Pre-Trial Therapy

• Foreword
• Introduction
• Fundamental Principles
• The legal requirements of a prosecution
• Data Protection Legislation
• Particular aspects of psychological trauma that may impact on how a victim presents
  • Hyper-arousal, hypo-arousal and dissociation
  • Self-blame, shame and avoidance
  • Further resources on the impact of trauma
• The potential impact of therapy on memory
  • Changes to memory
  • Inconsistencies
  • False memory
• Victims who attend court
• Expert and professional evidence
• Advising investigators about their responsibilities
  • Key points
  • Reasonable lines of inquiry
  • Speaking to victims
  • Police contact with therapists and the importance of making specific requests
  • Where the therapist refuses to comply with the police request
  • Tackling victim credibility myths
• Duties and responsibilities of the CPS
  • Key points for CPS
  • Where requests for materials are refused by the therapist
  • Consideration of Unused Material by the CPS
  • Disclosing material to the defence
  • Where therapy is continuing up to trial
• Annex A: Specific considerations for children
• Annex B: Obtaining and disclosing pre-trial therapy notes

Foreword

This new guidance, which has been produced by the Crown Prosecution Service with the assistance of experts and voluntary sector providers, replaces earlier guidance jointly published with the Home Office and the Department for Health in 2002 following the ‘Speaking up for Justice’ report. That report concluded that intimidated witnesses should not be denied the emotional support and counselling they need before trial.

Both the criminal justice system and options for therapy have advanced considerably since the 2002 guidance was issued. This guidance aligns with the principles in the Attorney General’s Guidelines on Disclosure 2022.

This guidance has been informed by responses to our public consultation that we received from professionals from a range of different disciplines. We are grateful to all concerned for the important contributions that they have made.

This guidance is aimed at prosecutors but contains helpful information for the police. It is complemented by an accompanying note for professionals providing therapy for victims before a criminal trial.

This guidance does not include detailed advice for practitioners in relation to how data protection law impacts upon the processing of victims’ personal data arising from therapy. Basic principles on data protection can be found in relevant annexes to this guidance and the accompanying note for therapists. Guidance around compliance with data protection law can be obtained from the Information Commissioner’s Office website. The content of this guidance, the accompanying note and relevant annexes will be reviewed following publication of the Information Commissioner’s Office (ICO) report on the processing of victims’ personal data by the criminal justice system due for publication later this year.

Introduction

Exposure to criminal offending, in particular sexual violence, can lead to significant psychological and emotional difficulties, and victims will often be assisted in their recovery by obtaining therapy. The fear of causing a criminal prosecution to fail has in some instances resulted in therapeutic support to victims being delayed until after the trial on the basis that it might be argued that the treatment could have tainted the victim’s evidence by interfering with the accuracy of their recall of the incident(s). This fear is speculative and conflicts with the need to ensure that victims are able to receive, as soon as possible, effective treatment and therapeutic support to assist their recovery. This guidance is clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution.

The term ‘therapy’ used here covers the range of psychological and emotional counselling and therapeutic approaches and support provided for difficulties that are associated with and/or exacerbated by a criminal offence. References to ‘Therapists’ include professionally trained practitioners and those undergoing training. Therapy provision is not organised and delivered in a uniform fashion. It is offered in many contexts, such as on an individual, family or group basis and in a wide variety of settings, for instance, the NHS, voluntary sector agencies and private practice. Therapeutic approaches and services are continually evolving.

The primary purpose of therapy is therapeutic not investigative. The therapeutic relationship is built on confidentiality, privacy and trust, which enables a victim to explore important issues relating to their safety, emotional responses, and psychological needs, including self-esteem. The knowledge that details of a victim’s conversations with their therapist may be seen by criminal justice practitioners and could be used against them by a defence advocate at a future trial is a significant concern for many victims; in some cases, that can undermine their engagement with therapy and/or the criminal justice process. Where therapy is undertaken these fears can, in some cases, inhibit the therapy process and undermine its efficacy with, for example, victims deliberately censoring themselves when discussing issues. It is therefore critical that criminal justice practitioners understand and strictly follow the law and guidance governing the access to, handling and disclosure of material generated as a result of therapy.

It is vital that victims are supported and can access timely therapy, both for their own recovery and to increase the likelihood of successful criminal justice outcomes. It is therefore paramount that all victims are aware that they can access therapy to ensure that their emotional and psychological needs are met before, during and after the trial.

For the purpose of this guidance, the term ‘victim’ is used throughout for consistency (rather than “complainant”, “survivor” or “witness”) and refers to adults, young people and children who have made an allegation that a crime has been committed against them. The focus of this guidance is on victims of sexual crime, but it is also applicable to victims of other offences.

Fundamental principles

On the prioritisation that the guidance will give to victim health and wellbeing:

• The health and wellbeing of the victim should always be the determinative factor in whether, when and with whom they seek pre-trial therapy.
• It is for the victim to make decisions about therapy with their therapist, including what type of therapy is obtained and when that therapy is obtained. Criminal justice practitioners should play no role in the decision-making process beyond alerting victims to the availability of therapy.
• It is paramount that all victims are aware that they can access therapy to ensure that their emotional and psychological needs are met before, during and after any potential trial. There is no requirement to delay therapy on account of an ongoing police investigation or prosecution.

On the need to ensure that any request to access therapy notes represents a reasonable line of inquiry:

• The law governing disclosure imposes an obligation on the police to pursue all reasonable lines of inquiry whether these point towards or away from the accused. Access to therapy notes can only be requested in an individual case when it is a reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial. What is reasonable in each case will depend on the circumstances of the individual case, any known issues in the case, including any potential defence, and any other information informing the direction of the case.

