Title: Jill Swindells
1Pre-trial therapy (not to be confused with
pre-therapy)
- Jill Swindells
- qualconsultancy.com
2Before we begin
- Housekeeping
- Toilets, fire alarms, mobile phones
- Timing
- Workshop 2.15 to 4ish with a break midway
- Later
- Plenary _at_ 4.15
- Group discussion 5.30-6.30 to scope the legal
and ethical issues of counselling within the CJS - Dinner _at_ 7.00
- Confidentiality/contracting?
- Discretion and anonymous/composite case material
- Permission to record?
3A bit about me
- Background in market and social (PC) qualitative
research, specialising in the vulnerable and hard
to reach e.g. - Court experiences of vulnerable people
(MOJ/TNS-BMRB) - Young Victims (OCJR/TNS-BMRB)
- Offenders evaluation of 'Alcohol Treatment
Requirement' service provider (ADSIS/Step Beyond)
4A bit about me
- Background in market and social (PC) qualitative
research, specialising in the vulnerable and hard
to reach e.g. - Court experiences of vulnerable people
(MOJ/TNS-BMRB) - Young Victims (OCJR/TNS-BMRB)
- Offenders evaluation of 'Alcohol Treatment
Requirement' service provider (ADSIS/Step Beyond) - 13 years Victim Support volunteering with victims
of all serious crime and children without
parental permission when necessary
5A bit about me
- Background in market and social (PC) qualitative
research, specialising in the vulnerable and hard
to reach e.g. - Court experiences of vulnerable people
(MOJ/TNS-BMRB) - Young Victims (OCJR/TNS-BMRB)
- Offenders evaluation of 'Alcohol Treatment
Requirement' service provider (ADSIS/Step Beyond) - 13 years Victim Support volunteering with victims
of all serious crime and children without
parental permission when necessary - Person-centred counsellor volunteering at
- HMP Onley
- Safeline (R/SA agency)
- CAF counselling in schools
- Myton Hospices bereaved parents group
childrens workshops
6And my interest in pre-trial therapy (ptt)
- Over 13 years, increasingly concerned about an
apparent lack of awareness and understanding
around counselling victims/witnesses,
particularly pre-trial also if clients decide
to report during or following counselling. - VS Research Counselling
training/experience - Dissertation on Counselling Victims and
Witnesses of Crime (included Pre-Trial
Therapy
awareness and understanding of CPS guidance) - Might identifying victims and witnesses of
crime as a discrete client group
help highlight clients CJ
needs and balance opposing ethical/legal issues?
7A bit about you
- Name, working / volunteer roles
- Counselling settings and approaches?
- Any special counselling interests/expertise?
- Something about you it might
surprise us to know?!
8Pre-trial therapy workshop
- Why chose this workshop?
- Anything in particular youre keen to find out
about? - What are your hopes/expectations?
- Any concerns?
9Responding to a disclosure
- Current counselling practice in your prison
/ awareness of what happens in other prisons? - Offender regarding another offence?
- A crime not convicted for, perhaps unreported?
- An incident in prison?
- Other issues?
- Offender as a victim
- Incident in prison?
- Past abuse?
- Other aspects
- reporting,
- pre-/ during/post- court support, etc.?
10pre-trial therapy
- Current awareness and understanding?
- Sources of information / training?
- Any direct experience?
