Therapists in Court: Providing Evidence and Supporting Witnesses

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Tim Bond & Amanpreet Sandhu

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  • Legal Resources for Counsellors and Psychotherapists

    Legal Resources for Counsellors and Psychotherapists is a series of highly practical books, themed around broad topics, which reflect the most ‘frequently asked questions’ put to the BACP's professional advice line.

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    Preface

    This book is the first in a series of legal guidance handbooks for practitioners from all the talking therapies, including counselling, psychotherapy and psychology. The talking therapies are a significant and growing source of support in contemporary society. A recent national survey revealed that 1 in 5 of the adult population in the UK have personally received counselling or psychotherapy and 83 per cent of those surveyed stated that they would consider having this type of service.1 This indicates a substantial volume of actual and potential activity within society. It is inevitable that in the process of providing this service on such a large scale, practitioners will come into contact with the law. This can lead practitioners to experience anxiety, especially if their first formal encounter is being called as a witness or they are asked to write a report for the unfamiliar settings and procedures of a court.

    For many practitioners, becoming involved in a court case is a frightening and disturbing experience. Competent and experienced practitioners will have become familiar with a very different environment in their work. Therapy is predominantly characterised by privacy, informality and attentiveness to the quality of relationship with clients, in order to enhance the therapeutic effectiveness. In contrast, the court room is usually a public place and may have press reporters present. Typically, the atmosphere is formal and much more attentive to bureaucratic detail than to the quality of relationships between those present. Witnesses are particularly vulnerable in these unfamiliar settings.

    Although courts strive to be respectful of witnesses, their experience can be unpredictable and may range from supportive questioning to verbal bullying in cross examination. I have heard many therapists talk of their shock at finding that their work has taken them into such an adversarial environment leaving them feeling perplexed, uncertain and frequently misunderstood. This sense of misunderstanding often arises from a sense that the court is disinterested in the practitioner's area of expertise in therapeutic issues. Instead, many practitioners feel that they have been summoned to court to be targeted with questions by lawyers in pursuit of evidence to be used for legal objectives, over which the therapist has little control or knowledge. At its worst, I have known practitioners find that the experience undermines their confidence as professionals and they are left deeply concerned that they may have inadvertently or been forced into situations where they have damaged any therapeutic good that has been achieved for the client concerned, prior to the court appearance. Even in more favourable situations, practitioners frequently find that their involvement in any legal process disrupts their therapeutic relationships with the affected clients.

    The best way of avoiding or at least minimising the negative aspects of appearing in court is to be competently informed and prepared in advance. Legal textbooks provide some essential information but often this is at more theoretical level than is helpful to professionals from other disciplines. In my experience, practitioners often want very practical information as the starting point in orientating themselves towards a new environment and professional culture. As practitioners become better informed, they become empowered to take greater control of the situation. This book is intended to support this process of becoming better informed. In the adversarial environment of most courtrooms, to be forewarned is to be forearmed.

    Although I am aware of some negative experiences which therapists have faced arising from court cases concerning their clients, this is neither inevitable or invariably the case. At the other extreme some therapists have found the experience to be professionally and personally rewarding. Supporting witnesses in their preparation to appear in court or working with clients where the practitioner knows that there is the likelihood of being called as a witness can be viewed as an opportunity to make distinctive contribution to clients' lives and to the delivery of justice in society. There are a small but growing number of forensic therapists who specialise in undertaking independent psychological assessments for the courts and counselling the victims or perpetrators of crimes and civil wrongs.

    Amanpreet Sandhu has drawn on her experience as legal resource manager in a professional body to produce information that will be of direct help to both reluctant and willing participants in the courts of the English, Welsh and Northern Irish legal systems. Some of the general principles are directly applicable to the Scottish legal system although there are differences in detail and terminology. These differences have been included whenever possible throughout the series.

    As series editor, I have become profoundly aware of the difficulty of encompassing the range of relevant law for practitioners providing such different services in such a wide range of settings. This book is a valuable contribution to that task and significantly extends the available literature. Although the book is as legally accurate as possible at the time of going to press, the law will continue to develop concerning most of its topics. If something is of substantial significance to you or your client, there is no substitute for obtaining up-to-date advice on the specific circumstances of your issue from an appropriately qualified and experienced lawyer.

    TimBond, Reader in Counselling and Professional Ethics, University of Bristol

    1 The Future Foundation (2004) The Age of Therapy: Exploring Attitudes towards and Acceptance of Counselling and Psychotherapy in Modern Britain. Rugby: British Association for Counselling and Psychotherapy. Page 3

    Acknowledgements

    The authors of this book and BACP would like to offer their thanks to and acknowledge the following people who have contributed to the various chapters in this book.

