“PRE-TRIAL
THERAPY”
(NOT
TO BE CONFUSED WITH PRE-THERAPY)
Jill Swindells
qualconsultancy.com
BEFORE WE BEGIN …

Housekeeping


Toilets, fire alarms, mobile phones …
Timing
Workshop = 2.15 to 4ish with a break midway
Later …
 Plenary @ 4.15
 Group discussion = 5.30-6.30 to scope the legal and ethical
issues of counselling within the CJS
 Dinner @ 7.00


Confidentiality/contracting?


Discretion and anonymous/composite case material
Permission to record?
A 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)

A 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
A 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 + children’s workshops
AND 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?
A 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?!
PRE-TRIAL THERAPY WORKSHOP …


Why chose this workshop?
Anything in particular you’re keen to find out
about?

What are your hopes/expectations?

Any concerns?
RESPONDING 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.?
PRE-TRIAL THERAPY
…

Current awareness and understanding?

Sources of information +/ training?

Any direct experience?

Perceptions of PTT…
including relevance to
prison settings
DISSERTATION 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
DISSERTATION 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/psychotherapy 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
SOME 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 revictimised
SOME 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 revictimised
‘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”.
SOME 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)
SOME 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’.
CPS 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
CPS 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)
CPS 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
CPS 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)
OTHER 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)
FROM 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).
FROM 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’.
FROM 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)
FROM A COUNSELLING PERSPECTIVE …
 How
do you feel about counselling
pre-trial?
 And
 Any
PTT?
examples
from practice?
FROM 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?
FROM 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?
FROM A COUNSELLING PERSPECTIVE …

Some examples…

Justice?



Beneficence and non-maleficence in tension




Following the guidance = client/therapist unable to make free/fully informed choices
Important for contracting to highlight all the issues to maximise autonomy
Fidelity?



When supporting a client to report/have PTT
Therapists/their notes may be requested by the courts
Autonomy?


Clients may feel re-victimised by CJS = do more harm than good
Therapists may inadvertently compromise client/trial by invalidating evidence
PTT compliant counselling policies and procedures
Access to counselling/PTT for offenders in custody/the community?
Self respect?

Appropriate training and supervision
FROM 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)
CPS PTT PRACTICE GUIDANCE ....
 What
do you know about the
do’s and don’ts?





Who’s 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.
WHO 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
VULNERABLE 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
VULNERABLE 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
VULNERABLE 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)
WHO 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
CPS 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
OTHER 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)
CPS 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
CPS 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))
A PERSON CENTRED APPROACH?

The Delphi Expert Consultation reported CBT alone is …
“insufficient to meet victim/survivors needs … no single therapeutic
approach…works 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)
A PERSON CENTRED APPROACH?

The Delphi Expert Consultation reported CBT alone is …
“insufficient to meet victim/survivors needs … no single therapeutic
approach…works 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)
A 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
A 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
frame of reference
and
The “therapist’s 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
THE 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 …
OTHER 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
WHAT IF …

Circumstances/situations/decisions change …
1.
‘Counselling’ client first discloses childhood sexual abuse several weeks
into counselling?
2.
Depressed/anxious ‘counselling’ client discloses alleged
physical/emotional abuse/neglect of their neighbours child by parents?
3.
Non-reporting and not vulnerable/intimidated ‘counselling’ client
decides to report during/post-therapy?
4.
PTT client reveals new information about the crime (s)/another
unreported crime?
5.
PTT client offends/re-offends in the meantime and due in court as
offender first?
6.
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?
SO …


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)
AN 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 she’d experienced further abuse …
After 33 sessions and currently taking a break between trials.
Played with the clients permission.
GOOD PRACTICE GUIDANCE ...

Adoption of common terminology – PTT, CPS guidance


So everyone is talking the same language
Be prepared …
 Proactive
> 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
GOOD PRACTICE GUIDANCE ...

Don’t 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).
HOW DO YOU FEEL ABOUT PTT NOW?
ANY QUESTIONS?
THE 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/prosecution/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 V+W, the use of special measures and the provision of pre-trial therapy.
http://www.dojni.gov.uk/index/public-consultations/archiveconsultations/draft_achieving_best_evidence_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/uploads/files/Achieving%20Best%20Evidence%20in%20Criminal
%20Proceedings.pdf