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Pre-trial Therapy Policy

Here you can read our Pre-trial Therapy Policy for adult and child vulnerable or intimidated witnesses in criminal trials.

    • All complainants in sexual offences cases will be regarded as vulnerable witnesses. This policy, therefore, applies to all Lifecentre counsellors, their clients and their potential clients where a criminal trial is pending in which the client is expected to stand as witness to sexual offences.
    • All Lifecentre pre-trial therapy is committed to the procedures and guidelines of this policy, which are taken from two documents entitled ‘Provision of therapy for vulnerable or intimidated adult witnesses prior to a criminal trial – Practice guidance, implementing the Speaking Up for Justice Report 1998′ andProvision of therapy for child witnesses prior to a criminal trial: Practice guidance’.
    • The full text of both sets of guidance is available online.
  • A client should be considered as requiring counselling within the boundaries of pre-trial therapy as soon as they have reported their case to the police and an investigation is live. If that investigation is brought to an end either by CPS or by the police or due to the completion of a court case, then the requirements of pre-trial therapy can cease.

    A client who has not reported to the police does not come within the boundaries of pre-trial therapy, although counsellors should be mindful that all clients who have experienced any form of sexual assault could in the future decide to report to the police. If they should do so, at that point their counselling should then come under this Pre-Trial Therapy Policy.

    • Any pre-trial therapy for intimidated or vulnerable witnesses must follow careful guidelines in order to keep the balance between 1) the needs of the witness to receive therapeutic help and 2) the need of the courts to ensure that witness evidence remains uncontaminated by pre-trial discussions with the therapist.
    • Our Criminal Justice System places great reliance on the oral evidence of witnesses. Any conversations which take place before a criminal trial between a witness and another person could be construed as contaminating witness evidence and thus be liable to cause a trial to fail on grounds of unreliability of the evidence. Therapists, forensic investigators and the alleged victim of the crime therefore have a mutual interest in keeping the integrity of the witness evidence intact.
  • The report identifies two broad categories of appropriate therapeutic work with vulnerable or intimidated witnesses prior to a criminal trial.

    These are as follows:

    Safe counselling

    This will address a number of issues, including:

    • the impact of the incident on the individual and the treatment of associated emotional and behavioural disturbance that does not require the rehearsal of abusive events.
    • improving the self-esteem and self-confidence of the client. This would be one of the least problematic aspects of therapy, especially if using cognitive-behavioural techniques.
    • providing the vulnerable or intimidated individual with information with regard to dealing with and avoiding abusive situations. The purpose of this is to help him/her to protect him/herself and to access appropriate help, without focusing on past abuse.
    • Preparation for the experience of giving witness in court.

    Safe psychotherapy

    This will address a number of issues, including:

    • treatment of emotional and behavioural disturbance, for example post-traumatic stress disorder.
    • treatment of an individual who has been highly traumatised and shows symptoms which give rise to concern for his/her mental health.
    • Interpretive psychodynamic psychotherapy.
    • Therapy which includes the rehearsal of past abusive events.
    • Therapy using hypnosis or which endeavours to recall lost or hidden memories of past abuse.
    • Therapists or counsellors should avoid using leading questions or discussing the evidence which the individual or any other witness will give, including exploring in detail the substance of specific allegations made.
    • Prior to the criminal trial, group therapy where the specific recounting of abuse takes place is best avoided. The particular danger of this kind of group therapy is that the witness may adopt the experiences of others taking part in the therapy. As a general principle, group therapy should not be offered to the vulnerable or intimidated witness prior to the trial.
    • Witnesses may derive therapeutic benefits from talking about their experiences, but any detailed recounting or reenactment of the offending behaviour may be perceived as coaching. Therapists should recognise that the criminal case is almost certain to fail as a consequence of this type of therapeutic work. This should be differentiated from the accepted practice of allowing witnesses, prior to giving evidence, to refresh their memory by reading the statement or viewing the video-recorded interview.
    • Professionals should avoid the use of jargon and take care to use language that will not be perceived, if repeated by a vulnerable witness, as evidence of them having been instructed. The language content of the therapy and counselling sessions is guided by the witness but equally it must be recognised that witnesses do use different forms of language in differing situations and contexts.
    • Care should be taken by therapists working with children, to use short, plain words, to ask open questions where possible and to avoid convoluted, hypothetical or other leading questions. The language used should be guided by the child. The use of any materials which suggest or presume that abuse has taken place should be avoided.
    • During therapy, witnesses should never be encouraged to extend their account of the offending behaviour which they have suffered. However, it is acceptable to offer general reassurance and support to a witness during this difficult process.
  • Vulnerable or intimidated witnesses may receive preparation for the experience of giving evidence in court. A very clear distinction must be kept between