    Len Tempest contributed to the chapter Solicitor Letters. Len is a practising barrister.

    Angela Churm contributed to the chapter Court Orders. Angela is an experienced practitioner who progressed from a legal background where she undertook extensive work in the court system, and is also an experienced writer.

    David Trickey contributed to the chapter Counselling Child Witnesses. David is a Chartered Clinical Psychologist and, at the time of writing, was based in the Child and Family Team at the Traumatic Stress Clinic in London.

    Ruth Harrison contributed to the chapter Counselling Adult Victims and Witnesses. Ruth has considerable experience in counselling, specifically offering counselling support to victims and their families, who have been involved in major transport accidents such as the Potters Bar and Paddington train crashes. Ruth also does some work for the Nursing and Midwifery Council.

    We are grateful to Roisin Higgins for highlighting the relevant Scottish law in each instance. Special thanks also go to Kirstie Adamson for her contributions to the chapter Counselling Adult Victims and Witnesses. The Criminal Injury Compensation Authority also deserves a special mention for allowing BACP permission to reproduce a standard pro forma report that it uses as part of its investigations.

  • Glossary

    • Action The lawful demand of an individual's right. A civil action is brought to enforce a civil right, for instance, if a person seeks to recover money. A penal action aims at some penalty or punishment of the party sued. Criminal actions, for instance prosecutions, are of a public nature, in the name of the Queen, against one or more persons accused of a crime.
    • Adjudication The giving of a judgement which leads to a sentence or decision.
    • Adverse witness A witness hostile to the party calling him or her, who may, with the leave of the court, cross-examine him or her.
    • Affirm To confirm a former law or judgement. For example, a Court of Appeal is said to affirm the judgement of the court below. To affirm also means to make a solemn declaration, equivalent to a statement upon oath.
    • Appeal A complaint to a superior court of an injustice done by an inferior one. The party complaining is called the appellant and the other party is called the respondent.
    • Arbitration This is the settling of a dispute by an arbitrator/s. Arbitration is a long-established alternative to litigation (it may not always be less complex) and which involves an arbitrator reaching a judgment that is binding on both parties. Where arbitrators cannot agree they may appoint an ‘umpire’. The decision of an arbitrator is known as an ‘award’.
    • Barrister He or she is a specialist in advocacy, presenting cases in court under instruction from a solicitor.
    • Breach For example, a breach of a contract, where there is non-compliance with a contract term. A breach gives rise to a claim for compensation in the civil courts.
    • Burden of proof This is the duty of proving one's case. In general the burden of proof lies with the claimant or the prosecution.
    • Cause of action The ground or grounds on which an action can be brought.
    • Chief, examination in The examination of a witness by the party who calls him or her.
    • Chambers All barristers are sole practitioners but they gather together to share facilities and expenses. The place is known as barristers' chambers.
    • Closed court This is where restrictions are placed on members of the public and the press to view court proceedings. Family proceedings take place in a closed court.
    • Common Law The ancient unwritten law of the United Kingdom. This is the law that is embodied in judicial decisions as opposed to statute law, for example the law enacted by Parliament.
    • Complainant One who commences a prosecution, action or claim against another.
    • Conciliation A settling of disputes without litigation.
    • Consent Giving permission freely. If consent is obtained by fraud or undue influence, it is not valid or binding.
    • Contempt of court This is anything that tends to create a disregard of the authority of courts of justice. For example, an open insult or resistance to the judges who preside there, or disobedience to their orders. Contempt of court is punishable by imprisonment of the offender or a fine.
    • Contract An agreement enforceable at law made verbally or in writing.
    • Contributory negligence Negligence, by which a person contributes to the occurrence of an accident to himself, for which others are partially, or even mainly responsible.
    • Conviction An individual, being indicted for a crime, admits it, or having pleaded not guilty, is found guilty by the verdict of a jury. This will lead to some kind of punishment, for example, imprisonment.
    • Coroner A coroner is empowered by the state to inquire into the manner of the death of any person who is killed, or dies a violent or unnatural death or a sudden death, the cause of which is unknown, or has died in prison.
    • Cross-examination The examination of a witness by the opposing barrister. Leading questions are allowed, which is not the case in examination-in-chief.
    • Damages The money awarded by a judge or jury in a civil action for the wrong suffered by the claimant.
    • Direction to a jury Where a judge instructs a jury on any point of law so that they can apply it to the facts in evidence before them.
    • Discovery (1) Of facts, obtainable by either party to an action, in the form of answers on oath to questions. The answers may be submitted as evidence in a trial. (2) Of documents, obtained as above. The party against whom an order for discovery of documents is made must submit a form setting out all the documents relating to the action, which are or have been in his possession or power.
    • Dismissal of action This may take place if the statement of claim is not submitted or through non-appearance at a trial.
    • Document A written paper or something similar which may be put forward as evidence. ‘Document’ includes, in addition to a document in writing: (a) map, plan, graph, drawing (b) photograph (c) any disc, tape, soundtrack or other data are embodied (d) any film, negative, tape or other device in which one or more visual images are.
    • Examination The interrogation of witnesses. The examination-in-chief of a witness is the interrogation of a witness, in the first instance, by the legal representative of the party calling him. The examination by the opposing legal representative is known as the cross-examination; and further examination by your own side, on points arising out of the cross-examination, is called the re-examination.
