4.3 Child Witnesses in Criminal Prosecution and Pre-Trial Therapy Support

A service available to children and young people required to give evidence in criminal proceedings, either in relation to their own abuse, or as a witness to crimes committed against another person.

This service will seek both to prepare the witness in practical terms to give evidence in criminal proceedings, and provide support to witnesses during the period leading up to any trial, which is bound to be a time of high anxiety and stress.

The service will be offered to every child who is a victim of an offence that is subject to criminal proceedings or is to be called as a witness at such proceedings.

In such cases the police will make referrals to the Young Witness Service (YWS) if the trial is listed at a Crown Court and Citizen Advice Witness Service (CAWS) if listed at a Magistrates Court, who will then liaise with Children's Social Care to identify a support worker to undertake the appropriate work with the witness.

All staff from Children's Social Care, the YWS, CAWS, and police officers involved in supporting children through the court process, must have undergone the appropriate training as provided by each agency. They must have been evaluated to be competent in providing the service.

Identifying children who wish to receive therapy

Where a child is a witness in criminal proceedings and therapy is being considered for that child or young person, contact should be made with the police officer in charge of the case before therapy commences. This will allow the Crown Prosecution Service to be contacted to ascertain whether the therapy will have any bearing on the criminal trial. It should however be stressed that the child's needs for therapy will always be paramount even if this is likely to prejudice the criminal case.

Children involved in Child Protection Conferences

For those children who are subject to the Child Protection Conference process, it will be the responsibility of the CPC to identify therapeutic needs and make the necessary link to the police if they are not in attendance at the Conference.

Children Not Involved in Child Protection Conferences

In these cases the child witness supporter will highlight the need for parents/carers to inform them if they are considering therapy for their child in advance of it commencing. The child witness supporter will then alert the officer in charge of the case so that negotiations may take place with the police.

Pre-trial Therapy

There is a clear distinction between the use of therapy by qualified practitioners, and the formal preparation of a witness to give evidence in court.

Therapeutic work can broadly be placed in two categories: Counselling and Psychotherapy.

Counselling will address a number of issues, including:

• The impact on the child of the abuse;
• Improving self-esteem and confidence;
• Information on abusive and safe relationships.

Psychotherapy will address issues including:

• Treatment for emotional and behavioural disturbance;
• Treatment of a traumatised child who may display mental health symptoms.

Therapists

Therapists may work within the Health Service, Children's social care, the voluntary sector or privately.

When it has been agreed that such services will be provided to a child witness, it is imperative that the therapist/counsellor has had the appropriate training for the type of work to be undertaken. Membership of an appropriate professional body or other recognised competence may be an indication of their suitability.

In addition they should have a clear understanding of the effects of abuse on children, together with knowledge of the rules of evidence, and how these may be affected by any therapy provided to a child. They should have read the practice guidance Provision of Therapy for Child Witnesses Prior to a Criminal Trial, published by the Home Office, CPS and the DoH.

All people who work with children before a criminal trial must be aware of the possible impact of their work upon subsequent evidence in the trial.  Some types of therapeutic work are more likely to undermine the credibility of a child witness than others. Any discussion by a child of their evidence during therapy must carefully be considered. This could lead to allegations of coaching, and the likely failure of the criminal case, and should be avoided if at all possible.

A balance must be struck between the needs of the child and the resultant impact of any therapy on the criminal proceedings. However, where this balance becomes critical, the best interests of the child are paramount.

Before commencing therapy, the therapist should be made aware of any pending criminal proceedings.

Although the decision to commence therapy with a child is not one for the police or CPS, they should be informed that any therapy is proposed or has been undertaken. The CPS will then be able to advise, if requested, on the likely impact of the therapy on the evidence.

If there is a demonstrable need for therapeutic work that is likely to jeopardise the criminal proceedings, consideration may need to be given to abandoning those proceedings in the interests of the child's well being.

If during the course of any therapy, new allegations of abuse are made, or any information is received that is inconsistent with the original allegation, the Police or Children's Social Care must be informed.

