Report Abuse Report Abuse

1.6.1 Achieving Best Evidence in Criminal Proceedings

RELATED CHAPTERS

Section 47 Enquiries Procedure

Achieving Best Evidence in Criminal Proceedings: Guidance for vulnerable or intimidated witnesses including children (2011)

AMENDMENT

This chapter was amended in October 2013. Section 3.1 Who should lead the interview - factors for consideration was amended to state interviews may be led by social workers or police officers.


Contents

  1. Introduction
  2. General Principles
  3. Planning Interviews with Children
  4. Conducting Interviews with Children
  5. Witness Support Before the Court Process
  6. Witness Support During the Court Process
  7. Witness Support Following the Court Process

    Appendix 1: Special measures of the 1999 Youth Justice and Criminal Evidence Act

    Appendix 2: Witness Service Referral Form

    Appendix 3: National Standards for Young Witness Preparation


1. Introduction

This guidance describes good practice in interviewing vulnerable and intimidated witnesses, in order to enable them to give their best evidence in criminal proceedings. This covers all children under the age of 17 years, who may be witnesses to any type of crime - both as victims or witnesses to crimes perpetrated on others. It 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 interview should be visually recorded or whether it would be more appropriate for a written statement to be taken. It covers the interviewing of such witnesses both for the purposes of making a visually recorded statement and also for taking a written statement, their preparation for court and any subsequent court appearance. It applies to both prosecution and defence witnesses and is intended for all persons involved in relevant investigations including the police, social workers and members of the legal profession.

Interviews will only be conducted by appropriately trained police officers and social workers. However, on occasion, an intermediary may be used.


2. General Principles

Children are defined as vulnerable by reason of their age. In addition to the witness who is under the age of 17 at the time of the hearing, four other types of vulnerable witnesses are identified in the Youth Justice and Criminal Evidence Act 1999. These are:

  • Witnesses suffering from a mental disorder as detailed under the Mental Health Act, (Mental Disorder is defined in Section 1 (2) of the Mental Health Act 1983);
  • Witnesses significantly impaired in relation to intelligence and social functioning;
  • Physically disabled witness;
  • Witnesses suffering from fear or distress in relation to testifying in the case (intimidated witnesses).

The two primary purposes for visually recorded interviews are:

  • Evidence gathering for use in criminal proceedings;
  • The examination in chief of the child witness.

In addition, any relevant information gained during the interview can also be used to inform child protection enquiries under Section 47 of the Children Act 1989 and any subsequent actions, including care proceedings, to safeguard and promote the child's welfare, and in some cases, the welfare of other children.

2.1 Criteria for visually recording an interview

Section 21 of the 1999 Youth Justice and Criminal Evidence Act creates three categories of child witness:

  1. Children giving evidence in cases in sexual offence cases;
  2. Children giving evidence in cases involving an offence of violence, abduction or neglect; and
  3. Children giving evidence in all other cases.

Visually recorded interviews should take place in all category (i) and (ii) child witness cases, unless the child objects, and/or there are insurmountable difficulties which prevent the recording taking place (this may include that the child has been involved in abuse involving a visual recording or photography).

In all category (iii) cases, the decision whether or not to visually record an interview should take into account:

  • The needs and circumstances of the child (e.g. age, development, impairments, degree of trauma experienced, whether the child is now in a safe environment);
  • Whether the measure is likely to maximise the quality of that particular child's evidence;
  • The type and severity of the offence;
  • The circumstances of the offence (e.g. relationship of the child to the alleged abuser);
  • The child's state of mind (e.g. likely distress and/or shock);
  • Perceived fears about intimidation and recrimination.

The 1999 Youth Justice and Criminal Evidence Act has introduced a range of measures which can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. These are known as Special Measures (see Appendix 1). These are available to defence and prosecution witnesses provided that the court is satisfied the witness meets the qualified criteria.

2.2 Competence and Compellability

Since the visually recorded interview may potentially serve as the child's evidence-in-chief at court, the investigating team must also consider the child's competence, compellability and availability for cross-examination.

