Increasing flexibility in the CJS

Blad (2006) points to the need for the UK and Europe to promote a flexibility of systems in line with the changing societal needs, differential crimes and ever increasing sophistication in both crime and investigation. Blad (2006) suggests utilising ideas from different sources and constantly reviewing different systems, programmes and local laws. From this perspective the development of the CJS is fluid and adaptable to any transitional changes in needs. This would be particularly important for sexual violation, as it is a complex area of investigation.

For cases where the individual has been highly traumatised or for complex cases, a recommendation would be to give opportunity for cases to be heard in a closed court format without the public and media influences. In complex cases, the use of trained professionals, medical and legal, consider the evidence on the basis of knowledge and understanding and the law. Away from the public gaze and from misunderstandings of the jury, more restorative measures could be considered. This would be advantageous to the case being dropped because of the difficulties for the witness to present their evidence in an orderly way. This also reduces the tactics utilised in public courts to create jury doubt because of aggressive or

confusing cross-examination of the witness ultimately leaving the jury to base their decisions on stereotyping and assessing witness characteristics.

In identifying cases where the engagement in the adversarial system is deemed to be detrimental for the victim, other systems should also remain in place. For example, completion of the impact statement, a chance for the victim to have their say, access to Criminal Injuries Compensation, on-going support, retention of any evidence that could contribute to other cases (as in the case of anonymous reporting) so that the individual has played a part in the Justice System and are given recognition that their evidence may prevent others from being in a similar situation or that it may help support another case should there be a further misdemeanour.

As discussed in the literature the sentences for rape and sexual assault are often not in line with the complexities of the defendant. If cases of rape and sexual assault carry a large sentence that might not be in line with the type of abuse/crime, offenders may be less likely to make a plea of guilty. This might suggest a breaking down of the crime committed and the related sentence. In line with other restorative justice suggestions, this may require reduced sentencing or sanctions available for first time young offenders and ‘minor’ sexual offending. Identification of the underlying causes and addressing these may be more beneficial in preventing the crime being repeated. Integration programmes could facilitate a change in behaviour following completion of a sentence again minimising the chances of reoffending.

The adversarial system has been criticised for lacking flexibility in providing alternatives to the court system and a lack of restorative measures that are fit for purpose in relation to sexual offending (Ellison, 2001; Blad, 2006). Westera et al. (2013) provide a number of incentives of more reparative approaches and highlight the necessity for thorough detailed investigative interviews to inform sentencing. High sentencing can lead to a low level of guilty pleas prior to the court hearing and prevent more reparative systems of justice to be employed. Restorative measures can take into account the needs of both complainant and perpetrator (Westera et al. 2016). Applying some restorative measures and

adjudication to the system was seen to encourage guilty pleas being made and alleviating the need for the vulnerable witness to go through the court ordeal. Ward and Brown (2004) also suggest appropriate sentencing can provide a more targeted preventative approach and provide treatment interventions for a number of social problems or mental health issues that might be risk factors in recidivist offending.

• Increasing flexibility in conducting interviews

Following the introduction of the professionalised interview framework as discussed in earlier chapters, the cognitive interview (and enhanced cognitive interview) is based on well-founded empirical methods of conducting interviews and minimising the effects discussed above. Following completion of this current research, the configurative review and findings from police interviews, it is evident that an adapted approach to this interview approach may be required for traumatised witnesses of sexual violation. This is likely to be in addition to measures already applicable for vulnerable and intimidated witnesses.

Existing literature highlights the number of errors on recall and recognition tasks is increased the longer the delay in retrieval but in relation to traumatic memories, more time is required to allow the integration of the memory and while it remains cut off from normal autobiographical memory, it remains in static form (Kulik, 1977; Brewin et al. 2010). This makes the timing of interviews paramount in the planning and preparation stages. The vulnerability of memory emphasises the need for specialist interventions and flexible approaches by police and/or other professionals in managing the traumatic sequalae and the consolidation of memory. Supporting evidence or knowledge will help facilitate an improved construction of memory. Technological advances can support investigation by gaining timings and mapping movements of the individual. In childhood events or multiple traumas the use of previous or corroborating information is essential. Developing timelines can help provide an order or sequence to events. For single events, ‘sketching’ the scene may be a useful way of contextualising their memory. Increased communication and collaborative working in these areas can

help build a case that achieves best evidence for criminal trial. These considerations have led to a number of recommendations. Some specific adaptions have been made to the current interview strategies for these individuals. It is hoped that this research will go some way to inform policy and practice when interviewing vulnerable and/or intimidated adult witnesses that have encountered traumatic sexual violation and experienced adverse trauma related psychopathology and difficulties recounting their narrative for the purpose of criminal proceedings.

