Rape and Sexual Offences - Chapter 12: The Trial
The Brief to the Advocate
It is essential that the brief to the advocate contains detailed information covering all relevant issues contained in the Rape Prosecutions Advice/Review Checklist and highlight any key information, which is relevant to any sentencing hearing.
A conference with the trial advocate, the officer in the case, the forensic physician, and any other expert witnesses should be arranged at the earliest possible opportunity.
Wherever possible the instructed advocate should conduct all hearings including defence applications for bail and other interlocutory hearings. This is of particular importance when conducting ground rules hearings and section 28 pre-recorded cross examination. Where they are not available another accredited advocate from the same Chambers (or a CPS rape specialist in the case of an in-house HCA) should conduct the hearing having been briefed by the instructed advocate.
Chambers’ clerks must consult with the CPS about the suitability of alternative counsel whenever a brief is returned. This is particularly important in rape and child abuse cases or where the victim is particularly vulnerable.
Where no such alternative advocate is available, a non-accredited advocate (or non-rape specialist HCA) may be instructed but only with the prior approval of the CPS.
Speaking to Witnesses at Court
All advocates are expected to be aware and comply with the CPS guidance on Speaking to Witnesses at Court.
Independent Sexual Violence Advisors and Equivalent Service Providers
Independent Sexual Violence Advisors (ISVAs) and other equivalent service providers work across England and Wales to provide professional support, advice and help for victims of sexual violence – whether they report to the police or not.
ISVAs, and equivalent services, can be based within a variety of organisations including specialist sexual violence and abuse organisations. They work alongside complainants from soon after their initial contact with a Sexual Assault Referral Centre or other emergency service provider. They provide practical advice and information that can range from how the criminal justice system works to how to access housing benefit.
Where the complainant has reported an allegation to the police, the ISVA (or equivalent service provider) will work with them throughout the legal process and beyond. This can also include accompanying the complainant when they give evidence in court. In addition to the police and CPS, they also link in with essential services such as counselling and health services as part of a virtual multi-agency team, ensuring that the safety of the complainant is coordinated across all the different agencies.
The CPS recognises the tremendous contribution that ISVAs, and equivalent services, make in ensuring an effective criminal justice system response in RASSO cases and in improving victims’ experiences overall. ISVAs, and equivalent services, perform diverse and challenging roles and can be an important factor in ensuring the needs of complainants are met throughout the criminal justice process and beyond. They work closely with statutory organisations such as the police, the CPS and health services as part of a virtual multi-agency team to complete the following for each individual they support:
- A risk assessment
- A needs assessment
- A support plan
Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures includes a section on supporting victims and at page 104 box 4.1(a) which sets out activities undertaken by supporters:
- Provide emotional support;
- Educate and give information;
- Understand the witness's views, wishes, concerns, and any particular vulnerabilities that might affect them during the criminal process (including the witness's views on Special Measures), and convey these to the relevant criminal justice system agency;
- Agree the manner and frequency of the provision of information;
- Familiarise the witness with the court and its procedures, and with the responsibilities of the criminal justice system;
- Support the witness through interviews and court hearings;
- Explore with the witness their preferences in respect of Special Measures and if it is relevant who they would want to accompany them into the live link room and relay that information to the Witness Care Unit or CPS Prosecutor;
- Undertake court preparation and pass on information about the forthcoming trial;
- Accompany the witness on a pre-trial visit to court;
- Accompany the witness when their memory is to be refreshed (this should not be undertaken by a supporter who will accompany the witness while giving evidence);
- Accompany the witness while they give evidence in court or the live link room (where the court approves this);
- Liaise with family members and friends of the witness;
- Liaise with legal, health, educational, social work and other professionals and act as an advocate on behalf of the witness;
- Liaise with those offering therapy and counselling prior to a criminal trial; and
- Arrange links with experts in any of the witness's specific vulnerabilities or difficulties, e.g. communication problems, learning disabilities, specific cultural or minority ethnic group concerns or religious priorities.
ABE guidance states that support during the court process itself, the live link room or when giving remote live link evidence, is to be provided when it is necessary. Appendix L of the ABE guidance sets out the National Standards for the Court Witness Supporter in the Live Link Room which includes further information about evidential constraints which apply to the person providing support. The identity of any supporter should be included in relevant special measures application.
A practice direction issued by the Lord Chief Justice outlines who can act as a supporter in the live link room. Reference is made to ‘an increased degree of flexibility’ being appropriate, and as long as the supporter is completely independent of the witness and is not involved in the case (for example, as a witness), they do not need to be the usher or another court official (Consolidated Criminal Practice Direction, Part III. 29, Support for Witnesses Giving Evidence by Live Television Link, is available at http://www.justice.gov.uk/criminal/procrules_fin/contents/practice_direction/pd_consolidated.htm).
ISVAs and equivalent service providers are trained to work in a highly boundaried way so that their role as a supporter does not cross any evidential lines such as discussing the evidence in the case with the complainant or witness The ISVA, and equivalent service providers, have a relationship of trust with their clients but are not party to the case and must have no detailed knowledge of the case. What represents a reasonable line of enquiry is a matter for the police and depends upon the circumstances of the individual case, but it would be unusual for notes made by an ISVA or equivalent service to represent a reasonable line of enquiry. It is not appropriate for the police to pursue speculative enquiries and routinely seek access to therapy notes. There must be some reason to believe that the notes contain material which is relevant to the investigation. Where a request is made to an ISVA or equivalent service for access to notes the rationale for that request should be clearly articulated.
For further information about the role of, and expectations from, ISVAs see the following guidance published by the Home Office in 2017: ‘Essential Elements of the ISVA Role’ link.