Section 53 of the Youth Justice and Criminal Evidence Act 1999 provided that in principle 'all persons are (whatever their age) competent to give evidence'. The section qualifies this principle by saying that persons are incompetent as witnesses where the court finds that they are unable to understand questions put to them, or unable to give answers to them which can be understood; but it is made clear that in considering this question a court must bear in mind the various Special Measures directions that are available.

A witness is usually not only competent to give evidence, but also compellable. This means that he or she can be legally required to attend trial (or, where a Special Measures direction has been given to this effect, to attend court for a visually recorded pre-trial cross-examination). However, good practice would be to seek consent for the visually recorded interview from child and/or carers. In general, however, the fact that a witness is compellable does not mean that he or she can be legally required to give any kind of preliminary statement to the police - even the sort of statement that is made under this guidance.


3. Planning Interviews with Children

At a minimum, such as cases where the child has experienced no previous contact with social or other public services regarding child protection matters, the investigating team should include representatives from both police and Children's Social Care Services. In some cases, after joint consultation, the interview itself may be conducted by the police alone. It may also be important to involve primary health care or educational professionals who know the child. The need for an intermediary or interpreter should also be considered. Wherever possible, and where practicable, older children and young people in particular should be consulted about matters appropriate to their age and understanding, and contribute to the planning and preparation for interview (e.g. when and where the interview takes place, who is present). Reasons for the strategy agreed for interviewing a given child should be noted in writing by the investigators concerned and preserved for possible usage in any subsequent legal proceedings.

3.1 Who should lead the interview - factors for consideration

The investigating team should consider who is best qualified to lead the interview, and whether there should be a second interviewer/observer present to support that interview. The interviews may be led by social workers or police officers.

Choice of lead interviewer should take into account:

  • The preference of the child;
  • Any strong gender or ethnic preferences of the child;
  • Ability to establish rapport with the child;
  • Ability to communicate effectively with the child, either directly or through an intermediary;
  • Knowledge of the rules of evidence and points to prove.

The presence of a second interviewer/observer should be considered and their role clearly defined. Their range of tasks could be:

  • To ensure that the child's needs are kept paramount;
  • To have oversight of issues relating to the criminal investigation;
  • To have an oversight of safeguarding and promoting the child's welfare;
  • To identify gaps in the child's account;
  • To identify interviewer errors and apparent confusion;
  • To operate the recording equipment;
  • Reflect back to the planning discussions and communicate.

3.2 Interpreters/Intermediaries

When an interpreter is used the lead interviewer should identify themselves, maintaining appropriate eye contact, if possible, with the child. When an intermediary is being employed, due to the specialist nature of the child's communication system, or the child's particular needs (e.g. the child may be very young or very distressed), then it may be more important for the intermediary to maintain the direct communication with the child. An interpreter is used solely to interpret what is being said; an intermediary may be used to explain the questions or answers to the extent necessary to enable them to understand.

Exceptionally, it may be in the interests of the child to be interviewed by an adult in whom he or she has already put confidence but who is not a member of the investigating team. Provided that such a person has appropriate professional qualifications, is independent and impartial, is not a part to the proceedings, is prepared to co-operate with appropriately trained interviewers and can accept adequate briefing (including permitted questioning techniques) this possibility should not be precluded.

3.3 Significant factors to consider at the planning stage

All of the following are important considerations that will impact on what provisions need to be made. In some cases further advice may need to be sought. Information on these issues will inform decisions about the structure, style, duration and pace of the interview. The reasons for making the decisions should be recorded at each stage of the process. The following are some of the issues that need to be considered. Interviewers may find the Assessment Framework a useful guide when considering the child in their family context.

  • Medical examination;
  • Child's age;
  • Child's race, culture, ethnicity;
  • Language, and use of an interpreter, need for access and communication aids, such as Makaton and other communication devices;
  • Child's linguistic abilities (e.g. how well do they understand spoken language, how well do they use it?);
  • Use of an intermediary;
  • Interview supporters;
  • Child's religion;
  • Child's gender and sexuality;
  • Any physical and/or learning impairments;
  • Any specialist health and/or mental health needs;
  • Child's cognitive abilities (e.g. memory, attention);
  • Child's current emotional state and range of behaviours;
  • Child's family members/carers and nature of relationships (including foster or residential carers);
  • Child's overall sexual education, knowledge and experiences;
  • Types of discipline used with the child (e.g. smacking, withholding privileges);
  • Bathing, toileting and bedtime routines;
  • Sleeping arrangements;
  • Any significant stress(es) recently experienced by the child and/or family (e.g. bereavement, sickness, domestic violence, job loss, moving house, divorce, etc.);
  • Use of ear pieces to be explained to the child in a manner that meets the child's needs.

