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Guidance on pre-trial therapy

Publication

Foreword

The Crown Prosecution Service has produced this operational practice guidance with the assistance of experts and voluntary sector providers. This guidance replaces and combines earlier guidance the “Provision of Therapy for Child Witnesses Prior to a Criminal Trial” and the “Provision of Therapy for Vulnerable or Intimidated Adult Witnesses prior to a Criminal Trial”, 2002. 

We believe that the use of this guidance will enable all victims to receive the therapy necessary in a timely fashion, both to assist their recovery and to give their best evidence in criminal proceedings.

The Information Commissioner’s Office is due to publish a report considering the approach taken by criminal justice agencies to accessing victim’s third party material including therapy notes later this year. We will review our guidance in light of the findings contained within that report.

Contents

 

1. Introduction

Both the criminal justice system and options for therapy have advanced considerably since the 2002 guidance was issued. This guidance reflects the concerns that have been raised by all parties involved in supporting victims pre-trial, whether this is in relation to sexual crime or other types of offending. This guidance aims to provide clarity with regard to the provision of therapy to ensure the best outcomes are achieved for all involved. It is aimed at assisting police officers, prosecutors, and professionals providing therapy for victims prior to a criminal trial. The best interests of the victim are paramount when therapy is required. It is hoped that this guidance will be helpful for all practitioners and agencies, especially those in the criminal justice system, SARCs1, NHS (including CAMHS2, Adult, Older Adult, Learning Disabilities and other specialist services), private sector, and voluntary organisations. Agencies involved in making referrals for therapy, including Children’s Services and Adult Social Care should also be aware of this guidance.

Exposure to criminal offending, in particular sexual violence, can lead to significant psychological and emotional difficulties. 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.

Victims are fundamental to the success of the criminal justice system in all cases, including non-recent allegations. All victims must be fully supported to be able to give their best evidence with the minimum of distress and this guidance recognises that therapy that meets the particular needs of a victim will serve to enhance the ability of that victim to give their best evidence at court. 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.

Independent Sexual Violence Advisors (“ISVAs”) provide a valuable service in offering emotional and practical support for the victims of sexual assault. This guidance is primarily aimed at therapists and full guidance for ISVAs is provided here. However, the guidance on note keeping and attending court within this guidance is considered to be good practice for all practitioners working within the criminal justice system, including ISVAs.

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.

As this guidance has been produced for both therapists and Criminal Justice System (CJS) practitioners, it necessarily includes some background information on both systems to provide context.

2. Fundamental principles

  • The well-being of the victim should determine decision making with regard to pre-trial therapy.
  • The provision of therapy should not be delayed when this would have an adverse impact on the health and well-being of the victim.
  • It is for the therapist with their client to make the decision about when to proceed with therapy
  • The police must not make any recommendations about whether therapy should be undergone. They must make it clear to victims that their well-being is paramount, and that should they wish to have therapy, this should not be delayed.
  • 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 the trial.
  • The law governing disclosure imposes an obligation on the police to pursue all reasonable lines of enquiry whether these point towards or away from the accused.
  • It is not appropriate for the police to make speculative enquiries and access to therapy notes should not be sought simply because a victim received therapy.
  • Therapists should explain to victims that, depending upon the circumstances of the individual case, it is possible that material generated as a result of therapy may represent a reasonable line of enquiry for the police such that they are required to view the material.
  • Before the police are able to view the notes of therapy sessions and take copies of any material which may be relevant to the investigation, they must first obtain seek the victim’s consent to do so.
  • Material generated as a result of therapy will 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.
  • In determining whether to disclose material generated as a result of therapy the prosecutor will take into account the victim’s right to privacy in accordance with Article 8 of the European Convention on Human Rights and this will usually mean that the prosecutor is satisfied that the victim consents to disclosure of material.
  • Only in the most exceptional cases will the CPS seek to obtain material held by the therapist against the wishes of the victim by way of a court order.

3. Practical implications for therapists

  1. What is therapy?

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.

The references to ‘Therapists’ include all professionally trained practitioners and those undergoing training who are providing therapy to victims. Therapy 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. New therapeutic approaches and services are continually evolving. This guidance does not recommend what type of therapy is appropriate for an individual. It provides principles of good practice that therapists and victims need to consider before engaging with any pre-trial therapy. This is particularly important when considering the provision of any therapy that necessarily involves discussion of the offending behaviour.

  1. What is best for the victim – pre-trial therapy discussion

Victims must be provided with a choice as to whether to proceed with therapy or a particular type of therapy.