On the need for practitioners to comply with data protection legislation and guidelines when handling victim’s personal material:

• Therapists, investigators and prosecutors must understand and comply with all relevant data protection legislation and guidelines when processing personal material generated in therapy. Therapists must be transparent with victims at the outset of therapy about how their personal data will be held and processed and highlight their right to object to processing at any time.
• An information request from the police in relation to therapy notes should provide the therapist with enough specificity of what data is sought and why to enable them to comply with their own data protection obligations as a controller when responding. Unfocused requests to browse victims’ files in order to determine whether they contain anything of interest to the investigation should not be made.

On the limited circumstances when the content of therapy notes will be disclosed to the defence in criminal proceedings:

• The duty to disclose material generated as a result of therapy to the defence arises only in circumstances where that material might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.

The legal requirements of a prosecution

In accordance with Article 6 of the European Convention on Human Rights, every accused person has a right to a fair trial. This right to a fair trial is an absolute right; the accused's right to fair disclosure is an inseparable part of it. The scheme set out in the Criminal Procedure and Investigations Act 1996 (CPIA) and Attorney General’s Guidelines on Disclosure 2022 (AG’s Guidelines) is designed to ensure that there is fair disclosure of material to the accused which may be relevant to an investigation and which does not form part of the prosecution case (‘unused material’). Investigators and prosecutors must do all they can to facilitate proper disclosure, as part of their general and professional responsibility to act fairly and impartially, in the interests of justice.

Material may be relevant to an investigation if it appears that it has some bearing on any offence under investigation or anyone being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case. Relevant material may include material generated as a result of therapy. Therapists do not have an obligation under the CPIA to reveal material to the investigator or to the prosecutor, nor is there any duty on a therapist to retain material which may be relevant to the investigation. In some circumstances, the therapist may not be aware of the investigation or prosecution. If the investigator or the disclosure officer believes that a therapist holds material that may be relevant to the investigation, that person or body should be told of the investigation and alerted to the need to preserve relevant material.

Investigators are under a duty to pursue all reasonable lines of inquiry, whether these point towards or away from the accused. What is reasonable in each case will depend on the particular circumstances. See section on ‘advising investigators about their responsibilities’ for more information.

Everyone has the right to respect for their private and family life under Article 8 of the European Convention of Human Rights. Victims do not waive this right by making a criminal complaint. Whilst the right to a fair trial is an absolute right, a victim’s right to privacy is a qualified right, and the protection of their personal data must be carefully considered.

Data Protection Legislation

The UK General Data Protection Regulation (GDPR) and Part 3 of the Data Protection Act (DPA) are the data protection legislation relevant to processing personal data for general and law enforcement purposes respectively.

The legislation sets out the key principles, rights and obligations for the processing of personal data in the UK. It confers a number of rights on those whose data is being processed. The legal framework sets guidelines for the collection and processing of personal information from individuals.

As a ‘competent authority’ for the purposes of the Data Protection Act the police can process personal data for law enforcement purposes. Law enforcement purposes is defined in section 31 DPA as “the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.”

Material generated as a result of therapy constitutes ‘sensitive data’ and can only be processed with:

• the consent of the data subject OR
• if the processing is ‘strictly necessary for the law enforcement purpose’ and meets a condition in Schedule 8 DPA (the conditions most likely to apply being the ‘administration of justice’ or 'legal claims')

In data protection law consent cannot be regarding as freely given if the data subject has “no genuine or free choice or is unable to refuse or withdraw consent with detriment” (Recital 42 UK GDPR). In the specific circumstances of pre-trial therapy notes being passed to police during a police investigation, the duty on police to retain material of relevance to an investigation makes it impractical for the withdrawal of consent to result in the cessation of processing. Also, in the context of a victim wishing their case to be progressed without detriment, it is difficult to envisage how consent would be truly freely given. With this being the case the police will process data where it is ‘strictly necessary for the law enforcement purpose’ and integral to this will be ensuring that requests for access to therapy notes represents a ‘reasonable line of inquiry’ – see section on reasonable lines below.

For more information on the obligations arising for therapists and law enforcement agencies when processing personal data see the ICO guidance.

To avoid confusion in the use of terminology, any reference to ‘consent’ within this guidance will have the meaning afforded to it under data protection legislation and where that concept does not apply we will refer to obtaining ‘agreement’.

Particular aspects of psychological trauma that may impact on how a victim presents

Whilst therapy is very often the best way of helping the victim to recover from the impact that criminal offences may have had on their emotional wellbeing and psychological and mental health, there are particular aspects of a psychological trauma response that may impact on a victim’s presentation. Inconsistencies in accounts, gaps in memory and self-blame are commonplace among victims of criminal offences particularly sexual violence. The aim of highlighting these issues is to provide clinical and research evidence as to why these may or may not exist and not to perpetuate ‘myths and stereotypes’, which we have sought to tackle through our RASSO Legal Guidance. It is fully acknowledged that all individuals will respond differently, and the absence of these issues likewise should not undermine a victim’s case.

It is important that investigators and prosecutors have a shared understanding of the different ways in which trauma can impact upon memory. The section below describes several ways in which a victim who has experienced trauma may present when reporting, during therapy and when giving evidence in court. Prosecutors need to be aware of the impact of trauma for many reasons, including:

• To ensure the quality of decision-making in a case is as informed as possible.
• To highlight case-building opportunities.
• To challenge myths relating to victim credibility at court.

