular Speech and Language Therapists) may include:

Acting as an enabler to facilitate the Police taking a statement from a person with a communication disorder.
Acting as an enabler to assist the Police to question a person with a communication disorder.
Providing a professional opinion of the ability of a person to understand what is required of them in relation to a Police Interview (i.e. competence as a witness).
In due course, acting as an intermediary when this is implemented.

In all of the above situations, in the first instance the Police must identify if someone is known to the Statutory Agencies. It may not be clear which service they may be known to, however the following categories are used: Learning Disability, Deaf, Mental Health, Visual Impairment, Assessment and Care Management (essentially Older People) and Physical Disability.

It is the responsibility of the Service to check whether the person is already known and to provide the Police with the name/number to contact directly to give advice/support as appropriate.

There will be a different response from Nottingham and Nottinghamshire Adult Social Care Departments and the Healthcare Trust depending on whether the vulnerable adult is a victim of adult abuse or another crime, or a witness to adult abuse or another crime.

Where the vulnerable adult is a Victim of an Adult Abuse Crime (Physical, Sexual, Neglect, Psychological, Financial or Discriminatory) then the Safeguarding Adults Procedures must be followed.

If the vulnerable adult is a Witness to an Adult Abuse Crime, this information needs to be fed into the strategy meeting/discussion regarding the victim, and plans made to access information about the alleged incident in the best possible way.

If the vulnerable adult is a Victim or Witness to a crime other than one of adult abuse, the Police would need to seek their consent before making a referral to, or seeking information or support from, Nottingham/ Nottinghamshire Social Care/Health Trusts. If the vulnerable adult is known to services, but refuses to give consent, the Police will have to make a judgement on their own about whether to proceed with their enquires.

The level of support available to the Police in such situations will be dependent on whether the vulnerable adult is known to the services, and has given their consent to contact being made, and resource priorities at the time.

All information given to the Police can be disclosed during the criminal proceedings.

When the alleged abuse has occurred in a residential or care setting particular consideration must be given at the Safeguarding Assessment Strategy Discussion.

This should include, not only the investigations required as part of the assessment but, also to the following possibilities:

Those initially presenting as witnesses to the alleged incidents, may later be discovered to be victims.
Those initially presenting as witnesses to the alleged incident, may later be discovered to be implicated.
Those initially seen as a source of support to the victim may later turn out to be implicated i.e. when members of staff are involved in the alleged abuse.

Any combination of victim/witness/implicated person/perpetrator may apply to an individual during such Safeguarding Adults Investigation.

Complex Investigations

When investigations are complex, particular consideration should be given to how they are managed. The joint Home Office and Department of Health guidance for agencies involved in the strategic management of complex child abuse investigations was published on 13 June 2002 The guidance applies equally to complex adult abuse investigations, and has been adapted and agreed by the Nottingham Committee for the Protection of Vulnerable Adults.

Complex abuse is defined as:

“Adult abuse involving one or more abusers and a number of victims. The abusers concerned may act in concert or in isolation, or may use an institutional framework or position of authority to target victims”. (DoH 1999)

Complexity will increase by virtue of the number of people and places involved and the period when the alleged abuse occurred. Proper investigation will be time consuming, resource demanding and will require specialist skills from both Police and Social Services/Health Care Trust staff.

The Complex Abuse Guidance covers:

Managing and Conducting an Investigation.
Records: Safeguarding/Preservation; Access/Information Sharing.
Support to victims and Witnesses.
Handling the media.
De-brief and Closure.

Complex abuse investigations of a criminal nature should be undertaken as a joint operation involving the Police and Adult Social Care with a specialist lawyer from Crown Prosecution Service being involved at an early stage as appropriate.

The Investigation Team should have visible support form the senior management in Police and Adult Social Care (and other agencies) throughout the enquiry (See Guidance 12 – Complex Abuse).

Witness/Victim Support

The statutory agencies will work together with the Witness Support Scheme to create an individual plan to facilitate preparation for Court (NB: Roles and Responsibilities below).

After Court Appearance

Best practice should extend to after the court appearance and there should be at least one debrief interview. Vulnerable witnesses need to be reassured that it is not their fault if there is not a guilty verdict. If there is a finding of guilt, witnesses may have concerns about harassment if they return to their communities and they can be given advice relating to this. At this stage they should also be given information about the Criminal Investigations Compensation Agency.

Roles and Responsibilities

The role of Supporters, Intermediaries and Interpreters is to:-

Assist Vulnerable Adults give their best evidence,
Enable others who are perhaps not so familiar with aspects of disability, or mental illness to consider ways and means of being responsive to the special needs and receptive to the abilities of each vulnerable witness.

They should NEVER

Coach or rehearse the adult with their evidence, put words into their mouths, prompt them.
Be people who are likely to be called as witnesses.
Undertake all roles.
Have knowledge of the evidence.

There are different types of support that can be offered, and these will depend on what the vulnerable needs and wants. Vulnerable witnesses should always be given the opportunity to discuss possible supports and decide what they feel will be most helpful.

They can be used at various stages; the Police Interview, during the Investigation, Pre-Trial preparation, at Court.

The Supporter:

The supporter may have several roles to play:

At Police Interview:	To offer emotional support, advise Police, particularly on communication needs, ensuring comfort, need for breaks etc. Supporters could therefore be chosen from family, friends, as well as professional health or Social Service staff.
Pre Trial Preparation:	The Witness Service can co-work with Care Workers to prepare witness for what to expect in Court, how to behave, to ask for help etc.
At Trial:	The CPS and Counsel can apply for special arrangements for the witness, including the presence of a supporter in the TV link room or court, providing that they are made aware of specific needs.

Intermediary:

To assist the witness in understanding the interviewer and the interviewer to understand the witness. These must be approved by Court. Note that this service is not yet available.

EARLY SPECIAL MEASURES MEETING (ESMM)

An early special measures meeting is similar to a strategy meeting, set up to discuss how evidence will be obtained, how it will be presented to the court and any specific needs of the witness to enable them to give their best evidence.

Useful information regarding an ESMM:
They may be convened by Crown Prosecution Services doing the Criminal Investigation.
The Police, Crown Prosecution Service, the Safeguarding Manager, Vulnerable adults and/or their supporter can request a meeting.
Persons present at the meeting should include; counsel, medical practitioner if appropriate or a Social Worker and the Police.
It may not always be necessary to have a meeting.
It should be remembered that each Vulnerable Witness is an individual, and that for Adult Witnesses, terminology such as ‘mental age’ is generally unhelpful.
The views of the witness must be obtained by the ESMM to prevent presumptions being made.
It would usually be considered helpful to hold a MEETING WITH THE WITNESS. During this meeting, things such as procedures, roles of court officials, special measures and particular needs of the witness should be explained. This meeting could take place before or after the ESMM or there may be more than one meeting.

Terms of Reference

These meetings are to get the best evidence possible:
It is not about discussing the evidence.
It is not about discussing matters regarding their personal, social or health histories, unless material to the issue of giving best evidence.

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