Witness support and preparation
Introduction
4.1 Support and preparation by providing victims and witnesses information
about the court process, explaining Special Measures to them, and giving
them an opportunity to express their wishes (including identifying who they
would like to accompany them in the live television room when they are
giving evidence if appropriate) helps them to give better evidence and can
influence their decision to proceed with the case in the first place. The
additional stress of coping with an unfamiliar situation is likely to reduce
the ability of witnesses to participate and to respond to questioning, or to
effectively recall events in order to assist the fact-finding process of the
criminal justice system. Preparation and support that are planned to fit the
needs of individual witnesses can help to prevent and alleviate this
problem.
4.2 The statutory Code of Practice for Victims of Crime (Office for Criminal
Justice Reform 2005) entitles vulnerable and intimidated victims to an
enhanced level of service. The guidance in this chapter should be read in
conjunction with the Code and agencies should ensure that they deliver their
minimum statutory requirements as set out in the Code. The non-statutory
Witness Charter (Office for Criminal Justice Reform 2007) builds on and
complements the Victims’ Code of Practice and sets out the standards of
service that all witnesses can expect to receive at every stage in the criminal
justice process, with specific standards on the identification of vulnerable
and intimidated witnesses, action on intimidation and the application and use
of Special Measures in court. The Office for Criminal Justice Reform
(OCJR) implemented the Witness Charter nationally in April 2009.
4.3 Vulnerable and intimidated witnesses need greater consideration and it will
be necessary to identify appropriate additional support and preparation to
help them to give the best evidence they can. Vulnerable and intimidated
witnesses are defined as such by Sections 16 and 17 Youth Justice and
Criminal Evidence Act 1999 respectively (hereafter referred to as ‘the 1999
Act’) (see paragraphs 1.5 to 1.13).
4.4 Adults with learning disabilities might have problems with memory,
vocabulary, level of understanding and suggestibility to leading questions.
Some people with learning disabilities are acquiescent, or compliant with the
demands of those in positions of power or authority. In these cases it is
likely that the use of an intermediary to assist in communicating with the
witness will be beneficial. An intermediary will assess the witness’s level of
communication and make recommendations about how their needs can be
met. The services of an intermediary can be obtained by contacting the
intermediary matching service in the Specialist Operations Centre at the
National Policing Improvement Agency on 0845 000 5463. In addition to
these difficulties, such witnesses often lack knowledge or understanding of
the criminal justice system. The Witness Charter says that the defence or
prosecution will ask court staff to make provision for any special needs a
witness may have as a result of disability, medical condition or age. Such
difficulties can be helped by provision of appropriate information and
support.
4.5 Children with learning disabilities have different needs to adults with
learning disabilities though they may also have problems with memory,
vocabulary, level of understanding and suggestibility to leading questions.
Consideration should always be given to using an intermediary to assist in
communicating with children with learning disabilities. National Standards
have been prepared for those involved in young witness preparation, and
these are reproduced as Appendix K.
4.6 Adults or children who have been victimised may have special difficulties as
witnesses in criminal proceedings. They may need some help to overcome
the feeling that they are on trial rather than the accused. The context and
process of the trial itself may also bring back old memories and patterns of
reaction and response for vulnerable witnesses. They may be especially
sensitive to suggestions of their own guilt or responsibility for the alleged
actions of the accused.
4.7 People with mental health issues can also find the criminal justice system
especially stressful. Those with post-traumatic anxiety disorders can have
special problems prior to and during the trial, particularly if their problem
is related to the alleged offence.
4.8 Where a victim who is to be called as a witness in criminal proceedings has
been identified as potentially vulnerable or intimidated, the Code of
Practice for Victims of Crime requires the police to explain to the victim
the provision about Special Measures, and the Crown Prosecution Service
(CPS) to have systems in place to help prosecutors to decide whether to
make an application to the court for Special Measures.