Victims should be encouraged to understand that their well-being is of paramount importance in deciding whether therapy is provided and the form that the therapy should take.

As far as it is possible to do so professionals providing therapy should explain the potential implications of different types of therapy when a victim is involved with the criminal justice system. Specific considerations regarding PTSD, inconsistencies and gaps in memory, self-blame, as well as “false” and recovered memories are outlined below. Certain types of therapy, including group therapy and hypnotherapy, have potential implications for the investigation and prosecution process and the need for caution around these therapies is also discussed.

It is particularly important for therapists and victims to understand that the overriding priority is that the victim receives the best therapy for them at the time, and that the therapy is not delayed pending court proceedings, which can take many months.

The victim should be informed that the decision whether and when to undergo therapy is for the victim, in consultation with the therapist. The police and CPS have no role in this decision-making process but police should make sure the victim is aware of their right to access therapy..

  1. Consent

Before starting therapy, the therapist should obtain explicit written informed consent to engage in therapy with any agreed conditions in place.

Police will only seek access to notes or other material generated as a result of therapy if it represents a reasonable line of enquiry for the purposes of the specific investigation. Before the police are able to see the notes of the therapy sessions and take copies of any material which may be relevant to the investigation, they must first obtain the victim’s consent to do so. It is good practice for the police to liaise with the therapist rather than the victim directly when they conclude that it is necessary to view the content of records. The therapist must obtain written consent from the victim and any agency that is deemed to have ownership of the records before the officer can see the material. See section 6 (d) below for the position where consent is, for whatever reason, declined.

Special consideration should be made to gaining consent if the victim is a child, young person, or adult with significant impairments such as learning difficulties, dementia, serious mental health problems, substance abuse. Consent to engage with therapy and the disclosure of notes needs to be considered in line with the Gillick competency test3 or the Mental Capacity Act 2005. If the victim is considered to be competent then they are deemed to be able to make decisions regarding engaging in therapy and disclosure.

If the victim is a child, decisions in relation to consent will often be made with the child’s parent or carer in conjunction with the child, according to their age and understanding. The Gillick competence test 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 his own mind on the matter requiring a decision”. Reaching such a stage varies according to the developmental process of each individual child.

  1. Disclosure of therapeutic notes and assisting the police

Maintaining the victim’s trust is essential and therapists should highlight to victims that it is possible that material generated as a result of therapy may be sought by the police and that such material may ultimately be determined by prosecutors to meet the disclosure test in criminal proceedings. The relevant legal tests are discussed in greater detail in Sections 5 and 6 below.

Where the police conclude that obtaining material generated as a result of therapy represents a reasonable line of enquiry the police officer in the case (OIC) or the disclosure officer if there is one, is responsible for assessing whether material is relevant to the investigation. The therapist should, as far as possible, assist the officer in the determination of relevance. Where material is determined to be relevant by the police, the victim can choose to review their notes with their therapist before the material is provided to the police. This is recommended as good practice.

  1. The timing of therapy in the context of a criminal prosecution

Every individual and every case is different and it is not possible to identify an optimum point when therapy should take place in relation to when an offence occurred. For example, in cases involving non-recent incidents, the therapy may occur months or years after the event. The victim may not have decided whether to report the matter to the police and in some cases, may not disclose that any offence has occurred until the therapeutic process has commenced.

  1. When the victim has not reported offences to the police but expresses an intention to do so at the time of the initial consultation

It is not necessary for the commencement of therapy to be delayed pending the taking of a statement and the best interests of the victim should determine the choice that is made with regards to the form of therapy undertaken. The therapist should encourage the victim to report the offence to police as soon as possible.

  1. If the victim has reported the offence to police but has not yet provided an ABE interview or statement

It is not necessary for the commencement of therapy to be delayed pending the taking of a statement and the best interests of the victim should determine the choice that is made with regards to the form of therapy undertaken.

  1. When the victim is unsure whether to report the offence to the police

It is not necessary for the commencement of therapy to be delayed pending a decision from the victim on reporting and the best interests of the victim should determine the choice that is made with regards to the form of therapy undertaken.

Where a victim chooses not to report criminality to the police safeguarding issues which may override a victim’s wish not to report should be considered by the therapist.

  1. When the victim does not intend to report the offence to the police when therapy starts but then decides to do so

If therapy has started and, during the course of the therapy, they decide to report the offence to the police there is no requirement for therapy to be stopped but the therapist should encourage the victim to make a report to police as soon as possible. The best interests of the victim should determine the choice that is made with regards to the form of therapy undertaken.