- Perceptions of PTT
including relevance to
prison settings
11dissertation findings
- Therapists had little/no concept of
victims/witnesses of crime (VWC) as a group
with potentially specialist/overarching needs,
nor the implications for counselling,
particularly pre-trial - Clients needs relating to criminal justice along
with potentially conflicting legal and ethical
issues were not fully appreciated, pre-, during
or post-reporting or trial
12dissertation findings
- Therapists had little/no concept of
victims/witnesses of crime (VWC) as a group
with potentially specialist/overarching needs,
nor the implications for counselling,
particularly pre-trial - Clients needs relating to criminal justice along
with potentially conflicting legal and ethical
issues were not fully appreciated, pre-, during
or post-reporting or trial - A lack of appropriate, relevant and up-to-date
information, advice, guidance and training aimed
at or originating from the counselling/psychothera
py world was evident - Limited awareness and use of CPS guidance
(HO/CPS/DH, 2001), along with inadequate
supervision, policies and procedures,
risks clients being denied fully informed
consent as well as compromising
trials due to counselling being
inappropriate or ill-conceived
13Some general issues
- CJS often criticised for sidelining
victims/witnesses despite - their crucial role in the process
- successful prosecutions being dependent on their
cooperation - evidence-giving often being demeaning or
intimidating - Media coverage, particularly regarding CSA,
suggests victims and witnesses of crime
continue to be marginalised or re-victimised
14Some general issues
- CJS often criticised for sidelining
victims/witnesses despite - their crucial role in the process
- successful prosecutions being dependent on their
cooperation - evidence-giving often being demeaning or
intimidating - Media coverage, particularly regarding CSA,
suggests victims and witnesses of crime
continue to be marginalised or re-victimised - Speaking up for Justice (HO,1998, cited in
foreword of HO/CPS/DH,2001) stated
victims/witnesses should not be denied
the emotional support and
counselling they may
need both before and after the trial.
15Some general issues
- However, therapy pre-trial/during is often
avoided or discouraged or fear of tainting
evidence, witness coaching or undermining their
credibility (MOJ/CPS/DE/DH/WAG, 2011). - Long investigations and court delays threaten
victims/witnesses welfare and the quality of
eventual testimony, limiting ability to give
best evidence as memories fade, are
suppressed or tainted (Ellison,2001)
16Some general issues
- However, therapy pre-trial/during is often
avoided or discouraged or fear of tainting
evidence, witness coaching or undermining their
credibility (MOJ/CPS/DE/DH/WAG, 2011). - Long investigations and court delays threaten
victims/witnesses welfare and the quality of
eventual testimony, limiting ability to give
best evidence as memories fade, are
suppressed or tainted (Ellison,2001) - Achieving Best Evidence Guidance (DOJ, 2010)
recognised delays can worsen the prognosis and
recommended support, including pre-trial, should
begin as soon as possible for those deemed
vulnerable and intimidated.
17Cps ptt practice guidance
- Crown Prosecution Service practice guidance
(HO/CPS/DH, 2001) was issued following similar
guidance for children and the introduction of
special measures (CPS, 1999) - Provision of therapy for vulnerable and
intimidated witnesses prior to a criminal
trial - for victims/witnesses perceived as in need of
additional support, more specifically
therapeutic, before / during court
18Cps ptt practice guidance
- Crown Prosecution Service practice guidance
(HO/CPS/DH, 2001) was issued following similar
guidance for children and the introduction of
special measures (CPS, 1999) - Provision of therapy for vulnerable and
intimidated witnesses prior to a criminal
trial - for victims/witnesses perceived as in need of
additional support, more specifically
therapeutic, before / during court - It is critical to therapists meeting the possible
needs of victims/witnesses, working ethically and
in the clients
best interests
balancing recovery with getting justice - (Swindells,2012)
19Cps ptt practice guidance
- Sought to
- Provide a framework for good practice
- Improve understanding, explain roles, timing,
responsibilities, eligibility and appropriate
practice - Highlight the key issues critical to therapists
working ethically and legally - Inform counselling policies, procedures
and practice when
working pre-trial
20Cps ptt practice guidance
- Sought to
- Provide a framework for good practice
- Improve understanding, explain roles, timing,
responsibilities, eligibility and appropriate
practice - Highlight the key issues critical to therapists
working ethically and legally - Inform counselling policies, procedures and
practice when working pre-trial - But it has never been widely publicised, so
awareness and use of the guidance is
limited (Swindells,2012)
21Other research suggests
- Despite the introduction of pre-trial procedures
(CPS, 2001), very few received therapy pre-trial
and noted no procedures in place to provide
during/post-trial counselling - Many eligible adult victims/witnesses are not
identified as vulnerable/intimidated, so not
referred to counselling and problems persist due
to - Reluctance to disclose vulnerability/intimidation
- Fear of the consequences
- Poor information/advice/training of those
responsible for identification primarily the
police - (Lee and Charles,2008 McLeod et al,2010)
22From a counselling perspective
- Therapeutic practice appears to be lagging
behind the recent developments in the law,
designed to increase the availability of therapy
prior to the court appearance of witnesses,
especially victims and those who are vulnerable
or intimidated. - This is not just a problem for individual
therapists but for their professional bodies as
representatives of therapy collectively...(and)
subsequently leads to complications in litigation
(which) diminishes the public reputation of
therapists as a whole. - (Bond and Sandhu, 2005/11).