    1. the work offered by the therapist in addressing the trauma which might be associated with this experience and
    2. practical help and preparation for court which should be provided by a different person, who must be suitably trained for this job.
    • One of the special measures to be made available to intimidated or vulnerable witnesses is the possibility of admitting, as evidence, a video-recorded interview with them. Wherever possible, pre-trial therapy should not take place before such a video-recorded interview is completed.
    • Before any therapy starts, the police and Crown Prosecution Service must be made aware that therapy is proposed.
  • The Crown Prosecution Service (CPS) is responsible for reviewing and conducting the majority of criminal cases involving vulnerable or intimidated witnesses. Once a Crown Prosecutor considers that there is a realistic prospect of conviction, the public interest must be considered.

    The implication of this is that counsellors must be careful to consult with the CPS at every stage of their involvement with a client as appropriate; this means working in collaboration with the CPS and other professionals involved in the case, and being advised by them.

    The prosecution in these criminal cases must do what it can to:

    • Identify cases in which the provision of therapy before the criminal trial might be thought to have some material impact on the evidence;
    • Assess the likely consequences for the criminal trial in these cases;
    • Ensure that these cases are dealt with as quickly as possible;
    • Safeguard the confidentiality of therapy sessions wherever possible whilst ensuring that the defence and the court are aware of the existence of information which might undermine the prosecution case or assist the defence.
    • They will advise, if requested, on the likely effect of a particular type of therapy on the evidence of witnesses in individual cases.
    • If there is a demonstrable need for the provision of therapy and it is possible that the therapy will prejudice the criminal proceedings, consideration may need to be given to abandoning those proceedings in the interests of the wellbeing of the vulnerable or intimidated witness, adult or child. In order that such consideration can be given, it is essential that information regarding therapy is communicated to the prosecutor.
    • If it is judged desirable, a meeting of all relevant professionals might be convened for the purpose of discussing an assessment and treatment strategy for the witness.
    • This assessment and treatment strategy should take into account the special measures which might be available under the 1999 Act (see The Report paragraph 1.4), so that an early application to the court can be made. However, it is important to remember that it will be for the court to decide which, if any, special measures will be made available to the witness. Accordingly, it is essential that unrealistic expectations on the part of the witness are not raised.
    • The function of any such discussion should be to discuss the needs and best interests of the particular witness. The discussion should include the logistics of setting up a specialist assessment of the witness, with agreement on who will undertake this assessment and the nature of the support necessary from other agencies, professional or voluntary.
    • Issues to be considered will include:
      • who is to fund the therapy;
      • who will, if necessary, transport the witness to appointments;
      • who will work with the family.

    Mechanisms for communication between all those involved should be agreed and recorded at this stage.