In all cases where an allegation of abuse is received before any therapy taking place, the evidence should be recorded using a video recorded interview before any therapy commences.  Where an allegation arises from the therapy itself, then any decision as to how to proceed should be made during a strategy discussion, which should include the therapist.

It is vital that a comprehensive record is made of any therapeutic work undertaken, and that any such records are preserved.

The Police have a duty to reveal the existence of any information or evidence that may undermine the prosecution case or assist the defence.  Accordingly, any records kept by therapists may become part of the evidence in the case. At any time during the proceedings the police, CPS, defence or the Court, may make a request for these records. Therapists should consider obtaining legal advice before releasing any such material.

Therapists may be called as witnesses themselves in any proceedings, and should be prepared for this possibility.

In light of this, therapists should not guarantee confidentiality in advance of any therapeutic work with a child. An understanding should be reached at the outset with a child and their carers about the requirement for any records to be disclosed.

Section 28 is Youth Justice and Criminal Evidence Act (YJCE) 1999 currently (as at July 2023) being rolled out in phases, Section 28 allows for the pre-trial recording of the cross examination of certain categories of victims and witnesses and can include defence witnesses. This can include the provision of certain ‘special measures’ being used during trials.

When Section 28 of the Youth Justice and Criminal Evidence Act 1999 (s.28 YJCEA 1999) is bought into force by Statutory Instrument for a particular Crown Court, under that S.I., a witness will be eligible for special measures under s.28 if (1) He or she is under the age of 18 at the time of the special measures hearing; or (2) He or she suffers from a mental disorder within the meaning of the Mental Health Act 1983, or has a significant impairment of intelligence and social functioning, or has a physical disability or a physical disorder, and the quality of their evidence is likely to be diminished as a consequence.

Witnesses eligible for special measures under s.28 YJCEA 1999 should be identified by the Police. The Police and Crown Prosecution Service should discuss, with the witness or with the witness’ parent or carer, special measures available and the witness’ needs, such that the most appropriate package of special measures can be identified. This may include use of a Registered Intermediary. More information on these services can be found on Special Measures | The Crown Prosecution Service (cps.gov.uk)

Special measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Special measures apply to prosecution and defence witnesses, but not to the defendant and are subject to the discretion of the court. The special measures available to vulnerable and intimidated witnesses, with the agreement of the court, include:

• Screens (available for vulnerable and intimidated witnesses): screens may be made available to shield the witness from the defendant, (s23 YJCEA);
• Live link (available for vulnerable and intimidated witnesses): a live link enables the witness to give evidence during the trial from outside the court through a visual link to the courtroom. The witness may be accommodated either within the court building or in a suitable location outside the court, (s24 YJCEA);
• Evidence given in private (available for some vulnerable and intimidated witnesses): exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences or intimidation by someone other than the accused, (s25 YJCEA);
• Removal of wigs and gowns by judges and barristers (available for vulnerable and intimidated witnesses at the Crown Court), (s26 YJCEA);
• Visual recorded interview (available for vulnerable and intimidated witnesses): a visual recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness's evidence-in-chief, for adult complainants in sexual offence trials in the Crown Court. A visual recorded interview will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant's evidence, (s27 YJCEA). (Section 103 of the Coroners and Justice Act 2009 relaxes the restrictions on a witness giving additional evidence in chief after the witness's visual recorded interview has been admitted);
• Pre-trial visual recorded cross-examination or re-examination a visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court. This can only be applied for where there has been a s27 direction for a visual recorded interview to be admitted as evidence and when a victim or a witness meets the vulnerable criteria. A visual recorded examination will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence, (s28 YJCEA).
• Examination of the witness through an intermediary (only available for vulnerable witnesses): an intermediary may be appointed by the court to assist the witness to give their evidence at court. They can also provide communication assistance in the investigation stage - approval for admission of evidence so taken is then sought retrospectively. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence, (s29 YJCEA);
• Aids to communication (only available for vulnerable witnesses): aids to communication may be permitted to enable a witness to give best evidence whether through a communicator or interpreter, or through a communication aid or technique, provided that the communication can be independently verified and understood by the court, (s30 YJCEA).