This section is not intended to provide a comprehensive review of research on the impact of trauma but to outline the key issues and reasons why these may occur – hence there is no reference to specific authors or researchers. Cultural, demographic and socio-economic factors will also influence victims’ emotional and psychological responses to being subjected to criminal offences and these should also be considered. It is not possible within this guidance to explore the multiplicity of this and the many facetted ways that individuals’ own experiences will impact on how they respond.

Hyper-arousal, hypo-arousal and dissociation

Hyper-arousal, hypo-arousal and dissociation are common in a number of anxiety disorders and are a natural response to stress. Typically, hyper-arousal and hypo-arousal are frequently referred to as “fight, flight and freeze”, which are survival responses to perceived and actual threats. These responses activate physiological processes in the body, either with hyper- or heightened arousal (i.e. heart racing, faster breathing, sweating, nausea and dizziness) or, hypo- or ‘shut-down’ freeze responses (inability to move or speak).

Dissociation is a more prolonged and severe response that includes feelings of oneself or others being ‘unreal’. It can include changes in the sense of subjective time, ‘spacing out’ or loss of awareness of the current situation, alterations in the ability to feel emotions, unusual bodily sensations such as analgesia or anaesthesia, paralysis or a sudden loss of skill, and out-of-body experiences. Dissociative flashbacks – a symptom of posttraumatic stress disorder – involve re-experiencing the traumatic event and loss of the ability to differentiate it from the ‘here and now’. Whilst not every victim of sexual violence will experience these responses, there is a higher association and likelihood of this occurring with this kind of traumatic event. Dissociation is significantly more likely where a victim has experienced accumulative trauma from multiple or repeated abuse, such as childhood abuse, domestic violence and torture.

It is recognised that it may be the case that the provision of trauma-focussed psychological therapy could augment the victim’s capacity to give evidence in court. If a victim feels threatened and in particular has unprocessed traumatic memories, giving evidence or being confronted with the accused could trigger these responses. That can result in the victim feeling overwhelmed or unable to respond and could significantly interrupt the proceedings, particularly if this led to a more prolonged flashback or dissociative episode. Therapy can facilitate a victim in learning to engage de-arousal and grounding techniques and/or for the accused and court room to be less likely to activate these responses.

Self-blame, shame and avoidance

Non-disclosure and delayed reporting have historically been misunderstood and have led to the non-progression of cases and poorer outcomes for victims in court. Self-blame and shame are extremely complex; they can be factors in why many people avoid disclosing or fully disclosing aspects of traumatic incidents. Avoidance can also relate to fears of not being believed, fear of the potential impact of disclosure and reporting, and fear of the accused. Avoidance of any reminders of the criminal offence is also common. Care needs to be taken in understanding and working with victims who have presented with these responses to the incident(s).

Sexual violence can often result in self-blame due to feelings of shame about the sexual assault; often the victim internalises the experience in the absence of objective external evidence or witnesses to challenge this assumption. Victims can feel that their behaviour in some way contributed to the assault – usually despite the absence of any evidence to support that view or even when there is evidence to the contrary. This has been exacerbated by the perpetuation of rape myths and stereotypes, particularly whereby society has endorsed beliefs that a victim should have been able to say ‘no’ and ‘fight back’ against any potential assailant. Any identification of self-blame should be understood in the context of the victim trying to explain what happened and why it happened. It should not be confused with a legal admission of fault or guilt.

The provision of psychological therapy could assist the victim in coping better and in fact reduce the likelihood of such thoughts and reactions being activated in giving evidence and in court.

The fact that shame is highly associated with delayed reporting is reflected in a direction that a Judge can make to the jury in a sexual offence case. See the Crown Court Compendium Part 1: Jury and Trial Management and Summing Up Section 10-4 Paragraph 7 and Section 20-1 (December 2020).

Further resources on the impact of trauma

For further guidance on the relevance of the impact of trauma to the application of the Full Code Test in RASSO cases see ‘The impact of trauma’ contained within Chapter 2 of CPS Rape and Sexual Offences Legal Guidance. The CPS has also produced a training video considering the impact of trauma on memory.

The Psychological Evidence Toolkit for Prosecutors explores a range of difficulties, some of which may arise as a consequence of the sexual assault.

The Toolkit for prosecutors on VAWG cases involving vulnerable witnesses sets out issues to consider relating to a vulnerable victim’s account and provides guidance in relation to how offenders might exploit these vulnerabilities to avoid detection.

Potential impact of therapy on memory

Changes to memory

Every time a memory is recalled there is a potential for it to be altered in some way. For instance, there may now be an additional memory of an incident being recalled, considered, reacted to, and discussed in a specific context, such as talking to friends, making a witness statement, or in therapy. Recalling a memory can strengthen certain aspects, weaken other aspects that did not come to mind, or introduce new elements. There is little if any evidence that such everyday processes introduce inaccuracies into memory except when people are confronted by misleading information or fail to distinguish actual events from products of their imagination.

Inconsistencies

Inconsistencies in accounts of events given at different times are normal. With complex or repeated experiences victims have to select which details to report on any one occasion, and these may not be the same each time they give an account. Therefore accounts may change over time but still be accurate.

Accounts may also vary over time because victims are initially unwilling to disclose certain facts through avoidance or shame. Disclosure, e.g. to a therapist, tends to develop over time. It is only when a victim develops a sense of trust that they will more fully disclose what has happened. Some details may never be disclosed.