4.9 At the earliest stage in the process the police should explain the Special
Measures available to vulnerable or intimidated victims or witnesses (and
their parent or carer if the witness is a young witness, i.e. under
18) , including the advantages/strengths and potential weaknesses/
disadvantages of each (see paragraphs 5.48 to 5.82 and in particular the
section ‘Choosing between live links and screens’ from 5.55 to 5.57). When
providing such an explanation the police should, explain the role of the
supporter in accordance with National Standards on Witness Supporters and
make it clear to the witness that the granting of Special Measures and
witness supporter is for the court to decide after taking their views into
account. The views of the victim or witness about which if any Special
Measure(s) would be likely to assist them, including the identity of any
supporter that they would like to accompany them in the live television link
room while they give evidence if applicable, should be carefully recorded
and passed to the CPS on an MG2 form.
4.10 Preparation and support are therefore necessary to enable many witnesses to
give their best evidence as well as to safeguard their welfare. This chapter
provides guidance to those supporting all vulnerable, intimidated and/or
child witnesses and preparing them to give evidence and to those planning
and co-ordinating the attendance of such witnesses at court.
Overview of Support and Preparation Work
Entitlement to Support and Preparation
4.11 All witnesses, including those who may be vulnerable or intimidated, may
require support before the trial. Witnesses, whether giving evidence for the
prosecution or defence, are entitled to an explanation of their role at court
and assistance to ensure that they are able to give their best evidence.
Support is appropriate at all stages of the case. This will not involve
discussing or rehearsing the witness’s evidence or otherwise coaching them
before the trial – witness ‘training’ for criminal trials is prohibited. That
does not prohibit pre-trial familiarisation visits provided that broad guidance
is followed – the witness can be shown the courtroom and the live link room
to familiarise themselves before their day in court, but there can be no
discussion of the evidence (see also R v Momodou & Limani [2005] EWCA
Crim 177; [2005] 2 All ER 571; [2005] 2 Cr App R 6).
Nature of Support and Preparation
4.12 The first task is the identification of children and those vulnerable and
intimidated adults who need special consideration during their involvement
with the criminal justice process. To ensure timely access to support, the
police must take all reasonable steps to identify vulnerable or intimidated
victims, and to record relevant information on either the reverse of the
MG11 statement form or on the MG2 (standard forms used by the police to
transmit confidential information to the CPS). In practice, this statutory
responsibility to victims will also be extended to the identification of
vulnerable and intimidated witnesses. While it is usually the police who
first identify witnesses’ vulnerability, it can be highlighted by anyone with
knowledge of the witness. Once a witness has been identified as either
vulnerable or intimidated, there is potentially a long period of time before a
court hearing takes place. During this time, preparation and support needs
to focus on arrangements surrounding any interviews with the witness, pre-
trial arrangements, and preparation for any court hearing. Providing the
witness with information about the investigation and court case and
obtaining their views on which Special Measures they feel is most
appropriate for their needs, and who they would want to accompany them
into the live link room, if that is their preferred Special Measure, is crucial.
If the case goes ahead, support will also be required during the court
hearing and in the immediate aftermath. In the typical criminal case, these
activities may well occur over many months.
4.13 Witness Care Units have been established in all areas throughout England
and Wales to provide information to victims and witnesses whose case is
proceeding to court. In addition they will seek to ensure that individually
tailored support is provided to all victims and witnesses. The Code of
Practice for Victims of Crime places obligations on the Witness Care Unit to
update vulnerable or intimidated victims who are witnesses of any
requirement to give live evidence; of the outcomes of all pre-trial hearings;
of the dates of all criminal court hearings; and of any subsequent
amendments within one working day of receiving the information from the
courts.
4.14 Box 4.1(a) illustrates some of the range of possible activities that can be
undertaken with vulnerable witnesses by pre-trial and court witness
supporters. The key tasks for child witness preparation are described in
the National Standards for Young Witness Preparation (see Appendix
K) and Preparing Young Witnesses for Court – A Handbook for Child
Witness Supporters (NSPCC, 1998).
4.15 Victims of sexual violence and abuse may have multiple support and safety
needs because of the nature of these crimes. These may include therapeutic
support, housing, treatment of injuries and infection, drugs and alcohol
treatment, risk assessment and support through the criminal justice process.
