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A Consultation on the CPS Policy on Prosecuting Criminal Cases Involving People with Mental Health Problems and/or Learning Disabilities as Victims or Witnesses

Internal Report for the CPS following a Consultation Event with People with Learning Difficulties held on 16th March 2009

Prepared by Values Into Action

Oxford House
Derbyshire Street
London E2 6HG

Telephone: 020 7729 5436

general@viauk.org

Contents

Summary of the event

Aim of the Event

The CPS asked Values Into Action (VIA) to set up a consultation day on the draft policy on "Prosecuting Criminal Cases Involving People with Mental Health Problems and/or Learning Disabilities as Victims or Witnesses". The event took place at the CPS building at 50 Ludgate Hill, London on Monday 16th March 2009.

The aim of the day was to hear the voices and views of people with learning difficulties about the issues highlighted in the draft policy. It was agreed that the best way to do this would be to run an interactive participatory event with a small group representing a range of people with learning difficulties.

Participants

Potential participants were identified and contacted by VIA. The intention was to invite ten to twelve people with a range of 'ordinary people's' perspectives and experiences, so participants were chosen who were not involved in developing national policy on this subject.

It was also hoped to include men and women from different geographical areas, and representing a variety of ages, racial and cultural identities, and experiences. The eventual group recruited included men and women of various ages from white, Black British and Asian backgrounds. Participants came from the West Midlands, the Welsh borders, Hertfordshire, Essex, London and two areas on the South Coast. Potential contacts from the North East and East Midlands were eventually unable to attend on the date finally agreed.

It was also recognised that this would be a challenging day, with a lot to cover, which required participants to be able to engage and participate in a short space of time. The day was designed to be friendly, accessible and enjoyable, and included support, but it did demand that participants were able to take on board issues and get involved in discussions with people they hadn't met before in quite a short time. An accessible easy-read briefing was sent out prior to the event but, nevertheless, it was recognised that the day would not be suitable for everyone.

VIA spent time contacting a wide range of organisations and individuals to find a diverse group of people who were willing and able to take part on the particular date. Eleven people with learning difficulties attended the event, accompanied by five supporters. Names are listed at the end of this report.

In addition, three members of the CPS attended and the event was led by Catherine Bewley (Director) and Mark Brookes (Senior Policy Worker) from VIA.

Approach to the Event

The day was designed to be very interactive. It was important that people felt comfortable and confident, so VIA used a very informal, personal and friendly style and kept the discussions jargon free. There were games and plenty of breaks. Participants were supported to mingle, interact and discuss with fellow participants. A list of 'ground rules' was agreed at the beginning.

People with learning difficulties may work in a different way with their supporters than the traditional personal assistant model. Personal assistants tend to remain outside the discussion and may even sit outside the room. They are only involved if directed to by the disabled person.

Many people with learning difficulties work in a more interactive 'colleague' style with their supporters, especially if those supporters are employed by a self-advocacy group. Supporters often take an active, skilled role in enabling someone with a learning difficulty to take part fully.

At this event, participants and their supporters sat in a circle together and took part in discussions together. VIA was clear that the day was to find out the views of the participants with learning difficulties and actively promoted their involvement and perspectives.

Two participants did not bring a supporter with them.

It was also important that the discussions were not too abstract, as people with learning difficulties often find this difficult. So, rather than discuss each of the questions in the draft policy, the day focused on two case studies created by VIA. Small group work on the case studies brought out the issues, followed by discussions with the whole group to clarify and develop the key points. People were given the freedom to raise any issues they thought relevant, whether they directly addressed the policy and its questions or not. VIA took the role of shaping the issues into themes, which were then checked out with participants and recorded.

A copy of the programme can be found in Appendix 2.

This Report

Participants and supporters were very involved and active in the event, and generated a large amount of material in a few hours. VIA has shaped this material into comments under the questions posed in the consultation document for this report. We have distinguished where VIA has additional views to those explicitly discussed by participants as 'VIA's View'. This is an internal report for the CPS designed to feedback and highlight issues raised during the day to assist the consultation process on this policy.

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Key Themes

The following section discusses each of the questions in the draft policy and links the themes and issues discussed during the event to those questions.

QUESTION 1 - Is the terminology used broad enough and/or acceptable?

