Psychological Evidence Toolkit - A guide for Crown Prosecutors
- Expert evidence
- Toolkit sections
- Impact of sexual assault
- Mental Health Conditions - Neurodevelopmental disorders
- Mental Health Conditions - Schizophrenia and other psychotic disorders
- Mental Health Conditions - Affective disorders
- Mental Health Conditions - Anxiety, stress-related and somatoform disorders
- Mental Health Conditions - Substance use disorders
- Mental Health Conditions - Conduct and Personality disorders
- Specific considerations for children
- Recall, memory and diagnosis
- Annex A – How prosecutors should use this toolkit
When a complaint is made, the understanding of pre-existing mental ill health, and potential psychological reactions to sexual assault and its aftermath, are vital considerations for a number of reasons. When a victim seeks help and discloses what has happened, the individual’s (and society’s) response is of paramount importance, and one determinant of the victim’s future psychological well-being. If the victim has chosen to disclose to the police and thus become a complainant, they are often aware that a series of events and interactions will follow. Those people whom they subsequently encounter through the judicial process will make judgements based on their own belief systems. Attitudes might affect questioning, evidential acquisition, victim response, decisions about proceeding and juror deliberations. So beliefs held, when myth rather than reality, may have a crucial role to play both in terms of well-being, and in achieving justice.
Rape and serious sexual assault can affect many areas of an individual’s life for many months and sometimes years following the attack. In addition to experiencing psychological difficulties, the complainant may suffer ongoing physical problems, resort to alcohol or drug abuse, experience alterations to their day-to-day behaviour and find that their thought processes are very different, as a direct consequence of the attack.
Psychological and physiological reactions occurring at the time of the trauma can have an impact upon the individual’s ability to give a coherent, consistent account of their experiences. Subsequent changes to the victim’s account of events may be viewed as evidence that they cannot be believed. Post-traumatic symptoms will also potentially affect recall and consistency - indeed an inability to recall aspects of the event is one characteristic symptom of PTSD (post-traumatic stress disorder). Victims experience feelings of shame and self-blame and this may result in an incomplete or inaccurate account of the circumstances surrounding the assault. Cultural issues may have a significant impact, as may the stage of development, if the victim is a child.
It is also important to note that for a proportion of those assaulted, pre-existing mental health problems will also be a factor. Over recent years there has been increasing recognition of the vulnerability of many of those reporting rape and serious sexual assault – mental health vulnerabilities may make individuals more likely to be victims, and less likely to report these offences to the police. The CPS acknowledges that “barriers exist, which mean that some people are less likely to report offences. People with learning difficulties or mental health problems may feel that they will not be believed if they report being raped.” (Crown Prosecution Service Commitments to Support Victims and Witnesses (Legal Guidance), Rape and Sexual Offences, Chapter 5, CPS publications (2012).
There is increasing interest in the role of experts in sexual offence cases, in terms of the value they may add to successful prosecutions. Both psychiatrists and psychologists may have expert knowledge that could be of assistance to the Court, though confusion can arise as to the differences between the two. Questions may also arise about psychotherapists. Psychiatry is a medical specialty; psychiatrists must first qualify as a doctor, then spend two years in “Foundation” general medical and surgical jobs before they can start to specialise in psychiatry. It usually takes a minimum of another four years to pass the two professional exams of the Royal College of Psychiatrists, after which they can specialise further. Like other areas of medicine, psychiatry builds its knowledge through the observation of unusual and distressing conditions. It uses a diagnostic system, which tries to identify clusters of thoughts, feelings and behaviour that seem to occur together – known as “syndromes”. These are then investigated to find social, psychological and any physical causes, with a view to finding effective ways of helping. Psychiatrists tend to work with people who have more severe disorders that may require some sort of medical treatment. This often, but not always, involves the prescription of medication. A psychiatrist can take into account psychological and social factors and will tailor any treatment plan according to the needs of the individual.
People who undertake a psychology degree may refer to themselves as psychologists, but there is a range of further training that can lead to a qualifying specialism. One of these is clinical psychology. A clinical psychologist will have gained a degree in psychology at university, and then will have undertaken a three year doctorate in clinical training in an approved training scheme. They learn several models of psychological therapy and develop an ability to work consultatively. They also learn research methods and skills in service development. Psychology has historically applied a more formal experimental approach to exploring both normal and abnormal states of mind, with the emphasis more on clarifying psychological mechanisms rather than physiological ones. A psychotherapist can come from any professional background, including medicine and psychology – or none. However, psychotherapy training is usually quite separate from either of these disciplines, and there is no mandatory regulation of psychotherapy.
Within both psychiatry and psychology individuals may specialise in work in the trauma field, and may undertake further training that qualifies them as a forensic psychologist or psychiatrist. Such individuals will have legal training and will generally be more used to working with offenders, appearing in court, and understanding the impact of trauma.
It is not unusual for the defence to obtain reports from other experts, from a range of specialties. It is important to actually understand their expertise, as it is not always related to the matters on which they comment, and will require robust challenge on occasions. This may be due to a lack of availability of appropriate experts for the case, but there is a danger in recruiting the wrong expert and it may mislead the court to do so.
This guidance provides information in relation to the psychological impact of sexual assault, a range of relevant mental health conditions, as well as some principles for working with child victims; it will assist prosecutors with the task of assessing evidence provided by a witness suffering from a particular condition or conditions, and provides advice on working with young people. The document highlights where expert comment may be required to facilitate a fair assessment of the evidence.
It also highlights the specific support that an individual suffering from a particular condition is likely to require during their journey through the criminal justice process, and provides guidance on how to effectively adjust the approach taken, in order to account for the impact of a condition, which is vital in the interests of justice.
The guidance is arranged into diagnostic clusters given the many similarities that will exist between diagnoses within those clusters. The guidance also contains information about the general impact of sexual assault, and on memory and recall following sexual assault. Recommendations for managing the cases of young people who are victims of assault are also included.
Currently two discrete classification systems are used for the diagnosis of mental disorders: the International Classification of Diseases (ICD 10), (World Health Organisation.(1992).International Statistical Classification of Diseases and Related Health Problems, 10th Revision (ICD-10). Geneva: WHO), which is used by most countries internationally, and the Diagnostic Statistical Manual (DSM 5), (American Psychiatric Association (2013). Diagnostic and statistical manual of mental health disorders (5th edition). Washington DC), which is the preferred research reference text in the USA. Similarities between diseases within these systems and where possible the alternatives to the ICD 10 name (for example, the DSM 5 diagnosis, or commonly used terms) are included in brackets.
Conditions such as dementia and brain injury, are not currently included in this toolkit, and it would be advisable to seek direct specialist advice in these circumstances, as the impact of these conditions will be nuanced depending on the degree of damage to the brain in each individual.
Prosecutors should refer to Annex A ‘How prosecutors should use this toolkit’ which provides more detail with regards to the purpose of the toolkit and the importance of prosecutors not using the toolkit to justify proceeding with cases which fail to meet the Full Code Test.
It is essential to understand the impact that the trauma has upon the brain and our functioning, since if the mechanisms outlined below are not understood, then the evidence gathered will be less informative than it might otherwise have been. Questions will be based on false assumptions, and vital information may be missed.
Traumatic experiences such as sexual assault can lead to:
- Terror, confusion, disorientation, helplessness and loss of physical control.
These processes mean that some people may not resist an attack, run away or cry for help. Indeed, they may just appear frozen, and unable to act. Some may submit to sexual intercourse from fear of what might happen if they were to resist it, or even merely to protest. Victims may be constantly re-evaluating their situation during the attack and so may change their behaviour accordingly. The fact that a person who had initially protested or resisted stops doing so during the attack does not necessarily mean that they are now consenting to it. Submission or adopting a passive stance, and therefore allowing the attacker to do what they want, is not the same as consent, and may stem from fear.
A victim may also seek to limit danger to others, for example, children. If the victim is afraid that their attacker will become more dangerous or violent if they do not do what they are told, then they may not argue or fight back, but rather will agree to do what is asked, rather than risk the consequences of not doing so. It may be that even after the event, the victim will not seek to get away at the earliest opportunity. This may be because they perceive ongoing danger and are trying to act normally to appease the attacker.
Derealisation, depersonalisation and dissociation may severely impair the person's ability to recall details of the assault and recall may change over time. Memories of traumatic events are often organised on a perceptual, rather than verbal level, at least in the initial phase following the trauma. Feelings and emotions can be recalled, but a detailed narrative cannot be given. Thus, questions asked should focus on perceptions (what did you feel/smell/hear and so forth). With further questioning, and processing of the event (for example by talking it though with a friend, or support worker) more of the narrative component may become accessible, and the victim’s account may change. Difficulties with altered accounts and variable recall will be familiar, and once again, understanding the psychological processes behind these difficulties can only facilitate successful prosecution. An inability to access the traumatic memories may make the giving of very detailed evidence in court impossible and the person may be seen as lying or incompetent. Other important features of peritraumatic dissociation include:
- Losing track of what was going on
- Doing things that individuals later realised they had not actively decided to do
- A sense that time altered, for example “things seemed to be happening in slow motion”, or “at speed”
- Sensory disturbances, for example moments when their body seemed distorted or changed.