This list is not exhaustive. Information on these issues will inform decisions about the structure, style, duration and pace of the interview.

In addition, the interviewer must also consider the possible impact on the child of:

  • Child abuse and neglect;
  • Racism;
  • Discrimination based on impairments;
  • Domestic violence;
  • Intimidation.

Research suggests that sexual offences, assaults, and those offences where the victim knew the offender are particularly likely to lead to intimidation of witnesses.

3.4 Preliminary meeting with the child

Time should be taken to prepare the child for interview, at a level appropriate to the age and understanding of the child. The child should be informed of:

  • The purpose of the visually recorded interview;
  • Who will be present,
  • When/where it will happen (this will normally be at St Bernard's Child Victim Suite); and
  • Roughly how long the interview will last;
  • The benefits/disadvantages of having or not having a visual record later on;
  • Who may see the visually recorded interview (including the alleged abuser at court);
  • The different purposes to which a visually recorded interview may be put (e.g. if it appears the recording may be useful in disciplinary proceedings against a member of staff who is suspected of abusing a child in their care).

A portable video facility is available through the police Child Abuse Investigation Unit for those witnesses who are unable to attend St Bernard's, e.g., when a child is in hospital, or has other very specific special needs. In these cases issues such as suitability of the environment of the chosen locations should be considered. The following topics should be included:

3.5 General factors to be explored prior to interview

  • The child's preferred name/mode of address;
  • The child's ability and willingness to talk within a formal interview setting to a police officer, social worker or other trained interviewer;
  • An explanation to the child of the reason for the interview;
  • The ground rules for the interview;
  • The opportunity to practise answering open questions;
  • The child's cognitive, social and emotional development. Does the child appear 'street-wise' yet in reality have limited understanding?
  • The child's use of language and understanding of relevant concepts such as time and age. Does the child appear clear yet actually have confused and limited thinking?
  • The child's attention span and need for any breaks;
  • Any special requirements the child may have. Does s/he suffer from separation anxiety or have an impairment? Is s/he known to have suffered past abuse, or to have previously undergone an investigative interview?
  • Any apparent clinical or psychiatric problems (e.g. panic attacks, depression) which may impact upon the interview, and for which the child may require referral;
  • An assessment of the child's competency to give consent to interview and medical examination;
  • Interviewers should only use toys/interview aids if it will make the child's experience more positive (e.g. in rapport) and/or toys help the child to give their account more effectively. Interviewers should be alert to the possibility that toys/interview aids will distract a restless or young child, and ensure they are age/developmentally appropriate for an older child.

Consideration should also be given as to what information can be shared with the child's non-abusing parents/carer and any other relevant professionals.

Written consent to the visual recording is not necessary from the child, but it is unlikely to be practicable or desirable to visually record an interview with a reluctant or hostile child, unless this behaviour is an intrinsic part of their special needs

3.6 Planning for immediately after the interview

Planning discussions should cover the different possible outcomes and consider the implications for the child and family, taking account of knowledge about the child's circumstances and previous or current involvement with social or other public services. Early consideration by the wider professional team may alleviate some of the child's and carer's anxieties. For each possible outcome, interviewers should prepare explanations of what may happen next for the child and their carer(s), see Managing Pre-Trial Therapy.


4. Conducting Interviews with Children

The basic goal of an interview with a witness of any age is to obtain an accurate and truthful account in a way that is fair, in the witness's interests and acceptable to the court. This can be achieved by a phased approach to interviews. The time taken for each phase of the interview can be dependent on the age and/or development of the child. Interviews normally consist of the following phases:

  • Establishing rapport;
  • Asking for free narrative recall;
  • Asking questions;
  • Closing the Interview.