  1. When the victim makes the first disclosure of an offence during the course of therapy

Therapy may increase the ability of the victim to disclose incidents that could previously be recalled but were actively and deliberately kept from coming to mind due to shame and avoidance. If a victim discloses events for the first time to the therapist then all of the details need to be fully documented. The therapist would be a “First Disclosure Witness” and would be asked to make a witness statement if the victim chooses to report an offence to the police (and could ultimately be required to give evidence in court). It is important to be aware that the notes recorded by a therapist in this scenario have the potential to be an extremely valuable source of evidence for the prosecution case. An example of a disclosure record sheet that could be used by a therapist in this scenario is contained at Annex B.

There is no requirement for the therapy to be stopped as a result of a disclosure being made including in circumstances where the victim indicates an intention to report criminality to the police but where the victim reveals such an intention they should be encouraged to report to police as soon as possible.

  1. When the victim discloses an incident whilst they are also facing criminal charges

The account of the allegation of the offence against them should be taken as a separate issue and dealt with in the same way as for every other victim, as outlined in this guidance.

  1. Where a therapist is aware of an ongoing criminal investigation and the victim discloses what the therapist understands to be additional crimes, abusive experiences or other new material relating to the criminal case

It is acknowledged that a therapist will not have a detailed understanding of a specific criminal investigation and may not have any established contact with an investigating officer at the time when a disclosure is made to them by a victim. These factors will inevitably impact upon the ability of a therapist to recognise the extent to which any disclosure is significant to an ongoing criminal investigation. There may, however, be circumstances where a therapist is familiar with the circumstances of an ongoing criminal investigation and can identify that a disclosure includes information which is not known to the police. In these circumstances the details of the disclosure need to be fully documented. An example of a disclosure record sheet that could be used by a therapist in this scenario is contained at Annex B.

The therapist should encourage the victim to inform the police as soon as possible of the new evidence. It is recommended that in circumstances where the investigating officer and therapist have established contact as a result of an ongoing investigation that, having obtained the consent of the victim, the therapist notifies the officer in the case that there is a need for them to speak with the victim about new evidence.

There is no requirement in these circumstances that therapy be paused pending the recording of new evidence

  1. How a traumatised victim may present

Whilst therapy is very often the best way of helping the victim to recover from events traumatic enough to cause PTSD or other psychological difficulties, it can give rise to accounts which may be viewed by some as unreliable due to issues such as inconsistencies, gaps in memory and self-blame. This may be understandable and explicable, and an expert may be asked to provide a statement summarising the evidence and commenting on whether such concerns impact on the reliability (or otherwise) of the victim’s memory. An expert may also be asked to comment on whether a victim is suffering from PTSD or other associated difficulties. It is never the therapist’s (or expert’s) role to provide an opinion as to the truthfulness of the account.

The section below describes several ways in which a victim who has experienced trauma may present when giving evidence:

  1. Dissociation

Dissociation is common in a number of anxiety disorders and is thought to be a natural response to stress. It includes feelings of oneself or others being ‘unreal’, 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 a spectrum of re-experiencing of the traumatic event, ranging from a brief sense of being back in the situation to a complete absorption in the event and loss of the ability to differentiate it from the ‘here and now’.

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 has unprocessed traumatic memories, giving evidence or being confronted with the accused could trigger dissociative flashbacks which were highly distressing and could significantly interrupt the proceedings, particularly if this led to a more prolonged dissociative episode.

  1. Self-blame and shame

Many people do not disclose aspects of traumatic incidents due to shame and avoidance. Self-blame and shame are extremely complex. Care needs to be taken in understanding and working with victims who are or have presented with these responses to the incident(s).

Sexual violence can often result in self-blame as the person who was assaulted cannot make sense of the experience. This is commonly exacerbated by feelings of shame about the sexual assault, and the person internalises the experience without any objective external evidence or witnesses to challenge this assumption. This has been exacerbated by the perpetuation of rape myths and stereotypes whereby society has endorsed beliefs that a victim should have been able to say ‘no’ and ‘fight-back’ against any potential assailant.

Self-blame is a cognitive process that is distinct from any evidence that the person has behaved in any way that means they have actively contributed to the assault occurring. 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 court.

Shame is also highly associated with delayed reporting and this 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 (June 2018)

  1. Potential impact of therapy on memory

  1. 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 the contents 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.

  1. 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. Therefore accounts may change over time but still be accurate, an observation that has been recognised as relevant to other areas of law, such as immigration tribunals.