    • Examiners of the court Barristers of not less than three years' standing appointed by the Lord Chancellor to examine witnesses out of court.
    • Expert A skilled witness called to give evidence in the subject in which he or she is a specialist.
    • Falsify To tamper and make something inaccurate, for example, a report, in order to deceive.
    • Hearing The trial of an action. In general, all cases, both civil and criminal, must be heard in open court. But in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the court may sit in camera, for example, when evidence is given by children or young persons.
    • Hearsay evidence Second-hand information that a witness only heard about from someone else and did not see or hear himself. Generally, hearsay is not admitted in court because it's not reliable, though there are many exceptions to this.
    • Incitement To provoke another person to commit a crime. If a crime is actually committed, the person inciting becomes an accessory before the fact.
    • Inquest An inquisition or inquiry, e.g. coroner's inquest.
    • Inspection of documents The right of a party in an action or suit to inspect and take copies of documents material to his or her case, which may be in the possession of the opposite party. With regard to other documents, the party desiring to inspect takes out a summons requiring his or her opponent to state what documents are in their possession, and to fill out the appropriate form for that purpose.
    • Instruct To convey information or to give instructions. For example, by a client to a solicitor, or by a solicitor to a barrister; to authorise one to appear as an advocate.
    • Judge's order An order made on summons by a Judge in Chambers.
    • Judgement The sentence or order of the court in a civil or criminal proceeding.
    • Legal expenses insurance Insurance against risks of loss to the insured attributable to his or her incurring legal expenses (including the costs of litigation).
    • Negligence Omission of a positive duty. The question of negligence is one of fact for the jury, after the judge has decided that there is evidence from which negligence can be reasonably inferred. In criminal cases it is necessary to prove a higher degree of negligence than in civil cases.
    • Oath The law requires an oath for many purposes, for example, before giving evidence as a witness in court.
    • Offence An act or omission punishable under the criminal law.
    • Open court A court to which the public has access as of right.
    • Perjury Lying on oath absolutely and falsely in court proceedings, in a matter that is material to the issue or cause in question.
    • Pleading (1) The written pleadings in a suit or action. (2) Advocating a client's cause in court.
    • Prima facie case A litigating party is said to have a prima facie case when the evidence in his or her favour is sufficiently strong. His or her opponent is to be called into answer it.
    • Prosecution The party by whom criminal proceedings are commenced in a court of justice.
    • Public interest immunity The right of the Crown to withhold the disclosure and production of a document on the ground that its disclosure and production would be injurious to the public interest. The court may allow or reject the claim.
    • Rebutting evidence Evidence presented to destroy the effect of prior evidence, not only in explaining it away while admitting its truth, but also by direct denial, or by an attack on the credibility of the witness who has given it.
    • Re-examination The examination of a witness by the barrister of the party on whose behalf he or she has given evidence, in reference to matters arising out of his or her cross-examination.
    • Re-hearing A hearing again of a matter which has been heard previously.
    • Remedy The means given by law for the recovery of a right, or of compensation for its infringement.
    • Search warrant A warrant granted by a judge or magistrate to search a house, shop, land or other premises.
    • Striking out pleadings The court or judge may at any stage of the proceedings make an order to strike out or amend anything in the pleadings which is unnecessary, scandalous, or which tends to embarrass or delay the fair trial of the action.
    • Subpoena (1) An order directed to a person commanding him or her, under a penalty, to appear and give evidence. (2) An order directed to a person, requiring him or her not only to give evidence, but to bring with them such deeds or writings as the party who issues the subpoena may think material for his or her purpose.
    • Summary conviction A conviction before magistrates without the intervention of a jury.
    • Summing up In a civil or criminal trial before a judge and jury, this is the process whereby the judge summarises in greater or lesser detail, the statements of the witnesses and the contents of documents, commenting on the manner in which they bear on the issue, and giving his or her direction on any matter of law which may arise from them.
    • Summons (1) An order to appear before a judge or magistrate. (2) An application to a judge at chambers.
    • Trial The examination of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land.
    • Undue influence Any improper pressure put on a person to induce him or her to confer a benefit on the party exercising the pressure.
    • Verdict The answer given to the court by the jury in any cause, civil or criminal committed to their trial.
    • Without prejudice This is relating to any matter in question so that a decision arrived at, or an action taken, is not to be held to affect such questions but to leave it open. For example, when a solicitor writes on behalf of a client to offer a compromise of a question in dispute, he or she can guard themselves by stating that what they offer is without prejudice to any question in dispute.
    • Witness A person who, on oath or solemn affirmation, gives evidence in any cause or matter.
    • Youth Courts The Youth Court is a section of the Magistrates Court and can be located in the same building. It deals with almost all cases involving young people under the age of 18. The public are excluded from such courts. The Youth Courts in Scotland deals with 16–17-year-old persistent offenders, with the flexibility to deal with 15-year-olds in certain circumstances.