23From a counselling perspective
- Sims (2010) suggested therapists
- are often unaware of being involved in forensic
practice - have limited awareness of legal implications
- inadvertently risk breaking the law through
ignorance - Spence (1983) explained that CJ requires
- historical truth supported by corroborative
evidence, - whilst counselling entails narrative truth
making sense of what
happened,
even if it is unclear,
ambiguous or
not the absolute
truth. -
24From a counselling perspective
- Whilst some therapists seem unaware of PTT
guidelines - Others avoid such work for fear of
- their notes being subject to a court-order
- being called to give evidence themselves
- potentially undoing progress achieved prior to a
trial - compromising the therapist, client and
therapeutic relationship -
- (Bond and Sandhu, 2005/11)
25From a counselling perspective
- How do you feel about counselling pre-trial?
-
- And PTT?
- Any examples
from practice?
26From a counselling perspective
- Therapists may be intimidated by and cautious of
PTT as it exposes them to a legal minefield and
opposing ethical priorities - (Bond and Sandhu, 2011)
- Justice?
- Beneficence and non-maleficence?
- Autonomy?
- Fidelity?
- Self respect?
27From a counselling perspective
- Therapists may be intimidated by and cautious of
PTT as it exposes them to a legal minefield and
opposing ethical priorities (Bond and
Sandhu, 2011) - Justice?
- Beneficence and non-maleficence?
- Autonomy?
- Fidelity?
- Self respect?
- What ethical issues come to mind?
28From a counselling perspective
- Some examples
- Justice?
- Clients may feel re-victimised by CJS do more
harm than good - Therapists may inadvertently compromise
client/trial by invalidating evidence - Beneficence and non-maleficence in tension
- When supporting a client to report/have PTT
- Therapists/their notes may be requested by the
courts - Autonomy?
- Following the guidance client/therapist unable
to make free/fully informed choices - Important for contracting to highlight all the
issues to maximise autonomy - Fidelity?
- PTT compliant counselling policies and procedures
- Access to counselling/PTT for offenders in
custody/the community? - Self respect?
29From a counselling perspective
- So PTT requires
- Detailed consideration of ethical, professional
issues and legal requirements - Compatibility with the law and public interest to
avoid conflict - A different mindset and way of thinking
- Systematic and rigorous approach
until the trial is
over -
- (Bond and Sandhu, 2011 Mitchels and Bond ,2010)
30CPS PTT practice guidance ....
- What do you know about the dos and
donts? - Whos eligible?
- Who decides?
- When should you start?
- What it recommends to do/avoid?
- Changes to normal practice?
- Contracting/confidentiality
- Notes and records
- Court preparation
- Etc.
31Who is eligible?
- Vulnerable and intimidated witnesses
- Adults aged over 18 years
- Physical/mental health difficulties
- Learning disabled/capacity impaired
- Affected by sexual/domestic abuse or
weapon-related crime - The elderly/frail
- And all children/young people under 18 years
- N.B. Only these victims/witnesses are
entitled to pre-/during
trial therapy,
not all victims/witnesses
32Vulnerable and intimidated offenders?
- 36 of all prisoners have physical/mental health
issues - 20-30 of all offenders have learning
disabilities/ difficulties which affect coping
with CJS - 23 young offenders have learning difficulties
and 36 borderline learning difficulties -
33Vulnerable and intimidated offenders?
- 36 of all prisoners have physical/mental health
issues - 20-30 of all offenders have learning
disabilities/ difficulties which affect coping
with CJS - 23 young offenders have learning difficulties
and 36 borderline learning difficulties - 49 women and 23 male prisons suffering from
anxiety/depression - 25 women and 16 men in prison reported
psychotic symptoms - 23,183 incidents of self harm in custody in 2013
-
34Vulnerable and intimidated offenders?
