THERAPEUTIC SUPPORT FOR ADULTS
CODE OF PRACTICE TO FACILITATE THE PROVISION OF THERAPEUTIC SUPPORT TO ADULT WITNESSES IN COURT PROCEEDINGS
(1) This code 1 is designed primarily for the providers of therapeutic support to adults who are witnesses in court proceedings, and those who commission or arrange for the provision of such support. Recognising that the provision of therapeutic support is a multi-professional and multi-agency endeavour, the code is aimed at individuals from a wide range of backgrounds who come into contact with adult witnesses prior to and during court proceedings. These individuals may include appropriately qualified medical staff, counsellors, care-providers, educational establishments, general practitioners, Crown Office and Procurator Fiscal Service ( COPFS) staff, including Victim Information and Advice ( VIA) staff, other legal practitioners, the judiciary, the police, social work services, Victim Support workers, Witness Service volunteers, crisis support services and any other counselling and support providers within the voluntary and/or support sector. These practitioners have a responsibility to work within the terms of this Code. Failure to do so could result in cases being discontinued, causing distress to witnesses and, potentially, miscarriages of justice.
(2) The aim of the code is to:
- encourage the delivery of therapeutic support to adult witnesses prior to and during court proceedings
- acknowledge and work within the provisions of the Vulnerable Witnesses (Scotland) Act 2004 concerning special measures for adult vulnerable witnesses (though not exclusively - see 7 below)
- establish consistent best practice which can be implemented across Scotland.
(3) The code has been developed in consultation with a multi-agency steering group, and is based on extensive consultation within the criminal justice system, with professionals from a range of disciplines, and with providers of support services.
(4) The code is non-statutory and is not an authoritative statement of the law but aims to ensure a commitment to best practice, which does not discriminate on the grounds of race, religion, disability, gender, sexual orientation or age. It is also acknowledged that practice will continue to evolve; the code aims to support this process by setting out a framework for good practice.
(5) All those involved in working with adult witnesses in whatever capacity prior to or during court proceedings should be familiar with this code and with the documents on which the code is based: Guidance on Interviewing Child Witnesses in Scotland (Scottish Executive, 2003) Guidance on Therapeutic Support for Child Witnesses (Scottish Executive, 2005).
Summary of Key Points
(6) This code seeks to improve understanding of the difficulties associated with the provision of therapeutic support for adult witnesses in criminal and civil proceedings, and clarify the role of those involved in making decisions about the provision of the therapeutic support. Key points are as follows:
- The welfare, interests and rights of adult witnesses should be of paramount consideration in relation to the provision of therapeutic support.
- Witnesses may also be victims of a crime.
- Therapeutic support can be beneficial in addressing a variety of issues with adult witnesses prior to and during criminal, civil or Children's Hearing court procedures.
- Whilst all forms of therapeutic support can cause evidential problems, witnesses should not be denied the emotional support and counselling assistance they may need.
- The provision of therapeutic support will not inevitably contaminate evidence. However, there should be raised awareness about the risks of contamination to evidence associated with certain therapeutic support interventions and the questioning techniques employed during therapeutic intervention sessions. In particular, it is essential that service providers:
- avoid any leading questions or practices which could be interpreted as 'coaching';
- avoid discussing particular issues relating to the case because of their potential for being called into evidence;
- avoid any discussions surrounding the material facts of the event in question;
- be aware of the potential impact of prior statements on the case. If a witness discloses new evidence or material, then this should be referred to the relevant agencies, e.g. the police.
- Service providers should ensure that their staff are suitably trained and supervised to avoid contamination of evidence.
(7) In the context of this document, an adult witness is defined as a person of 16 years or over on the date of commencement of criminal or civil proceedings, who has been cited to give evidence. The definition excludes children up to the age of 18 years who are under a supervision order and/or protected by the Children's Hearings System.
(8) Under the terms of the Vulnerable Witnesses (Scotland) Act 2004, an adult witness is defined as vulnerable if:
- the quality of his or her evidence may be diminished as a result of a mental disorder 2 (mental illness, personality disorder, or learning disability); or
- where there is a risk that the quality of his or her evidence will be diminished by reason of fear or distress in connection with giving evidence in court (the full definition is contained in Annex 1).