Accounts may also vary over time because people are initially unwilling to disclose certain facts through embarrassment 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 (psychologists call this effect hypermnesia). In therapy for PTSD 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.

Inconsistencies in the details of a narrative are therefore to be expected and should be distinguished from accounts or details that actively contradict each other.

  1. False memory

Concerns have been raised, and are generally accepted, that certain kinds of therapy may have the potential to produce false memories, such as a memory of child sexual abuse that the person was not previously aware of. Basically this is a therapy (sometimes referred to as ‘recovered memory therapy’) where there is a high degree of suggestion that events such as child sexual abuse are likely to have happened to the client, even though they have no pre-existing memory of them. It has been argued (although without any specific evidence being provided) that a number of therapeutic techniques are associated with an increased risk of false memories, including guided imagery, dream interpretation, hypnotic age regression, and ‘journalling’ (keeping a journal of events, thoughts, and feelings). These techniques have a recognised place in therapy where they are likely to be used for other purposes not incurring the risk of false memories.

‘Recovered memory therapy’ is not a recognised form of therapy and is not taught or approved by any professional body. Nor 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. Nevertheless these practices were advocated in a small number of books written in the 1990s and it is possible some therapists, particularly ones with fewer professional qualifications, still use them.

Another therapeutic situation where caution should be exercised is where memories are recovered after some form of free association in which the client has been encouraged to let thoughts and images come freely to mind. It is appropriate to warn clients that these thoughts and images may be a product of their imagination and do not necessarily correspond to actual events.

It is sometimes argued that it is easy to implant false memories of childhood experiences. Laboratory experiments have succeeded in doing this in a small minority of healthy participants by having parents lie to their children, using fake photographs, etc. This is a long way from what happens in a therapy session. There is a continuing issue in deciding how convinced the person is by the ‘memory’ that is produced as a result of these procedures. Nevertheless there is agreement that it is possible for a person to become convinced they had an experience that in reality did not occur.

False memories as a result of therapy are a possibility that should be taken seriously. Caution is advisable whenever: (a) the person has been exposed to prolonged suggestive influences; (b) they have a history of hallucinations, delusions, or other altered states; (c) there are alternative sources for their apparent ‘memories’, such as dreams; (d) they have not taken a critical attitude to the thoughts and images that have come to mind but simply assumed them to be correspond to true events.

  1. Therapies that could present difficulties

  1. Group Therapy

Particular caution should be exercised. The defence may argue that the potential for confusion, collaboration, undue and even unconscious influence, confabulation and fantasy is much higher than in other types of therapy. The rationale is that hearing the accounts of others or engaging with discussion of others’ experiences may unduly influence the account of the victim. Whilst the experience of many therapists will not accord with this analysis (a significant proportion of victims will in fact avoid discussing details of their own trauma history in group therapy), victims choosing this type of therapy do need to consider the implications of how engaging in group therapy could be used to undermine the credibility of their evidence. The extent to which individual group members discuss details of the trauma will vary according to the terms of reference for the groups. Some may focus only on psychoeducation and support and others may be more open.

  1. Hypnotic age regression

If the only evidence of a particular event is obtained as a result of taking the person back into childhood in their imagination, any ‘events’ which are remembered in consequence should be treated with extreme caution.

  1. Leading questions

The general principle that any professional providing therapy should not in any way suggest to clients what may or may not have happened to them in the past is of paramount importance. Deliberate attempts to recover forgotten memories, or to assist the person in remembering more than they currently do, likewise run counter to professional guidelines. Good practice also involves educating clients that spontaneously recovered images and memories may or may not correspond to something that actually took place.

  1. Note taking and statements

Therapy records including videos and tapes as well as notes, and other contacts with the victim, must be preserved in case they are subsequently deemed to be relevant for the purposes of an investigation or prosecution. Therapists should ensure their , approach is consistent with the requirements under the General Data Protection Regulation (GDPR).

It is not expected that verbatim written records will or should be kept. The practitioner should make a factual, concise and accurate record of each session including the following details:

  • The date, time and location of the session
  • The name of the practitioner
  • The names of anyone else present
  • The content or themes of the session

Any therapy sessions involving reprocessing of traumatic memories, or any discussion of the details of the offence, need to be clearly documented. An example of a disclosure sheet can be found at Annex B.

If other modalities, such as art or music are used then the processes involved and content discussed needs to be explained in the notes.

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.

  1. Continuing provision of therapy up to trial

There is no reason why therapy should not continue up to the trial. It will be the responsibility of the police to consider whether any continuing therapy may have relevance for the case and it is recommended that contact is made with the therapist.