A number of factors will determine the response that individuals demonstrate following sexual assault. These include:
Pre-existing individual variables
Mental ill health
Previous exposure to trauma, including sexual and domestic abuse
Threat to life (real or perceived)
Receiving intentional harm
Relationship to perpetrator
Responses of external world
Lack of support
Specific experiences of the individual
Belief that one was going to die
Witnessing grotesque sights
A sense of hopelessness and resignation
The vast majority of individuals subject to sexual assault will experience an acute stress reaction with feelings such as shock, numbness and distress. In the early weeks and months, most individuals will experience psychological symptoms such as anxiety, depression and tearfulness, guilt, shame, disbelief, physical revulsion and helplessness. Some will go on to develop PTSD, and many victims of sexual assault also develop depressive symptoms. The majority seem to recover from the acute effects of the attack at between 3 and 4 months, however, for a significant proportion of incident survivors these feelings do not go away and can persist for many months and sometimes years post-trauma.
Thus, included within this guidance are descriptions of a range of difficulties, some of which may precede the sexual assault, whilst others, such as depression, anxiety, substance abuse and PTSD, may arise as a consequence of the sexual assault.
Neurodevelopmental disorders are a group of conditions that are evident early in development and include generalised learning disabilities, autism spectrum conditions and hyperkinetic disorders (“attention deficit hyperactivity disorder or ADHD”). These individuals tend to have life-long difficulties related to interaction with their environment and functioning in a social context, and this also often affects personality development.
People with neurodevelopmental disorders may face considerable challenges and they tend to have higher rates of mental illnesses, and may have associated shorter life expectancies and worse health outcomes than the general population. They often face stigma, high rates of abuse and more limited opportunities in life, and are often highly vulnerable to victimisation.
- Intellectual disability (also known as ID/learning disability/LD/mental handicap/mental retardation), (ICD 10 classification)
- Pervasive developmental disorders (also known as PDD/autistic spectrum disorder/ASD/Asperger's syndrome/autism/high-functioning autism/pathological demand avoidance/PDA)
- Hyperkinetic disorders (also known as attention deficit/hyperactivity disorder, ADHD)
Presentation and symptoms
Learning disability includes the presence of:
- a significantly reduced ability to understand new or complex information or to learn new skills (impaired intelligence);
- a reduced ability to cope independently (impaired social functioning)
- onset before adulthood, with a lasting effect on development.
This definition encompasses people with a broad range of disabilities. The presence of a low intelligence quotient (e.g. an IQ below 70), is not, of itself, sufficient reason to conclude that an individual has learning disabilities, and wider clinical assessment is required before the diagnosis can be made confidently (Valuing People: a new strategy for learning disability for the 21st Century, Department of Health publications, 2001). Learning disability is commonly divided into borderline, mild, moderate, severe and profound diagnostic groupings. Individuals with learning disabilities may have aptitudes in some areas but marked deficits in others, and may experience challenges in cognitive processes, educational and vocational settings, and in emotional and social interactions.
Autism, which may or may not include a learning disability, is a lifelong developmental disorder that affects how people perceive the world and interact with others. People with autism may see, hear and feel the world differently to other people. Autism cannot be cured, but people can learn to live with the symptoms if equipped with appropriate coping strategies, or can be managed in a setting which takes into account their needs.
Autism is a spectrum condition, meaning that some people will experience very few difficulties and can function normally in society without additional support, whereas some people may be very severely affected and may struggle with speech, self-care and any form of social interaction. All autistic people share certain difficulties (usually grounded in social communication problems), but being autistic will affect them in different ways. Some autistic people also have learning disabilities, mental health issues or other physical health conditions, meaning that individuals need different levels of support.
A person with autism may have a completely different view of their surroundings and the social context of their day to day living. Some people with autism say the world feels overwhelming due to multiple different types of stimulus causing confusion, and this can subsequently result in considerable anxiety. In particular, understanding and relating to other people, and taking part in everyday family, school, work and social life, can be harder, and require considerable effort to keep up with the normal interactions seen in their peers. People with autism may wonder why they are 'different' and feel their social differences mean that people do not understand them. The characteristics of autism vary from one person to another, but in order for a diagnosis to be made, a person will usually be assessed as having had persistent difficulties with social communication and social interaction, and restricted and repetitive patterns of behaviour, activities or interests since early childhood, to the extent that these difficulties limit and impair everyday functioning.
ADHD (hyperkinetic disorder) is now one of the most prevalent psychiatric diagnoses in children. However, it is less known that a substantial proportion of children with ADHD continue to have problems in adulthood. In fact, when ADHD is not recognized, children might be considered to be being ‘naughty’ or ‘lazy’, and many of these children grow up to be adults that have not been able to complete secondary education and/or to find or keep a job, and may end up with addiction problems or being involved in criminal behaviour. ADHD symptoms include pervasive (i.e present in different social contexts) inattention, hyperactivity and impulsiveness, inappropriate for the individual’s age. Many children outgrow much of their hyperactivity and impulsivity and this also holds true for children with ADHD. This means that some of the hyperactivity and impulsivity symptoms will become less problematic when children get older, and might be non-existent once they have reached adulthood. In contrast, symptoms of inattention tend to be much more perseverant and research has shown that ADHD-related concentration problems are relatively stable over time.
Treatments and their implications for trial
Learning disabilities and autism are lifelong conditions, which can cause a number of difficulties in court settings. Treatments are geared towards familial and social adaptations that can assist the individual, and therapeutic approaches to enable the individual to better understand and function in the world. Medication can be used occasionally, and low-dose antipsychotics can be helpful. These medications must be taken regularly to be effective, and their side effects can include sedation which may cause difficulties in retaining information in a trial setting. Issues of effective communication may be apposite in considerations about proceeding to trial.
A biopsychosocial approach is taken with individuals with ADHD (hyperkinetic disorder). This includes working with families and social work teams, direct psychological work with the individual and on occasion, typically a stimulant medication (for example methylphenidate, also known by trade names of “Ritalin” or “Concerta”).
The medical treatment of hyperkinetic disorders can have implications in trials. Most medication would need to be at a therapeutic dose one week prior to the trial (and after initiation, dose adjustment normally occurs on a weekly basis until the right dosage has been achieved). Whilst its speed of onset is rapid (usually 2-3 days), medications for hyperkinetic disorders cannot be taken intermittently - these medications do have side effects, one of which is insomnia, which may cause tiredness and worsened inattention if the next day’s dose is missed. Obsessive-compulsive symptoms may occur if the dosage is too high, which may cause difficulties for individuals in focusing on changing information during trials. A specialist should oversee medication prescription and it would be useful to confer with that doctor or seek other expert medical advice pre-trial, to ensure that the individual is unimpaired in their ability to participate effectively.
Potential legal implications
A number of cases have been the subject of criticism at the level of the Appeal Court and European Court where neurodevelopmental disorders (SC v United Kingdom (2005) 40 E.H.R.R. 10), developmental immaturity (T v. United Kingdom – Application No. 24724/94, ECtHR; V v. United Kingdom – Application No. 24888/94, ECtHR) and hyperkinetic disorders (R. v. Billy Friend  EWCA Crim 2661) have not been properly acknowledged in terms of their potential impact in relation to effective participation.
Individuals may appear restless or inattentive in the course of a trial as they struggle to focus on the proceedings, which is likely to give a poor impression to the jury unless they are properly informed of the likely impairments – individuals may be assumed, by the lay person, not to be affording the proceedings their due gravity, or their testimonies may be considered less reliable as a result of their difficulty in concentrating on the question. People with autism may struggle to maintain eye contact or interrupt at inopportune moments, which again may give a poor impression to the observer. They may fixate on a topic and it can be difficult to move them away from that topic without exacerbating the person’s anxiety levels, thus causing distress and potentially causing a blockage in communication.
Support from ABE to trial
Effectively communicating with an individual with neurodevelopmental difficulties is key to fostering trust and confidence, and reducing distress. The means of communicating (for example visual; signs; gestures) will vary considerably depending on the individual’s aptitudes and preferences, and is dependent on accurately gauging the individual’s level of understanding. It may be prudent to engage a professional at this point to better enable an informed way forward. Body language and tone of voice will influence up to 70% of understanding, behaviour and ultimately response. It is therefore imperative to ascertain the best way to communicate from the very outset and the individual themselves may be the best person to advise on this.
During questioning, the individual may be keen to please and may inadvertently be led in their response. This is especially true in the case of younger witnesses (or adults functioning at a young mental age) who will often effectively screen for what they believe to be the answer the questioner is seeking. When there is a breakdown in communication because the individual does not understand or becomes confused, challenging behaviour may occur. Their level of understanding may appear better than it is, as they learn to follow the cues of others, and some individuals may have deficits in understanding but strengths in their speech, meaning that they can appear better-equipped than they in fact are.
Reducing the complexity of sentences, along with visual cues or visual choices, may enable better understanding: it is often helpful that the use of abstract language and terms is avoided.
For the majority, the use of a registered intermediary (often with a background in speech and language therapy) will be important, as will special measures in the courtroom (for instance those laid out for children in the practice directions in this area), but it is important to recognise the limits of what these adaptations can meaningfully achieve. Many will respond better to a one-to-one situation; being presented with a sea of faces may be very distressing and this will often mean that evidence using a video link will be the appropriate way forward, and a more effective way of obtaining authentic statements. Frequent breaks are also important – individuals with autism can often feel exhausted at the end of a school/work day due to the effort of having to screen for the normal response to social interactions and essentially mimic that of individuals without these challenges.