This issue was not debated in detail at the event. When asked, some participants said they used the phrase 'learning disability' and others used 'learning difficulty'. There were no strong feelings about which term should be used in the policy. Participants understood the ratioanlse for using the term 'learning disability' and that it matches other government policies and documents.

VIA's VIEW: VIA has always used the phrase 'learning difficulty' as that is the term agreed by the self-advocacy movement. However, in recent years, the Department of Health has used the phrase 'learning disability' and many local authorities and people with learning difficulties themselves are happy with this phrase. VIA believes the phrase should not be defined in more detail as there is a tendancy in such descriptions to focus on a medical model of disability that defines certain conditions or draws on concepts of 'IQ'. Such descriptions tell the reader nothing about who the person is, what their life experience has been or what their capacities or needs for support are.

People with learning difficulties have fought for years to be seen as equal citizens and have resisted any labels (an early slogan of the self-advocacy movement was 'labels are for jars not people'). Although such a policy as the one under consultation needs to indicate who it is intended to help, there is a serious point behind not wanting to be labelled. Many people's life-time experience through school and adult services is about being given labels which write them off as people and suggest limits to their abilities and capacities which cannot possibily be known (no one knows the limits of any human being's capacity for experience, feeling, expression or self-knowledge). It is important to take a social model of disability which recognises that a group of people have been viewed in such a way that their rights and opportunities are limited by society and its choices, rather than any inherent characteristic of them as people.

QUESTION 2 - Are the reasons why we are publishing this policy statement clear?

Participants didn't have any comments about this. People accept that there are issues about equality of access to justice and welcome specifc focus and action on issues affecting them.

QUESTION 3 - Are the explanations about the role of the CPS and the Code for Crown Prosecutors clear?

This was not covered in detail at the event as most people had not looked at the full policy document because it is long and complicated. People had seen the easy-read version prepared by VIA. It was apparent, however, that people don't necessarily distinguish between the role of the CPS, the police and the courts. This can cause confusion. People with learning difficulties need clear information about the different criminal justice agencies and their remits, but it is also clear from comments at the event that what people want is a consistent experience throughout the process if they are a victim or witness of crime, whichever agency they are involved with.

VIA's VIEW: People need easy-read material that is formatted to enable them to follow the information in a logical and straight-forward way. The policy needs to explain the different criminal justice agencies and their remits, and deminstrate how the CPS links with other agencies to provide an effective service for victims and witnesses.

QUESTION 4 - What sort of information should prosecutors have in order to be able to assess reliability and credibility effectively and objectively?

In discussions, participants recognised that it would be hard for the criminal justice system to build a case against a defendant if a victim or witness changed their story all the time or was not believed as a witness.

However, participants were also very aware that assumptions and judgements about capacity, credibility and reliability may be made by people (including professionals in the criminal justice agencies) who are not experienced in working with people with learning difficulties. This might be participarly the case for people who do not have a visible disability or who may come across as articulate in ways that mean their need for extra support is not recognised by the system.

In terms of judgements about capacity, participants mentioned the importance of the training and communication skills of criminal justice system personnel to enable victims/witnesses to show they do understand what's has happened to them. This training needs to include the principles of Mental Capacity Act, which demand that capacity is assessed in relation to each decision at each moment in time. In particular, participants were clear it must not be assumed that someone can't give evidence just because they have a learning difficulty (this would also be contrary to the Mental Capacity Act). Participants also noted the importance of involving an independent third party who is skilled in supporting people with learning difficulties to demonstrate capacity.

In terms of credibility and reliability, participants made many useful points. Participants linked these issues to whether people are treated equally and fairly by the criminal justice system. By this they meant two things. First, it should never be assumed that someone is unreliable and not credible just because they have a learning difficulty. Second, that reliability and credibility are themselves influenced by how a victim/witness is treated. Participants felt that if people are taken seriously and listened to they will feel more confident and less anxious, and therefore be more able to show they can give reliable and credible evidence.

Participants also gave many thoughtful comments about why some people might come across, in their words, "as strange" to the police or other criminal justice personnel. If people don't feel able or confident to articulate what's happened to them or how they are feeling in that moment, they may express this through their behaviour. What may be judged as aggressive, suspicious or just "strange" might simply be fear, anxiety and a reaction to how they are being questioned. This raises many important questions about awareness and training particularly for the police but also for all criminal justice system personnel.