  1. Attending Court

While the victim must receive the treatment that they need, they should be aware that 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 case against the defendant. 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 any inconsistencies or other perceived “weaknesses” in the case. The “Speaking to Witnesses at Court Guidance” states:

“Where third party material about a particular victim has been disclosed to the defence as being capable of undermining the prosecution’s case or assisting the defence case (such as social services, medical or counselling records) then that particular victim should be informed of the fact of such disclosure. The victim may, in any event, have already consented to the disclosure of some sensitive and / or confidential material that relates to them such as their medical records but even if you believe this to be so, you should check and remind them. The details and the impact on the defence cross-examination should not be discussed.”

Special Measures are available for vulnerable and intimidated victims. Special measures include the use of video recorded ‘Achieving Best Evidence’ (ABE) interviews. Subject to the agreement of the court, these are played as the victim’s evidence at a trial as an alternative to the victim providing live evidence. The defence advocate has the right to cross-examine the victim and an application can be made on behalf of the victim for this cross examination to take place in a court behind a screen so that the defendant will not see them, or over a live TV link (in which case the defendant will see them on the screen). In sexual offences an application can also be made by the prosecution to clear the public gallery when the victim gives evidence.

In order to prevent contamination of the evidence, 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.

4. 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 by the witness, 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.

5. Duties and responsibilities of the Police

  1. Advice on therapy

The police must not make any recommendations about whether therapy should be undergone. They must make it clear to victims that their well-being is paramount, and that should they wish to have therapy, this should not be delayed for reasons connected to the investigation.

  1. Victim consent

Because disclosure of therapy records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to:

  • gain access to the records; and
  • enable disclosure, where appropriate, to take place.

When obtaining consent, the victim should be informed by the police why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.

  1. Evidence and unused material

The prosecution case relies on evidence being put before the court, which may include oral evidence from victims, video recorded interviews of victims, written statements and exhibits.

“Unused material” is “relevant material”4 that does not form part of the evidence in the prosecution case. Unused material may be held by the police or other agencies, such as Local Authorities, Social Care services, Health providers, Education authorities and therapy providers.

The law governing how unused material is dealt with by the police and CPS are set out in the Criminal Procedure and Investigation Act 1996 (CPIA) and Code of Practice CPIA. The police are under a duty to follow all “reasonable lines of enquiry” and to retain and record all “relevant material” on a schedule.

The CPIA creates the disclosure test, which directs that the prosecution must disclose to the defence any material that “might reasonably be considered capable of undermining the prosecution case or assisting the defence case”. The police are required to provide copies to the CPS of any material which meets the disclosure test.

  1. Reasonable lines of enquiry

CPIA and Code of Practice CPIA, impose an obligation on the police to pursue all reasonable lines of enquiry whether these point towards or away from the suspect. Reasonable lines of enquiry may include enquiries as to the existence of material in the hands of a third party such as providers of therapy.

The investigating officer should ask the victim whether they have undergone and/or are undergoing any form of therapy. If the victim has not had engagement with a therapist the investigating officer should make it clear to the victim that if they subsequently decide to undergo therapy during the investigation/prosecution they should make the investigating officer aware of this fact.

It is important to note that the police should not pursue speculative enquiries to access therapy notes simply because a victim confirms that they have received therapy in the past or are currently undergoing therapy.

In R v Alibhai, [2004] EWCA Crim 681, the Court of Appeal held that before taking steps to obtain material held by third parties, it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test. The case goes on to say that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

The legal position therefore is that before taking steps to access therapy records the police should be carefully consider the legal basis upon which that access is sought and in particular why it is they suspect that material held by the therapist is likely to satisfy the disclosure test (i.e is material which might reasonably be considered capable of undermining the prosecution case or assisting the defence case). This is an issue that should be determined with input from the victim and the relevant therapist and any other party who has information which assists with the determination of the issue (see Section ‘contact with therapists below’).

It should be noted that there may be content within therapy records which assists with the effective presentation of the prosecution case such as evidence corroborating a victim’s first disclosure to a therapist in a non-recent case of sexual abuse.

It is recommended that the police discuss their proposed approach to the consideration of therapy records with a prosecutor at an early stage of the investigation. In any event the police must detail the approach taken when formal advice is sought from the CPS.

Information regarding the approach taken to the investigation of therapy records will allow the prosecutor to determine whether duties under the CPIA have been met and 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.

