Support before the Trial/Hearing
Plea and Case Management Hearing (PCMH)
4.43 In Crown Court cases, the PCMH provides the opportunity for pre-trial
planning and for initial decisions to be taken about the Special Measures
available to vulnerable witnesses under the 1999 Act. Applications to the
court for Special Measures are made on a prescribed form by the defence
or prosecution in advance on the trial under procedures set out in Part
29 of the Criminal Procedure Rules. Advocates are required to complete a
questionnaire in advance of the PCMH. This includes specific questions
about measures to assist witnesses giving evidence (part 17), reporting
restrictions (part 19), third party material (part 20) video evidence (part 22),
electronic equipment such as live link (part 25), cross-examination on
sexual history (part 26), concurrent family proceedings (part 33) and other
special arrangements such as interpreter, intermediary, communication
assistance and the need for breaks (part 34). At those PCMHs that involve
child witnesses, the judge makes the necessary directions so that all relevant
issues can be coordinated and planned in readiness for the trial. It is vital
that there is clear communication between the legal representative and those
providing support for the child witness, both before and after the PCMH.
The PCMH questionnaire covers the following areas:
•Pre-trial visit;
•Application for a supporter;
•Application for an intermediary;
•Arrangements for the child witness to refresh their memory;
•Arrangements to access the court building other than by the main
public entrance;
•Arrangements to eliminate or minimise the waiting time for the witness at
court before giving evidence;
•The views of the witness;
•Material available in the video suite;
•Reporting restrictions;
•Disclosure of third party material;
•Video-recorded evidence;
•Electronic equipment such as live link;
•Cross-examination on previous sexual history;
•Concurrent family proceedings;
•Other special arrangements such as interpreter, need for breaks, etc.
Preparation for going to Court
4.44 The aim of preparing witnesses for court is to make them feel more confident
and better equipped to give evidence, to help them understand the legal
process and their role within it and to encourage them to reveal their fears
and misapprehensions. For many witnesses, the court environment may
increase their stress and reduce their ability to provide accurate testimony.
Effective preparation can assist the witness to give a more accurate and
complete account and also help secure better post-trial adjustment.
4.45 The pre-trial supporter can provide the witness with information about
the court process (or can direct their carer or specialist service to it). The
Witness Care Unit should give adult and older child witnesses,
or the parents/carers of younger child witnesses, a copy of the DVD
‘Going to Court: a step by step guide to being a witness’, or direct the
witness to www. direct.gov.uk/goingtocourtvideo where it can be viewed
online. The DVD is interactive, multilingual and animated. A video for
witnesses with learning disabilities has been made by Voice UK. A range
of materials in different formats is available (see Appendix T).
A Pre-Trial Visit to the Court
4.46 Witnesses are likely to benefit considerably from a pre-trial court visit.
As part of the undertaking of the detailed needs assessment, Witness Care
Units will explore with every witness whether they would benefit from
a pre-court familiarisation visit. A full explanation of this service, usually
undertaken by the Witness Service, is given to ensure that witnesses are
able to make an informed decision. Where a pre-court familiarisation is
requested, the Witness Care Unit will refer the witness to the Witness
Service in accordance with an agreed protocol. Where an intermediary is
being used to help the witness to communicate at court, the intermediary
should accompany the witness on their pre-trial visit. The visit will enable
witnesses to familiarise themselves with the layout of the court, and may
cover the following:
•The location of the defendant in the dock;
•Court officials (what their roles are and where they sit);
•Who else might be in the court, for example those in the public gallery
and press box;
•The location of the witness box;
•A run-through of basic court procedure;
•The facilities available in the court;
•Discussion of any particular fears or concerns;
•An outline of the services offered by the Crown Court Witness Service
or Magistrates’ Court Witness Service, as appropriate, on the day of
trial;
•Demonstration of any Special Measures applied for and/or granted, for
example practising on the live link and explaining who will be able to
see them in the courtroom, and
•Showing the use of screens (where it is practical and convenient to do so).
4.47 A pre-trial court visit will also make witnesses better informed about the
particular Special Measures ordered by the court to assist them to give
evidence (see Appendix L). A new facility designed to give witnesses the
opportunity to ‘walk through’ the process of giving evidence is also able at
www.cjsonline.gov.uk.
Refreshing the Memory of the Witness
4.48 Witnesses are entitled to see a copy of their statement before giving
evidence (this is included in the Witness Charter). Where the investigative
interview of the witness has been video-recorded, the recording is often
used to refresh the witness’s memory before the trial – the equivalent of
reading the statement beforehand. Viewing the video ahead of time in more
informal surroundings helps some witnesses familiarise themselves with
seeing their own image on the screen and makes it more likely that they
will concentrate on the task of giving evidence. The arranging of memory
refreshment for child witnesses is one of the items on the PCMH
questionnaire. For further information from case law relevant to memory
refreshment see R v B [2011] Crim.L.R. 233 and R v R [2010] EWCA
Crim 2469.
4.49 It is CPS policy that a video-recorded interview may be shown to the witness
before the trial for the purpose of refreshing memory unless the video has
been ruled inadmissible. If such a ruling is made, the court will need to give
guidance at the PCMH or pre-trial hearing on an acceptable alternative
method of refreshing the witness’s memory. Decisions about admissibility
should be made in sufficient time to allow other steps to be taken. If the
witness is to give live evidence-in-chief, the prosecutor should consider
seeking a ruling on whether it is appropriate to allow the witness to see the
video before evidence is given. Supporters should be informed promptly
about any decisions on video admissibility and editing.