Repeated attempts to remember commonly lead to more material being recalled. In therapy for PTSD, when processing traumatic memories, it is common to recall additional facts, sometimes quite significant ones. This is believed by many trauma experts to occur because traumatic events result in more fragmented and disorganised memories, at least for the most distressing moments of the trauma. Hence accounts often lack contextual and peripheral details which are not integrated at the time of the traumatic event.

Inconsistencies in the details of a narrative are to be expected and should be distinguished from accounts or details that actively contradict each other. It should be noted however that inconsistencies in accounts provided by the victim are likely to meet the disclosure test for the purposes of criminal proceedings and that, even taking into account the information above, inconsistencies may mean that the Code Test is not met. Prosecutors will need to consider this on a case-by-case basis.

False memory

There is no substantive evidence that therapy will generate false memories. It is well recognised, conversely, that victims of trauma avoid engaging in trauma-focused therapies where they are required specifically to focus on the memories due to the associated distress. Further, some victims do in fact remember details of the abuse many years later; these are not false memories but rather real memories that had until that point been repressed.

Concerns, including within the criminal justice system, have been raised that certain kinds of therapy may have the potential to produce false memories. It has been argued (without specific evidence being provided) that a number of therapeutic techniques are associated with an increased risk of false memories, including guided imagery, dream interpretation, free association and hypnotic age regression. Whilst these techniques have a recognised place in therapy, victims should be informed of how these techniques can be viewed given the (undetermined) risk of incurring false memories.

However, ‘Recovered memory therapy’, which involves victims identifying memories of childhood abuse that they had no prior recollection of, is not a recognised form of therapy or taught or approved by any professional body. Similarly, neither is the idea that experiences such as child sexual abuse can be ‘diagnosed’ on the basis of the client’s presenting symptoms, even if they have no memory of them.

Victims who attend court

While they must receive the treatment that they need, the victim should be made aware that their treatment may be raised during the course of a trial. The CPS has issued Speaking to Witnesses at Court Guidance which requires the prosecution advocate to speak to the victim in advance of giving evidence. One of the issues which will be explained to the victim is the purpose of defence cross-examination which is: to test the reliability, truthfulness and accuracy of the victim and to weaken the prosecution case. The defendant is prevented from cross-examining a victim in person in sexual offences cases. The prosecutor will intervene if inappropriate questions are posed to the victim but the defence will be permitted to challenge the victim’s evidence and to test perceived “weaknesses” in the case.

The Guidance states that the victim should be informed of third-party materials (such as social services, medical or counselling records) which are to be disclosed to the defence as being capable of undermining the prosecution’s case or assisting the defence case. This should be standard practice even when the victim has agreed to the disclosure of some sensitive and / or confidential material.

Special Measures are available for vulnerable and intimidated victims. Special measures include the use of video-recorded ‘Achieving Best Evidence’ (ABE) interviews and pre-recorded defence cross examination (Section 28 YJCEA 1999). In cases where the victim gives live evidence at court, an application can be made on behalf of the victim to give evidence behind a screen so that the defendant will not see them. In sexual offences an application can also be made by the prosecution to clear the public gallery when the victim gives evidence (Section 25(4)(a) YJCEA 1999).

In order to prevent contamination of the evidence, the victim and other witnesses (other than experts) are not permitted to sit in court before giving evidence (so that they do not hear the accounts of other witnesses). They are not permitted to discuss their evidence with each other until the case is concluded.

Expert and professional evidence

An expert witness is a witness who provides to the court a statement of opinion on any admissible matter calling for expertise and who is qualified to give such an opinion. They will be appointed by the defence, CPS, or police and will be given specific instructions for their report. Usually where one party has called an expert the other is permitted to seek their own expert evidence. A therapist working with a victim cannot be an expert witness but can be called to give evidence as a professional witness. A professional witness is called to court to give factual evidence regarding their findings and would not be called to give evidence about their opinion as to the truthfulness of a victim or other witness (see R v SJ & MM [2019] EWCA 1570).

Advising investigators about their responsibilities

This section should be read in conjunction with the obtaining and disclosing pre-trial therapy notes flowchart at Annex B.

Key points

• It is best practice for the police to ask a victim whether they have received any therapy since the incident occurred. They should then carefully consider whether obtaining the victim’s therapy notes represents a reasonable line of inquiry considering all the facts of the case, including the account of the suspect. Police must have a specific reason that leads them to believe consideration of therapy notes represents a reasonable line of inquiry. The principles specified within the AG’s Guidelines are fundamental when determining whether consideration of therapy notes represents a reasonable line of inquiry.
• Police should consider obtaining Early Advice from a prosecutor to discuss whether obtaining the victim’s therapy notes represents a reasonable line of inquiry.
• Prior to approaching a therapist about material relating to the victim that might be relevant to the investigation, the police should seek the agreement of the victim to this approach being made and inform the victim of their right to object at any time to the processing of their personal data which may follow.
• Police must never request that a therapist allows them to browse patient files speculatively to decide whether anything might be of interest. They must also not request that the therapist undertakes a speculative review of notes on their behalf.
• It is best practice to speak to the therapist initially to obtain further information about the therapy. It is an option for the police to review relevant notes in situ, if appropriate.
• The sensitivity and confidentiality of pre-trial therapy notes needs to be recognised, and police should seek access to information contained in them only in circumstances in which:
  • they have ascertained that it is in pursuit of a reasonable line of inquiry, having considered other means and the privacy of the victim;
  • they are able to explain to the therapy provider why the information is required, and be specific about what is required; and
  • the request is for the minimum amount of information that is sufficient to pursue the line of inquiry.
• It must be recognised by police that therapy providers have a duty in law to assure themselves that any disclosure to the police complies with data protection legislation.
• Police must follow safeguards relating to the sensitive processing of material for law enforcement purposes.
• Investigators and prosecutors considering material generated in therapy must consider the impact of trauma and the numerous legitimate reasons for the existence of apparent or real inconsistencies between accounts provided by victims. Where appropriate, they must be ready to challenge myths relating to victim credibility during the investigation process.