    References

    Ball, C., McCormac, K. & Stone, N. (1995). Young offenders: law, policy and practice. London: Sweet & Maxwell.
    Bond, T. (2002). The law of confidentiality – a solution or part of the problem? In P.Jenkins (Ed.), Legal issues in counselling and psychotherapy (pp. 123–143). London: Sage.
    Bond, T., Casemore, R., Jones, C. & Shilto-Clarke, C. (2001). Access to case notes. Counselling & Psychotherapy Journal, 12(9), 6–8.
    Browne, K. & Catlow, M. (2004). Civil litigation. Guildford: The College of Law.
    Department for Constitutional Affairs (2005). Disclosure of information in family proceedings cases involving children, a consultation. Retrieved from http://www.dca.gov.uk
    Dorries, C. (1999). Coroner's courts: a guide to law and practice. Chichester: John Wiley & Sons Ltd.
    Hamilton, C. (2002). Working with young people: legal responsibility and liability (
    5th edn
    ). London: The Children's Legal Centre.
    Hamlyn, B., Phelps, A., Tutle, J. & Sattar, G. (2004). Are special measures working? Evidence from surveys of vulnerable and intimidated witnesses. London: Home Office.
    Harrison, R. (2000). The impact of stranger murder. The Therapist, 6(1), 38.
    Home Office (2004). Victims' charter. London: Home Office.
    Home Office, Crown Prosecution Service and Department of Health (2001). Provision of therapy for child witnesses prior to a criminal trial – practice guidance. London: The Stationery Office, also available at http://www.cps.gov.uk
    Home Office, Crown Prosecution Service and Department of Health (2001). Practice guidance for the provision of therapy prior to a criminal trial for vulnerable or intimidated witnesses, also available at http://www.cps.gov.uk
    Interdepartmental Working Group (1998). Report of the Interdepartmental Working Group on the treatment of vulnerable or intimidated witnesses in the Criminal Justice System. London: Home Office.
    Jenkins, P., Stone, J. & Keter, V. (2004). Psychotherapy and the law, questions & answers for counsellors and therapists. London: Whurr Publishers Ltd.
    Morgan, J. & Zedner, L. (1992). Child victims: crime, impact, and criminal justice. Oxford: Clarendon Press.
    Pattenden, R. (2003). The law of professional-client confidentiality. Oxford: Oxford University Press.
    Pollecoff, P. (2002). Reports and presenting evidence in court: a guide for counsellors and psychotherapists. In P.Jenkins (Ed.), Legal issues in counselling and psychotherapy (pp. 57–51). London: Sage.
    Scottish Executive (2003). Interviewing child witnesses in Scotland, available at http://www.scotland.gov.uk
    Scottish Executive (2005). Code of practice to facilitate the provision of therapeutic support to child witnesses in court proceedings, available at http://www.scotland.gov.uk
    Shepherd, J. (1997). Victims of violent crime. Accident and Emergency Nursing, 6(1), 15–17. http://dx.doi.org/10.1016/S0965-2302%2898%2990052-2
    Shepherd, J. (1998). Tackling violence: interagency procedures and injury surveillance are urgently needed. British Medical Journal, 316, 879–880, also available at http://bmj.bmjjournals.com/cgi/content/full/316/7135/879 (accessed 20/05/2005). http://dx.doi.org/10.1136/bmj.316.7135.879
    Smith Landsman, I. (2002). Crises of meaning in trauma and loss. In J.Kauffman (Ed.), Loss of the assumptive world: a theory of traumatic loss (pp. 13–30). New York: Brunner-Routledge.
    Spencer, J. R. (1992). Reforming the law on children's evidence in England. In H.Dent & R.Flin (Eds), Children as witnesses (pp. 113–129). Chichester: Wiley.
    Victim Support (2002). No justice beyond criminal justice. London: Victim Support.
    Victims' Voice (2002). Sudden death and the coroner. Chippenham: Victims' Voice.
    Williams, B. (2002). Counselling in legal settings: provision for jury members, vulnerable witnesses and victims of crime. In P.Jenkins (Ed.), Legal Issues in Counselling and Psychotherapy (pp. 105–122). London: Sage.
    Yule, W., Perrin, S. & Smith, P. (1999). Post-traumatic stress disorders in children and adolescents. In W.Yule (Ed.), Post-traumatic stress disorders: concepts and therapy (pp. 25–50). Chichester: Wiley.
    Useful Internet Sites