A range of special measures, designed to help the witness give evidence, is available to an adult witness defined as vulnerable under the terms of the Act. It is important to note that there may be witnesses who are receiving therapeutic support who are not defined as vulnerable in terms of the Act.
(9) Within the context of the code, the term therapeutic support is used in a broad sense, to include two main traditions, psychotherapy and counselling, and to cover a wide variety of therapeutic approaches, skills, techniques, and methods of intervention. It includes therapeutic support provided by professionally qualified medical, psychiatric, psychological and specialist counselling personnel and that provided by voluntary agencies and support groups. Therapeutic support does not include physical or pharmacological approaches or interventions.
(10) The popularly used definition of psychotherapy, adopted by this code, defines psychotherapy to include methods of intervention that are designed to decrease a person's distress, psychological symptoms, and maladaptive behaviour or to increase the person's ability to adapt to and become more integrated within society The intervention methods used may include the use of interpersonal interaction, or activities that follow specific intervention plans focusing on different aspects of how the client feels (affect), thinks (cognition) and acts (behaviour) (Kazdin, 1990).
(11) Counselling may be described as a systematic process that allows the person the opportunity to explore, discover and clarify different ways that they may live with a greater sense of well-being and personal benefit (Department of Health, 2001). Specialist counselling and support services are offered by a wide range of agencies and initiatives in Scotland, such as Victim Support, Rape Crisis Centres, Scottish Women's Aid, Samaritans, Wellspring, CRUSE Bereavement, as well as by local authority Health and Social Work Services.
(12) Therapeutic support can be used to address a variety of issues with adult witnesses prior to and during criminal, civil or Children's Hearings court procedures. These issues may be:
- directly associated with the actual process of giving evidence in court proceedings, regardless of whether the witness actually is called to give their evidence
- a direct result of the impact of being a victim of, or witness to a crime or other traumatic event.
These issues may include:
- preparation for court, such as provision of information about court proceedings 3
- self-esteem and confidence
- personal functioning
- stress and anxiety
- suicidal or self-harming behaviours
- deterioration of peer and family relationships
- emotional and behavioural disturbance, for example post-traumatic stress disorder ( PTSD)
- treatment for individuals who are highly traumatised and displaying symptoms that raise mental health concerns
(13) Generally, evidence is information which tends to prove the existence of a particular fact or set of facts. It may include any verbal, written or pictorial account of an event, given by a witness at court. The law of evidence governs how disputed issues of fact can be proved or disproved in legal proceedings, both civil and criminal. In a Scottish criminal trial, the burden of proof lies on the prosecution, and the guilt of the accused must be proven 'beyond reasonable doubt'. Corroboration is an essential element of proof in Scottish criminal law. This means that there must be two sources of credible and reliable evidence to establish each of the facts. In civil proceedings, the standard of proof is on the 'balance of probabilities'. (For more information, see Raitt, 2004).
(14) The principles of this Code of Practice are that:
- The welfare, interests and rights of adult witnesses should be of paramount consideration during decision making processes that surround the provision of therapeutic support prior to and during court proceedings. These rights derive from the provisions of the European Convention on Human Rights (Articles 3 and 8) and are supported by European and International Conventions.
- The decision to engage in therapeutic support prior and during court proceedings and the timing of such support lies primarily with the adult witness, or if the adult witness is not of sufficient understanding then with any other competent adult in a position of care or responsibility for the adult witness concerned.
- There is an acknowledgement and acceptance that the provision of therapeutic support prior to and during court proceedings can be beneficial to adult victims and witnesses. Therefore it is not expected that the provision of appropriate therapeutic support be either advised against or withheld; witnesses and victims in court proceedings should not be denied the support and counselling they may need.
- All those involved with adult witnesses in court proceedings should note that the provision of therapeutic support does not inevitably contaminate evidence. However, at the same time, there should be raised awareness about the risks of evidence contamination associated with certain therapeutic support interventions and/or the questioning techniques employed during therapeutic intervention sessions.
Benefits of Therapeutic Support
(15) Concern has been expressed that victims and witnesses may be denied therapeutic support pending the outcome of court proceedings for fear that their evidence may be tainted through discussion with others, or that they may be coached about what they should say when giving in their evidence.