Whilst it may be normal to use rhetorical questioning, to suggest outcomes of situations, this will often not be a good strategy for those with autism and Asperger’s syndrome. Communications may be taken literally and it is therefore necessary to say less, rather than to try to explain a concept using analogy/metaphor, and to use and emphasise specific key words. Pause between words and phrases to give time for processing. Ask only the most necessary questions and certainly avoid using irony, sarcasm or exaggeration. In addition, individuals with neurodevelopmental disorders may have great difficulty in reading social cues, whilst their facial expressions may also be hard to read. Emotion may be very difficult for individuals with neurodevelopmental disorders to express and they may come across as uncaring and cold. Their tone and approach may be very practical and they may appear somewhat calculating and uninterested.
Some people with autism may use a style of communication known as echolalia. This would be very difficult to manage within a questioning situation as they will often repeat what is said because they have not understood the question or how to respond – they may also repeat words they do not understand, or use new words that they have created. As with individuals with learning disabilities, it would be sensible to have a communication assessment completed beforehand, to ascertain the appropriate method of communication and foresee any stumbling blocks which may occur.
Individuals with ADHD may have significant communication problems which can be exacerbated within a stressful environment or situation. It is vital to understand, to some extent, their processes and try to physically and practically minimise the impact of the stressful situation and the environment. Some of the issues will be around –
- Saying things that they do not mean;
- Talking too little / too much;
- Not being able to follow a conversation;
- Feeling overwhelmed and getting distracted;
- Interrupting at inopportune times;
- Failing to remain in one place for a requisite period.
The individual will hopefully have an understanding of how their communication is affected and already have some strategies in place. Individuals may struggle to cope with multiple stimuli simultaneously and may not be able to filter out that which is extraneous – for this reason they may essentially get overloaded and shut down in the face of this kind of stress, though they may also have devised other strategies to close out excess stimulus, such as shouting, walking out of the area, or covering their ears or eyes.
It is important to have an understanding of what works for each individual. Whilst under pressure, the person with a neurodevelopmental disorder may be inclined to say whatever comes to mind as they frantically search for the right phrase or idea. A stressful situation such as this may result in them being unable to speak, or alternatively talking endlessly. They may also be distracted by random noises or other conversations taking place around them. There may be interim physical adaptations which could be made within the court environment to reduce these distractions.
- Seek specialist advice and if required instruct an expert witness – the expert witness may be able to set out the elements of challenge that the jury could usefully bear in mind when hearing from/seeing the witness
- Instruct a registered intermediary if required
- Ensure that the court setting takes into account the individual’s specific needs (environment; language used; procedures)
- Seek advice and information from those involved in providing treatment, particularly around communication and medication
- Instruct a suitably-qualified forensic psychologist or psychiatrist if the defence seeks to use the condition as a means to attack the credibility of the evidence
There are a range of conditions which can cause psychosis. Psychosis describes a state of mind in which people hear, see, feel or believe things that do not exist, or are not real, and have difficulty distinguishing between their internal and the external world. Common examples include hearing voices or believing that people are trying to do them harm. People can experience psychosis for a wide variety of reasons; for example, psychosis can be due to having a mental illness such as schizophrenia or bipolar affective disorder, or may be caused by drug use, brain injury or extreme stress. There is no one single cause of psychosis but researchers believe that genes, biological factors and environment may play a part. Some people might experience psychosis only once, or have short repeated episodes throughout their lives. Others will experience psychosis on a daily basis and will need a high degree of support to manage the symptoms.
- Schizotypal disorder
- Delusional disorders
- Acute and transient psychotic disorders (brief psychotic disorder)
- Schizoaffective disorder
- Schizophreniform disorder
In addition, psychosis can be drug induced, or induced by a physical condition or extreme stress.
Presentation and symptoms
Psychosis is used to describe conditions that affect the mind, where there has been some loss of contact with reality. When someone becomes ill in this way it is called a psychotic episode. During a period of psychosis, the individual may present with distortions of thinking and perception, and this may be accompanied by emotions that are inappropriate or blunted. Schizophrenia is a mental illness characterized by periods of psychosis.
The most common types of psychotic symptoms are delusions and hallucinations. Delusions are firmly held beliefs that no one else shares. When psychotic, people continue to hold the belief even when challenged, or shown evidence that the belief can't be true. Hallucinations include seeing things that other people do not, experiencing tastes, smells and sensations that have no physical cause, and hearing voices that other people cannot hear. Delusions and hallucinations can make people feel anxious, scared, afraid or confused.
Paranoid delusions can make it hard for people to trust other people or organisations. Alongside these feelings, people may have distorted thoughts, with a sense of being controlled by ‘outside forces’. Feelings of paranoia may result in odd behaviour or stupor, with blunted, flat emotional responses or expression. People with schizophrenia may also have disturbances with thinking and concentration, have difficulty in managing social interaction, work or study, and may be unable to manage daily activities.
Schizophrenia may be acute or chronic; some people will experience one episode, respond well to treatment, and experience very little disruption to their lives. Others may experience ongoing fluctuations in their symptoms with phases of illness and recovery. Some will experience chronic psychotic symptoms that are unresponsive to treatment. Those with chronic schizophrenia often present with symptoms such as social withdrawal, difficulty in expressing emotions, and difficulty in taking care of themselves.
For those with schizoaffective disorder, in addition to psychotic symptoms there will be a significant mood element to their presentation with both being prominent in the same episode of illness. They may present with either high (manic), or low (depressed) mood. Manic people present as excitable and talkative, and are often difficult to interrupt. They may make unrealistic plans, have poor sleep, demonstrate excessive spending and may engage in risky sexual encounters. Mania is sometimes called bipolar disorder if paired with depression. Depressive symptoms include lack of sleep, a feeling of emptiness and hopelessness, despair, suicidal thinking, poor concentration and loss of appetite.
Delusional disorder is characterised by a single delusion or set of related delusions. Hallucinations are not typical and there is usually no disturbance in mood, speech or behaviour.
Treatments and their implications for trial
Effective treatment for an acute psychotic episode includes ensuring safety, reducing the symptoms of psychosis and disturbed behaviour, building a therapeutic relationship, and developing a management plan to aid recovery. In an acute episode of psychosis antipsychotic medication is often an essential starting point for treatment. Individuals with more chronic conditions may also receive a cognitive behavioural therapy, community support and education.
Antipsychotic medication is generally an effective method for decreasing psychotic symptoms such as agitation, delusions and hallucinations. Most antipsychotic medication has significant side-effects, which need to be understood in the context of interview and trial. Many of these medications are sedative in nature, which may impact on the individual's ability to give evidence. Simple solutions maybe available; for example treating clinicians could alter the timing of medication so that such sedation can be minimised at crucial times of the day. It will be essential for acute psychosis to be treated if the individual’s evidence is to be of value. In these cases, a thorough psychiatric assessment will be required as it is likely that such a complainant will be deemed unfit to give evidence whilst they remain floridly psychotic.
Antipsychotic treatment will also be a factor for those who are prescribed long-term antipsychotics – these medications may be prescribed to prevent relapse as well as to treat the immediate antipsychotic crisis. Those with a chronic condition may also, separately, have difficulty attending to and processing information, which will need to be understood if they are to give effective evidence.
Sexual assault may precipitate relapse in a previously stable individual. Those with a history of psychosis, particularly if that involves paranoid thinking, maybe particularly sensitive to perceived challenge or criticism; they may present as guarded or aggressive in nature.
It will be essential to liaise with relevant services early in the process. Complainants may have difficulty in processing information in unfamiliar and stressful environments. Assistance from health professionals will be needed to assess current mental state, assess risks, and determine the appropriate treatment. Any acute symptoms must be actively treated, as these may interfere with the ability to give evidence. Complainants with a history of psychosis should be considered to be vulnerable witnesses who will need greater consideration in providing support and preparation – both emotional and practical - to help them give the best evidence. It will be essential for services to work with individuals to ensure that they have the necessary coping strategies to help them regulate their emotions. Contingency/crisis management plans should be shared, to ensure that all are clear what needs to happen if a complainant can no longer cope.
Support from ABE to trial
Understanding how the individual’s condition affects them is crucial and requires significant pre-planning before engagement in interviews or in giving evidence. The stage of treatment should be understood, if necessary with the assistance of mental health professionals. It is likely that the individual may require an intermediary, to maximise the quality of their evidence. Treating mental health professionals can also assist in the planning of the interview – providing advice on how questions should be asked, the need for regular breaks, time of day, being mindful of effects of medications etc.
In regard to communication during interview and trial, there are some basic approaches that may reduce the anxiety of the individual.
- Demonstrate a non-threatening posture with a calm and quiet tone, awareness of interpersonal space.
- Keep statements short and give one message at a time. Too many choices at once may confuse.
- Accept and acknowledge that this is their reality – therefore, adopt a non-argumentative approach, avoid aggression and provide only incremental low-scale challenges where possible. Give reassurance.
- Trauma and distress can interfere with the process of remembering and this needs to be considered and accommodated.
It is common for individuals in this group to be disbelieved – to have their experience viewed as a symptom of their psychosis. If the individual is currently receiving treatment, it is important that this continue. Immediate and effective treatment should not be viewed as interfering with or tainting evidence, as it will be necessary if the individual is to give evidence.
- There will need to be active liaison with mental health services, and/or the individual’s GP.