Finally, the event also showed that most people find the terms 'credibility' and 'reliability' difficult to understand. These terms need a simple definition in the policy. The ones we used at the event were:

  • Credibility means will people believe what you say.
  • Reliability means will you give good evidence in court and tell the same story all the way through.

VIA's VIEW: There is now a large amount of evidence and experience that shows how people with learning difficulties can be supported to understand issues, make choices and decisions, and tell their stories. VIA itself has been involved for many years in issues of legal decision-making and, more recently, the implementation od the Mental Capacity Act. There is also evidence about how language and conceptual thinking work for people, affecting how well people can understand and answer questions. For example, in running this event VIA knew the people involved would be able to grasp the issues and give their views but may find this difficult if the discussion was too abstract, the language too complicated, and the questions too rambling. In addition, as for all of us, people's emotional well-being and feeling of confidence and self-esteem can deeply affect their ability to partcipate and demonstrate awareness and understanding. Again, that is why VIA used a very friendly, informal style for the event.

Public prosecutors, the police, judges, and others may not be so aware that how they ask questions, the language and words they use, and the enviornment they are in at the time can radically affect someone's ability to demonstrate that they can understand and give a consistent answer.

VIA thinks it would be beneficial to develop a checklist or guide for public prosecutors to remind them that these situational factors can help or hinder someone's ability to demonstrate capacity, credibility and reliability and that these three things are often as much a response to the circumstances someone finds themselves in as an indication of anything inherent in their abilities. Such as checklist/guide should be developed with people with learning difficulties.

QUESTION 5 - Is the information about support for victim and witnesses clear and in the right amount of detail?

This was a huge issue for discussion at the event. Participants had many comments and ideas to make about what support people with learning difficulties need at all stages of the process.

Support: Participants had many ideas about good support for victims and witnesses. These ranged over a number of key areas:

Respect and trust - People feel more supported if they feel respected, listened to and have a trusted person supporting them. Participants also mentioned that support must be, in their words, "culturally relevant" and available in a non-English language if required.

Practical help - People might need practical help in the aftermath of an experience or while a case is going to court. This might involve making sure someone is safe, possibly moving house, getting counselling or even more formal means of protection. When the case comes to court, people may need to visit the court beforehand, practice what might happen through role plays, and learn about the people they will see in court and their roles.

Support in court - People were fairly aware of the range of actions a court can take to support victims/witnesses, such as screens and video evidence (special measures). However, people were less aware of the limits of special measures, especially that special measures are up to the judge and cannot be guaranteed. Participants appeared to think special measures were more widely used than they may be in reality.

Participants also made points about the court building, where people have to wait, and how difficult it might be for victims/witnesses to see the defendant outside the court.

Peer support - Participants made many points about the usefulness of involving self-advocacy organisations and peers to support people with learning difficulties through the criminal justice process. This might include meeting peers would have been through the same experiences and involving self-advocacy organisations as independent supporters.

Linking to services - There was a discussion about whether service providers should be informed that someone they work with is going through the criminal justice process. Some participants thought it was important to inform and involve service providers about what was happening, especially if being a victim or witness has changed someone's support needs and therefore potentially their support plan. Other participants were less sure about involving service providers, thinking this might make the individual feel less in control of what was happening to them. This issue is also relevant in terms of whether to involve family members.

Generally, people were not aware of the range of action that can be taken by the CPS, police and others to support victims and witnesses through the process up to the trial. Participants were not fully aware of the differences between the various agencies (police, CPS and the court) or the measures available (witness care units, victim statements etc). This would make it difficult for people to ask for specific support if it wasn't offered.

As a specific point, there was some confusion about what an 'intermediary' does and when such a role could be used. Support for a person with learning difficulties who might struggle to answer questions in court or whose answers the court might not understand is not as simple as translation or interpretation. Supporting someone to understand and participate, without influencing their evidence, and giving information to others that might make their evidence more understandable requires skill and experience.

Continuity of support: This was a major issue raised by participants, involving having one trusted person who could provide support, information and a link with the system through the whole process. Participants mentioned the importance of face-to-face and telephone contact, or home visits. Participants thought that anxieties and fears can build up through the long process of a case coming to court and that this might reduce someone's ability to give evidence well in court. A personal link person would help during this time.