In some areas there are now specialist independent sexual violence advisers
(ISVAs) to co-ordinate support and risk management for victims of these
crimes. ISVAs are generally based in voluntary sector organisations such as
Rape Crisis or Sexual Assault Referral Centres, which provide medical care,
counselling and a forensic examination for victims of sexual violence in
some areas. However, they work closely with statutory organisations such
as the police, the CPS and health services as part of a virtual multi-agency
team.
4.16 There are also court systems that now specialise in dealing with domestic
violence cases following a successful pilot programme. The Specialist
Domestic Violence Court Programme, which involves prosecutors, police,
courts, probation and support systems for victims, aims to bring more
offenders to justice and place the victim at the heart of the process. The
new courts provide independent domestic violence advisers (IDVAs)
for victims, as well as dedicated prosecutors, magistrates, legal advisers
and police officers who specialise in domestic violence cases. The IDVAs
provide support to victims both within and outside the criminal justice
system, supporting victims with housing, benefits, social services,
counselling and children’s issues. Within the criminal justice system the
IDVAs link with the Witness Care Units and ensure victims have access
to pre-court visits and risk assessments through Multi-Agency Risk
Assessment Conferences (MARACs) and attend court with victims.
4.17 The interests of the witness and of consistent information provision will be
best served if the same supporter is involved in both pre-trial preparation
and support at the trial (provided that the supporter was not involved in the
investigative interview). However, in some cases a supporter’s role may not
allow them to be the sole provider of information throughout this process
and it will be necessary to involve more than one person in assisting the
witness. Where this occurs, the witness will be best served if supporters and
information providers complement each other’s roles.
Support at the Investigative Interview
4.18 Accompanying and supporting children and vulnerable witnesses can be
helpful during investigative interviews. The supporter may be a friend or
relative provided they are not party to the proceedings and they are not
involved in pre-trial support or in the role of supporter at trial.
Pre-Trial Support
4.19 Support from a trained person with knowledge of the court process in both
magistrates’ courts and the Crown Court can assist the witness through
information provision and preparation for giving evidence. The witness care
officer appointed to a witness will ensure that they get timely information
about the progress of the case, and support requirements in preparation for
court will be discussed and agreed with the witness. A supporter may be
present when the witness views their video-recorded statement for the
purpose of memory refreshment before the trial. However, careful
consideration must be given as to who this supporter should be, in order to
guard against future allegations of coaching the witness. A discussion should
take place with the witness that explores their preferences in respect of
Special Measures and, if it is relevant, who they would want to accompany
them into the live link room. The witness’s views in respect of Special
Measures and support during the trial should then be to the CPS. Generally,
any person present either during the investigative interview or during the
witness’s memory refreshment would not be the same person who has
supported the witness pre-trial and/or is expected to accompany the witness
when giving evidence. This issue should be raised at the plea and case
management hearing (PCMH) (see paragraph 4.43).
4.20 The Witness Service can also arrange pre-trial visits for both prosecution
and defence witnesses. These visits should, where practicable, involve
giving vulnerable or intimidated witnesses information about special
measures including the opportunity to practise using the live link facility.
Support while Giving Evidence
4.21 Support during the court process itself, in the live link room or when giving
remote live link evidence, is to be provided when it is necessary. There are
evidential constraints that apply to the person providing support (see
Appendix L). The identity of a supporter in the live link room or at the
remote location must be the subject of an application to the court as part of a
live link application (Sections 24 (1A), (1B) and 27(9A) of the Youth
Justice and Criminal Evidence Act 1999). The procedures are set out in Part
29 of the Criminal Procedure Rules (see rule 29.10(f)). A practice direction
issued by the Lord Chief Justice outlines who can act as a supporter in the
live link room. Reference is made to ‘an increased degree of flexibility’
being appropriate, and as long as the supporter is completely independent of
the witness and is not involved in the case (for example, as a witness), they
do not need to be the usher or another court official (Consolidated Criminal
Practice Direction, Part III. 29, Support for Witnesses Giving Evidence by
Live Television Link, is available at www.justice.gov.uk/
criminal/procrules_fin/contents/practice_direction/pd_consolidated.htm).