- As it is highly likely that the individual will be receiving psychotropic medication, expert input should be obtained from a psychiatrist, rather than a psychologist. They will in all likelihood want to review the medical records, so these should be obtained in advance.
- A registered intermediary should be considered.
Affective disorders are those disorders that affect mood, and include both elevated (mania, hypomania) and depressed mood. Whilst these disorders can be disruptive, there are effective treatments available, including both medication and psychotherapy. Some people only experience one or the other, whilst some cycle between low and high mood states. Both states can be associated with psychosis, in their most severe forms. The term bipolar affective disorder is used to describe disorders where these are repeated episodes of mood abnormality, both in terms of elevation of and lowering of mood, occurring at different times. Characteristically recovery is usually complete between episodes. Dysthymic and cyclothymic disorders are less severe forms of mood disorders, although still distressing, and characteristically persistent.
- Mania and hypomania
- Depressive disorder (major depressive episode, depression)
- Bipolar affective disorder (type I and type II, manic depression
- Cyclothymic disorder
- Persistent mood disorders (cyclothymia/ dysthymia)
Presentation and symptoms
There are a number of similarities in the presentation and symptoms of an individual within this group, although the severity of symptoms will vary greatly, as will the duration. The commonalities within the depressive disorders include significantly lowered mood and diminished interest or pleasure in activities. Depressed mood is common, but major depression can be distinguished from this normal low mood by its severity, persistence, duration and the presence of the other characteristic symptoms commonly described, as below:
- Loss of energy or fatigue
- Loss of confidence and self esteem
- Diminished ability to concentrate or make decisions
- Excessive or disrupted sleep
- Alterations in appetite with associated weight change
- Feelings of guilt and worthlessness
- Decreased libido.
The depressed mood is relatively constant from day to day, although may fluctuate over the course of a day, with the general pattern being that the mood improves as the day progresses.
Dysthymia is a milder but more persistent (over a number of years) mood disorder, and is never associated with psychosis.
Bipolar affective disorder is a cyclic disorder characterised by both mania and depression. The most common presentation involves repeated episodes of either presentation separated by periods of remission.
Mania can also be diagnosed independently of bipolar disorder, although this is unusual. Symptoms of mania include:
- Elevated mood (sometimes with irritability)
- Increased energy and activity
- Rapid pressured speech with flight of ideas
- Impaired concentration and attention
- Enhanced libido often leading to disinhibition and inappropriate sexual activity
- Impaired judgement and impulsive behaviour
- Decreased need to sleep
- Grandiose ideas and inflated self-esteem.
Hypomania is a mood state characterized by persistent disinhibition and euphoria, though is less severe and persistent than mania.
Cyclothymic disorder is thought of as a mild form of bipolar disorder. There may be low grade elated periods (hypomanias) as well as brief fleeting periods of depression. These may have a short span of less than 2 weeks at a time. However, if there is little respite between episodes, in some cases, this may progress to full blown bipolar disorder.
Treatments and their implications for trial
There are two main treatments for affective disorders: medication and therapy. Effective treatment usually involves both. There are many different antidepressants available for the treatment of depression, which can relieve the symptoms, though these tend to have a number of side effects. They may cause restlessness, loss of appetite, loss of libido or dry mouth amongst other physical responses. Whilst these medications can be effective at relieving a number of symptoms, they may not be curative and where the low mood is exacerbated by trauma the victim may still experience flashbacks and nightmares associated with it, even if their mood improves.
For bipolar affective disorder and its variants, mood stabilisers can be used which essentially work to achieve a more even mood without the swings and associated unpleasant symptoms. Again, these medications are rarely curative and the subject may experience periods of low and high mood at times, though hopefully not to the same degree as when unmedicated. Side-effects that may interfere with the giving of evidence can include tiredness, tremor, nausea and diarrhoea. In individuals with a history of both depression and mania, treatment with antidepressants can precipitate a manic episode.
Individuals with more serious mood disorders, which can include psychotic symptoms, may also receive treatment with antipsychotic medication which can have significant side effects, including profound sedation.
Psychotherapy is also an important part of treatment. It can help the individual to learn to cope with the disorder and help change the behaviour that contributes to it.
Hypnotherapy is gaining wider recognition as a treatment for depression. Hypnoanalysis seeks to uncover the root causes of the negative thoughts and emotions. It also seeks to develop better coping strategies. However, the hypnotherapist ‘connects’ directly with the subconscious mind and may address the individual’s perception of events. When delivered properly, this form of treatment can be extremely effective but if used improperly it could produce false memories, or lead to memories becoming distorted and essentially false, although the individual will believe it to be true. Such risks can also be applied to other types of psychotherapy, where therapists are seeking to uncover repressed memories which may account for the symptoms presented. It is noteworthy that, on the whole, such therapies are not delivered by the NHS.
Mood disorders, if untreated will present challenges, in that bipolar affective disorder can cause unexpected and dramatic changes in mood, irritability and unpredictability. . Individuals can get easily annoyed or aggravated by people who are trying to help them. It is worth being aware of this in a court setting, as if the questioner becomes persistent, the complainant may anger easily. Depressed individuals may present as somewhat uncooperative or lacking in emotion; such a presentation may be misinterpreted by a jury.
For individuals with mood disorders then contingency and crisis plans can be extremely helpful. These will document known triggers that can precipitate deterioration, and also outline effective coping strategies. This information will be of use when considering how an individual can be facilitated to give their best evidence.
Depression and anxiety associated with sexual assault may lead to insomnia, eating disturbance, feelings of guilt and shame, anger, self-harm and suicidal thinking. These disorders have serious implications and appropriate support must be arranged for a complainant if they are to participate in the trial process. Complainants may also experience an increase in somatic complaints such as headaches, muscle tension and stomach upsets, and research has demonstrated that rape survivors visit their doctors more frequently for such complaints. They may be prescribed sedative medication by well-meaning general practitioners, however clearly such medication may interfere with their ability to give evidence effectively. Mood changes can result in withdrawal behaviour which may be misinterpreted by jurors, or the appearance of not taking the proceedings seriously or not experiencing serious consequences from the assault. Anxiety may lead the victim to avoid court and to ask not to take matters further when given the opportunity.
Support from ABE to trial
The risks presented by someone with a serious mood disorder must be borne in mind. Victims of rape are more likely to hurt themselves and to commit suicide than matched controls. It will be essential to ensure that appropriate services involved in providing care for the complainant with are pre-existing or newly developed mood disorder.
It is vital to understand the stage of treatment and to encourage liaison and compliance with relevant GP and mental health services. Individuals should generally be encouraged to disclose what has happened to them to those providing care, if they have not already done so. It may be extremely difficult to achieve best evidence interviews with someone who is experiencing mania.
It will assist the individual if their feelings are recognised and acknowledged. They are real and important to them. People with affective disorders do better when they have the support of family, carers or a trusted individual. It may be prudent to identify these people before the process commences.
As with other mental disorders, affective disorders are often of chronic duration meaning that the individual may still be symptomatic during the trial, even with treatment. Specific adaptations may be needed – to reduce their anxiety. Special measures should be actively considered and facilitated. Consideration must be given to the impact of medication, and the mental disorder, when scheduling court appearances. In general terms regular breaks are likely to be of benefit given that concentration is often significantly impaired.
- There will need to be active liaison with mental health services, and/or the individual’s GP.
- As it is highly likely that the individual will be receiving psychotropic medication, expert input should be obtained from a psychiatrist, rather than a psychologist. They will in all likelihood want to review the medical records, so these should be obtained in advance.
- A registered intermediary should be considered.
Anxiety disorders may cause people a number of different physical and psychological problems. The psychological symptoms of anxiety include feelings of dread and irritability, increased muscle tension and enhanced activity of the nervous system. This leads to a variety of physical symptoms such as dry mouth, shortness of breath, dizziness and trembling. Anyone can have feelings of anxiety. These may occur in response to a stressful situation. Sometimes these feelings can be helpful, for example, by increasing a person’s ability to perform in a race. These feelings are normal. Only when the symptoms are more intense or long-lasting do they interfere with a person’s concentration and ability to do routine tasks. People may avoid situations that could provoke feelings of anxiety. This interference with daily living, as much as the symptoms themselves, may lead a person to seek help.
- Phobias including agoraphobia, social phobia
- Panic disorder (panic attacks)
- Generalised anxiety disorder
- Obsessive compulsive disorder (also known as OCD)
Individuals may also present with disorders relating to a specific stressor.
- Acute stress reaction
- Adjustment disorder
- Post-traumatic stress disorder (also known as PTSD, complex PTSD, Type I and Type II trauma)
Or may experience physical (somatic) complaints as a result of specific and recurring fears about their health.
- Hypochondriacal disorder
- Somatisation disorder
In addition, there are a group of disorders characterised by dissociation.
- Dissociative disorders (also known as dissociative identity disorder, DID, multiple personality disorder)
Presentation and symptoms
Some people suffer from anxiety all of the time – this is called generalised anxiety. For people suffering from panic attacks, the symptoms of anxiety are likely to come out of the blue. Another sort of anxiety disorder is called a phobia, in which people have problems in certain situations – ordinarily this would be described as an overwhelming fear of a certain type of stimulus – it could be a fear of spiders, air travel or visits to the doctor. With a clinical phobia, the reaction goes beyond simple aversion and can manifest as panic, sweating, dizziness, nausea and feelings of loss of control, and sometimes fainting spells. With individuals who have experienced sexual trauma, phobias may take the form of social fears or fears of leaving the house. The social fears may be limited to a specific situation or may be associated with any social situation; agoraphobia describes a fear of leaving the house with a sense of unease and an expectation of catastrophe if the individual does leave.