Again, the memory-enhancing techniques devised by Fisher and Geiselman (1992) can improve access to the memory. This may be particularly relevant for visual memories (Holmes and Mathews, 2010). To reinforce suggestions made by Clarke and Milne (2001), a number of specialist interviewers who are specific to the role of sexual violence interviewing would enable ‘exemplars of good practice’ in this specialised area of work. This training would be in addition to the SOIT/SOLO training at levels 3 as it would be less generic and would involve more in-depth understanding of the adverse consequences of trauma particularly in relation to sexual assault and rape. The specialist investigator would require an ability to assess the psychological impact of the victim/witness and whether they have or may be vulnerable to the development of PTSD. In considering how this might impact on memory and in what way, improved training would enable the development of an individualised and flexible approach in eliciting memory that takes into account any deficits in the processing and recall of the required detailed narrative.

In keeping with the findings from chapter four, the configurative review, memory may have major gaps or may, as in the case of multiple traumas or historical abuse, consist of fragmented memory that may produce ‘composite’ memories or representations of memory that may require some work prior to conducting an interview. The specialist investigator would need to have a good understanding about the fallibility of memory and how this can be conducted without contaminating the memories (Ehlers and Clark, 2000). At all times, the specialist investigator would require an understanding of risk and adverse effects of activating a memory system that has remained dormant for many years, repressed

or dissociated from conscious awareness and be able to manage this both at the time and by subsequent signposting if such a response was identified (Steele et al., 2017).

This research has however discussed how victims will present with a varying level of resilience and tolerance of distress. In recounting the trauma narrative, memory functioning is optimal while inside this window of tolerance. Under-stimulation could result in a detached recollection that might be vague and disjointed without emotional engagement. Over stimulation could result in a total shutdown, a dissociative response and hyperarousal. Under these circumstances the trauma memory might not be accessed at all. It is important for interviewers to titrate the interview within the individual’s capacity.

The current PEACE model for interviewing provides individuals with a preparation phase and involves engaging with and explaining the interview process to the victim/witness. This phase may require more preparation, psycho-education and a discussion of what the victim may need after the session. This might include safety and support. Some understanding about the possible reactions when undertaking some of the memory focused interviews, particularly when dissociation has been identified (Steele et al., 2017). Some resources may be useful so that the individual is able to contain the activation of other memories that may emerge during or after activation of the elicited memory (Boon et al., 2013).

Ongoing training and development

Specialist training and continuing professional development and/or experience were seen to be fundamental for police working in the area of rape and sexual assault. As indicated in the research, police receive good structured training as recommended by the Association of Chief Police Officers (1992; 2010) and follow guidelines for the preparation and implementation of visually recorded witness interviews. However, findings from this research and previous literature drew out the need for ongoing supervision and mentoring in applying the cognitive interview particularly if the use of the memory enhancing techniques is to be correctly implemented. This also ensures good practice is maintained. This would entail a

more comprehensive understanding of the complexities when working with traumatised individuals and an ability to identify risk and potential difficulties for those with mental health problems. The Whole Story approach was also considered to be an important adjunct for any police investigator. Understandably, to have specialist knowledge and skills in understanding and assessing mental health problems, understanding the impact on memory and having appropriate interview skills is an unlikely requisite for one professional only. It may be more realistic to develop a team approach whereby different individuals may have specific skills in one or more areas. A whole team approach could offer the victim more tailored approaches to optimise their ability to provide a clear narrative of their experience. In addition, the development of supplementary training for trauma informed intermediaries could provide an additional support to police during the investigative stage.

Police participants in this current study recognised that they often depend on other professionals to support with the victim’s emotional needs when undertaking the role of interview. It is a recommendation that there would also be further specialist training for an intermediary to specifically work with traumatised witnesses. This role would ensure a sound understanding of theory and application of trauma and its effects and could help advise on sufficient and appropriate interview strategies.