Reasonable lines of inquiry

The Attorney General’s Guidance on Disclosure 2022 outlines a three-step approach when considering whether third party material should be requested:

• Establishing a reasonable line of inquiry
• Establishing relevance and
• Balancing rights

Step 1: Establishing a reasonable line of inquiry

CPIA and the CPIA Code of Practice impose an obligation on the police to pursue all reasonable lines of inquiry whether these point towards or away from the suspect. The CPIA Code and the AG’s Guidelines make it clear that the obligation to pursue all reasonable lines of inquiry includes material held by third parties such as therapists.

In Bater-James and Another [2020] EWCA Crim 790 Lord Justice Fulford stated at paragraph 70 of the judgement that “it is not a "reasonable" line of inquiry if the investigator pursues fanciful or inherently speculative researches. Instead, there needs to be an identifiable basis that justifies taking steps in this context. This is not dependent on formal evidence in the sense of witness statements or documentary material, but there must be a reasonable foundation for the inquiry.”

Access to therapy notes can only be requested in an individual case when it is a reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation.

Prosecutors must not encourage police to pursue speculative inquiries and so police must never be advised to seek access to therapy notes simply because a victim has received therapy. Prosecutors should always be clear about the need to identify a specific reason why consideration of therapy notes represents a reasonable line of inquiry in the particular circumstances of the case.

An assessment of reasonableness is required and must be made on a case-by-case basis. Regard should be had to the prospect of obtaining relevant material and what the perceived relevance of that material is, having regard to the identifiable facts and issues in the individual case.

Investigators must be able to clearly articulate why it is a reasonable line of inquiry to obtain the material in possession of the therapist. Where relevant, prosecutors should encourage the police to take an incremental approach, including having a conversation with the therapist in the first instance, making clear that the officer will need to evidence this conversation in the crime report or preferably in a statement. As required by the AG’s Guidance, any decision to access third party material, alongside the reasons for that decision, should be recorded in writing before material is accessed. See the flowchart at Annex B for further details.

Early Advice is strongly recommended in rape and serious sexual assault cases. During Early Advice investigators and prosecutors will discuss third party material and will agree what reasonable lines of inquiry need to be pursued based on the unique facts of the case. Obtaining Early Advice should assist an investigator in articulating to a therapist why therapy notes need to be obtained as a reasonable line of inquiry. Investigators and prosecutors should adopt a ‘thinking approach’ as outlined in the case of R v Olu, Wilson and Brooks [2010] EWCA Crim 2975, and considered in the case of R v Flook [2009] EWCA Crim 682.

Investigators should articulate the approach taken to therapy notes in the Information Management Document (IMD) or equivalent document. This will allow the prosecutor to determine whether duties under the CPIA have been met; it will also allow them to complete the Disclosure Management Document (DMD), which is provided to the defence and court. The DMD includes a section where the prosecutor is required to clarify which third parties have been identified as holding relevant material and what steps have been taken to preserve and/or obtain access to that material.

Step 2: Establishing relevance

The AG’s Guidelines lists factors that investigators and prosecutors should consider when deciding whether third party material including therapy notes should be requested in an individual case. This list is not exhaustive, and the considerations will vary depending on the circumstances of the case:

1. What relevant information is the material believed to contain?
2. Why is it believed that the material contains that relevant information? If it is likely that no relevant information will be contained within the material, a request should not be made.
3. Will the request for the material intrude on a complainant’s or witness’s privacy?
4. If the material requested does amount to an invasion of privacy, is it a proportionate and justifiable request to make in the circumstances of the individual case and any known issues? Consider vi. below or whether the information which may result in access amounting to an invasion of privacy can be redacted to remove anything that does not meet the disclosure test.
5. Depending on the stage of the case, does the material need to be obtained or would a request to preserve the material suffice until more information is known?
6. Is there an alternative way of readily accessing the information such as open-source searches, searches of material obtained from the suspect, or speaking directly to a witness, that does not require a request to a third party?
7. Consider the scope of the material required, for example are the entirety of an individual’s therapy records required or would a particular month or year be sufficient? Ensure the request is focused so that only relevant information is being sought.
8. The process of disclosure and its role in the justice system should be clearly and understandably expressed to the third party. They must be kept appraised of any ongoing disclosure decisions that are made with regard to their material.

