Vulnerable and Intimidated Witnesses: a Review of the Literature
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VULNERABLE AND INTIMIDATED WITNESSES: A REVIEW OF THE LITERATURE Robin Elliott Home Office Research and Statistics Directorate 99 100 The views expressed in this report are not necessarily the views of the Review Group or the Home Office. 101 Acknowledgements I would like co thank the staff of the Home Office Library for their assistance in collecting the material on which this reporr is based. Thanks are also due to the many others, both within the Review team and within the Home Office, who provided material and commented on early drafts of this report. Thanks also to Natalie Wood and Margaret Allday for their help in producing the charts and tables. ROBIN ELLIOTT 102 Summary Defining vulnerable andinrimidarcd witnesses • victim intimidation is more common than will be an important: factor in influencing whether non-victim witness intimidation; those in most need of special assistance receive it. This is nor straightforward, but some jurisdictions • women are at greater risk than men; have legislation enabling extra help to be given to "special witnesses" which suggest possible criteria. • risk of intimidation seems to vary according These include: to the nature of the initial orrence; • the witness's personal characteristics (such as • intimidation is more likely when the physical or mental condition, age and offender is known to the witness; and cultural background); • in most cases, intimidation seems to be • the nature of the offence; perpetrated by the initial offender. • the relationship between the witness and Six tasks for the criminal justice system are: defendant; • minimising risks oi intimidation associated • the nature of- the evidence the witness is with involvement in the criminal justice required to give; and system (including reporting intimidation); • the defendants characteristics (particularly • preparing for the possibility of intimidation; dangerousness). • recognising intimidation: The literature review focuses on three main groups: intimidated witnesses, those with disabilities arid • dealing with intimidation where it occurs; illnesses, and victims of special offences. • preventing further intimidation; and Intimidated witnesses • mounting a case when no witnesses come forward. Several authors have suggested there are different types of intimidation. For example, case-specific Measures can he identified to assist each task: for intimidation involves threats or violence intended example surveillance operations and professional to discourage a particular person from helping a witnesses may be used to mount cases where particular investigation. Community-wide witnesses will not come forward. Such approaches intimidation covers acts intended to create a have limitations though: it seems preferable general atmosphere of fear and non-cooperation therefore that more attention is given to the other with the criminal justice system, within a tasks listed above. particular area or community. These categorisations are useful because they suggest different approaches may be needed to tackle Witnesses with disabilities and different types of intimidation. illnesses However, information on the scale and nature of More literature was found on the experiences of the problem is very limited, partly because of the witnesses with learning disabilities in the criminal nature of the problem. Despite this, there is some justice system than for those with physical evidence suggesting: disabilities or mental illness. However it appears 103 that at lease five areas of personal hinctioning may violence, racial incidents and hare crimes agaiusr be affected by disabilities and illnesses: sexual minorities. • memory; it is difficult to estimate the scale of these crimes, for various reasons including under-reporting • communication skills; (particularly in sexual and domestic violence) and the way these offences are recorded by the • emotional resilience (including response to criminal justice system (particularly domestic perceived aggression); violence and racial incidents). Nevertheless, the evidence suggests that these offences are relatively • mobility; and rare. Sexual offences and domestic violence appear to be much less common than property crime for • soci.il skills. example, and racially motivated crimes much less common rhan crimes where there was no Some means of distinguishing those who are apparent racial motive. vulnerable is needed. Three approaches are discussed: Against this, the recorded rates of all three offences have increased in recent years and incidents of • drawing up a list of groups who qualify as domestic violence reported to the British Crime vulnerable; Survey have increased. However, increased reporting could at least partly account for this. • detailing one or more tests to determine whether a particular witness qualifies; and A number of areas were found where the literature .suggests die criminal justice response to witnesses • leaving the decision to the discretion or the of special offences could be improved. Some of various criminal justice agencies: expert these are particular to one offence: for example, assessments could be used to this end. having a choice of a female doctor to conduct medical examinations for female sex offence Seven themes to improve responses to witnesses complainants. Other concerns were common. For with disabilities or illnesses can be identified: example one common concern is that seeing the alleged offender in court may be upsetting: • encouraging reporting; screens are one possible response. Some efforts have been made to improve the criminal justice • idenniying vulnerability; response. However, very little research was found evaluating the effect of these changes. • facilitating communication; Nevertheless it appears that although some improvements may have been made, there is srill • recognising that a crime has occurred; concern about how these groups fare. • increasing understanding; Conclusions • providing support; and Numerous possible measures to improve the • preventing future offences. situation of vulnerable witnesses are identified within the report, requiring varying levels of A thread which runs through many of these intervention. Some are specific to a particular type concerns is the role of carers. of vulnerable witnesses, but many could be applied to more than one group. A number of practical issues about using special measures for Victims of special offences vulnerable witnesses are identified, such as whether measures should be granted as a right, Victims of special offences and possibly others and who should have responsibility for providing who have suffered repeat victimisation may be them. More fundamentally, the use of special seen as vulnerable witnesses. Four main groups are measures to protect vulnerable witnesses has considered: victims of sexual offences, domestic implications for justice. 104 Section 1: Introduction Background providing any such .special measures would be reduced. This report summarises the findings or a literature review on vulnerable and intimidated witnesses. Despite the importance of carefully defining The literature review was commissioned by the vulnerable witnesses, there is little literature on Home Office to feed into and inform an inter- this subject. This is at least partly because most of departmental government review of this area the literature examines how individual groups of (hereafter referred to as "the review"). The review's people experience the criminal justice process, terms of reference were as follows: rather than considering vulnerable witnesses as whole. This neglect could also perhaps be related UI laving regard to the interests of justice: the to a concern (noted by the Western Australian importance of preventing and detecting crime, Law Reform Commission I 990: 64) that singling the needs of witnesses and cost effectiveness, out certain groups as vulnerable may be experienced as patronizing or discriminatory. and taking into account the National Standards of Witness ("are in England and Wales, However, failure to recognise and compensate for inequalities between witnesses seems both • to identify measures at all stages of the inhumane (when this results in stress or trauma criminal justice process which will improve for the witness) and unjust. There are other the treatment of vulnerable witnesses, problems: although a group of people may be including chose likely to be subject to potentially vulnerable, in practice not all members intimidation; of the group will actually be vulnerable. • to encourage such witnesses to give evidence Those authors who have looked at vulnerable of crime and enabling them to give best witnesses as a whole have generally tackled these evidence in court; problems in the same way: • ro consider which witnesses should be • first, by suggesting certain conditions where classified as vulnerable; a witness may be vulnerable; and • to identify effective procedures for applying • secondly, by recommending that the courts appropriate measures in individual cases; be given the discretion to decide whether those conditions are met in the individual • and to make costed recommendations." Some examples of the definitions which have been Definitions suggested ate given overleaf. The definition of a vulnerable or intimidated witness is a key concern for the review. Deciding who should be classified as a vulnerable witness has important practical implications. In particular, where special assistance is available to vulnerable witnesses generally, it will be an important