Obsessive compulsive disorder is characterized by two components – an obsession, which is a recurring resisted thought related to some aspect of living (for example about germs, or potential catastrophic events) and a compulsion, which is a powerful drive to act on the thought and repeat some form of behaviour to excess – with hand-washing, this can result in skin abrasions and pain, as well as the interference with normal life – individuals often report being late for work as a result of the need to engage in protracted rituals. Obsessive compulsive disorder is normally associated with a fear of the consequences of not carrying out the ritual, which may include a general sense of impending doom or specific worries about family members being hurt in some way, or otherwise unlinked disasters befalling them.
Hypochondriacal disorder is a fear of having a physical illness and the attribution of various physical states to a condition of serious ill-health, often maintained even in the face of normal physical examination and investigations. The individual may insist that they are unwell despite reassurance from doctors and nurses, and will sometimes seek second, third and fourth opinions due to their conviction that they are physically ill and in all likelihood dying. In trauma victims, hypochondriasis may represent an unresolved anxiety linked to the trauma and it may also be associated with low mood. Somatisation disorder is a similar condition in which the individual translates mental distress into a physical manifestation in the body, again without medical origin. In victims of assault it may represent an inability to directly process the psychological trauma, which is expressed in physical ways instead.
Dissociative disorders remain controversial in respect of dissociative identity disorder (multiple personality disorder), which is much more frequently diagnosed in America, Dissociation of a body part is, however, a recognised phenomenon and may occur again under conditions of extreme distress, with the subject feeling that part of their body no longer belongs to them. Similarly, this is associated with other mental disorders such as mood difficulties.
Post-traumatic stress disorder is another form of severe anxiety, and it is this disorder which is potentially of particular relevance for this toolkit.
PTSD is a condition that develops following exposure to traumatic incidents. Many people feel grief-stricken, depressed, anxious, guilty and angry after a traumatic experience. The condition is characterised by re-experiencing (reliving the trauma), avoidance, alterations in cognitions and mood, and hyperarousal.
Individuals find themselves reliving the event, again and again, either with flashbacks, or nightmares. With re-experiencing, the symptoms can be so realistic that individuals act or feel as if a traumatic event were recurring, and they can cut off from reality (dissociation). People can feel both the emotions and physical sensations of what occurred, and many ordinary events can trigger flashbacks. For instance, if someone was raped by a man with a beard, seeing a different man with a beard might start a flashback. People will often want to avoid thinking and feeling about the trauma, so they will distract themselves and avoid anything that reminds them of what happened. They will also avoid talking about it, and may forget important aspects of what went on. People may deal with the pain of their feelings by trying to feel nothing at all – by becoming emotionally numb. They may communicate less with other people, and find that they are unable to have loving feelings and connect with others in the same way. People can seem quite detached and cut off. Individuals may find however that they stay ‘on guard’ all the time, watching out for danger. They find it hard to relax, to sleep, and to stay calm. They may be angry, irritable and jumpy.
Many people with PTSD also drink excessive amounts of alcohol, take sedative types of drugs and experience depression, headaches, muscle aches and pains and other physical symptoms.
Early onset abuse or partially severe and sustained traumatic experiences can lead to a more severe, pervasive condition known as complex PTSD, although this does not appear in diagnostic classifications. The revised PTSD criteria in DSM 5 cover some of the symptoms seen, but not all. They are not included in ICD 10 and in the UK these disorders may be better described as mixed disorders of conduct and emotions (in children) or by one of the forms of personality disorder in adults, and can include self-injurious behaviour, hopelessness, worthlessness, low self-esteem, poor coping mechanisms, chronic suicidal ideas and difficulties in establishing stable relationships.
Trauma can seriously affect a child's development – and often the earlier the trauma, the more harm it does. Some children cope by being defensive or aggressive. Others cut themselves off from what is going on around them, and grow up with a sense of shame and guilt rather than feeling confident and positive about themselves. Children will often develop the psychologically defensive mechanism of dissociation, or cutting off from reality. This may then re-emerge later in life, sometimes at times of subsequent trauma. Such individuals may then present quite differently to those with ‘classic’ PTSD but the element of reliving the trauma can endure.
Adults who have been abused or tortured over a period of time develop a sense of separation from others, and a lack of trust in the world and other people.
Treatments and their implications for trial
Memory can be affected by some of the newer pharmacological treatments used for PTSD, which can have an impact upon victims during the prosecution stage. Whilst the usual recommended pharmacological treatment for PTSD is antidepressant medication, there are other classes of drugs which are being explored. (Chandler, J.A. Mogyoros, A. Rubio, T.M. Racine, E. (2013) Another look at the Legal and Ethical Consequences of Pharmacological Memory Dampening: The Case of Sexual Assault. Human Right and Disability. Winter 2013). One of the etiological theories for PTSD is that the traumatic experience leads to the overstimulation of stress hormones, which enforce conditioned fear responses to stimuli which are frightening. (Ibid).
Drugs which block the conditioning effect of stress hormones, such as beta-adrenergic blockers, have therefore been explored as a potential way to prevent the development of PTSD. Research indicates that the effects of the beta-adrenergic blocker, propranolol, or ‘what has come to be called memory dampening treatment’ and report on several studies which have found promising results in treating established PTSD by using propranolol to disrupt the reconsolidation of traumatic memories. There are clearly ethico-legal issues that this treatment raises and particularly a potential impact upon the victim’s testimony ‘given recently published results suggesting that this treatment may affect factual recall of a traumatic event as well as the emotional qualities of the memory’. An individual’s credibility might be adversely affected if their memory and emotional response to the traumatic memory are dampened. (Ibid). Researchers in the aforementioned study suggest the need for ‘general ethical analyses to be tested in specific cases before general conclusions are made about the ethical appropriateness of novel treatments for PTSD’.
PTSD can be an extremely distressing and disabling condition. Intrusive symptoms such as flashbacks, nightmares and feeling as though the assault is reoccurring are profoundly distressing to individuals who experience them. Their psychological response is often to become avoidant of thoughts, feelings, places and other reminders of the assault. This in turn will mean that individuals with PTSD may not want to talk about what has happened to them; they may also forget important aspects of the events in question. Some individuals present with significant levels of numbing and detachment, a presentation which can lead those observing them to believe that they are not at all distressed, when in fact these symptoms are characteristic of PTSD. PTSD sufferers may also experience increased levels of arousal with difficulty sleeping, poor concentration, anger and irritability, jumpiness and an exaggerated startle response. As a result of these symptoms many with PTSD (up to 30 per cent) will utilise drugs or alcohol in order to cope with the unpleasant feelings; characteristically depressant drugs such as alcohol, marijuana or prescribed benzodiazepines are used. The difficulties experienced by complainants with PTSD should be understood, so that their presentation is contextualised. It should also be remembered that some individuals will have significant post-traumatic responses without the threshold for a formal diagnosis being reached, although they may still be profoundly affected by these symptoms.
Support from ABE to trial
Requiring the complainant, especially if they have developed PTSD, to confront their traumatic history during interviews and courtroom testimonies thwarts characteristic efforts at avoidance and predictably results in the resurgence of intrusive ideation and increased arousal. The wish to avoid such distress may lead individuals to avoid court by retracting or altering their account, or not disclosing the full extent of their experiences. On the other hand, it may only be during times of high arousal that the complainant is able to access the traumatic memories in detail. It is therefore important that a balance is struck, that they are given the time and support that is needed in order to give an account and that reactions in court are dealt with appropriately.
The nature of the court process pits the complainant against the defendant, whom the survivor already sees as a fearsome enemy. They will then be faced with counsel for the defendant, who is likely to attempt to discredit their experience and to try to persuade the jury that they are not to be believed and that their testimony is corrupt. The defence may also attempt to shift responsibility on to the complainant and blame him or her for their client’s conduct. People often complain that it is they who feel as though they are on trial and that they, unlike the accused, are merely a witness and as such are not assigned counsel. It could be argued that the rape prosecutor acts as that counsel, but the complainant will only believe this if that prosecutor looks at their case positively, engages the complainant sympathetically before the trial, and starts with a belief in them and their account. Corroboration must be actively sought and inconsistencies or lies must be dealt with rather than wished away. An informed prosecutor, who offers respect to the complainant and who understands the issues outlined in this toolkit, is far more likely to secure the best evidence possible from the complainant who is, after all, a key witness.
If the case proceeds, the trial will often take place while the complainant is still experiencing psychological symptoms. Research has shown that under ordinary conditions people with PTSD often have fairly good psychosocial adjustment; however, they do not respond to stress in the same way that other people do. Under pressure (such as at interview, or in court) they may act or feel as if they were being traumatised all over again. This high state of arousal may facilitate memory retrieval and therefore should not necessarily be avoided, although significant explanation and support will be needed. During the attack the survivor was overpowered and helpless. They need to feel that they have control over their life again. Individuals can be helped if they are allowed to make decisions, where possible. Simple techniques such as enabling them to decide if they need a break during testimony can be helpful. This will not only empower them, but will also prevent the compassionate judge rising just at the point when arousal is positively impacting on accessing memories.
For those with PTSD then, the use of special measures will generally assist the complainant in giving their best evidence. Again, individuals should be consulted about what will help them. For some, screens will suffice; however for others the use of the video link will be of far greater benefit.