Information: Information must be accessible. This means in an 'easy-read' format, with straightforward language and concepts, explanations of jargon, pictures/photos, larger fonts, short sentences and a clear layout. Some people may require information in particular formats, such as Braille. However, more than this, participants noted the importance of tailoring information for each person. This links to the continuity of support issues, having someone who can 'translate' information as the person needs, either in conversation or in a particular format.

Participants noted that many people with learning difficulties like getting information in DVD format. This can be much more accessible to people than paper-based information, even if in easy-read format. Some people like using the internet to get information but it can't be assumed that people have access to this, know where to look for information, or find relevant websites easy to use.

In addition, it is useful for some information to be 'experiential', such as a visit to the court before a trial.

Participants also noted that it is not enough to produce accessible information. There must be effort put into disseminating it to all relevant networks. This includes 'ground level' police officers and other personnel; social care agencies, housing providers and their individual support workers; and people's own independent organisations. Participants had ideas about how to link with self-advocacy networks, including using the National Forum (a national representative forum based on regional forums and local self-advocacy groups run by the Valuing People Support Team).

In terms of the content of information, it was strongly noted that people with learning difficulties need information about the whole criminal justice process, who does what, and what to expect at each stage. This includes what to expect if the defendant is found not guilty, given a non-custodial sentence or pleads guilty (which might mean the case does not go to court). People also need information after a trail to summarise what has happened and, if the defendant has been found guilty, what sentence they have been given. People again need information when a defendant who has been sent to prison is about to be released. This suggests that the probation service must also link with this policy. These issues are particularly relevant if the case concerns a hate crime and the perpetrator lives close or knows where the victim/witness lives.

Participants made a useful point about people having a written summary of what has happened and the outcome in court, which can be saved or filed, in case they don't remember all the details and need to share this with future contacts or service providers.

The differences between victims and witnesses: Generally, participants assumed that the protections and support available for victims are also available for witnesses and were not aware that this is not always the case. Participants tended to think that the issues relating to information and support are as relevant for someone who is a witness as for someone who is a victim.

VIA's VIEW: The discussion about support was wide-ranging and something people with learning difficulties feel strongly about. As people know from other aspects of their lives, good support often makes the difference between being able to participate fully and not being able to. In this instance, this means being able fully and effectively to take part in the criminal justice process. Support is not a 'nice extra', therefore, but a fundamental aspect of equality of access to justice.

It is also clear from participants' comments that people generally don't distinguish between the different responsibilities, resources and traditions of the different agencies involved as they go through the criminal justice process. Although many comments relate as much, if not more, to the work of the police and courts, it would be wrong to dismiss them from this policy. The comments demonstrate that people's real-life experience doesn't break itself up into sections that fit the pattern of agencies. People know they need good information, support and help from start to finish and what seems to matter most is that there is a consistency of values, care and approach by all the agencies concerned. Continuity of support from a named face-to-face contact from start to finish is a clear consequence of this perspective.

In terms of the policy itself, these comments suggest the need for very clear information about the types of support available, who provides it, what people can expect (including any limits) and how someone accesses it. The comments suggest that the policy should (as it does) include all the support available, even if it is provided by another criminal justice agency, as long as this is made clear. It also suggests that a 'timeline' of support might be useful, so people know what is available at which stage of the process.

VIA thinks it would be useful to separate the codes of practice (for prosecutors and judges) from the lists of support, as these are about guidance for various practitioners, rather than systems which the individual victim or witness can access. These codes of practice could be referenced in a section about people's right to a 'good and fair service' from members of the criminal justice system.

In a wider sense, people's comments about support suggest a number of conclusions:

  • Good support is a crucial issue, not only because it is 'fair' for people but also because it enables them to participate effectively in the criminal justice process.
  • People don't distinguish between different parts of the process and different responsibilities of agencies so the support on offer from all criminal justice agencies (and information about it) must be coordinated and apply the same values of respect and accessibility.
  • Good local and national links should be made between those who are experienced in making information accessible, in enabling people to share their experiences, and in making judgements about capacity with people with learning difficulties.
  • It is important that good local and national links are made between criminal justice agencies and people with learning difficulties' own organisations. Self-advocacy organisations provide essential support, expertise and networks relating to people's experience of crime and criminal justice.