4.1 Establishing Rapport

All interviewers should have a Rapport Phase. It gives the interviewer the opportunity to:

  • Build on their knowledge of the child, which they will have gathered at the planning stage;
  • Learn more about the child's communication skills and degree of understanding and vocabulary and ensure appropriate communication systems are available;
  • Set the tone and style of questions to be used for the main part of the interview.

Rapport should normally encompass the following:

  • Discussing neutral topics and, where appropriate, playing with toys, reassuring the child they have done nothing wrong;
  • Explaining the ground rules;
  • Exploring the child's understanding of truth and lies; establishing the purpose of the interview;
  • Supplementing the interviewer's knowledge of the child's social, emotional and cognitive development.

Initial discussions should focus on events and interests not related to the investigation.

4.2 Ground rules

Children, especially young children, will perceive interviewers as figures of authority. Interviewers should use the Rapport Phase to combat any answers from the child, which reflect on eagerness to please. This can be done by stating the following:

  • The interviewer was not present when the events under investigation allegedly took place and that he/she is relying on the child's account;
  • The interviewer asks a question the child doesn't understand, the child should feel free to say so;
  • If the interviewer asks a question to which the child does not know the answer, the child should say 'I don't know';
  • If the interviewer misunderstands what the child has said or summarises what has been said incorrectly, then the child should point this out.

4.3 Truth and lies

Towards the end of the Rapport Phase, the interviewer should advise the child to give a truthful and accurate account of any incident they describe.

The interviewer should ask the child to judge from suitable examples appropriate to the child's age.

If a child shows no proper appreciation of the distinction between truth and lies, the evidential value of the interview may be seriously jeopardised.

4.4 Establishing the purpose of the interview

The reason for the interview needs to be explained in a way that makes the focus of the interview clear, but does not specify the nature of the offence.

It is also important to stress that what the interviewer wants to discuss with the child is their memory of the incident(s) that gave rise to the complaint, not the complaint itself.

It is important that the child is encouraged in the Rapport Phase to talk freely through the extensive use of open-ended questions. Questions requiring a 'yes' or 'no' answer should be avoided.

4.5 Asking for Free Narrative Recall

A witness interview requires that information flows from the witness to the interviewer. It is crucial that interviewers inform witnesses that (i) They were not present at the event (ii) Do not yet know what occurred.

Only the most general, open ended questions should be asked in the free narrative phase as guidance to the witness concerning the general area of life experience relevant to the investigation. If a witness responds to questions such as 'do you know why you are here today?'; 'is there anything you would like to tell me?' in a positive way the interviewer should encourage the witness to give a free narrative account. Questions such as 'tell me all you know about......' 'Did anything else happen?'

The prompts used as this stage should not include information known to the interviewer concerning relevant events that have not yet been communicated by the witness.

Interviewers should take care not to prematurely get to the heart of the matter and allow the witness to proceed at their own pace and be tolerant of what may appear to be undue pauses, silences, repetitions and irrelevant information.

If, during this stage, the witness has communicated nothing of relevance regarding the purpose of the interview the interviewer should consider whether to proceed to the questioning phase. Exceptionally consideration may be given to moving indirectly to the closure phase.

4.6 Asking Questions

Children vary in how much relevant information they provide in free narrative. In nearly all cases it will be necessary to expand on the child's initial account through questions.

4.7 Style of Questions

Different types of questions provide varying amounts of information and accuracy. The four most important types of questions are:

  • Open-ended;
  • Specific;
  • Closed;
  • Leading.

During the questioning phase it is important to:

  • Have available appropriate toys, drawing & writing material;
  • Move sequentially through the types of questioning appropriate to the child's response, returning to open-ended/specific questions (avoid leading questions);
  • Ask one question at a time (particularly when using an interpreter);
  • Give time to respond, but remember too long can be oppressive;
  • Do not interrupt;
  • Questions should not be repeated in the same form when the first answer is deemed unsatisfactory (child may then answer to please the interviewer);
  • Where children have specific communication needs, assistance should be made available. Drawings, pictures & photographs will need to be prepared to facilitate questioning.