(16) It is in the interests of justice that witnesses are able to give their 'best evidence', that is the most accurate and truthful recollection of events that the witness can give from their own experience and recall. Witnesses may find the recall of traumatic events during court proceedings stressful and therapeutic intervention may assist to ease that trauma. Pre-court discussions, provided they adhere to the provisions of these guidelines, should be allowed in order to fulfil this purpose.
(17) Studies of the effectiveness of the provision of therapeutic support are well documented (Roth & Fongy, 1996), including for those with learning disabilities (Parkes et al. 2007). Although studies based on randomised controlled clinical trials ( RCTs) are relatively sparse due to practical and ethical reasons, such studies as there are continue to demonstrate the benefits of therapeutic support for adults (Bisson & Andrew, 2007).
(18) Delays in the provision of therapeutic support prior to court proceedings have in some cases occurred because of the fear of evidence contamination. This raises concerns given the lengthy delays that can occur before an adult witness is cited to appear in court proceedings. Studies have shown that if the provision of therapeutic support is excessively delayed there can be detrimental effects and problems or symptoms experienced by the individual concerned may become exacerbated to the extent that they become chronic and resistant to intervention (Bichard, Sinason & Usiskin, 1996; Saywitz, Mannarino, Berliner & Cohen, 2000).
(19) Victims and witnesses should not be denied the emotional support and counselling assistance they may need at the time when they need it. Victims, witnesses, service providers and legal practitioners have a mutual interest in ensuring, wherever possible, that those who receive therapeutic support prior to a criminal trial or a civil hearing are regarded as witnesses who are able to give reliable testimony.
Potential Problems of Therapeutic Support
(20) All forms of therapeutic support have the potential to cause problems in the context of legal proceedings, although they may have therapeutic value for the individual witness. The tradition in Scottish court proceedings is primarily an oral one, and therefore great reliance is placed on the oral evidence of witnesses and on ensuring that the witness gives his or her best evidence. The oral evidence of an adult witness can be probed during cross-examination by the defence or by parties to other proceedings for its accuracy, consistency, credibility and reliability.
(21) Discussions prior to a court hearing, with or between witnesses, or with others, may result in 'evidence contamination'. As the result of evidence contamination witnesses may give accounts of the events in issue which are at odds with evidence given by the same witness at an earlier stage in the proceedings. Pre-trial discussions may lead to allegations of 'coaching' or contamination of evidence which may ultimately affect the progress of the case. Even where there is no intention of coaching, there may be unintentional contamination. Coaching is defined as the discussion of questions that may be asked of an adult witness during court proceedings and/or the rehearsal of any answers that the adult witness ought to provide to the court. In criminal proceedings there is the additional danger that the rule against 'hearsay' evidence (evidence which presents assertions made by others that is not within the witness's own direct experience) may be breached when the witness includes in their testimony the accounts of another adult, perhaps someone who is in a position of care or responsibility for the welfare of that adult witness. 4
(22) Similarly, providers need also to be aware of the dangers of 'suggestibility' on the part of the witness. This is the tendency to 'go along' with the suggestion that something may or may not have happened such that an individual may even change what they believe has happened and come up with an account consistent with what has been suggested to them.
(23) Providers need to know about any pending criminal proceedings before therapy commences and be aware of the implications of using techniques that may result in the evidence of witnesses being discredited and ultimately prejudice a just outcome in the case.
(24) It is essential that those involved in the provision of therapeutic support adopt appropriate communication techniques. The support provider should seek to ensure that he or she does not:
- influence what the adult witness says; and/or
- contaminate the information that the adult witness has provided, is currently providing or may provide during the provision of support.
Service providers should avoid discussing particular issues relating to the case because of the potential for such discussions to be regarded as a further source of evidence. In particular, they should avoid any discussions surrounding the material facts of the event in question, because this may be challenged during the trial or hearing.
What the Witness Needs to Know
(25) Support providers should always inform or confirm with the witness that they were not present at the event in question and may not hold any information about the event. They may, in certain circumstances, have been given information to assist them in their work with the witness. In such cases, the witness needs to be made aware that the information could be called into evidence if it is documented and it pertains to the offence. This needs to be read with reference to the recording of information and data which is dealt with in (41) below.
