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Chapter 19: Operational and Therapeutic Debriefing

19.1. This is a particularly difficult and sensitive area in relation to the prosecution's duty of disclosure. Whilst the confidentiality of debriefing exercises is fully recognised, information and documents generated by the exercises can only be withheld in accordance with current law.

19.2. A distinction is sometimes drawn between operational and therapeutic debriefing. The object of such procedures is obviously different; one is aimed at identifying the strengths and weaknesses of the strategy and tactics adopted, whilst the other looks to the psychological needs of the participants. Such de-briefings may be carried out on an individual or group basis.

19.3. Debriefings should be distinguished from counselling, which is carried out to address the needs of an individual officer. It need not be specific to a case and usually looks at the longer term effect an incident may have on an officer.

19.4. The distinction between operational and therapeutic debriefing may, however, be more apparent than real in terms of disclosure. If information is relevant to an investigation, it may have to be disclosed irrespective of the circumstances in which the information is given. The only privilege which the law recognises is that which exists between lawyer and client. Though not without controversy, communications between the doctor and patient and medical records do not attract privilege as the law stands. Privilege per se cannot therefore be relied upon to withhold disclosure of material in relation to therapeutic debriefing.

19.5. Whatever the nature of the debriefing exercise, the following points should be borne in mind:

  • the need to ensure that debriefing, especially operational debriefing, does not invite rehearsal of evidence or coaching of witnesses. Such practices have been strongly discouraged by the Court of Appeal (see R v Dye and Others [1992] Crim LR 449; R v Arif TLR 22 June 1993; R v Skinner 99 Cr App R 212) R v Salisbury (Lawtel 18 June 2004)
  • the need to record witness accounts before debriefings in order to avoid any later suggestion that the evidence in the case has been manipulated
  • the need to record information given during debriefings to enable investigators and prosecutors to carry out their duties in disclosing unused material.

19.6. Wherever possible, debriefings should not take place until after a pocket book entry or a full witness statement has been completed by those participating. The nature of the record required depends on the type of the debriefing.

19.7. Where a debriefing takes place to facilitate the preparation of a summary of events for the information of an Incident Commander (an immediate debriefing), a pocket book record of information which is likely to be supplied to the Incident Commander may suffice.

19.8. On the other hand, if a potential witness is required to recount his or her evidence in detail in a later and fuller debriefing, a full witness statement should be made beforehand. This would not usually take place for a period of 24 to 36 hours from the conclusion of the incident, in order to give officers an opportunity to recover from the initial trauma.

19.9. What passes in a debriefing exercise may be disclosable to the defence. Two issues of obvious and significant concern will be immediately apparent, namely, that participants in a traumatic incident may be discouraged from seeking the benefits of a debriefing or counselling if the confidentiality of the transaction cannot be guaranteed; and that during the process the officer may give an account which is inconsistent with previous accounts.

19.10. Medical privilege is not a class of privilege recognised by the law. Unless Public Interest Immunity can be relied on as a reason for non-disclosure, such material should prima facie be disclosed. Practice and procedure for debriefing and counselling will differ from Force to Force, as will the type and quantity of material to which it gives rise. Personnel should not be misled and should be informed that confidentiality cannot be guaranteed.

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Disclosure

19.11. The CPIA 1996, the Code of Practice and the Attorney General's Guidelines govern what unused material must be disclosed to the defence, and how disclosure can be made.

19.12. If inconsistencies arise between accounts given before and during debriefing, they should be addressed, recorded and revealed to the CPS. This is because such inconsistencies might satisfy the disclosure test. Of course, it may be that any inconsistency is a symptom of the complaint that counselling is designed to address, that is, psychological reaction to trauma. The CPS should be fully informed so that the proper decision on disclosure can be made.

19.13. The fact that a debriefing has taken place should be noted on form MG6. Any records of the debriefing should be listed on form MG6C (or form MG6D if appropriate). If there is an inconsistency between a witness's accounts before and during a debriefing, the disclosure officer should draw this to the attention of the prosecutor via form MG6E. Copies of the record should be given to the prosecutor.

19.14. Not all information revealed to the prosecutor will be disclosed. The prosecutor must consider the test for prosecution disclosure provided by the CPIA 1996, and will only disclose material which satisfies the test.

Child witnesses

19.15. Special provisions exist for pre-trial therapy for child witnesses. The two broad categories of therapeutic work undertaken prior to a criminal trial are counselling and psychotherapy. Prosecutors are reminded to follow the guidance set out in the 'Provision of Therapy For Child Witnesses Prior to a Criminal Trial'.

19.16. Additional guidance for dealing with vulnerable or intimidated adult witness may be found in the Practice Guidance 'Provision of Therapy Prior to a Criminal Trial' issued on 24 January 2002 as part of the Home Office co-coordinated Action for Justice programme.

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