  1. Police contact with therapists

In making reasonable enquiries the police must ensure that:

  • Third parties are aware of the investigation;
  • Third parties are alerted to the need to preserve relevant material;
  • Third parties are provided with contact details for the investigating officer;
  • Consideration is given to whether it is appropriate to seek access to the material and if so, what steps should be taken to do so.
  • If the material is likely to satisfy the disclosure test that access to the material is sought.
  • Informed consent has been obtained before the material is provided to the police.
  • Information is sought with regards to any ongoing therapy that is taking place.

Requests to therapists for information on therapy should provide an overview of the victim’s allegations, explain the issues in the case, so far as they are known, and be as precise as possible. Speculative enquiries should not be made. The purpose of the enquiries should be to facilitate a genuine and focused search for relevant documents or information and to enable the police to establish whether it is suspected that material held by the therapist is likely to satisfy the disclosure test (i.e is material which might reasonably be considered capable of undermining the prosecution case or assisting the defence case).Careful maintenance of therapy records will facilitate this focused approach.

  1. Disclosure of material obtained from therapists

Where material is obtained from therapists (and other third parties) the police should discuss with them any sensitivities attached to the material that might influence whether it is used as evidence or disclosed to the defence or whether there may be public interest reasons that justify withholding disclosure. These issues should then be drawn to the attention of the prosecutor.

  1. Provision of unused material to the CPS

  1. Bail Cases

The police are required to provide copies of any material which meets the disclosure test (material which might reasonably be considered capable of undermining the prosecution case or assisting the defence case) to the CPS before a person is charged (in cases where the suspect is on bail and CPS authorises the charge). This allows the prosecutor to make a fully informed decision regarding the strength of the case.

  1. Remand Cases

In cases where the defendant has been charged and remanded into custody, disclosable unused material should be provided to the CPS as soon as possible after charge.

Those aspects of therapy that have no relevance to criminal proceedings should not be included on the schedules, but it is important that the CPS are made aware that the victim is undergoing therapy so that the prosecutor can satisfy himself/herself that disclosure duties have been met in the case.

6. Duties and responsibilities of the CPS

  1. The Code for Crown Prosecutors

In deciding whether to charge or continue a case, the CPS applies the two stage “Full Code Test” set out in the Code for Crown Prosecutors. The CPS must first be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This means that a jury or bench of magistrates is more likely than not to convict the defendant of the charge alleged. 

If the case passes the evidential stage, prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The public interest must be considered in each case where there is sufficient evidence to provide a realistic prospect of conviction.

The CPS will only start or continue a prosecution if the case passes both stages of the Code test. Review is a continuing process, which carries on throughout the life of a case.  Prosecutors must take account of any change in circumstances as the case progresses.

The courts apply a different test in determining a defendant’s guilt or innocence. A person can only be convicted of a criminal offence if a jury or bench of magistrates are satisfied so that they are sure that the defendant is guilty.

  1. Advice to police on reasonable lines of enquiry and therapy notes

CPIA and Code of Practice CPIA, impose an obligation on the police to pursue all reasonable lines of enquiry whether these point towards or away from the suspect. Reasonable lines of enquiry may include enquiries as to the existence of material in the hands of a third party such as providers of therapy.

Prosecutors should not encourage police to pursue speculative enquiries and so police should not be advised to seek access to therapy notes simply because a victim has received therapy.

In R v Alibhai, [2004] EWCA Crim 681, the Court of Appeal held that before taking steps to obtain material held by third parties, it must be shown that there was not only a suspicion that the third party had relevant material but also a suspicion that the material held by the third party was likely to satisfy the disclosure test. The case goes on to say that even if there is the necessary suspicion, the prosecutor has a "margin of consideration" as to what steps to take in any particular case and was not thus under an absolute obligation to obtain material that was suspected to satisfy the disclosure test.

When advising police on an investigation prosecutors should carefully consider the legal basis upon which it might be appropriate to seek access to therapy records. Particular consideration should be given to what, if any, information is available which provides grounds for a suspicion that material held by the therapist is likely to satisfy the disclosure test.

  1. Consideration of Unused Material by the CPS

Where relevant material is identified by the police which 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 meets the Full Code Test. Examples of material that could meet the disclosure test includes inconsistent accounts of the incidents (for instance inconsistency between the account of the victim provided to a therapist and the account provided to the police), and anything that impacts on the reliability or credibility of the victim (for instance where the victim has difficulty differentiating fantasy from reality).

  1. Disclosure of material to the defence

If the defendant is charged, the CPS will review unused material provided by the police and consider if any material meets the disclosure test.

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 the disclosure should be limited to the part that meets the test and no more.