Step 3: Balancing rights

Paragraphs 11 to 13 of the AG’s Guidelines outline principles that investigators and prosecutors need to be aware of when both the right to a fair trial and the privacy of complainants and witnesses are engaged. Paragraph 13 contains the fundamental approach that must be adopted by investigators and prosecutors when deciding whether it is necessary to request and/or process personal or private information from a complainant or witness to pursue a reasonable line of inquiry:

“When seeking to obtain and review such material, investigators and prosecutors should be aware that these lines of inquiry may engage that individual’s Article 8 rights and those rights in respect of other parties within that material. Such material may also include sensitive data. When seeking to satisfy their disclosure obligations in these circumstances, investigators and prosecutors should apply the following principles:

1. Collecting and/or processing personal or private material can only be done when in accordance with the law, strictly necessary, and proportionate.
2. In order to be in accordance with the law and strictly necessary, an investigator must be pursuing a reasonable line of inquiry in seeking to obtain the material. What constitutes a reasonable line of inquiry may be informed by others, including the prosecutor and the defendant. Seeking the personal or private information of a complainant or witness will not be a reasonable line of inquiry in every case – an assessment of reasonableness is required.
3. The assessment of reasonableness must be made on a case-by-case basis and regard may be had to:
   1. the prospect of obtaining relevant material; and
   2. what the perceived relevance of that material is, having regard to the identifiable facts and issues in the individual case;
4. If, by following a reasonable line of inquiry, it becomes necessary to obtain personal or private material, investigators will also need to consider:
   1. what review is required;
   2. how the review of this material should be conducted;
   3. what is the least intrusive method which will nonetheless secure relevant material;
   4. are particular parameters for searching best suited to the identification of relevant material;
   5. is provision of the material in its entirety to the investigator strictly necessary; or alternatively, could the material be obtained from other sources, or by the investigator viewing and/or capturing the material in situ? An incremental approach should be taken to the degree of intrusion.
5. The rationale for pursuing the reasonable line of inquiry and the scope of the review it necessitates should be open and transparent. It should be capable of articulation by the investigator making the decision. It should provide the basis for:
   1. consultation with the prosecutor,
   2. engagement with the defence and,
   3. the provision of information to the witness about how their material is to be handled.
6. The refusal by a witness to provide private or personal material requires an investigator and prosecutor to consider the information the witness has been provided (and could be provided) with regard to the use of their personal material, the reasons for refusal, and how the trial process could address the absence of the material.
7. Disclosure of such material to the defence is in accordance with the law and necessary if, but only if, the material meets the disclosure test in the CPIA 1996. Personal information which does not meet this test but is contained within the material to be disclosed should be redacted.
8. Where there is a conflict between both of these rights, investigators and prosecutors should bear in mind that the right to a fair trial is an absolute right. Where prosecutors and investigators work within the framework provided by the CPIA, any unavoidable intrusion into privacy rights is likely to be justified, so long as any intrusion is no more than necessary”.

Speaking to victims

The police should make it clear to victims that their wellbeing is paramount and that they are free to obtain therapy without delay if they wish to do so.

If it is determined that obtaining therapy notes represents a reasonable line of inquiry, then the police should speak to the victim prior to approaching the therapist. The police should seek the agreement of the victim and inform them of their right to object at any time to the processing of their data. The conversation should be evidenced and communicated to the prosecutor.

Police contact with therapists and the importance of making specific requests

Where a therapist is working for an agency and access is sought to the material generated, it is important that an approach is made to the agency.

If the police believe that the therapist holds material that may be relevant to the investigation, the therapist should be told of the investigation and alerted to the need to preserve relevant material.

Investigators are not required to provide extensive operational details to a therapist but it is important that any request for information is specific (e.g. spanning a specific time period and related to a particular issue), and the officer must be able to demonstrate to the therapist the relevance of their specific inquiries to their investigation. The therapist may refuse a request if they would be unable to comply with their own data protection obligations in meeting it, the data sought is not specific enough and/or there is no rationale for seeking it.

Where the therapist refuses to comply with the police request

If a therapist has refused a police request for material within therapy notes, the prosecutor should be informed. Investigators and prosecutors should request that the third party preserve the material and this request should be documented.

Tackling victim credibility myths

For detailed guidance on tackling common myths and stereotypes arising in RASSO cases see Chapter 4 and Annex A of the RASSO Legal Guidance.

When considering the impact of any apparent inconsistency between accounts provided by the victim to a therapist and to the police, prosecutors should note that therapy is not an investigative process and that, as such, there is no expectation that a therapist should take verbatim notes in relation to victim disclosures of potential criminality for the benefit of criminal justice agencies. The limitations of note taking during therapy should be considered by prosecutors when assessing the impact of any apparent inconsistencies.

The courts have long recognised that an inconsistency in accounts provided by a victim does not necessarily mean that a victim is not telling the truth - see the Crown Court Compendium Part 1: Jury and Trial Management and Summing Up Section 20-1 ‘Sexual offences – The dangers of assumptions’ Paragraph 14 (December 2020).

Duties and responsibilities of the CPS

This section should be read in conjunction with the obtaining and disclosing pre-trial therapy notes flowchart at Annex B.

Key points for prosecutors

• Prosecutors must recognise the sensitivity and confidentiality of pre-trial therapy notes. When advising on investigations, prosecutors must not encourage police to pursue speculative inquiries and should always be clear about the need to identify a specific reason why consideration of therapy notes represents a reasonable line of inquiry in the circumstances of the case.
• Material generated as a result of therapy must only be disclosed by the prosecutor to the defence in criminal proceedings if it might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.
• Prosecutors must have a lawful basis under the DPA for processing pre-trial therapy notes. This is likely to be that the processing is strictly necessary. Victim consent should not be relied upon as the lawful basis for disclosing information obtained from therapy notes. However, the needs, concerns and preferences of the victim must be central to the consideration of the extent to which disclosing such information can be justified in the context of a particular case.