If at any point during questioning the child becomes distressed it may be necessary to move back to the Rapport Phase.

4.8 The Content of Questions

The construction of questions and information requested should always take account of:

  • The child's stage of development (language, cognition, impairments);
  • Experience of prior interviews where questioning is more directive;
  • Feelings and attitude of the child (they may have been threatened);
  • When working with an interpreter, consider before and during the interview how accurately some questions can be interpreted or whether there are cultural implications that could impact on the understanding and responsiveness of the child (particularly in sexual abuse work).

Questions should be kept short and simple in construction especially with younger children. Avoid:

  • Double negatives e.g. 'Did John not say later that he had not meant to hurt you?'
  • Double questions e.g. 'Did you go next door and was Jim waiting for you?'

Vocabulary

  • Words should be used that are familiar to a child;
  • Asking a child if they understand a word may not be enough, it may necessary to check out their understanding;
  • Does a young child understand words that denote location ('behind', 'in front of', 'beneath', 'above'). It may be necessary to ask the child to demonstrate what they mean (use box or table/drawer);
  • Children may use 'family' terms for parts of the body e.g. 'front bottom'. These terms are vague and the interviewer needs to ascertain meaning, The use of a doll or diagram is preferable to the child referring to their own body;
  • When children use adult terminology it's meaning should also be checked;
  • Give consideration to the cultural impact of particular terminology, especially regarding sexual abuse.

Concepts

Concepts in adult conversation are taken for granted, children acquire them gradually. There are techniques for addressing some difficult areas. For example:

  • Dates and times (refer to child's life, festivals, holidays, birthdays, 'how many sleeps ago', class at school);
  • Length and frequency of events (refer to child's routine, TV programmes);
  • Height, weight and age (specify, relative to another person known to the child).

Open-Ended Questions

An open-ended question is one that is worded in such a way as to enable the child to provide more information about an event which is not leading, suggestive or putting the witness under pressure.

It is important that the questioning phase begins with open-ended questions and this type of question should be widely used throughout the interview.

Open-ended questions allow the child to expand on what has already been said: 'So, you said that Daddy hit you, tell me some more about that'.

It is rarely possible to use only open-ended questions with children, particularly if they have been threatened or sworn to secrecy.

Specific questions may be necessary to obtain evidence to proffer detailed charges.

Young children and those with learning difficulties/disabilities may find open-ended questions do not prompt recall.

Specific Questions

Specific questions serve to ask in a non-suggestive way for extension and clarification of information previously supplied by the witness. Specific questions vary in their degree of explicitness. e.g.

A child tells you that a named man climbed into her bed.

Follow up question:

Specific non-leading -'What clothes was he wearing at the time?'

Explicit specific -'Was he wearing any clothes?'

For a young child 'What did his trousers look like?' (risk suggestive response).

It is best to begin with the least explicit.

Examples of specific questions are the 'wh-' questions, Who, What, Where, When and Why?

Why questions should be avoided as they can imply blame.

Where a child may have experienced repeated abuse and has difficulty isolating particular events and giving more detail the interviewer could:

  • Ask if there were any times that were particularly memorable or exceptional;
  • Ask if they remember the first or last time;
  • Finish questioning on one event before moving to the next;
    • Specific questions can explore whether a child is giving their account for the first time. This is important for establishing consistency of statements;
    • Closed Questions.

A closed question is one that poses fixed alternatives and the child is invited to choose. ' Were you in the bedroom or the living room when this happened?'

Children may respond without enlarging the answer and if they can't remember may guess. A 'or can't you remember?' could be included.

Closed questions should never be used for probing central events in the child's account, which are likely to be disputed at court.

Leading Questions

A Leading Question is one which implies the answer or assumes facts which are likely to be in dispute. Examples of leading questions: "Things haven't been very good at home recently have they?"; "You know when you were talking earlier to Sue about what Daddy did to you, can you tell me again now?"

A leading question could be challenged by opposing counsel or edited out of a visual recording. The recording could be deemed inadmissible.

Research indicates that interviewees' responses to leading questions tend to be determined by the manner of questioning than by valid remembering.