    • NB. Whether a vulnerable or intimidated witness should receive therapy before the criminal trial is not a decision for the police or the Crown Prosecution Service. Such decisions can only be taken by the vulnerable or intimidated witness or his/her carers, in conjunction with the professionals from the agencies providing services to the witness.
    • It is important that anyone involved in an assessment, or in subsequent therapy, should be a trained professional person with a recognised competence, such as a social worker, psychiatrist, psychologist, psychotherapist, nurse or other relevant qualified person. On occasions, an assessment may be carried out by a different professional from the one who will undertake the therapy. It is for the agency funding or commissioning assessment and therapy to satisfy itself of the relevant competence of those undertaking either assessment or therapy.
    • Assessment for possible therapy may require more than one interview to determine whether, and in what way, the witness is emotionally disturbed and whether this problem can best be helped by the provision of therapy. Not all witnesses who are assessed in this way will need therapy.
    • Final recommendations from the assessment will indicate the type of therapy or intervention, if any, required by the particular witness. Decisions should be documented and findings made available to those agencies who need to know, as soon as possible after the assessment is completed.
    • Clear lines of communication are required to ensure that everyone involved in the process is fully and reliably informed. Named contact points should be established in each agency involved in a particular case.
    • Information should be routed through the police contact point, although direct consultation between the professionals involved may be advisable in certain circumstances. This should be arranged using the same named contact points.
    • Inter-agency information exchange will need to comply with the Human Rights Act 1998 and the Data Protection Act 1998. Decisions on exchange of information will need to be made on a case by case basis and carefully documented.
    • It should be understood that those involved in the prosecution of an alleged offender have no authority to prevent a vulnerable or intimidated adult witness from receiving therapy.
    • The best interests of the vulnerable or intimidated witness are the paramount consideration in decisions about the provision of therapy before the criminal trial. In determining what is in the best interests of the vulnerable or intimidated witness, it will be essential to consider the wishes and feelings of the witness and, where appropriate, of those who are emotionally significant to the witness.
    • With regards to children, each should be assessed as to whether they are in a position to benefit from counselling. It should be recognised that some children are so severely traumatised that the provision of, for example, once or twice weekly counselling sessions may be either inadequate for their needs or positively disturbing for them, particularly if their home or alternative care situation has not been fully resolved. With certain children, it may be better to delay long term therapeutic work until a placement is made which brings the child within a safe, containing environment.
    • The witness will need to be given information on the nature of the therapy proposed in a form which is accessible. Accessibiity is especially important for children.
    • The impact of any therapy upon the conduct of the criminal case should also be fully discussed. This discussion should include the witness or his/her carers in the case of childen, if not previously consulted on this issue.
    • If the prosecutor advises that the proposed therapy may prejudice the criminal case, this should be taken into account when deciding whether to agree to the therapy. It may still be in the best interests of the witness to proceed with the therapy.
    • The therapist should be made aware of any pending criminal proceedings before commencing the therapy and should also be aware of the implications of using techniques which may result in the evidence of the witness being discredited.
    • The key issue with regard to pre-trial discussions of any kind is the potential effect on the reliability, actual or perceived, of the evidence of the witness and the weight which will be given to it in court. Pre-trial discussions may lead to allegations of coaching and, ultimately, the failure of the criminal case. It should also be borne in mind that the professionals concerned may themselves be called to court as witnesses in relation to any therapy undertaken prior to the criminal trial.
    • The administration of justice and the need to ensure a fair trial demand that any information and evidence which could have an impact on the decision to prosecute, the conduct of the case, or the outcome of proceedings is made available to the police and prosecution.
    • The rules of disclosure place certain responsibilities on the investigator, prosecutor and also third parties, that is to say individuals or bodies who are not part of the prosecution. Therapists will generally be third parties for this purpose. Those responsibilities mean that all material that may be relevant to the issues disputed in the case must be preserved.
    • At some stage during the trial process the prosecution must provide the defence with such of the information and evidence as they have which may undermine the prosecution case or assist the defence case. In this way, all of the material that is relevant to the outcome of the trial is put before the jury or magistrates. Relevant material is that which may tend to prove or disprove the issues disputed by the prosecution and defence.
    • Disclosure should not be viewed as a tool to enable the prosecution or defence to satisfy their curiosity. It is a principle designed to ensure that information that is of genuine relevance to a criminal case is available to the parties and the court.
    • Requests for information to be obtained from third parties may be made at various stages in a criminal case by:
      • the police;
      • the prosecutor;
      • the defence;
      • the court.
    • The requests should explain the issues in the case, so far as they are known, and be reasonably precise. Speculative inquiries are discouraged. The purpose should be to elicit a genuine and focused search for relevant documents or information. Careful maintenance of records of therapy will facilitate this focused approach. They should include details of those persons present and the content and length of the therapy sessions. For practical reasons, it is not expected that verbatim written records will be kept. All material presented to Lifecentre by any client that may be relevant to the issues disputed in the case should be preserved. Sessions will not be video or tape recorded.
    • In addition to informal requests for information, if there are real grounds to believe that material which could affect the outcome of the prosecution is being withheld, an application may be made to the court for a witness summons to obtain the material. If, as will usually be the case, a therapist, having taken appropriate legal advice, usually from the BACP, believes that the material should not be disclosed, he or she may oppose the witness summons application. In that case the court may hold a hearing at which the therapist’s employer may be legally represented. The court, having heard representations from the advocate representing the applicant for the witness summons and the advocate for the therapist’s employer, will decide whether or not to issue a summons requiring the disclosure of the material.
    • Because of the recognition that maintaining trust is central to the provision of therapy, it will usually only be appropriate to breach confidentiality in compliance with a court order, as outlined above. Those aspects of the therapy that have no material relevance to criminal proceedings should not have to be disclosed. However, the issue of relevance may need to be reviewed at different stages of the criminal case, as more becomes known about the prosecution and defence cases.
    • Confidentiality cannot, therefore, be guaranteed in advance. Bearing this in mind, it is important that an understanding is reached with the vulnerable or intimidated witness, his/her carers (if necessary) and, where appropriate, any other emotionally significant person at the outset of any therapy undertaken of the circumstances under which material obtained during treatment may be required to be disclosed.
    • All clients should sign a counselling contract at the beginning of their counselling. This contract should explain the levels of confidentiality that can be offered to the client, including the situations in which information shared cannot be kept entirely confidential for example as part of a criminal investigation.
    • It should be explained to clients that if they report to the police, as part of the investigation their counselling notes are likely to be requested to be viewed. This request should be done via a signed ‘Release of Counselling Notes Consent form’. Clients do not have to consent to the release of their counselling notes unless it comes as a subpoena court order from the judge. However, if they refuse consent initially, the police/lawyers are likely just to organise a subpoena of the notes, so usually little is gained by refusing consent. A better strategy is to have the quality of notes that the client and counsellor are happy to be viewed.
    • NB. It may also be possible to ask for the counselling notes to be sent in a sealed envelope to the judge for him or her to deem their relevance to the case. If the judge deems them not relevant then they do not need to be seen by anyone else.