Encourage Free Narrative
(26) Where at all possible support providers should encourage adult witnesses to talk freely, and without interruption ('free narrative'). It should be borne in mind that many people may have difficulties accessing and retrieving memories for the event(s) in question, in a well-structured, focused or strategic way, as is required in free narratives. This may occur simply because they find it difficult to recall events, or the difficulty may arise from stress, trauma, or anxiety, or may be due to mental illness or learning disability.
(27) In some clinical situations the adult witness may benefit by being asked questions about one particular issue, before the support provider proceeds on to any other issues. These benefits occur because the adult is asked to remember one specific part of one specific memory concerning an event, as opposed to being asked to remember lots of different parts of the same memory. Hence, focused questioning provides a support or structure for attempts to remember in situations where recall may be difficult for the witness, on their own, to achieve. An extensive psychological literature exists on the beneficial effect of providing retrieval 'cues' that strategically structure and focus retrieval attempts (Baddeley, 1999; Memon & Higham, 1999). Four main types of questioning techniques can be adopted to offer this structure during communication between adult witnesses and those involved in support; open-ended questions (which are often in the form of statements) are designed to invite a full or elaborate answer based on the individual's own knowledge or experience, e.g. 'how does this make you feel?'; specific questions which probe a particular topic, e.g. 'what makes you unhappy?, and closed questions which encourage a 'yes' or 'no' or a single word answer, e.g. 'do you own a car?' These three main forms of questions are acceptable if used with care. The fourth type, leading/misleading questions, which attempt to guide the respondent into a particular answer such as 'how fast was the red car going when it hit the green car?' are not acceptable and should only be used as a last resort.
Inappropriate Questioning Techniques
(28) Service providers should avoid inappropriate questioning techniques that may incorporate misleading information, such as references to disputed aspects of the events in question which appear to support one particular interpretation of them. Leading questions (questions which prompt for the required response or include the answer, e.g. Was the car red?) should also be avoided and the use of repeated questioning regarding previously answered matters is not advisable. Any indication of disbelief in respect of the answers previously provided is hazardous as it may prompt the witness to alter their testimony.
Impact of Prior Statements
(29) Providers of therapeutic support need to be aware of the potential impact of prior statements on the case. If a witness discloses new evidence or material, then this should be referred to the relevant agencies, e.g. the police.
Recollection of Traumatic/Abusive Events
(30) Therapeutic support can help adult witnesses process their emotions and feelings about the event(s) in question without discussion of the details pertaining to the event. Therapeutic support providers should understand that whilst the recollection and discussion of details of the event(s) are not essential for therapeutic support to be effective, some adult witnesses will want to, or indeed need to, talk about them. In these circumstances therapeutic support providers should use their own professional judgment, and be guided by their supervisors or managers, as to whether to engage the adult witness in trauma or abuse specific interventions.
(31) In situations where an adult witness does remember and wants to discuss details of the event(s) in question, therapeutic support providers should be mindful of the risks of contaminating the adult witness's evidence. Where at all possible open-ended and non-leading questioning techniques should be used. The adoption of inappropriate and/or suggestive questioning techniques during these discussions may permanently distort the memory of the adult witness. These distortions could negatively impact on the credibility of the adult witness in giving their evidence during court proceedings.
(32) Occasions may arise during the recollection and discussion of the event(s) in question when the adult witness may seek an explanation from the therapeutic support provider as to why these experiences have happened to them. Therapeutic support providers should avoid, where at all possible, making any direct interpretation of the behaviour (verbal or non-verbal) of adult witnesses.
Witnesses' Approaches to Questioning
(33) Research indicates that vulnerable adults, especially those with learning disabilities, may be more willing than other adult witnesses to comply with what they think their questioner is seeking, particularly when they are being questioned by those they regard as 'authority figures' (Milne and Bull, 2006; Milne, Shaw and Bull, 2007). This acquiescence can take the form of suggestibility (the tendency to 'go along' with another's suggestion), compliance (the tendency to respond affirmatively) or conformity (the tendency to change behaviour or views to be in line with others' views). They are more likely to acquiesce, particularly if the questions asked are of a leading nature, are closed (that is, require a yes/no response), are constantly repeated or not understood by the individual. These susceptibilities may occur as a direct result of their vulnerability (i.e. limited intellectual functioning) or because they believe they are being helpful in agreeing with the supporter.