4.50 The issues involved in planning for refreshment of a witness’s memory will
be raised at the PCMH by the legal representatives. If memory refreshment
is to proceed, the hearing will allow a decision to be made as to how the
vulnerable witness should be supported during the process, and the
implications for the supporter’s role in any subsequent trial. A decision can
be reached about the person who is best placed to support the witness while
their memory is refreshed. Consideration will need to be given to any
competing requirements for the witness supporter during the remainder of
the criminal justice process.
4.51 It is the responsibility of the police to arrange for prosecution witnesses to
read their statements or view video-recorded interviews. They should
consult the prosecution about where this should take place and who should
be present, and keep a record of anything said at the viewing. In
exceptional cases, such as those involving very young children or children
with learning disabilities, the prosecutor should consider whether a video-
recording should be made when the witness refreshes their memory from
the video-recorded interview.
4.52 Witnesses need to receive appropriate explanations about the purpose of
watching the video before the trial, and their views about this must be
taken into account. Sometimes videos will be edited for legal reasons, for
example if the video contains irrelevant material or inadmissible matters of
fact or law. Witnesses need to be alerted to any editing so that they will
not be surprised, suspicious or confused when the recording does not
match precisely their recollection of the interview.
4.53 The time interval between showing the video for the purpose of refreshment
and actually giving evidence should take account of the witness’s needs
and concentration span. Minimising delay should be balanced against the
difficulty experienced by some witnesses in concentrating through two
viewings on the same day. Many child witnesses may prefer to watch the
video at least a day before the trial to help prepare them and reduce the
stress of giving evidence on the day. The CPS recommends that the first
viewing of the video-recording should not be on the morning of the trial, in
order to avoid the child having to view the recording twice in one day. If
the witness loses concentration or becomes distressed during the viewing, a
break will be necessary.
Communication with the Witness
4.54 Witnesses are likely to be anxious about the progress of the case and
decisions about whether and how they will give evidence. Once a trial date
has been arranged, the Witness Care Unit should notify all victims and
witnesses of the trial date within one working day of receiving the date
from the court. Under the Code of Practice for Victims for Crime this is a
statutory responsibility in relation to all victims of crime. The Witness Care
Unit or defence solicitor (in respect of defence witnesses) should provide
their respective witnesses with as much notice as possible of the date and
the time they are required to give evidence. The Witness Care Unit will
seek to do this by the end of the working day following the hearing at which
the trial date was set, and certainly within four working days of receipt of
the list of witnesses to attend court to comply with the No Witness No
Justice minimum requirements (2004, unpublished). If it becomes apparent
that the trial will not proceed, witnesses and their supporters should be told
as soon as possible, with the Witness Care Units seeking to do this within
one working day.
4.55 While continuing efforts are made to minimise delays in the criminal justice
system, witnesses should be forewarned at an early stage that some cases
take a long time to reach trial or may be discontinued pre-trial, and that some
trials may need to be adjourned. They should also be advised beforehand of
the possibility of waiting to give evidence on the day of trial. Witnesses may
be put on ‘standby’ and asked to wait at locations away from the court, to be
summoned by pager when their evidence is to be heard. The Witness Charter
states that vulnerable or intimidated witnesses may be able to wait
somewhere near to the court until the time they need to give evidence.
4.56 Witnesses should be told who is responsible for keeping them informed
pre-trial of significant developments in their case. In most cases this will
be done by the Witness Care Unit or through an alternative supporter.
The Code of Practice for Victims of Crime places a statutory obligation on
some criminal justice agencies to keep victims, especially those who are
vulnerable or intimidated victims, informed at key stages in their case, but
the Witness Care Units will seek to achieve this standard for all witnesses.
They will achieve this by appointing each witness with a single point of
contact, but where the updates are given outside the Witness Care Unit
environment it is good practice for the same individual to communicate this
information to the witness.
4.57 The police or Witness Care Unit must keep the supporter informed about
key decisions, for example about how the witness is to give evidence.
Where an intermediary is to be used, the police should inform them that
they have been appointed.
Provision of Therapy prior to a Criminal Trial
4.58 There is a concern that some witnesses are denied therapy pending the
outcome of a criminal trial for fear that their evidence could be considered
tainted and the prosecution lost. This may conflict with ensuring that
a witness is able to have immediate and effective treatment to assist
recovery. Delay in seeking treatment may worsen the prognosis. Hence,
witnesses should not be denied access to any therapeutic help prior to
any criminal trial, in particular if they have a mental illness. Pre-trial
therapy for child witnesses is the subject of joint guidance in Provision of
Therapy for Child Witnesses Prior to a Criminal Trial: Practical
Guidance (Home Office, Crown Prosecution Service and Department of
Health, 2001). Pre-trial therapy for vulnerable and intimidated adult
witnesses is the subject of joint guidance in Provision of Therapy for
Vulnerable or Intimidated Witnesses Prior to a Criminal Trial: Practical
Guidance (Home Office, Crown Prosecution Service and Department of
Health, 2001).
4.59 Pre-trial therapy should be kept separate from preparation and support.
Therapy includes both counselling and psychotherapy. The Practical
Guidance has been prepared for childcare professionals as well as lawyers
involved in making decisions about the provision of therapeutic help
for child witnesses. It emphasises that the best interests of the child are
paramount when deciding whether, and in what form, therapeutic help is
given. Records of any therapeutic work should be kept because they may
become relevant material at a forthcoming trial. Whenever possible before
any therapeutic work is undertaken, there should be full discussion between
the various agencies and professionals, as well as clear communication and
named contact points within each agency. It is recommended that a locally
agreed protocol is established within each area, so that the different issues
involved in providing pre-trial therapy can be jointly co-ordinated, and the
best interests of the child held central. Updated guidance on pre-trial
therapy for vulnerable or intimidated adult witnesses is in preparation.