If the prosecutor decides that the disclosure test is not met in relation to material relating to therapy, 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 disclosure. At the disclosure hearing the victim and prosecutor will be permitted to make representations to the court (see section below for more detail). If the court grants the application, the prosecution must comply with the order, otherwise the case cannot continue.

  1. Consent to disclose material

Because disclosure of records will engage the Article 8 right to privacy of the victim it is crucial that the police obtain the victim’s informed consent to:

  • gain access to the records; and
  • enable disclosure, where appropriate, to take place.

Furthermore prosecutors must satisfy themselves that consent to disclose the medical records/counselling notes has been obtained by the police from the person to whom the notes refer before any disclosure of material takes place.

When obtaining consent, the victim or witness should be informed why the request is being made and what might happen to the record. The victim or witness has the right to decline consent if he or she so wishes but must also be told about the possible consequences for the case outcome.

It is possible to identify three potential scenarios relating to the therapy records of the victim:

First scenario
The victim or witness gives informed consent allowing the police access to the therapy records and service of them as additional evidence or unused material, as appropriate.

Second scenario
The victim gives qualified consent, allowing their records to be disclosed to the police and prosecutor but not to the defence. The prosecutor needs to carry out the usual test of relevance, deciding whether the records should form part of the prosecution case or whether they should be treated as unused material. If the record supports the prosecution case, the prosecutor should inform the victim of his decision and seek consent to use the record as part of the evidence.

Where the prosecutor considers that some or all of the records meet the disclosure test and should be disclosed as unused material, the consent of the victim should once again be sought. If consent is refused the prosecutor should decide between making an application for non-disclosure on the grounds of Public Interest Immunity (PII) or not proceeding with a prosecution. In the event that a PII application is made, the victim will be entitled to have her/his views put before the court. This may be done by the prosecutor on the victim's behalf or by the victim in person or in writing, or by someone acting on her/his behalf. The court, having seen the material and heard the representations, will make a decision about the public interest.

Third scenario
The victim does not consent to the release of their therapy records. In circumstances where there are reasonable grounds to believe that disclosable material is contained within the records, prosecutors will need to consider whether it is appropriate to use the witness summons procedure to gain access to these records. The victim has a right to make representations to the court as to why the records should not be disclosed. In these circumstances, the prosecutor would not usually be able to represent the interests of the victim at the hearing being unaware of the content of the records, and their relevance (or otherwise) to the proceedings.

  1. Where therapy is continuing up to trial

Where therapy is continuing up to the trial date it will not be necessary in every case for the prosecutor to secure access to the material generated. It is important, however, that the prosecutor reminds the police that disclosure duties under the CPIA are ongoing and that it is necessary for them to liaise with the therapist in order to establish if there may be grounds to seek access to the material.

7. 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)
  • Consent – the Gillick competence test (Gillick v West Norfolk and Wisbech Area Health Authority and Another, [1984] Q.B. 581) 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 his 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 on-going 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
  • Special measures – 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 in specified court centres pre-recorded cross-examination of child victims is now taking place pursuant to Section 28 YJCEA 1999. Intermediaries can be requested by prosecutors to assist a child victim with any specific communication issues that may exist.

8. Acknowledgements

We are grateful to all those who have contributed to both the consultation and final version of this document. We would particularly like to thank those listed below:

  • Dr Brock Chisholm, Clinical Psychologist
  • Martin Clabon, Norfolk Constabulary
  • Adele Cook, Crown Prosecution Service
  • Duncan Craig, Chief Executive Officer, Survivors Manchester
  • Maeve Crowley, Consultant Clinical Psychologist
  • Lawrence English, Crown Prosecution Service
  • Emma Harewood, The Lighthouse (first UK Barnahus)
  • Dr Sarah Heke, Consultant Clinical Psychologist, Central and Northwest London NHS Trust
  • Dr Derek Indoe, Consultant Clinical & Forensic Psychologist
  • Lorraine Knibbs, Psychotherapeutic Counsellor
  • Fay Maxted OBE, Chief Executive Officer, The Survivors Trust
  • Tink Palmer, Marie Collins Foundation
  • Angela Rafferty QC
  • Stephanie Reardon, Limeculture
  • Hong Tan, Head of Health in the Justice System, NHS England
  • David Trickey, Consultant Clinical Psychologist, Anna Freud National Centre for Children and Families