To emphasise the last point, there is a major bridging role for self-advocacy organisations to play between their members and criminal justice agencies. The expertise of self-advocacy organisations needs to be recognised and their role in information dissemination, individual support, in the development of local policy and practice, and as third party reporting organisations supported and funded by the criminal justice system.

Likewise, any work to develop accessible information or new guides for prosecutors and others must involve people with learning difficulties.

QUESTION 6 - Is the information about section 146 of the Criminal Justice Act sufficiently clear and helpful?

Hate crime was a theme throughout the day. Many of the participants had experience of working on hate crime issues in their local groups and so felt relatively familiar with definitions. Participants did not have detailed comments about how hate crime was described in the policy. All the above comments about information, support and respect apply equally to crimes involving hostility and hate, if not more so.

VIA's VIEW: There is a very wide range of work happening around hate crime at the moment and VIA's main comment in relation to this policy is that hate crime needs to be properly described, both leaglly and in terms of people's experience. Legally the language is of 'hostility' but 'hate crime' has become a more usual shorthand. However, there is a current debate about whether this is always a useful phrase. In VIA's experience, many people with learning difficulties, having struggled for equality and inclusion, find it difficult to relate their experiences to the word 'hate'.

As a specific point, it might be useful to reference the extra support victims can receive if section 146 is being invoked in with the list of support earlier in the policy, even if it described again in the 'hate crime' section.

QUESTION 7 - Is the information about sentencing clear and in the right amount of detail?

This issue was not covered at the event. However, it was apparent that people did not realise some things about sentencing, such as the fact that a case may not go to court if the defendant pleads guilty and that a guilty verdict doesn't necessarily lead to a prison sentence. This would indicate that there needs to be good accessible information about what sentences are available, who decides them and how.

QUESTION 8 - Do you think that implementation of this policy will assist people with mental health problems/learning disabilities?

Participants were pleased to take part in this event and keen to share their ideas and experiences. They did not dicuss this question sepcifically but were glad that the CPS was actively doing something about criminal justice for people with learning difficulties.

VIA's VIEW: The policy is helpful in bringing together information about the roles, responsibilities and support available for victims or witnesses with learning difficulties. It is encouraging to see the CPS addressing people's experiences and needs, and taking a clear policy line on people's equality of access to justice.

It would be useful to have recommendations for more specifc action attached to the policy, depending on the intended audience. An internal/criminal justice audience might need more detailed guidance about how to implement some of the policy. An external audience of people with learning difficulties and their supporters would need a simpler, more accessible document.

This policy has the potential to assist people with learning difficulties. To ensure that the it is relevant and useful, VIA would focus on the following four areas:

Action: Include statements of proposed action for implementing the key sections of the policy. In the policy or an attachment, it would be useful to include who might be involved in this work and how and when it might be done, including inter-agency work. This would help self-advocacy organisations assess local progress on the policy.

Networks: It is very important to think about how the policy (and associated accessible information) is disseminated to networks of people with learning difficulties, self-advocacy organisations, supporters, families and service provider organisations. People with learning difficulties and their organisations have already identified equal access to criminal justice as an important issue for their members and are working on the issues, making local links and supporting individuals. It is important that the CPS finds a variety of ways to continue a dialogue with people with learning difficulties about the relevant issues and action.

Local Effect: It is always a challenge for a national policy to influence the way local professionsl behave in individual, face-to-face situations. If this policy is to make a real difference it must influence the actions of local police officers, CPS officials, prosecutors and judges. It is at this level that people with learning difficulties need to experience good support, accessible information, and equal access to justice.

Accessible: It is essential that there is good quality accessible information in a variety of formats available about the policy and the issues it covers. This information must be developed, and disseminated, with the involvement and expertise of people with learning difficulties.

QUESTION 9 - Do you have any other comments that you wish to add?

Participants did note that these issues were as relevant to the civil courts as to criminal courts and gave examples of difficult experiences people had had in civil courts. Although they understood this was not within the jurisdiction of the CPS, they hoped something similar could happen for civil courts.

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Summary

VIA very much enjoyed running the consultation event and felt it was successful in enabling participants to engage with the discussion and talk about a very wide range of issues and experiences.