(34) Confirmation bias is the seeking or interpreting of information that supports one's own beliefs or expectations. This can involve seeking information that confirms a belief, whilst at the same time not seeking, or even avoiding, information that does not confirm the belief (Nickerson, 1998). This bias can potentially lead to the distortion of an adult witness's memory of the event(s) in question or lead the witness to selectively remember or report certain details of the event(s), whilst excluding others. Confirmation bias may be particularly prevalent within a therapeutic setting where there are demands and pressures upon the therapeutic support provider to resolve issues and find an explanation for why things have gone wrong.
(35) The adult witness may try to be helpful by providing replies that they believe are required by the support provider and in line with what they think is required of them. It is therefore important that all individuals involved in the provision of support are very cautious about the use of hypothesis testing (the exploring of the supporter's own theories or hunches) around what has occurred during traumatic or abusive event(s). There should be no reliance on the therapeutic support provider's own personal assumptions or theories when questioning an adult witness. Such reliance may result in 'confirmation bias' and adversely affect the quality of the witness's evidence about the event in question.
(36) Group therapy that does not focus on the specific details of the abusive or traumatic event can be beneficial for some adult witnesses (i.e to increase self-esteem). Similarly, family therapy that focuses on helping the family to understand what has happened and build or maintain family relationships, rather than focusing on the abusive or traumatic events themselves, can be valuable. However, group/family therapy that focuses on the details of the abusive or traumatic event and includes other witnesses or parties must be avoided so as to prevent contamination of evidence through the influence of peers.
(37) It is important that therapeutic support providers be aware of the risk of evidence contamination by adult co-witnesses, who are other adult witnesses of the same event(s) which are the subject of court proceedings. Psychological research demonstrates that when individuals remember in a group setting the content of the memories of those individuals within the group can be influenced by what others say (Read & Lindsay, 1997). The information obtained during the process of discussing a memory with another person could permanently distort an individual's memory for an event because human memory is susceptible to influence, suggestibility and conformity (Loftus & Davis, 2006; Gabbert, Memon & Allan, 2003). This sums up the need for care when supporting co-witnesses in a case.
(38) An adult claiming to have a recovered memory of child sexual abuse may be particularly vulnerable to the responses of a therapist. When a client presents with gaps in their memory of specific episodes, they may be open to suggestion. Occasionally, qualified therapists and practitioners may use techniques to assist clients in remembering or simply as part of a particular intervention. However, some of the techniques, such as hypnosis or guided imagery, have the potential to mislead a witness and contaminate memory (Lindsay & Briere, 1997). A survey of qualified clinical psychologists in the UK indicated that such techniques can be used with adult clients as an aid for retrieving memories of abusive or traumatic events (Poole, Lindsay, Memon & Bull, 1995). The British Psychological Society ( BPS) have issued guidelines for psychologists working with clients in contexts in which issues related to recovered memories may arise (British Psychological Society, 1995).
(39) The BPS guidelines (1995) stress the need for therapists to tolerate a certain amount of ambiguity during the therapeutic process. The guidelines suggest that therapists should be aware of a range of possibilities; memories may be accurate, metaphorically true, or false. The draft extension to the Guidelines ( BPS 1999) states that clients have to accept that the historical truth may never be known and counsels psychologists to avoid being drawn into a search for memories of abuse (British Psychological Society, 1999).
(40) Therapeutic support through group work and following hypnotherapy might lead to a distortion in remembering events, or even to false recovered memories. Similarly there may be suggestions of contamination of witnesses' evidence particularly where the witnesses can be shown to be suggestible. Even where there is no suggestion of false or distorted recollection, the possibility of any deviation from the account originally given by the witness (including, for example, an enhanced recollection) leaves open the risk of allegations of coaching or fundamental unreliability.
Note-Keeping Practices: Issues of Privacy and Confidentiality
(41) Concern has been expressed by service providers that their professional notes and records may be requested under rules of disclosure, which require the early exchange of material. The Crown has an obligation to disclose to the defence all material evidence, including any evidence which would tend to exculpate the accused or is likely to be of material assistance to the proper preparation or presentation of the accused's defence. 5 There are certain rules of disclosure that apply in criminal cases placing a responsibility on the Crown to provide the defence with any relevant material. Such information will include pertinent information in relation to issues affecting the case.