    For more information regarding confidentiality refer to NHS Confidentiality Code of Practice:

    http://www.dh.gov.uk/PublicationsAndStatistics

    Home Office website:

    http://www.crimereduction.gov.uk

    I have been asked to be a witness – what do I do?

    Retrieved 6 February 2005 from:

    http://www.courtservice.gov.uk/using_courts/witness/index.htm

    Instructing expert witnesses: guidelines for solicitors

    Retrieved 9 February 2005 from:

    http://www.theexpertwitnessdirectory.co.uk/guidelines.htm

    Guidelines for applying for compensation under the Criminal Injuries Compensation Scheme.

    Retrieved 16 January 2005 from:

    http://www.cica.gov.uk

    Victims and Witnesses, Easing Communication for Vulnerable Witnesses

    Retrieved 3 February 2005 from:

    http://www.crimereduction.gov.uk/victims31.htm

    A review into the needs of vulnerable or intimidated witnesses: measures in Youth Justice and Criminal Evidence Act 1999.

    Retrieved 6 February 2005 from:

    http://www.publicnet.co.uk/publicnet/fe030404.htm

    Witnesses in the Civil Courts and Witnesses in the Crown Court

    Retrieved 9 February, 2005 from:

    http://www.courtservice.gov.uk/using_courts/witness/index.htm

    UK Litigation & Dispute Resolution Law articles in association with Wragge & Co. Pre-action disclosure – substantive claim only has to be properly arguable.

    Retrieved 16 January 2005 from:

    http://www.legal500.com/devs/uk/lt/uklt_177.htm

    Scottish Courts

    http://www.scotcourts.gov.uk

    References to Legal Cases Cited in the Text

    Barclays Bank plc v. O'Brien [1994] 1 AC 180

    Beck v. Ministry of Defence [2003] EWCA Civ 1043 [2003]

    Devoran Joinery Co Ltd v. Perkins (No. 2) [2003] EWCA Civ 1241 [2003]

    Durant v. Financial Services Authority [2003] EWCA Civ 1746, CA

    Lucas v. Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102 [2004]

    R. v. Sinha, The Times, 13 July 1994

    Re J [1991] FCR 191 at 226/7

    Re L (a minor) (police investigation) [1996] 2 WLR 395, HL

    Re R (a minor: expert's evidence (note)) [1991] 1 FLR 291 Cazalet J

    Rose v. Lynx Express Ltd and Bridgepoint Capital (Nominees) Ltd [2004] EWCA Civ 447

    W v. Egdell and Others [1990] Ch 359 1 All ER 835

    Wardlaw v. Farrar [2003] EWCA Civ 1719 [2003]

    Youssefv. Jordan [2003] EWCA Civ 1852 Times, 22 January 2004

    Acts and Rules Cited in the Text

    Administration of Justice Act 1960

    Administration of Justice (Scotland) Act 1972

    Children Act 1989

    Children Act 2004

    Children (Scotland) Act 2005

    Civil Procedure Rules 1998

    The Civil Procedure Rules, Professional Negligence Pre-action Protocol, Part B Coroners Act 1988

    Coroners Court Rules 1984

    County Courts Act 1984

    County Court Rules 1981

    Criminal Injuries Compensation Act 1995

    Criminal Justice Act 1967

    Data Protection Act 1998

    Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976

    Freedom of Information Act 2000

    Mental Health Act 1983

    Supreme Court Act 1981

    Vulnerable Witnesses (Scotland) Act 2004

    Youth Justice and Criminal Evidence Act 1999


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