The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents


Examination of Witnesses (Question Numbers 140-145)

GILLIAN GUY AND PAUL FARMER

3 FEBRUARY 2009

  Q140  Dr Whitehead: I wanted to raise that particular issue, because on this occasion the witness was a victim as well as a witness, shall we say.

  Paul Farmer: Yes.

  Q141  Dr Whitehead: Obviously there will be witnesses who are victims and witnesses who are not victims. How effective do you think a witness care unit as far as witnesses who are not victims is concerned?

  Paul Farmer: I think for those people who experience mental health problems, particularly where they are working, where the victim is also somebody who has a mental health problem, as is quite often the case with people who live in communities together, their experience is fairly patchy. I think as with a non-physical disability, if you like, people with mental health problems tend to not always fall into the category that are most obviously likely to receive the right degree of support, and a lot of work has been done to try to improve the understanding, but I think a key point that I would want to make across the whole of this piece is the need for better training and understanding around mental health and mental health issues for all staff within the criminal justice system, whichever service they might be working in. Unfortunately, many people tell us that the people they work with, their understanding across the system still does not really take account of the reasonable adjustments that are needed to be made for somebody with a mental health problem.

  Q142  Dr Whitehead: Clearly, as you have pointed out a little earlier, the victim and the witness are essential elements in the whole process, and, therefore, the idea that the CPS, for example, should take great care in making sure that the witness is able to give the best testament possible, that the experience of the witness is as good as possible and the witness feels fully supported, are essential elements, you might think, in the process. How well do you think the CPS actually does that and how well do you think it works with other agencies to ensure that happens?

  Paul Farmer: Unfortunately, I think there is a theme coming through from our evidence around the patchiness of the experience for people and, again, the experience for many people with mental health problems in terms of the support they receive from the CPS is very patchy. I have to say, I think we feel that there is an institutional reluctance around being prepared to believe people with mental health problems as credible witnesses. I think there is a fundamental concern that sits with many prosecutors around how credible witnesses who happen to have mental health problems are, and yet this is despite very clear evidence that a previous history of a mental health problem does not impede somebody's ability to be able to give good quality evidence, but it does suggest the need to think about people who experience mental health problems in that vulnerable witness category more effectively so that they receive the best possible support, so that they can give the best possible evidence. Where it does not work, the experience tends to be that a witness, whether they are a witness or a victim, is treated with a lack of understanding about their support needs and then, in turn, an edginess creeps in sometimes to prosecutors, which I think is what happened in this case at the High Court that was published last week—the edginess about the overall confidence of this witness evaporated wholly inappropriately because there was not sufficient evidence to suggest that this person would be anything other than a very reasonable witness. This guy had had his ear bitten off. There was some very clear evidence about the effect of the crime, his experience as a victim; he had already given very cogent evidence to the police, the police believed it was a reasonable case, that there was sufficient evidence to take it to court, but I think, because of the lack of understanding, the lack of training from the prosecutors and a lack of recognition of the need to treat psychiatric evidence and the need to treat that individual as a vulnerable witness, the support mechanisms were not in place.

  Q143  Dr Whitehead: It would be possible to argue, I guess, that if we identified the fact that the CPS should take maximum care of witnesses because they are so important to what the CPS is doing in the first place, then part of that duty of care could be to ensure the future well-being of the witness by, in an adversarial system, not exposing those witness to being destroyed in that adversarial system if they consider that, notwithstanding how well they treat the witness, the experience of that witness could then be very bad under circumstances external to the CPS. Is there a line you think should be drawn, or is there a wider duty of care, therefore, for witnesses in an adversarial system and is it achievable under those circumstances?

  Paul Farmer: You are referring, presumably, to the cross-examination process.

  Q144  Dr Whitehead: Indeed.

  Paul Farmer: I suppose that is where you come back to the validity and importance of the Prosecutors' Pledge. The prosecutor clearly has a responsibility to intervene where they feel that the questioning is inappropriate, and the prosecutor in that sense does not simply have the responsibility to prosecute but to support their client, the victim, in terms of the process that that victim is experiencing; and if that support is more forthcoming, I think there is clearly a significantly important role for CPS prosecutors to pursue. To come back to your original question around the appropriateness of protecting a witness from what could be a very traumatic situation, I think we have to balance that with a number of issues which have gone before. First of all, in the case of a victim there is the fact that they are the victim of a terrible event, a victim of a crime. Secondly, there is the process that they will have already gone through, which is quite traumatic, to get to this particular point. Thirdly, I think the issue then arises of the way in which that victim as a witness is then supported, and I think the measures that have been taken to provide protection to vulnerable witnesses certainly are designed to make those processes less traumatic than they otherwise could be, and, of course, there is the risk of significant cross-examination—that is, after all, the nature of the adversarial environment—but preparation and support before hand, appropriate measures within the court room and I think, importantly, support after the event can all go a long way to making a major difference. Many people tell us that their experience in those circumstances is that they want to have the opportunity for their experience to be proper and often the assailant to be tried through a court. This is a simple and yet very complicated question of access to justice.

