Jill Swindells

1

Pre-trial therapy (not to be confused with
pre-therapy)

• Jill Swindells
• qualconsultancy.com

2
Before 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?

3
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)

4
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

5
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
  childrens workshops

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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?

7
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?!

8
Pre-trial therapy workshop

• Why chose this workshop?
• Anything in particular youre keen to find out
  about?
• What are your hopes/expectations?
• Any concerns?

9
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.?

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pre-trial therapy

• Current awareness and understanding?
• Sources of information / training?
• Any direct experience?
• Perceptions of PTT
  including relevance to
  prison settings

11
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

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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/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

13
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 re-victimised

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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 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.

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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)

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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.

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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

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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)

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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

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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)

21
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)

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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).

23
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.

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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)

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From a counselling perspective

• How do you feel about counselling pre-trial?
• And PTT?
• Any examples
  from practice?

26
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?

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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?

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From 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?

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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)

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CPS 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.

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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

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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

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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

34
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)

35
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

36
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

37
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)

38
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

39
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))

40
A 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)
  

41
A 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)

42
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

43
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
  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

44
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

45
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

46
What 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?

47
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)

48
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 shed experienced further abuse
After 33 sessions and currently taking a break
between trials. Played with the clients
permission.
49
Good 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

50
Good 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).

51
How do you feel about PTT now?
52
Any questions?
53
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/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