Across Australia, there’s a move towards more inclusive justice systems that incorporate support and adjustments for children and other vulnerable witnesses, and the idea is spreading to other investigative settings outside the courts.
Court cases, inquiries, investigations and independent fact-finding processes of all kinds are an important part of the social fabric. Being able to come forward and give evidence on the public record is a fundamentally important aspect of civic participation, but a lot of people have been denied the opportunity over the years.
Thankfully, social change has led to fewer and fewer voices being excluded from the official record. The main challenge that remains is how to support people who have challenges with communication due to their age, a disability, or a range of other vulnerabilities.
The United Kingdom led the way with a scheme that began operating across England and Wales in 2004, creating a new “intermediary” role in the legal system dedicated to helping children and other vulnerable witnesses. English barrister and law professor Penny Cooper was hired to design and deliver the training and guidance required to put it into practice.
This required developing a new model for how the intermediaries would provide tailored support in practical terms from scratch and this body of work has fed into a free online resource called The Advocate’s Gateway. She later did a similar job for Northern Ireland’s government, which got its own scheme going in 2012, and is now a leading expert in the growing field.
The obvious question is what happened before this, and it has a sadly obvious answer. Certain people just didn’t get to give evidence, others struggled through and had minimal impact, and certain cases just didn’t go to trial. Cooper recalls a prosecutor she knows likened it to being “priced out” of justice.
“The resources weren’t there and the capability wasn’t there and therefore people didn’t get their opportunity to give their evidence, [and] the files were put on the too-difficult pile,” the professor told The Mandarin.
A meeting in London with Brad Hazzard, the New South Wales Attorney-General at the time, left a good impression. “He went away and clearly thought intermediaries were an extremely good idea, and then I was approached by NSW to help me introduce the scheme there,” Cooper recalls.
“So along the way, I’ve come up with guidance for advocates – so, lawyers – for when they’re questioning vulnerable children and adults in court, and I’ve also developed a scheme, a type of hearing, that involves very much the judges and the lawyers pre-planning the interviews,” she explains.
Cooper lent her expertise to the NSW Department of Justice and the NSW Police for the first Australian pilot. She says it was a “natural progression” that led to her more recently assisting the NSW Ombudsman’s office with developing guidance for its investigators on interviewing vulnerable witnesses.
“And I was delighted to do that,” she says, “because I’m a lawyer who is fascinated by the lessons that we can learn from psychology, and there’s been a huge amount of research over the last 30 or 40 years by people looking at how psychology can help us improve interviewers, and remove barriers for people who might otherwise not be able to give their best evidence.”“Have a go, with good intentions, with humility and the acceptance that we’re all still learning.”
The professor went back to working as a barrister in 2015, but still does research projects part-time, and her academic work has strong influence. She will be back in Sydney this November to speak at the 12th National Investigations Symposium, and bring these ideas to a wide range of professional fact-finders beyond those in the judicial system.
The judicial model typically involves careful planning of examinations, pre-recorded evidence and making tailored adjustments so the person is as comfortable as possible, and intermediaries that help facilitate clear communication only — not legal advocates for the vulnerable person. Elsewhere, some general principles can apply to other kinds of interview situations.
“One area where I think we can all learn from is the lessons of psychology, about how we best approach interviews,” says the professor.
“It’s the opposite of saying, ‘Let’s just see how we get on, and if it it breaks down, then we’ll try something else.’ People deserve more than that.”
The key elements include planning ahead carefully and being prepared to invest time in building rapport. “We know that rapport is really important — understanding what the communication needs and abilities are of the particular person you’re interviewing.”
Don’t be afraid to put your foot in it
Cooper says there is no script or set of ironclad rules to follow. Each vulnerable person is different so the adjustments and supports vary for each interview – not every child would benefit from bringing their pet rooster for support, for example, and it’s hard to know about something like that unless you ask the right questions in advance.
She encourages investigators to have the confidence to try new things to support vulnerable witnesses, and not to be put off by the fear of saying the wrong thing.
“We all worry about putting our foot in it because we don’t have the right terminology or we don’t understand somebody’s condition,” says Cooper, who plans to remind the symposium participants that this is still a fairly new field, and will continue to evolve.
“Let’s not be put off by perfection paralysis, and accept the fact that we are learning and things change over time and people did things 20 years ago that we wouldn’t do now, and they’ll probably look back in 20 years and say the same for us.
“Have a go, with good intentions, with humility and the acceptance that we’re all still learning.”
She points out that it was only in 2014 that a senior judge in the UK felt the need to state that when legal advocates question witnesses in court, they should adjust to the witness and not the other way around. The full range of specific adjustments that could help is territory that is still being explored.
“You try something and if it works you can share that with other people,” Cooper advises. “Evaluate your own practice and then share it with others.”
There are now pilot schemes operating in the judicial systems of Western Australia, South Australia, NSW and Victoria, and there is clearly strong support for the best-practice model that has emerged. A 2017 process evaluation on the NSW pilot records overwhelming support from stakeholders, but also notes a range of challenges, risks and proposed improvements to be considered in an outcomes evaluation before expanding.
One lawyer told the evaluators from the University of New South Wales the intermediary system had facilitated “amazing evidence” from witnesses who would have been excluded in the past, because “it would have just been too hard” to interview them otherwise.
The value of intermediaries was also clearly recognised by the Royal Commission into Institutional Responses to Child Sexual Abuse, which heard evidence from Cooper and her academic colleague, psychologist Michelle Mattison. Its recommendations to all Australian governments will accelerate the expansion of these schemes nationwide.
Helping children give evidence in sexual abuse cases was the initial focus in NSW — intermediaries in the pilot are called “children’s champions” — although current Attorney-General Mark Speakman has indicated the government would consider expanding it to adults with “cognitive and other disabilities” in future.
Interestingly, the process evaluation of the NSW pilot found the term “champion” was problematic to a lot of stakeholders, because the intermediaries should be legally neutral. They are on the vulnerable person’s side only in terms of helping them give their evidence as clearly and accurately as possible, not as their legal advocate.
In January, the Tasmanian Law Reform Institute gave enthusiastic support to establishing a best-practice intermediary scheme for the Apple Isle. Its comprehensive study looked at all the issues involved, and notes key aspects of schemes in all the above jurisdictions as well as New Zealand, South Africa, Israel, Norway and Iceland.
Based on expert feedback to an issues paper, the report uses a comprehensive working definition of “communication needs” that illustrates clearly why this kind of support needs to be extended to adults as well as children:
“It encompasses a broad range of communication problems including those that arise from cognitive and social development as well as those caused by physical, mental, intellectual and cognitive impairments including those attributable to physical and mental trauma.
“It is also capable of covering learning difficulties, language impairments that impede communication and dyslexia, dyspraxia, dyscalculia and attention deficit (hyperactivity) disorder (ADHD) where it affects communication.”
Professor Penny Cooper will speak at the 2018 National Investigations Symposium in Sydney on November 14.