(42) The requirements of disclosure may affect practice, making providers more wary about the level of detail that they collect or retain about individual cases. This is particularly pertinent for those involved in highly sensitive and serious, complex cases such as rape and sexual assault.
(43) Maintaining trust is crucial in the provision of therapy. Any aspects of the therapy that bear no material relation to the criminal proceedings should not have to be disclosed. However, it is important for therapists and witnesses to understand that the Crown does have a duty to disclose relevant material to the defence.
GLOSSARY OF TERMS
Cognitive Behavioural Therapy ( CBT)
Cognitive Behavioural Therapy ( CBT) is a psychological approach, and is the pragmatic combination of the concepts and techniques from cognitive and behavioural therapies. CBT is a structured therapy and aims to promote positive change within individuals by helping to alleviate emotional distress, changing maladaptive thoughts and beliefs and to solve problems and relieve symptoms by changing behaviour and the environmental factors that control behaviour. The effectiveness of CBT has been demonstrated amongst a wide range of adult populations, including those with mental illness and learning disabilities, and for a wide range of problems. During CBT the adult and therapeutic support provider work together in order to develop a shared view and understanding, in terms of the relationship between thoughts, feelings and behaviours of the presenting difficulties encountered by the adult.
Person-centred approaches view clients as having the ability to make their own choices, the ability to control their future and as having self-healing capacities. The therapist role is to place more autonomy in the hands of the client so that they can heal themselves. Person-centred approaches generally focus on how the client is feeling, rather than why they are feeling a certain way, and therefore often concentrate on difficulties in the here-and-now. Therapists working from a person-centred approach see the use of the core conditions of empathy, unconditional positive regard and genuineness as being the key agents for change within the therapeutic relationship and tend to be less directive than other approaches. They use open-ended responses, reflective listening and tentative interpretations to promote client self-understanding, acceptance and actualisation.
Psychodynamic therapies build on psychoanalytic theories of trauma. The emphasis in psychodynamic therapies lies on resolving the unconscious conflicts provoked by the stressful event. Psychodynamic treatment seeks to re-engage normal mechanisms of adaptation by addressing what is unconscious, in tolerable doses, making it conscious. The goal of treatment is to understand the meaning of the stressful event in the context of the individual's personality, attitudes and early experiences. The therapy focuses on helping the client gain an insight into past and present experience through the collaborative exploration of thoughts, feelings, memories, fantasies, dreams or artwork. The therapeutic relationship can be an opportunity to work thorough relationship conflicts from the past, in the here-and-now. It may also include working with transference, both with the therapist using a less strict technique than that used in psychoanalysis.
According to the American Psychiatric Association's Diagnostic and Statistical Manual (criterion A, DSM-IV, APA 1994) traumatic events comprise of two main elements; firstly, the person should have experience, witnessed or have been confronted with an/or event(s) that involved actual or threatened death or serious injury, or a threat to the physical integrity of that person or others and secondly, the person's response needed to have involved intense fear, helplessness, or horror.
Post-Traumatic Stress Disorder ( PTSD)
According to the American Psychiatric Association's Diagnostic and Statistical Manual ( DSM-IV, APA 1994) PTSD is characterised by frequent, distressing involuntary memories that individuals are unable to forget despite making great efforts to prevent there reoccurrence. Included amongst these are; flashback memories characterised as being triggered spontaneously by exposure to trauma cues, fragmented, contain prominent perceptual features and involve an intense reliving of the event in the present and an inability to voluntarily recall important aspects of the trauma in question (amnesia).
Randomised Controlled Trials ( RCTs)
Randomised controlled trials ( RCTs) is a research design method commonly used for comparing various procedures and interventions and is considered to provide the best evidence in respect of the benefits of different interventions, in comparison to other research design methods.
Hearsay evidence is evidence contained in any out-of-court statement (oral or otherwise) made by a person and tendered into court to prove the truth of its contents.
Compliance refers to a particular kind of response - acquiescence; the tendency to respond affirmatively with 'yes', to question asked, irrespective of the question content.
Group therapy is a form of psychotherapy during which support providers work with small groups of adults together as a group. Adult group members are encouraged to give feedback to others within the group. This feedback may include expressing their own feelings about events that each other have encountered or perhaps those within the group have experienced similar events. Group/family therapy may also incorporate family therapy whereby members of the same family have also experienced similar events.