- Empower the complainant by allowing them to make decisions where possible (such as when to take a break).
- Utilise all special measures that may be available. Consult the complainant.
- Consider the evidential value of a diagnosis of PTSD, and the possible use of expert testimony as per R v Adam Eden R  EWCA Crim 1690.
Individuals who become complainants may have pre-existing substance use disorders or may begin to abuse substances as a result of their experience of trauma. Frequently, individuals may have a problem with several substances. Prosecutors need to be aware of the potential for abuse of alcohol, prescribed and illicit drugs. Up to 30% of victims of sexual assault will start to abuse substances following the assault. The use of depressant substances is often seen, as individuals will use these to self-medicating and to reduce symptoms of anxiety and hyper arousal.
There is a wide spectrum of use and misuse of psychoactive substances. When it becomes a problem to the individual, substance use is generally characterized by:
- A strong and sometimes overpowering desire to take the substance
- Difficulties in controlling use
- Problems associated with use.
Diagnosis focuses on either harmful use, when an individual has a pattern of substance use that is causing damage to either their mental or physical health, or dependence. Dependence is a psychological syndrome which occurs after repetitive use of a substance typically for months or years. The diagnosis of dependence should only be made if three or more of the following have been experienced sometime during the previous year:
- A strong desire to take the substance;
- Difficulties in controlling the use of the substance;
- A withdrawal syndrome when the substance use has ceased or been reduced;
- Evidence of tolerance such that higher doses are required to achieve the same effect;
- Neglect of interests and increased amount of time taken to obtain the substance or to recover from its effects;
- Persistence with the substance use despite evidence of its harmful consequences.
Presentation and symptoms
Presentation will vary greatly from individual to individual, and will also depend on the substance which they are abusing, and the severity of their dependence. They may, at the time of report or interview, be intoxicated or in a state of withdrawal. This will profoundly affect their presentation and behaviour and can have an impact on their ability to give testimony.
Individuals who are substance dependent prior to the traumatic event may be disbelieved, and they may deteriorate rapidly following an assault, even if they had previously been abstinent. It is worth noting that traumatised individuals will often use substances to block out unpleasant and painful emotions, as can arise following sexual assault, as a form of self-medication. Deterioration may follow a sexual assault, or, individuals may develop problems for the first time.
Issues relating to withdrawal as well as intoxication are of relevance. Withdrawal states are a group of symptoms of variable clustering and severity and occur on absolute or relative withdrawal of the substance. Onset and course of the withdrawal state are time-limited and related to the type of substance and the dose being used immediately before abstinence. Alcohol withdrawal can lead to tremors, convulsions, or uncontrolled shaking of the hands (or even the entire body), profuse sweating, even in cold conditions, extreme agitation or anxiety, insomnia, nausea or vomiting, seizures and hallucinations. In some cases it can be lethal or lead to permanent brain damage.
Treatments and their implications for trial
The mainstay of treatment for individuals dependant on substances is to reduce harmful use, and to maintain that change. For some, this will involve total withdrawal from use, whilst for others this will involve substance replacement (e.g. the introduction of methadone in place of heroin).
Where someone has a serious, life-threatening dependence there may be issues with attending court and giving evidence. It is likely that they will either be intoxicated, or if not, will be in a state of withdrawal, and therefore, depending on the nature of their addiction, at grave risk unless under medical supervision, at the time of any trial. By way of example, alcohol detoxification poses a significant risk to the dependent individual. A sudden discontinuation of alcohol consumption can often induce a condition known as delirium tremens, and individuals can die as a direct result of alcohol withdrawal, usually from severe seizures; brain damage can also result from B vitamin deficiency. Even if an individual has managed to achieve abstinence, then continuing abstinence could not be guaranteed by the time the matter reaches court.
Support from ABE to trial
Substance-dependent individuals will need significant support from services, and an awareness and understanding of potential issues from both the police and prosecutors. Special measures may be of assistance, particularly the opportunity to give evidence remotely, at a time prior to the trial starting, that time to be determined by abstinence/less harmful use, following a withdrawal period. It may be profoundly problematic for an individual to give evidence safely and effectively in person, on a fixed date. Indeed, requiring them to do so could pose a significant threat to life, if the individual attempts to withdraw himself or herself before the trial, without medical supervision.
- Obtain specialist advice, depending on the nature of the addiction.
- Maintain awareness of the possibility of intoxication at the time of trial, and the impact that this will have.
- Consider the use of special measures.
- Consider if evidence needs to be heard without the complainant’s presence being required.
Personality disorders are conditions where there is an enduring pattern of inner experience and behaviour that deviates markedly from the normal expectations of the individual’s culture. This pattern can be manifested in the areas of cognition, affectivity, interpersonal functioning, emotional responses and impulse control. A personality disorder can affect how people cope with life, how they manage relationships, how they behave and how they feel. There is no single cause of personality disorder, and individuals can have both a personality disorder and another mental disorder. Generally speaking, personality disorders are enduring, with patterns that are inflexible and pervasive across a broad range of personal and social situations. They lead to clinically significant distress or impairment in social, occupational or other important areas of functioning. The patterns are stable and of long duration and their onset can be traced back to at least adolescence or even early adulthood.
Diagnoses can be separated into 3 clusters based on descriptive similarities:
Cluster A - People with cluster A personality disorders can find it hard to relate to other people. Their behaviour might seem odd or eccentric to other people. Diagnoses include paranoid personality disorder, schizoid personality disorder, and schizotypal personality disorder.
Cluster B – People with cluster B personality disorders can find it hard to control their emotions. Other people might see them as unpredictable. Diagnoses in this cluster are antisocial personality disorder (otherwise known as ASPD), borderline personality disorder (BPD or otherwise known as emotionally unstable personality, EUPD), histrionic personality disorder, and narcissistic personality disorder.
Cluster C – People with cluster C personality disorders have strong feelings of fear or anxiety. They might appear withdrawn to other people. Diagnoses in this cluster are dependent personality disorder, avoidant personality disorder, and obsessive-compulsive personality disorder.
Presentation and symptoms
Presentation and symptoms will differ depending on the personality disorder classification, and some people may have more than one diagnosis.
For example, an individual with a paranoid personality disorder may present as extremely inflexible, with a long-term pattern of social awkwardness. They may be socially withdrawn and may present with distorted thinking. They may often misinterpret the motives and actions of others as malevolent, with a long-standing suspiciousness and generalised mistrust of others. They are frequently incapable of overly involved relationships. Unlike a person with schizophrenia, they have no hallucinations or formal thought disorder.
Individuals with schizoid personality disorder may often come across as withdrawn or aloof which will significantly affect their ability to form positive relationships with others. However, they may have successful lives and hold down jobs effectively, though will often seek situations where they have little contact with others. They can be described as eccentric or “weird” due to their reluctance to engage in activities with others. Individuals with schizotypal personality disorder are marked by an acute discomfort with, and reduced capacity for close relationships as well as by cognitive or perceptual distortions.
There are also similarities in the cluster group including antisocial personality disorder, narcissistic personality disorder and borderline personality disorder. Whilst there may be a common element of dramatic, emotional or erratic behaviour, there are marked differences in presentations. A person with antisocial personality disorder tends to have a disregard for and the violation of rights of others. This may also be marked by an inability to conform to social norms.
Individuals with emotionally unstable personality disorder, alternatively know as borderline personality disorder, often report an early onset of neglect and trauma. It seems that this type of trauma can produce a damaged personality with deficits in emotional regulation, demonstrated by fluctuating mood, self-harm, identity disturbance, self-damaging behaviour and impulsivity. These individuals have a pervasive pattern of unstable interpersonal relationships, and poor self-image which can be further exacerbated by chronic feelings of emptiness. There are particular similarities with histrionic personality disorder with a pattern of excessive emotionality and support seeking. Those with narcissistic personality disorder have a pattern of grandiosity in both fantasy and behaviour. They have a need for admiration from others, though with a lack of empathy for others’ feelings. However, they tend to be less anxious than those with borderline personality disorder, living less chaotic lives and with a reduced risk of suicide.
Those with avoidant personality disorder show an extreme sensitivity to rejection and may lead socially withdrawn lives. They may appear shy and have a need for uncritical acceptance. Similarly those with dependent personality disorder may have an excessive need to be taken care of that can lead to submissive and clinging behaviour with a fear of separation.
Treatment and implications for trial
Personality disorders are serious conditions that can be associated with high risk behaviour, like self-harm. Risks may increase during stressful times, such as when participating in the trial process.
Support and treatment for people with personality disorder is limited; those usually most engaged with mental health services are individuals with borderline personality disorder (EUPD). Interestingly, in this group there appears to be a link with early onset experience of trauma, and there are broad similarities with complex PTSD, described elsewhere in this guidance. Treatment, where available, usually involves a course of psychological therapy, or psychotherapy. The aim of all psychological therapies is to improve people’s ability to regulate their thoughts and emotions. Some therapies focus on dysfunctional thoughts whilst others might focus on self-reflection. Group therapies in particular may help people understand social relationships better.
A range of different psychotherapies are used and are broadly classified into three types of therapy. Psychodynamic (reflective) therapy explores patterns of distorted thinking which are often related to negative early childhood experience. The goal is to understand how these distortions arose and find effective ways to overcome their influence on thinking and behaviour. This approach of treatment, either individual or group work, is particularly used with borderline personality disorder.