The use of leading questions in the Rapport Phase risks inhibiting the child and producing nonsensical and inconsistent replies which may damage the child's credibility as a witness.

On occasions, a leading question can produce relevant information which has not been led by the question. If this does occur interviewers should revert to open or specific questions.

Good interviewing practice should discourage leading questions with all but the youngest or most reticent witnesses.

4.9 Closing the Interview

Recapitulation

The interviewer should check with the witness that the evidentially important parts (if any) of the account have been correctly understood. This should be done using what the witness has communicated, not a summary provided by the interviewer. Care should be taken not to convey disbelief.

Closure

Every interview must have a closing phase, and, regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed but is in a positive frame of mind. Even if little or no information has been provided the witness should not be made to feel that he/she has failed or disappointed the interviewer. Although praise or congratulations for the providing of information should not be given, the witness should leave with a positive state of mind

The witness should be thanked for his/her time and effort, and asked if there is anything more he/she wishes to communicate. An explanation should be provided about what, if anything, happens next, but no promises should be made about future developments. The witness should be asked if he/she has any further questions, and these answered as appropriately as possible. When closing interviews of disabled children, it would be helpful to acknowledge again the additional barriers to communication when discussing sensitive issues such as abuse.

Throughout the interview, and particularly when closing, the interviewer must be prepared to assist the witness to cope with the effects upon her/himself of giving an account of what may have been greatly distressing events, and about which the witness may feel some guilt.

The witness (or, if more appropriate, an accompanying person) should be given a contact name and telephone number in case the witness later decides she/he has further matters to discuss with the interviewer.


5. Witness Support Before the Court Process

The Witness Service provides support to a child throughout the court process. The support can only be offered if the Witness Service has been fully informed of the child and their needs.

Once a police officer/other professional is aware a case is going to court they should contact the Witness Service. This is vital so children can have the opportunity to have a court familiarisation visit through the Witness Service.

All children attending court for a Pre-Court Familiarisation will receive a copy of the 'Tell Me More About Court' booklet, or 'Let's Get Ready For Court' booklet depending upon the age of the child. There is also a booklet (produced by the NSPCC) available from the Witness Service for carers or parents of children attending court.

Police officers/other professionals can find out the current status of a case by contacting the Witness Service, who will endeavour to locate up to date information.

An information pack is available to carers of children who have disclosed sexual abuse. Investigating social workers or police officers can obtain this pack from Leicester Family Welfare Association. This pack includes information regarding appropriate agencies post trial.

Leicester Family Welfare Association offers an early intervention service called 'Building Bridges' for carers of children who have recently disclosed sexual abuse. Generally only after the investigation is completed and social work involvement has ended can support be offered. However the welfare of the child is paramount and early therapeutic work can be commenced at any time if it is deemed in the best interests of the child.

In cases where children receive pre-trial therapeutic support, agencies will need to follow Managing Pre-Trial Therapy Procedure.


6. Witness Support During the Court Process

The Witness Service will endeavour to maintain the child in a safe and suitable environment. Whilst at court the child can be supported throughout by a Witness Service volunteer.


7. Witness Support Following the Court Process

Families can be given appropriate information about post-trial services by Witness Service volunteers, social workers or other professionals, providing they make direct contact with the Witness Service.

The Witness Service is based in all Magistrates Courts and Crown Courts.


Appendix 1: Special measures of the 1999 Youth Justice and Criminal Evidence Act

1999 Youth Justice and Criminal Evidence Act provided Special Measures, which include:

Section 23: Screens may be made available to shield the witness from the defendant.

Section 24: The live link will enable the witness to give evidence during the trial from outside the court through a televised link to the courtroom. The witness may be either accommodated within the court building or in a suitable location outside the court.

Section 25: Evidence given in private. Exclusion from the Court of members of the public and the press (except for one named person to represent the press) will be considered in cases involving sexual offences or intimidation.

Section 26: Removal of wigs and gowns by judges and barristers.

Section 27: A visually recorded interview with the vulnerable witness before the trial may be admitted by the court as the witness' evidence in chief. The court can, however, exclude a recording if there is insufficient information about where it was made, or if the recording contains serious violations of the rules of evidence.