Where requests for material are refused by a therapist

Where the therapist refuses to provide material when it has been determined to be a reasonable line of inquiry, the prosecutor should consider whether a prosecution can proceed. In those circumstances, the prosecutor must consider whether there are other routes to obtaining the material which are appropriate to pursue within the circumstances of the case. One option that is available to the prosecutor at the post-charge stage is to make an application to the court for a witness summons ordering the production of the material. Such an application should be made only if the conditions set out in section 97 of the Magistrates’ Court Act 1980 or the Criminal Procedure (Attendance of Witnesses) Act 1965 are met.

Part 17 Criminal Procedure Rules 2020 sets out the procedure to be adopted in applying for a witness summons. It applies to both prosecution and defence applications. Rule 17.5 covers applications for witness summonses requiring the proposed witness to produce in evidence a document or thing or to give evidence about information apparently held in confidence that relates to another person (for example, an application for summons for a therapist or therapy provider to produce records relating to the victim). It requires the court to consider the rights of those to whom confidential information or documents relate before a witness can be required to give evidence about them. Rule 17.5(3) states that the application for a witness summons must, where the Court directs, be served on the person to whom the document relates (i.e. in the case of therapy notes, the victim).

This process is designed to overcome the difficulties outlined in R (TB) v Stafford Crown Court [2006] EWHC 1645. In that case, the Divisional Court held that the medical records of a victim (a prosecution witness in a sexual case) were confidential between medical practitioners and patient. A patient had a right of privacy under article 8 of the ECHR. It was not sufficient for the court to delegate her representations to the person in possession of the documents, i.e. the NHS Trust alone. Procedural fairness required that the victim should have been given notice of the application and the opportunity to make representations, orally if she wished, before the witness summons order was made. Further information about obtaining material via a witness summons is contained in the Disclosure Manual Chapter 5.

Consideration of Unused Material by the CPS

Where the police identify relevant material that meets the disclosure test, the CPS will first review the case and consider whether the material impacts upon the decision to charge the case or, if the case has already been charged, whether the material means the case continues to meet the Full Code Test.

Disclosure of material to the defence

The requirement to disclose material to the defence under the CPIA only applies once a person has been charged with an offence. When a defendant is charged the CPS will review unused material provided by the police and consider whether any of it meets the disclosure test subject to any public interest immunity. If therapy notes have been obtained then they must be dealt with in accordance with the CPIA 1996, Prosecutors should give close scrutiny to such material and only disclose it where absolutely necessary. Prosecutors should consider closely how to balance the right to a fair trial and right to privacy as set out above.

The prosecutor will disclose material that meets the test by providing copies to the defence. If the disclosure test is met in relation to part of an item, such as specific entries within therapy notes, the disclosure will be limited to the part that meets the test and no more. Prosecutors should refer to the redaction guidance when considering these issues.

If the prosecutor decides that the disclosure test is not met in relation to therapy notes, the material will not be disclosed. The defence may challenge the decision of the prosecutor not to disclose material and seek access to the material by applying to the court for an order for specific disclosure. At the disclosure hearing, the prosecutor will make representations to the court. If the court grants the application, the prosecution must comply with the order otherwise the case cannot continue.

Where therapy is continuing up to trial

Where therapy is continuing up to the trial date, it is important that the prosecutor reminds the police that disclosure duties under the CPIA remain ongoing. If the investigator or prosecutor has reason to believe there may be additional material within therapy notes that might be relevant to the case – for example, if new information comes to light – it will be necessary for the investigator to make contact with the therapist with a view to obtaining that additional material. The IMD should be updated by the investigator which will allow the prosecutor to update the DMD.

Annex A: Specific considerations for children

Children who are victims and are required to give evidence have specific needs in accordance with their age and stage of development. Children have a right to be consulted about what affects their lives and to receive assistance when they have been harmed. These rights are integral to the UN Convention on the Rights of the Child, which states that:

• When adults or organisations make decisions which affect children they must always think first about what would be best for the child (Article 3).
• Children have the right to say what they think about anything which affects them. What they say must be listened to carefully (Article 12).
• Governments must do everything they can to help child victims to recover from hurt. Sometimes it is their bodies that have been hurt and sometimes it is their minds (Article 39).

Victim agreement – the Gillick competence test (Gillick v West Norfolk and Wisbech Area Health Authority and Another, [1986] A.C. 112) clearly states that ‘the parental right yields to the child’s right to make their own decisions when they reach a sufficient understanding and intelligence to be capable of making up their own mind on the matter requiring a decision’. Reaching such a stage varies according to the developmental process of each individual child.

It is essential that children receive support with their recovery as soon as possible. The rationale for early therapeutic interventions is based on the need to prevent their low self-esteem and self-worth developing into ongoing distress, self-harm and/or destructive behaviour.

Following discovery of their abuse, children need to feel safe, to be in a safe environment, to be protected from contact with the perpetrator, to be offered therapeutic support as soon as possible and to be supported through the process of being a witness.

The central purpose of giving a child victim therapeutic support is to help them make sense of what has happened to them. The key treatment focus is on the interconnections between how the child feels, thinks and behaves. In the main, treatment programmes draw on cognitive and behavioural therapies, which may be carried out alongside art, music and other relevant interventions. The therapeutic process includes work with the child victim on:

• Psychoeducation including safety, sexual health and relationships
• Relaxation and grounding techniques
• Recognition and expression of their feelings
• Empowerment
• The psychological consequences of abuse such as guilt, shame and difficulty trusting others
• Assertiveness and communication skills
• Trauma-focussed therapy to process traumatic memories and trauma-related symptoms
• Wishes, hopes and fears for the future

There are a number of special measures which are pertinent to children to enable them to give their evidence.  The video recorded (ABE) interview is routinely used as child victim’s evidence in chief and pre-recorded cross-examination of child victims pursuant to Section 28 Youth Justice and Criminal Evidence Act 1999. Clearance of the public gallery pursuant to Section 25(4)(a) YJCEA 1999 can significantly assist child witnesses in sexual offences cases. Intermediaries can be requested by prosecutors to assist a child victim with any specific communication issues that may exist.