Three issues came across particularly strongly at the event:

  1. The importance of accessible information and good support mechanisms is apparent from the amount and range of comments participants made on these subjects. As noted above, these are not just about good practice but are fundamental elements of equality of access to criminal justice for people with learning difficulties.
  2. Issues of respect, trust and informed dialogue also came across as very important, especially in enabling people with learning difficulties to demonstrate their capacity to understand what has happened and their credibility and reliability as witnesses. Capacity, credibility and reliability are as much dependent on situation factors as anything inherent in the individual with learning difficulties. There are important issues about relate to the assumptions, information, experience and training of personnel from the criminal justice agencies. Personnel need to be aware of the range of expertise in these areas within social care and, especially, the independent self-advocacy movement.
  3. In addition, the role of self-advocacy organisations at a local level was stressed, in terms of their expertise, experience, networks and progressive work on issues of hate crime and criminal justice.

There are challenges for the CPS and all criminal justice agencies to implement an effective policy of rights, respect and appropriate support to ensure that people with learning difficulties who are victims or witnesses of crime get equal access to criminal justice. Some of these important issues have been highlighted by the consultation event and this report. What is clear from the experience of the event is how keen people with learning difficulties and their organisations are to work with the CPS and others to promote equal access to justice. There is a wealth of experience, expertise and good will at local and national levels to take forward action and progress on criminal justice.

Catherine Bewley
Director, Values Into Action
9.4.2009

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Appendix 1 - Participants

  • Maggie Brennan - People First Lambeth
  • Terry Lee Chapman - Southampton, contacted through 'Speak Up and Make A Difference' at Dimensions, attended in an individual capacity
  • John Delaney - Real Life Trust, Hertfordshire and Essex
  • Peter Fear - Portsmouth Self Advocacy
  • Chris Fenn - Portsmouth Self Advocacy
  • Amran Hussain - Apna Group, Dudley
  • Siraaj Nadal - Ethnic Advocacy Group, Walsall
  • Michael Ratcliffe - Taking Part in Shropshire
  • Liz Reeder - North London, contacted through 'Speak Up and Make A Difference' at Dimensions, attended in an individual capacity
  • Jennifer Taylor - People First Lambeth
  • Michael Toomer - Portsmouth Self Advocacy

Supporters

  • Tariq Khaliq - Apna Group, Dudley
  • Diana Morgan - Taking Part, Shropshire
  • Rhys Price - People First Lambeth
  • Annette Sindall - Portsmouth Self Advocacy
  • Laura Spenceley - real Life Trust, Hertfordshire and Essex

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Appendix 2 - Programme

Crime Consultation Event - Monday 16th March 2009

Programme for the Day

10-10.30am ARRIVAL

  • Go through security
  • Get settled in
  • Refreshments
Hand drawn image of people arriving at the consultation event

10.30am WELCOME

  • Welcome to the day
  • Housekeeping
  • What this day is about and what it is not about
Image of people saying hello to each other at the start of the event

10.45am WARM UP!

  • Introductions and games to get to know each other
  • Groundrules
Image of someone welcoming the event attendees

11.15am THE CPS POLICY

  • More about the policy and this consultation
  • Some information about the criminal justice system
CPS logo

11.30am ELIJAH'S STORY

  • Introduction to Elijah's story
  • Exercises to help us think through the issues
Image of a small group of people talking

12.00pm SHORT BREAK

Image of a cup of tea

12.15pm MORE WORK ON ELIJAH'S STORY

Image of a small group of people talking

12.45pm LUNCH

Image of some food and drink

1.45pm SUMMARY

  • What are the issues so far?
Image of the consultation leader summarising the event for the attendees

2.05pm SUSAN'S STORY

  • Introduction to Susan's story
  • Exercises to help us think through the issues
Image of a small group of people talking

2.40pm BREAK

Image of a cup of tea

3.00pm BRINGING IT TOGETHER

  • Summary of our issues
  • Matching our issues to the policy
Image of the consultation leader summarising the event for the attendees

3.40pm WIND DOWN

  • Winding down
  • Thank you
  • What happens next
Image of people winding down and talking at the end of the event

4.00pm FINISH

Image of someone getting into a car and leaving the event

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