- 36 of all prisoners have physical/mental health
issues - 20-30 of all offenders have learning
disabilities/ difficulties which affect coping
with CJS - 23 young offenders have learning difficulties
and 36 borderline learning difficulties - 49 women and 23 male prisons suffering from
anxiety/depression - 25 women and 16 men in prison reported
psychotic symptoms - 23,183 incidents of self harm in custody in 2013
- 46 women prisoners attempted suicide at some
point in their lives - 12 of the prison population is over 60, some
older prisoners have a physical health status
over 10 years older - (Bromley Briefings Summer 2014)
35Who decides and when to start
- The vulnerable/intimidated, their
carers/therapists are ultimately responsible for
decision making - And may also flag up eligibility if appropriate
and not already identified - The police / CPS need to be informed
disclosure made to the defence depending on the
stage reached - Therapy should not start until after the police
interview - If new disclosures during therapy, put on hold
till follow-up interview(s) completed - Communication with police/CPS may need to be
on-going
36CPS PTT guidance recommends ...
- Avoiding
- Recounting, re-enacting or rehearsing the
incident(s) - Attempting to distinguish fantasy from fact
- Implanting/false memories
- Interpretive/psychodynamic psychotherapy
- Hypnotherapy/psychodrama
- Regression techniques
- Unstructured group work
37Other sources recommend...
- Avoiding
- Guided imagery, dream interpretation
- Imaginal/exposure therapy
- Crisis intervention/desensitisation
- EMDR/Rewind technique/NLP
- Bibliotherapy
-
- (Fieldman-Summmers, 1996
- Miller, 1998 Counselling Directory)
38CPS PTT guidance recommends ....
- Therapy focussing on
- The impact of the crime
- Mental health issues
- Emotional/behavioural disturbance
- Dealing with/avoiding abusive situations
- Building self-esteem and confidence
- Stress reduction
- Reassurance and support
39CPS PTT guidance recommends ....
- Therapy focussing on
- The impact of the crime
- Mental health issues
- Emotional/behavioural disturbance
- Dealing with/avoiding abusive situations
- Building self-esteem and confidence
- Stress reduction
- Reassurance and support
- And states a preference for CBT
- Generalised evidence based rationale?
- Appropriate evidence lacking?
- (Joseph et al 1997, Itzin et al, 2010))
40A person centred approach?
- The Delphi Expert Consultation reported CBT alone
is - insufficient to meet victim/survivors needs
no single therapeutic approachworks best for
every victim/survivor - and recommended
- approaches should be needs-led and
victim/survivor centred associated with
characteristics such as empowerment, giving
control and choice to victims/survivors
(Itzin et al,2010)
-
41A person centred approach?
- The Delphi Expert Consultation reported CBT alone
is - insufficient to meet victim/survivors needs
no single therapeutic approachworks best for
every victim/survivor - and recommended
- approaches should be needs-led and
victim/survivor centred associated with
characteristics such as empowerment, giving
control and choice to victims/survivors
(Itzin et al,2010)
- Therapists working with trauma victims should be
- as involved and engaged as is possible
without violating
therapist-client boundaries
real, warm, concerned, empathic, responsive - (McCann and Pearlman, cited by Janoff-Bullman,
1992)
42A person centred approach?
- Providing PTT information, contracting
appropriately, sharing responsibilities for
boundaries and stopping clients talking about the
incident(s)/evidence is NOT directive if done
sensitively with - Empathic understanding
- Respect for their experience, autonomy
and frame of
reference
43A person centred approach?
- Providing PTT information, contracting
appropriately, sharing responsibilities for
boundaries and stopping clients talking about the
incident(s) is NOT directive if done sensitively
with - Empathic understanding
- Respect for their experience, autonomy
and frame of reference - The therapists job is to follow where the
client leads, putting aside theoretical
understanding and any other expert knowledge
(Wilkins,2010) - Clearly PTT requires some adaptations to meet CPS
requirements and balance ethical considerations
44The danger of discussion...
- Discussions of any kind prior to trial
perceived to increase the potential for - Gaps/inconsistent accounts of events in question
- Deliberate/inadvertent fabrication (sense-making)
- Risks becoming more convinced/convincing of
evidence, but no less mistaken and, hence,
perceived as less reliable as a witness - Therapy just ONE kind of discussion, others
include family, friends prison officers,
other prisoners - May lead to allegations of coaching/
contamination/unreliability
45Other changes to normal practice
- In addition to not talking about the evidence
- Incident(s) / people involved
- What others said/did (heresay), etc.