Annex B: Obtaining and disclosing pre-trial therapy notes

Step 1

The investigator should ask the victim whether they have received therapy since the incident occurred? If so, the investigator should inquire what therapy was obtained and whether the incident was discussed. The investigator should make and retain an accurate record of this conversation.

If therapy has been received move to step 2

If no therapy has been received, then the investigator must confirm the position in the Information Management Document (IMD) or equivalent document and must communicate this to the prosecutor. The prosecutor must confirm this in the Disclosure Management Document and serve this on the defence prior to the Plea and Trial Preparation Hearing. The police should make it clear to victims that their wellbeing is paramount and that they are free to obtain therapy at any time if they wish to do so and therefore this position may change and should be kept under review.

Step 2

Is it a reasonable line of inquiry to review the therapy notes? If the case is pre-charge, the investigator should consider obtaining Early Advice to discuss the position with a prosecutor. Access to therapy notes can only be requested in an individual case when it is a reasonable line of inquiry that may reveal material relevant to the investigation or the likely issues at trial. There must be a properly identifiable foundation for the inquiry, not mere conjecture or speculation.

If it is a reasonable line of inquiry move to step 3

If it is not a reasonable line of inquiry, then the investigator must confirm the position in the Information Management Document (IMD) or equivalent document and must communicate this to the prosecutor. The prosecutor must confirm this in the Disclosure Management Document and serve this on the defence prior to the Plea and Trial Preparation Hearing. The police should make it clear to victims that their wellbeing is paramount and that they are free to obtain therapy at any time if they wish to do so and therefore this position may change and should be kept under review.

Step 3

If it is determined that obtaining therapy notes represents a reasonable line of inquiry, then the police should speak to the victim prior to approaching the therapist. The police should seek the agreement of the victim and inform them of their right to object at any time to the processing of their data. The conversation should be evidenced and communicated to the prosecutor.

If agreement is provided move to step 4

If agreement is not provided, then the investigator should explain clearly to the victim why the therapy notes need to be obtained and the potential implications if the notes aren’t reviewed. If agreement is still refused, consider the principles in the Attorney General’s Guidelines on Disclosure 2022 and consider whether the evidential test within the Code for Crown Prosecutors can be met. The key question is whether the defendant can have a fair trial?

Step 4

Investigators should talk to the therapist to inquire what was discussed during therapy. As part of this discussion investigators should provide clear and specific reasons why it is a reasonable line of inquiry to review the therapy notes. This discussion may impact on whether it is still a reasonable line of inquiry to review the notes.

The investigator should make and retain an accurate record of this conversation.

If it continues to be a reasonable line of inquiry move to step 5

If it is no longer a reasonable line of inquiry, then the investigator must confirm the position in the Information Management Document (IMD) or equivalent document and must communicate this to the prosecutor. The prosecutor must confirm this in the Disclosure Management Document and serve this on the defence prior to the Plea and Trial Preparation Hearing. If therapy is ongoing this position should be kept under review as information may come to light that means it is a reasonable line of inquiry to obtain the notes.

Step 5

Investigators must make a clear and reasoned request to the therapy provider for the specific material they require. Investigators are not required to provide extensive details about the investigation to a therapist, but the officer must be able to demonstrate to the therapist the relevance of their specific inquiries to their investigation. it is important that any request for information is specific (i.e. spanning a specific time period and related to a particular issue).

The investigator should pursue the reasonable line of inquiry in the least intrusive method possible as required by paragraph 13(d) of the AG Guidelines.

If the request is accepted move to step 6

If the request is refused the investigator should ensure that the therapy provider understands the request and that agreement from the victim has been obtained. The investigator should explain the potential implications if the request continues to be refused. For example, this could impact on the progression of the investigation and application of the Full Code Test or if post charge a witness summons application may be made requiring the therapist to attend Court. If the request continues to be refused, consider if there are any alternative methods to obtain the notes. If this is not possible, consider whether the evidential test within the Code for Crown Prosecutors can be met. The key question is whether the defendant can have a fair trial?

Step 6

Consider the notes and identify any material that meets the disclosure test. The notes should be appropriately listed and described on the unused material schedule. Copies of any material that the investigator believes meets the disclosure test should be suitably redacted, if required, and provided to the prosecutor.

If there is material that meets the disclosure test move to step 7

If there is no material that meets the disclosure test the prosecutor should consider the position and if in agreement, then the disclosure management document should be drafted/updated to confirm the position. This should be served on the defence.

Step 7

The prosecutor should first review the case and consider whether the material impacts upon the decision to charge or, if the case has already been charged, whether the material impacts on the application of the Full Code Test. If the Full Code Test is still met the prosecutor should give close scrutiny to the material and only disclose it to the defence where absolutely necessary. The investigator should be informed what material has been disclosed to the defence. The investigator should then explain to the victim that therapy notes have been disclosed whilst ensuring that the contents is not discussed and avoiding any form of witness ‘coaching’. The investigator should make and retain an accurate record of this conversation.

This flowchart is also available as a PDF.