9. References

  • Dame Elish Rape Review Report
  • AGO disclosure guidelines
  • Achieving best evidence in Criminal Proceedings – Guidance for vulnerable or intimidated victims including children" – published by the Ministry of Justice.
  • Criminal Procedure and Investigations Act 1996 (CPIA)
  • Criminal Justice Act 2003
  • Human Rights Act 1998
  • UN Convention on the Rights of the Child
  • No Secrets – Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse – Department of Health March 2000

ANNEX A – Different types of trauma-focussed therapy

There are a number of techniques used for reprocessing traumatic memories depending on the type of trauma-focussed therapy used. These are almost always used when the traumatic event is known. The most commonly used approaches include:

  1. Eye Movement Desensitisation and Reprocessing (EMDR):

Eye Movement Desensitisation and Reprocessing (EMDR) is based on the Adaptive Information Processing Theory (AIP) which states that the symptoms of PTSD and other disorders (unless physically or chemically based) result from past disturbing experiences which continue to cause distress because the memory was not adequately processed. These unprocessed memories contain the emotions, thoughts, beliefs and physical sensations that occurred at the time of the event. When the old memories are triggered in the present, these stored disturbing elements are experienced as if they are happening now and are seen as the cause of the symptoms of PTSD and other disorders.

Unlike other treatments which focus on altering the emotions, thoughts and responses resulting from traumatic experiences, EMDR therapy focuses directly on the memory itself in order to unblock the way that the memory is stored in the brain. This is achieved through a set of standardised procedures, which incorporate the use of eye movements and other forms of rhythmic left-right (bilateral) stimulation (e.g. tones or taps) while the client recalls the memory and allows their brain to spontaneously reprocess the images, negative thoughts, emotions and sensations of the trauma and related events. At the end of the treatment, the memory will no longer be distressing, and it will be more appropriately stored in the brain as a past event that is not happening now.

  1. Narrative Exposure Therapy (NET):

NET is an approach that is usually recommended for clients who have experienced multiple and repeated traumatic events. Clients create a chronological ‘lifeline’ of positive and negative or traumatic events from birth to the current day. The therapy involves going through each of the traumatic events in the past tense. The therapist asks detailed questions about the event including peripheral details and exactly what happened. At the worst or distressing moments, the therapist asks how the client was feeling and thinking at the time and then how they are feeling and thinking now.A detailed narrative account is taken and then re-read to the client at the beginning of the next session. At the end of therapy the client will have a complete narrative of all the traumatic events in their lives.

  1. Prolonged Exposure (PE):

Prolonged exposure involves focusing on the traumatic memory and using the first or third person in discussion of the details of the traumatic event. Events may be described in the past tense or present tense, and may be viewed from a distance. Clients are asked to listen to recordings of exposure sessions between sessions.

  1. Trauma-focussed Cognitive Behavioural Therapy (TF-CBT):

The main goals of this approach are to organise and complete the memory by telling it in the present tense, getting details about the sensations, thoughts, images, feelings and events and paying attention to whether the memory makes sense with clarification of confusing details. A secondary goal is to identify critical moments during the event and meanings associated with them. Verbal techniques are used to change negative meanings to more adaptive ones. These new meanings may then be combined with the negative images of the worst moments in the client’s imagination to reduce the associated distress.

  1. Sensorimotor and Body-Oriented Therapies

Body-oriented therapies are sometimes used with victims of sexual violence due to the psychological impact of the violation of physical boundaries. They may also be useful when victims experience somatic symptoms involving dissociation, emotional reactivity, flat affect or hyperarousal. As these therapies focus on the body as a means of processing the trauma, there would usually be less direct discussion of the events, however details could still be disclosed at any time and in particular at assessment when deciding the appropriateness of this type of therapy.

ANNEX B – Example disclosure record

Disclosure Record
Client Name: 
DOB 
Date, time, location of disclosureDate:Time:Location:
   
Therapist Name: 
Therapist Role: 
Any other persons present and their roles: 
Purpose & plan for the session:
 
What was said immediately prior to the disclosure?
 
>What was the disclosure (verbatim, use speech marks) & how did the client present (consider tone of voice, eye contact, facial expression, fidgeting)?
 
What did the therapist say in response (verbatim, use speech marks)?
 
Did the therapist write notes at the time?YES NO 
If yes, location of the notes: 
What action was taken by the therapist in response to the disclosure? (If family member spoken to, record what was said)
 
Any clinical observations:
 
  1. Sexual Assault Referral Centres
  2. Child and Adolescent Mental Health Services
  3. Arising from comments made by Lord Scarman in Gillick v West Norfolk & Wisbech Area Health Authority UKHL 7 (17 October 1985)
  4. 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 (2.1 CPIA Code)
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