Section 28: Visually recorded cross-examination is also to be considered admissible if the witness has already been permitted to give their evidence in chief by way of a visually recorded interview prior to the court case. As with evidence-in-chief, the recording can be excluded if any rules have not been complied with.

Section 29: Examination of the witness through an intermediary, who may be appointed by the court to assist the witness to give their evidence at court. This measure is available only to witnesses who are eligible for Special Measures on grounds of age or incapacity.

Section 30: Aids to communication will be permitted to enable the 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. Again, this measure is only available to witnesses who are eligible for Special Measures on the grounds of age or incapacity.

Section 34 and 35: Mandatory protection of witness from cross-examination by the accused in person. An exception has been created which prohibits the unrepresented defendant from cross-examining vulnerable child and adult victims in certain classes of cases involving sexual offences.

Section 36: Discretionary protection of witness from cross-examination by the accused in person. In other types of offence, the court has discretion to prohibit an unrepresented defendant from cross-examining the victim in person.

Section 41: 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.


Appendix 2: Witness Service Referral Form

Click here to view Appendix 2: Witness Service Referral Form


Appendix 3: National Standards for Young Witness Preparation

Purpose of preparation

  • To help the young witness feel more confident and better equipped to give evidence at court;
  • To help the young witness understand the legal process and their role within it;
  • To encourage the young witness to share their fears and apprehensions about the court; process and thus assist the young person to give their best evidence in court;
  • It must not involved rehearsing the evidence or coaching the witness.

Key characteristics of person undertaking witness preparation

  • Ability to communicate with young children and young people in age appropriate language;
  • Ability to demonstrate a caring, mature and supporting attitude to both the young person and their parent or carer;
  • Ability to deal with difficult feelings and emotions;
  • Willingness and ability to offer continuity of support throughout the trial;
  • Willingness and ability to work within a framework of Equal Opportunities;
  • Willingness and ability to work within a framework of confidentiality;
  • In addition to the above the person undertaking witness preparation must;
  • Be seen to be independent and focusing entirely on the young person's welfare in preparing for the experience of giving evidence;
  • Not have been involved in the preparation of the case;
  • Not discuss the details of the case or the evidence that the young person has given or is to give;
  • Have received basic training from local agencies.

Key tasks

  • Obtaining information on which special measures have been ordered by the court at the PDH or pre-trial hearing to assist the young witness, including whether consideration has been given as to who accompanies the young witness while they give evidence;
  • Liaising with police and CPS if there are any changes in circumstances which might require a variation in the court measures to be provided;
  • Lionising with any other agencies that may be involved with the young witness and/or the family;
  • To undertake an assessment of the young person's needs in general, in relation to a court appearance, taking account of their developmental status;
  • To decide when the witness preparation should begin, bearing in mind the trial date and who the young person wishes to be present when this takes place;
  • Ensure that the young person and parent or carer has the Young Witness Pack and, if appropriate, view the Young Witness visually recorded interview with the young witness and their parent or carer;
  • Help the young witness to understand the court process and their role in it. This will include discussion of the roles of the participants in the case, the importance of telling the truth and the nature of cross-examination;
  • Prepare the young person for any possible outcomes of the trial e.g. late change of plea, adjournments or acquittal;
  • Liaise with the Witness Service to arrange a familiarisation visit to the court before the trial and ensure that the young witness and their parent or carer, if appropriate, are shown whatever special measures have been ordered by the court in their case;
  • Provide the young person with stress reduction and anxiety management techniques;
  • Involved the young person's parent or carer;
  • In conjunction with the Witness Service, communicate information (including the young person's wishes) to and from the police, CPS and courts, keeping the young person, parent or carer informed and ensure that practical arrangements are made for the young person;
  • Co-ordinate arrangements with the Witness Service Co-ordinator or the Court Liaison Officer to ensure that the waiting time at the court is kept to a minimum;
  • De-brief the young witness and parent or carer and arrange for any follow-up support, including the need for specialist help;
  • Ensure that the work with the young person is fully documented.

End