Evidential Boundaries
4.22 The pre-trial and/or court supporter must not be a witness in the case and
must not be given details of the case or the evidence of the witness.
However, the supporter needs to know:
• The charges against the defendant;
• The relationship between the defendant and the witness or whether the
charges involve an abuse of trust;
• The defendant’s custody status and any change in this during the pre-
trial period; and
• Matters which may affect how preparation is conducted or how the
witness gives evidence (e.g. the age of the witness, whether an
intermediary has been applied for or not, and any medical, health or
religious needs).
An exception to this is a witness care officer, who may get details of risk
assessments to help them provide ongoing risk management.
4.23 Supporters must not discuss with the witness the details of the case or the
evidence the witness is to give or has given. In their initial contact with
witnesses, supporters (with the exception of witness care officers who are
acting on behalf of the prosecution) must explain that they are independent
of both the prosecution and the defence and that there will be no discussion
of the evidence, in order to avoid allegations that the supporter has told the
witness what to say. Supporters need to distinguish between providing
practical emotional help and support to the witness generally which is a key
part of their role, and on the other hand expressing their own views and
beliefs concerning the evidence of the witness, which is not permitted.
4.24 Supporters must also explain that preparation work cannot be guaranteed to
be confidential. For example, if the witness begins to talk about the
evidence, the supporter must make a note – in the witness’s words – of what
was said, notify the police and ask the witness to speak to the person who
conducted the investigative interview. Such a written record is disclosable.
Further guidance on court witness supporters has been developed and is
described in Appendix L.
Who Can Provide Support?
4.25 Who undertakes the range of support and preparation functions will depend
upon the needs of the individual witness, the availability of resources and
the court’s directions. In addition to general considerations, including the
views of the witness, it may be appropriate to secure the assistance of a
supporter who has a particular understanding of the needs of the witness, for
example from the point of view of ethnic or cultural background or
disability awareness. However, it is important to distinguish the co-
ordination role from the role of provider of the relevant services. Witness
Care Units in particular have been set up to establish information and
support the needs of every witness whose case is proceeding to trial, and
then to make arrangements for support to be provided through referral or
contact with other agencies.
4.26 Assistance and support is available from Witness Care Units, Victim
Support and the Witness Service as well as a range of other organisations.
In the case of child witnesses, various local arrangements exist which may
involve local authorities or organisations such as the NSPCC and
Barnardo’s. Agreement should be reached on a local basis as to who
is responsible for pre-trial preparation and also for ensuring that the
necessary preparation has been or is being undertaken. Regardless of which
profession is identified as best placed to co-ordinate pre-trial preparation and
support, it is vitally important that it begins as soon as the witness’s
vulnerability is identified and the police and/or the CPS become aware that
they may need to attend court.
4.27 In certain cases, no support and preparation work with a prosecution witness
should be undertaken without informing the police officer in charge of the
case (subject to any confidentiality requirements). Different individuals
carry out child witness preparation and support across the country.
Regardless of professional background, the work should be carried out by
someone who is independent and focuses purely on preparing the witness
for the experience of giving evidence. They must also not have been
involved in the detailed preparation of the case, nor must they discuss
details of the prosecution case or the evidence of the witness.
It is recognised that support personnel could be police officers or other
professionals, or volunteers. However, all must have received basic training,
which may include additional information from the CPS on the criminal
justice system and court processes.
What Skills are Involved?
4.28 Witness support requires training. The skills involved in pre-trial
preparation and support include the following:
• Knowledge about, and aptitude for, working with vulnerable individuals;
• An ability to prepare witnesses to go to court without discussing their
evidence or coaching them in any way;
• Knowledge and understanding of court procedures, relevant legislation
and policy;
• Knowledge about the information and support requirements of
vulnerable and intimidated witnesses, as well as the support that is
available; and
• An ability to liaise with other professionals and with family members.