Cognitive behavioural therapy (CBT) is based on the theory that how we think about a situation affects how we act. In turn, actions can affect the way we think and feel. It is thus necessary to change both the act of thinking (cognition) and behaviour at the same time. A type of CBT called dialectical behaviour therapy (DBT) has proved successful in helping people reduce impulsive self-harming and is designed to help individuals cope better with emotional instability and to behave in a more positive way.
As several personality disorders may be associated with feeling of low self-esteem, anxiety and self-doubt, interpersonal therapy is sometimes used, based on the theory that relationships with other people and the outside world in general have a powerful effect on mental health.
No medication is currently licensed for the treatment of any personality disorders, however medication may be prescribed to treat associated symptoms, such as depression or anxiety. Some people with severe personality disorder, particularly BPD may be on a number of medications.
Personality disorder is often viewed in negative terms by the public, and as a weak defence in court settings. This disorder may have a stigma associated with it that goes beyond that of other mental disorders. This stigma may well have an effect during the legal process, with both professionals and the public (jury) having preconceived ideas, often influenced by high level media attention in the past where a single incident may have been reported. A study in New Zealand (Veysey, S. (2014) People with a borderline personality disorder diagnosis describe discriminatory experiences. Kotutui: New Zealand Journal of Social Sciences Online, 9:1, 20-35) reported that people with personality disorder often experience being characterised as being manipulative, difficult and attention seeking.
People with personality disorders may struggle to trust professionals and may be unable to maintain an even emotional state, so may be prone to outbursts, anger, tearfulness and impulsive comments. They may also find it difficult to maintain a demeanour which would impress upon the jury that they are taking the proceedings seriously, that they have respect for the process in the courtroom and that they have been traumatised. They may have long histories of contact with mental health services, and may be judged negatively as a result. Some will have reported multiple trauma, and this may lead people to believe that they are fabricating accounts. If they have been repeatedly traumatised, then their emotional responses may be blunted. Alternatively, their distress may be manifested in feelings of anger towards others (not just the alleged perpetrator) and result in outbursts in court which could bring their good character into question. From the point of view of the legal team, they may find it that it takes longer to build the requisite trust with the individual and that they are overly suspicious of the motives of those trying to assist them.
Support from ABE to trial
Individuals may benefit from support from someone with a good understanding of their complex presentation. If available, care plans, contingency and crisis plans, utilised by the individuals and the services who support them may well offer significant insight. It is important to recognise and focus on the strengths that people have and connect with them by listening, showing respect and regard for their situation and the trauma they have experienced. Individuals have reported that there is, at times, an automatic disbelief from others about their experiences, once again derived from the stereotypical view of people with these disorders. The idea that making complaints is typical behaviour for someone with a personality disorder diagnosis can be a powerfully silencing one – with the individual drawing on past experiences of not being believed or listened to. Complaining can often be viewed as manipulative behaviour and this can have a negative effect on the persons willingness to proceed with their complaint.
When speaking with someone with a personality disorder directly, especially about sensitive issues, remember that emotional reactions may differ significantly from what might be expected. Ensuring an understanding of the disorder, and behaviour that may result, will be helpful.
- Consider the need for support from the commencement of the interview process. Ask the complainant what would help them most.
- Consider a familiarisation visit of the environment prior to the court appearance. Consider the use of written information material.
- Ensure that the court setting considers the specific needs of the individual; the use of a registered intermediary may be of benefit, particularly in cases of severe levels of disorder.
- Instruct a forensic psychologist or psychiatrist if the defence seeks to use the disorder as a means to attack the credibility of the evidence.
Brain development continues into the early twenties (Blakemore, 2006 (Anderson V Anderson P Northam E Jacobs R Catroppa C. Development of executive functions through late childhood and adolescence in an Australian sample. (2001) Developmental Neuropsychology 20(1): 385-406); Sowell 2001 Sowell E Thompson P Tessner K Toga A. Mapping continued brain growth and gray matter density reduction in dorsal frontal cortex: inverse relationships during postadolescent brain maturation. (2001) Journal of Neuroscience 21: 8819–8829), with the frontal lobes of the brain playing a key part in various elements of cognition including judgement, consequential thinking, inhibition of impulses, empathy and coherent planning. It is important to recognise and account for this when asking children to give evidence as they may give unexpected answers as a result of their more limited capacities. Frontal lobe functioning increases over the course of adolescence (Anderson, 2001) (Ibid) - this has been linked with development of the brain’s prefrontal cortex (Blakemore, 2006) (Blakemore S-J Choudhury S. Development of the adolescent brain: implications for executive function and social cognition. (2006)Journal of Child Psychology and Psychiatry 47(3): 296–312), commensurate with an emerging ability to engage in consequential thinking (Steinberg, 2009) (Steinberg L. Adolescent development and juvenile justice. (2009) Annual Review of Clinical Psychology 5: 27-73). This development is not linear, meaning that individuals of the same chronological age may differ markedly in their capabilities.
As noted by the Royal Society in 2011 (The Royal Society. Neuroscience and the law: Brain Waves Module 4. (2011) Excellence in Science publications), the frontal lobes of the brain are the slowest areas to develop (Gogtay 2004) (Gogtay N. Dynamic mapping of human cortical development during childhood through early adulthood. (2004) Proceedings of the National Academy of Sciences 101: 8174-8179), in contrast with the amygdala (the part of the brain responsible for reward and emotion-processing). This imbalance is thought to account for increased arousal and risk-taking in adolescence (The Royal Society. Brain Waves Module 2: Neuroscience: implications for education and lifelong learning. (2011) Excellence in Science publications), alongside hormonal changes which may also act as specific neurodevelopmental triggers at certain stages. Adolescence represents a phase of increased impulsivity and sensation-seeking behaviour (van Leijenhorst 2010 (van Leijenhorst L Moor B Op de Macks Z Rombouts S Westenberg P Crone E. Adolescent risky decision-making: neurocognitive development of reward and control regions. (2010) Neuroimage 51(1): 345-55); Baird 2005 Baird A Fugelsang J Bennett C. ‘What were you thinking?’: An fMRI study of adolescent decision making. (2005) Poster presented at the annual meeting of the Cognitive Neuroscience Society, New York; Steinberg 2007 Steinberg L. Risk Taking in Adolescence: New Perspectives From Brain and Behavioral Science. (2007) Association for Psychological Science 16(2)), in tandem with a heightened vulnerability to peer influence (Steinberg 2007 Steinberg L Monahan K. Age differences in resistance to peer influence. (2007) Developmental Psychology 43(6): 1531-43), all of which have an impact upon decision-making.
It is important to factor in these elements when considering the plight of the child giving evidence in court, and it may be that the trial process would benefit from being nuanced in order to take into account these behavioural differences in comparison to adults.
The MacArthur Adjudicative Competence Study (Poythress N Hoge S Bonnie R Monahan J Eisenberg M. MacArthur Adjudicative Competence Study, MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice) examined 927 youths and 446 adults in four locations across the United States, and found that trial competence related abilities tended to improve with age – eleven to thirteen-year-olds showed less understanding, less reasoning and less recognition than fourteen and fifteen-year-olds, who in turn performed significantly more poorly than sixteen and seventeen-year-olds (who functioned as well as adults). Low IQ scores were particularly associated with deficits. Young people were more likely to make choices in compliance with authority figures. Risk perception and future orientation deficits were found, and young people often did not understand their right to remain silent, and would see rights as being conditional. Research has also demonstrated that young people are more likely to make false confessions than adults (Redlich A Goodman G. Taking responsibility for an act not committed: The influence of age and suggestibility. (2003) Law and Human Behavior 27: 141-15).
Whilst the UK Crown Practice Directions issued by the Lord Chief Justice in 2000, and adjusted in 2013 and 2015, can go some way to facilitating the participation of the child, there are limits on their mitigatory effect and it cannot be assumed that any child can participate purely because court adaptations have been put in place. A young person’s deficits may not be immediately apparent and brain development is not always a smooth pathway. A child may, for example, show some strengths in some areas and be considered “streetwise” when it comes to drugs or violence, but this does not mean that they will have parallel aptitudes in other areas, for example decision-making about sexual matters.
Children are often terrified of the court process and may refuse on the basis that they are worried about being cross-examined by the accused, or that they would have to face them again in court. It is important that the child’s position is considered throughout as there are various stages to the process which will need to be explained. Visiting the courtroom in advance can be helpful for some children and they should have an opportunity to meet with the legal team in a non-confrontational setting in advance. The presence of developmental immaturity is one challenge; the addition of a mental disorder often serves only to heighten the young person’s vulnerability and fear, which again does not serve the interests of justice. Registered intermediaries can be helpful in advising about communication and interaction difficulties but ideally a child psychiatrist or psychologist would be enlisted where there is any doubt about the young person’s ability to give evidence, as it is crucial not just to assess for mental disorder but also to get an understanding of the young person’s strengths and weaknesses through a thorough formal assessment.