  Gillian Guy: I think it would be a very dangerous path to follow that allowed a prosecutor to make those kind of decisions on behalf of victims and deprive them of justice, because the overall aim is to try and get justice and stop things from happening again. That is the primary aim of victims. I think it would help enormously if organisations like ours were involved in preparing the training for prosecutors and getting that understanding into the training base and if we use the tools that are available to us. As Paul has said, if we had more pre-trial visits for victims and witnesses, if we had a referral to our own witness service to give the kind of training support that was available and to organisations such as Paul's as well, if we had vulnerable or intimidated witnesses identified. Here is the irony. We can stop people actually going forward with a case, yet we cannot identify 18,000 people a year as vulnerable or intimidated witnesses and give them the support they require to go and give the evidence in court. So if we actually use the tools we have got, improve the training that we have got and actually get a better commitment to the outcome of justice, then we can probably solve some of these problems without going that far.

  Q145  Mr Heath: Mr Farmer made the point of the patchiness: that some people have good experiences and others have bad experiences. My question is this. Obviously that can be down to individual practitioners and their attitude, or it can be down to poor management, poor training, a culture within a particular criminal justice area which is failing to understand the principles behind pledge, et cetera. It does seem to me to a certain extent in the former case, but certainly in the latter case, that that is something that is down to national management in the form of the DPP and also the inspectorate, who certainly if it were a police force in an area, which I am more familiar with, I would be expecting HM Inspector of Police to be doing a thematic inspection across each force area and basically grading the results and pointing out the areas which are falling short. Have you ever put that to either the DPP or to the Chief Inspector; that there is a case for naming and shaming those criminal justice areas which are failing to meet your reasonable expectations?

  Paul Farmer: I think on the form of the question about the role of the management responsibility, clearly there is a management responsibility. Since our survey was published last year, I think we have found an increasing welcome at the door of the DPP. I think we are beginning to make some progress in that area, although there is a huge distance to travel as we overcome the stigma and discrimination around the area of mental health. From our point of view as a campaigning organisation, I think we can see a value in having a clear and transparent process which reflects the quality that is being delivered in different parts of the country. As someone who has participated quite significantly in various league tables around health in the context of the work of the Healthcare Commission, there are clearly some benefits to be had from it. However, it is also important to recognise that in some of these cases this is not simply a question of the performance of a particular cluster or particular force, as it is often not particularly the performance of a whole set of clinicians in the health environment, but sometimes it is a single prosecutor or single groups of prosecutors or single groups of police. So I think we need to ensure that any such approach, and I think we would welcome that kind of apparent transparency, had both within it a qualitative framework which allowed a reflection, and ideally a reflection which is led by the people who have been victims in the past. I think that would be an excellent way of thinking about a framework which allowed for a truly qualitative evaluation as well as something which could lead to headline grabbing accusations of tick-boxes. I think we want something that is really in depth in terms of quality, but I think we would certainly support an approach which gave a greater degree of transparency to overall performance, and we would certainly be encouraging the CPS to be doing that. They should be doing it internally anyway, regardless of whether there is a regulatory requirement on them to do it externally.

  Gillian Guy: I think there are two things required. One of them is commitment to see this kind of change and to see victims and witnesses have a very different experience and one that they would not mind participating in again: it is not something we would want to be in but at least feel that it worked to our benefit in some way. I believe there is commitment on the part of the CPS to change and we are seeing that happen, and what we have been saying, I think reasonably consistently ourselves, is that it is inconsistency that is the problem. So I think, in an old-fashioned way, I would say "performance management", and I believe you have identified the types of performance management that are needed. I am not a fan of inspection for its own sake, but I think transparency certainly I am a fan of and, more than that, a fan of actually talking to victims and witnesses, actually confronting what their experience has been and making changes as a result of that.

  Chairman: Thank you both very much indeed. We are grateful for your help this afternoon. We are now going into private session.





 
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