    As a means of applying the above, Lifecentre considers it to be good practice for all counsellors working with pre-trial clients to show the client their counselling notes from their previous session. The client should be asked to check the notes for accuracy, consistency with the statements the client has given to the police and for approval that they are happy for the content that has been recorded from their session to be included in their notes, bearing in mind that these notes are likely to be viewed as part of the evidence for their case. Clients should then sign each session’s notes to indicate their approval of these notes. With clients who might struggle emotionally or in literacy skills to read such notes, the counsellor should read the notes aloud to the client and talk them through with them in a supportive fashion, always empowering the client to assert their own preferences around their counselling notes and to check their accuracy. Counsellors should remember that counselling notes can be kept simple and only need contain a summary of relevant issues discussed.

    • Any disclosures of materially new allegations by the witness undergoing therapy, including possible disclosures of their own abusive behaviour, or any material departure from or inconsistency with the original allegations should be reported to the Social Services Department and to the police and other relevant statutory agencies.
    • Prosecutors must be informed that the witness has received therapy. Prosecutors must then obtain an assurance that the witness did not, in the therapy session(s), say anything inconsistent with the statements made by the witness to the police. Prosecutors may need to be made aware of the contents of the therapy sessions as well as other details of any materially new allegations by the witness (as specified in the paragraph above), when considering whether or not to prosecute and their duties of disclosure.
Download our Pre-Trial Therapy Policy