Understanding the effects of fear and the psychological mechanisms that may occur during a sexual assault is vital when considering recall and memory. The first account given can be crucial, although the victim’s ability to give a clear account may be hampered, as there are a number of mental processes which might impact on the victim during the attack, namely de-realisation, de-personalisation, and dissociation. Terror, confusion, disorientation, helplessness and loss of physical control are also seen. These may prevent physical resistance or escape behaviour. Survivors can lose track of what was going on, do things that they later realised they had not actively decided to do, experience a sense of altered time and also experience sensory disturbances. These mechanisms may severely impair the person's ability to recall details of the assault and recall may change over time. Memories of traumatic events are often organised on a perceptual rather than verbal level at least in the initial phase following the trauma. Feelings and emotions can be recalled; however, a detailed narrative cannot be given. With processing of the event (for example by talking it though with a friend, or support worker) more of the narrative component may become accessible, and the survivor’s account may change.
Many factors will affect an individual’s response to trauma. Studies point to the importance of the personal meaning of a trauma in accounting for post-traumatic adaptation. Other elements that also contribute significantly to post-traumatic responses include perception of this threat, actual injury and being the victim of a completed, as opposed to an attempted rape. In the early weeks and months following a sexual assault, most will experience extreme distress and disruption in many areas of their lives. Research indicates that the majority then seem to recover from the acute effects of the attack at between 3 and 6 months; however, many will experience more prolonged distress, and a significant number will develop PTSD, as described elsewhere in this guidance. One of the diagnostic criteria for this condition is the inability to recall important aspects of the events in question, and yet such incomplete memories can be used by the defence at trial, to suggest that the complainant is lying, or has developed false memories about what actually happened. The defence may also use a complainant’s history of psychosis to suggest that the memories are false.
Difficulties with altered accounts and variable recall will be familiar, and once again, understanding the psychological processes behind these difficulties can only facilitate successful prosecution. An inability to access the traumatic memories may make the giving of very detailed evidence in court impossible and the person may be erroneously seen as lying or incompetent.
Particular issues arise in relation to the reporting of historic cases. Lay assumptions regarding traumatic experiences tend to assume that such incidents, as one of the most important experiences in life, would lead to an accurate and permanent memory being laid down. It is also assumed that there should be consistency both in the central memory and in the peripheral detail and that the memory will never be forgotten. Trauma studies have indicated that these assumptions are incorrect. Trauma can lead to extremes of retention and forgetting. Terrifying experiences may be remembered with extreme vividness, or may be totally inaccessible, and amnesia for all or part of a traumatic experience is not uncommon. An individual may dissociate when faced with overwhelming emotion, and will then be unable to integrate the totality of their experience into conscious memory. This in turn will hamper the ability to provide a detailed, temporally accurate account.
It is also entirely feasible that long forgotten memories can be reactivated. The idea of repression of early traumatic memories is a concept that is well documented, although much debated. Such ‘recovered memories’ are often challenged as being false. When an adult recalls an incident of childhood sexual abuse after a delay of many years, sometimes under the influence of hypnosis or psychotherapy, this is, on occasions, referred to as ‘false memory syndrome’.
In relation to the false memory syndrome, or recovered memories, the Working Party of the British Psychological Society (BPS 1995 British Psychological Society (1995) Recovered Memories The Report of the Working Party of the British Psychological Society) indicated that:
- Complete or partial memory loss is a frequently reported consequence of experiencing certain kinds of psychological traumas including childhood sexual abuse
- Memories may be recovered within or independent of therapy
- Recovered memories may contain significant errors, partly dependent on the age at which the event occurred
- Sustained pressure or persuasion by an authority figure could lead to retrieval or elaboration of memories of events that never actually happened but there is no reliable evidence at present that this is a wide spread phenomenon.
It is entirely plausible that complainants recover memory from childhood after a period of stabilisation and withdrawal of, for example, illicit or prescribed medication. This is not to say, however, that this memory was a false memory, i.e. one which was not based on events which had occurred. A general population study by Elliot and Briere (Elliott, D. M., & Briere, J. Post-traumatic stress associated with delayed recall of sexual abuse: A general population study - Journal of Traumatic Stress Vol 8, Nr 4 (1995) (629-647)) showed that total amnesia for traumatic events occurred in a certain proportion of victims after every conceivable traumatic experience (except for witnessing the death of one’s child). For some reason which is not entirely clear, sexual abuse during childhood leads to the highest degree of total amnesia, although this is also age related.
Memory is not perfect. All of us are familiar with the experience of forgetting, but in addition to errors of omission (forgetting), we can make errors of commission, in other words we remember things that did not happen. These false recollections can feel as real as any other memory and various experiments have been conducted which demonstrate that false memories can develop. Generally, such errors occur when a range of memory ingredients, including experiences, things heard about, and things imagined are assembled into an inaccurate “pseudo” memory. It is acknowledged that a child growing up in a stress-filled environment can develop techniques to ameliorate the impact of stressors, including mechanisms such as dissociating, i.e. cutting off from reality. People who dissociate regularly are more susceptible to succumb to the suggestions for a pseudo memory. Whilst acknowledging this possibility in historic cases, it is just that, a possibility.
A number of mental disorders, and the condition of developmental immaturity inherent in all childhoods, are important considerations when thinking about the plight of the victim in court. Those subject to sexual assaults already represent a vulnerable group who have experienced trauma outwith what most people could countenance. The further ordeal of reliving and discussing in intimate detail the nature of the encounter would be intimidating for any person – when one adds in the challenges posed by mental disorder, developmental immaturity or both, it becomes clear that a high degree of support is going to be needed if the interests of justice are going to be properly served.
It is crucial that these vulnerable witnesses feel empowered to have their opportunity in court, and be able to see that society does not simply ignore sexual assault. Through careful consideration of the impact of sexual assault in the context of men and women with mental disorders, or those that are under 18, or both, we can move towards a sense of justice for the victims and their families. Individuals with mental illnesses, and children, can be valid and strong providers of key testimony to assist juries, but they may need greater levels of support than other witnesses. Expert witnesses can support legal teams to rebut speculation that the presence of a mental disorder and/or the presence of youth would unanimously render their refusal invalid, or their evidence dubious. The presence of a mental disorder does not automatically mean that an individual is incapable of making decisions about serious matters such as consent to sexual intercourse.
It is important that the factors of mental illnesses and developmental immaturity are given serious consideration by judges and juries in assessing the evidence put forward by these witnesses. It is also vital that any adaptations that would assist the victim to give evidence are considered and provided. Through better understanding of the nature of these challenges, it may be that more witnesses come forward and feel able to give their evidence in a safe and supported setting.
Dr Enys Delmage is a Consultant in Adolescent Forensic Psychiatry and Honorary Assistant Professor at the University of Nottingham. He dual-trained in both Child and Adolescent Psychiatry and Forensic Psychiatry in West Yorkshire and has worked as a consultant at St. Andrew’s Healthcare from 2010 to 2017 – he left in November 2017 to work in New Zealand in an adolescent forensic inpatient service.
He has been a lecturer at both the Institute of Psychiatry and Nottingham University, and has, via a Master’s Degree in Law, developed a special interest in children and the law. He has provided court reports in criminal and civil settings and has also provided inreach to numerous young offender institutions, secure training centres and a secure children’s home throughout his career.
Prof Fiona Mason is a Consultant Forensic Psychiatrist and specialist in women’s mental health and the impact of trauma. She trained in General Psychiatry at the Royal Free Hospital, London, and went on to specialise in Forensic Psychiatry working as a Senior Registrar at the Maudsley Hospital, subsequently becoming a Lecturer in Victimology and Forensic Psychiatry at the Institute of Psychiatry. Between 1996 and 2001 she worked as a Consultant Forensic Psychiatrist at Broadmoor Hospital, where she was responsible for treating women with complex psychopathology and a history of traumatisation. Dr Mason joined St Andrew’s Healthcare in 2001 to develop services for women, working as a Consultant and then Lead for Women’s Services until 2010. She was then appointed as Deputy Medical Director in 2009, Director of Healthcare in 2011 and Chief Medical Officer in 2012. She left the organisation in 2016 to establish her own company.
She is a recognised leader in the field of women’s mental health and healthcare management and has published and taught widely on the psychological effects of trauma and sexual assault, medical management and effective therapeutic practice. As a Forensic Psychiatrist, Dr Mason provides independent expert reports for criminal and civil cases, both prosecution and defence.
What is the purpose of this toolkit?
This toolkit has a number of specific objectives:
- To assist prosecutors with their understanding of a range of pre-existing psychological conditions applicable to adults and highlight where expert comment may be required to facilitate a fair assessment of evidence;
- To assist prosecutors with their understanding of a range of pre-existing psychological conditions applicable to children and adolescents and highlight where expert comment may be required to facilitate a fair assessment of evidence;
- To assist prosecutors with their understanding of post-traumatic stress disorder and to highlight where there may be opportunities to adduce expert evidence in accordance with R v Adam Eden R ;
- To assist prosecutors with understanding the support that an individual suffering from a particular condition is likely to require during their journey through the criminal justice process from ABE to giving evidence at trial;
- To assist prosecutors with understanding how the approach taken to the treatment of a pre-existing condition can impact upon the reliability of memory and the potential for the creation of ‘false memories’;
- To assist prosecutors with understanding the psychological effects of rape and sexual assault in order to increase understanding of the typical behaviour patterns of traumatised complainants thus protecting against the undue influence of myths and stereotypes in decision-making;
The importance of Code-compliant decision making
The toolkit is not intended to provide a means by which prosecutors can justify proceeding with cases that do not meet the Full Code Test.
All prosecutions must comply with the Full Code Test and it is hoped that this toolkit will support prosecutors in reaching properly reasoned and lawful decisions when applying the Code.