Hypnosis is a form of guided imagery intervention, in which the individual is often asked to relax, close their eyes and then attempt to mentally review past events by being asked to imagine various scenarios described by the therapist.
A tendency to 'go along' with an interviewer or therapist's suggestion that something may or may not have happened such that an individual may even change what they believe has happened and come up with an account consistent with what has been suggested to them.
Conformity to change one's behaviour, beliefs (and memories) so that they are in line with what others think, do or say. Sometimes individuals simply do this to please others and seek their approval in public settings but it can also result in the individual coming to believe what another or others have told them.
An uninterrupted account of the event(s) in question. Considered to be the most reliable source of accurate and uncontaminated evidence. These accounts should be as free of interruption as possible.
Open-ended questions are intended to invite the adult witness to elaborate upon the responses they have already provided, whether in their free narratives or during other questioning. This form of questioning does not place pressure or lead the adult witness into providing a particular answer.
Specific questions probe in a non-suggestive way (e.g. 'What things make you upset?') and are generally used to encourage the adult witness to elaborate upon or clarify something they have said previously, whether in their free narratives or other questioning. Individuals involved in support should be mindful however that the more specific a question becomes, the more likely they are to become suggestive.
Closed questions provide the adult witness with a limited number of alternative responses (e.g. 'yes', 'no', or 'don't know'), that contain sensible and equally likely responses in order to be non-suggestive. Closed questions that only provide two responses (i.e. yes/no questions) should be avoided, as they place more demand upon the witness by assuming they can remember. Hence the importance of acknowledging that is acceptable for adult witnesses to provide 'don't know', 'don't remember' or 'don't understand' responses. Those providing support should be mindful that whilst some vulnerable adult witnesses, particularly the learning disabled, have a tendency to acquiesce to 'yes-no' questions. Put simply this means they have a tendency to respond affirmatively with 'yes', irrespective of what the question content and may even occur if an almost identical 'yes-no' question, with the opposite meaning, is asked directly afterwards. Acquiescence does not however solely occur due to vulnerabilities, but is influenced by communication and questioning techniques (e.g. suggestive or too complex).
Leading questions suggest the response required or assume facts that are likely to be in dispute. Whether a question is deemed leading or not is dependent upon both the nature of the question and the account of events already given by the adult witness. Leading questions can pressurise an adult witness, especially those deemed as vulnerable into going along with what the therapeutic support provider has suggested, whether inadvertently or not. In addition therapeutic support providers will rarely know the correct answer to any questions relating to the event in question and as such cannot be sure whether they have asked a leading or a misleading question. Misleading questions often lead the adult witness to provide an incorrect response. For example, the question 'Did you feel scared?' could be misleading if the adult witness has never reported how they felt. If the adult witness was not scared during an event then an affirmative 'yes' response would evidently be incorrect.
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SECTION 271 VULNERABLE WITNESSES (SCOTLAND) ACT 2004
271 VULNERABLE WITNESSES: MAIN DEFINITIONS
(1) For the purposes of this Act, a person who is giving or is to give evidence at, or for the purposes of, a trial is a vulnerable witness if-
(a) the person is under the age of 16 on the date of commencement of the proceedings in which the trial is being or to be held (such a vulnerable witness being referred to in this Act as a "child witness"), or
(b) where the person is not a child witness, there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of-
(i) mental disorder (within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)), or
(ii) fear or distress in connection with giving evidence at the trial.
(2) In determining whether a person is a vulnerable witness by virtue of subsection (1)(b) above, the court shall take into account-
(a) the nature and circumstances of the alleged offence to which the proceedings relate,
(b) the nature of the evidence which the person is likely to give,
(c) the relationship (if any) between the person and the accused,
(d) the person's age and maturity,
(e) any behaviour towards the person on the part of-
(i) the accused,
(ii) members of the family or associates of the accused,
(iii) any other person who is likely to be an accused or a witness in the proceedings, and
(f) such other matters, including-
(i) the social and cultural background and ethnic origins of the person,
(ii) the person's sexual orientation,
(iii) the domestic and employment circumstances of the person,
(iv) any religious beliefs or political opinions of the person, and
(v) any physical disability or other physical impairment which the person has,
as appear to the court to be relevant.