- Contracting needs to be PTT specific, thorough
(ideally written) and on-going in case the
situation changes - Confidentiality cannot be guaranteed
- Notes may be seized/counsellor called as a
witness - Notes should be brief, factual and, ideally,
shared, reviewed, signed as
accurate dated - Contain no personal disclosure/opinion
- Carefully record and disclose any additional
allegations - Court preparation and support should be kept
separate
46What if
- Circumstances/situations/decisions change
- Counselling client first discloses childhood
sexual abuse several weeks into counselling? - Depressed/anxious counselling client discloses
alleged physical/emotional abuse/neglect of
their neighbours child by parents? - Non-reporting and not vulnerable/intimidated
counselling client decides to report
during/post-therapy? - PTT client reveals new information about the
crime (s)/another unreported crime? - PTT client offends/re-offends in the meantime and
due in court as offender first? - After failed reporting by autistic client and
starting counselling believing not going to
trial, the police/CPS decide to proceed as other
victims/witnesses/new evidence/crime(s) emerge?
47So
- Circumstances/situations/decisions can change
- Hence, prudence recommended when counselling all
potential victims/witnesses at any stage in their
quest for recovery and/or justice - (Godsi,1999 Swindells, 2012)
48an ex-offenders personal experience of PTT
Starting initially as a CSA victim reporting for
the 3rd time ... Partway through PTT, reoffended,
so facing trial and the possibility of prison
where shed experienced further abuse
After 33 sessions and currently taking a break
between trials. Played with the clients
permission.
49Good practice guidance ...
- Adoption of common terminology PTT, CPS
guidance - So everyone is talking the same language
- Be prepared
- Proactive gt reactive multi-agency working
(Donlan Jenkins 2010) - Familiarity with CPS guidance updates
- Relevant training and supervision?
- Policies on disclosure, notes, records, etc.
- Fully informed consent contracting on-going
- Not guaranteeing confidentiality
- Avoiding certain approaches/coaching/evidence
- Appropriate focus
- Pre-court preparation and support separate
50Good practice guidance ...
- Dont forget resuming normal therapeutic
practice post-trial as - ...the same concern about external
evidence...necessary in the courtroom is
not required in recovery and healing -
- (Whitfield,1995).
51How do you feel about PTT now?
52Any questions?
53The more useful references
- HO/CPS/DH (2001) Provision of therapy for
vulnerable and intimidated witnesses prior to a
criminal trial. HO Communications Directorate,
London. http//www.cps.gov.uk/publications/prosecu
tion/pretrialadult.html - Bond, T. and Sandhu, A. (2005/2011) Therapists in
Court Providing Evidence and Supporting
Witnesses. (BACP) Sage, London. - Department Of Justice (July 2010) Achieving best
evidence in criminal proceedings. Guidance on
interviewing VW, the use of special measures and
the provision of pre-trial therapy.
http//www.dojni.gov.uk/index/public-consultations
/archive-consultations/draft_achieving_best_eviden
ce_guidance.pdf.pdf - Donlan, L. and Jenkins, P. (2010) Vulnerable
Witnesses Conference 13th January 2010. Pre-trial
therapy and the impact of trauma on Victims and
Witnesses. BACP, Criminal Justice Forum. - Lee, V. and Charles, C. (2008) A consultation on
the CPS Policy on prosecuting criminal cases
involving people with mental health problems
and/or learning disabilities as victims and
witnesses. CPS, London. - McLeod, R. Philpin, C., Sweeting, A, Joyce, L.
and Evans, R. (2010) Court experience of adults
with mental health conditions, learning
disabilities and limited mental capacity. MOJ,
London. - MOJ/CPS/DE/DH/WAG (2011) Achieving Best Evidence
in Criminal proceedings Guidance on interviewing
victims and witnesses, and guidance on special
measures. http//www.cps.gov.uk/legal/assets/uploa
ds/files/Achieving20Best20Evidence20in20Crimin
al20Proceedings.pdf