Written by Dr Kimberly Collins, Senior Lecturer in Forensic Psychology, theme lead for ‘vulnerable victims and offenders in the criminal justice system’. Email: K.collins@tees.ac.uk
The communication assessment of a vulnerable person prior to the commencement of participation in legal proceedings is essential for several different reasons: (1). to provide the questioner with valuable information about the witness’ communication abilities, (2). the information accumulated from the assessment can be used to inform the questioning plan, and (3). the questioning approach is then compatible with the witnesses’ needs which should lead to more detailed and accurate information.
This blog post is the first in a monthly series that aims to explore the importance of pre-questioning communication assessments in the criminal justice system. The focus is on child witnesses as this is my specific area of expertise, but much of what is covered will apply to other types of vulnerability. The series will describe the different elements of communication that should be considered during assessments with children, the current research on assessment practice, suggestions for practice, and areas that urgently require further research. My first post will give an overview of communication assessments in the legal system, and the research carried out on communication assessments in general.
In England and Wales communication assessments are mentioned in the Achieving Best Evidence Guidance (ABE, Ministry of Justice, 2011) which acts as a guide for legal professionals working with vulnerable witnesses, especially police interviewers. However, in the Criminal Justice Joint Inspection (2014) only thirteen out of sixty-nine interviews reviewed involved a pre-interview assessment. The report called for further use of Registered Intermediaries for the assessment of vulnerable witnesses.
Currently, in England, Wales and Northern Ireland, Registered Intermediaries (RIs) play a pivotal role in assessing the communication of vulnerable people. Based on assessment findings, RIs provide guidance to interviewers and advocates on how best to faciliate the communication of evidence from vulnerable witnesses. Registered Intermediaries are communication specialists from a variety of professional backgrounds (e.g. speech and language therapy, education, occupational health, psychology etc.). In England and Wales they are matched to cases via the National Witness Intermediary Scheme (WIS) based on location and expertise. The WIS work very hard to match as many cases as possible, nevertheless if a match does not occur then questioning is potentially going ahead without the benefit of a communication assessment.
The ABE guidance outlines the different factors that should be explored in pre-interview assessments (Ministry of Justice, 2011). It is not surprising that police interviewers fail to complete this task given the level of skill required to assess communication. The use of an RI is a sensible decision as these individuals are often highly qualified in areas of development and have extensive professional experience. Therefore, it is worrying to hear that questioning can proceed without the assistance of an RI. This raises concerns over whether an assessment has occurred and whether or not this has an impact upon the quality of the evidence produced by the vulnerable person at interview. In these instances it would make sense for interviewers to have a working knowledge of the basics of assessment practice to protect against the negative effects of having no assessment at all.
We recently investigated whether pre-interview communication assessments better predicted children’s communication at interview than professional judgement alone (Smethurst et al., in press). The study found that pre-interview assessments gave an accurate indication of children’s ability to follow communication rules at interview, children’s responsiveness when questioned at interview, and children’s drawing ability. Drawing is often a technique used to scaffold the recall of child witnesses. Therefore, it appears that pre-interview assessments provide a good indication of children’s capabilities at interview, subsequently emphasising their importance for interview planning.
In another one of our research studies we asked RIs about the different elements of communication that they assess with child witnesses (Collins & Krahenbuhl, 2020). Twenty two different elements of communication were mentioned. The most frequently cited were nonverbal communication, attention, comprehension, expressive language, ability to use communication aids, acquiescence, ability to respond to question types, working memory, anxiety and distress. The aspects of comunication that were assessed were selected based on the communication skills required during investigative interviewing and cross examination. For example, assessment of comprehension included understanding of: time, days of the week, body parts (non-sexual), emotions, prepositions, colours, frequency, duration etc etc. It is clear that overall each assessment covers a vast array of different skills that it is important to be aware of prior to the commencment of questioning.
We also explored with the RIs their perceptions and experiences of assessment practice (Collins & Krahenbuhl, 2020). The RIs spoke about how ‘evidential points to prove’ have a strong influence on what elements of communication they assess. For example, if the child is going to be asked about concepts relating to ‘in, under, inside’ etc. then understanding of these concepts would be explored during assessment. The individual needs of each child was considered important as the communication abilities of a 5 year old would differ to a 10 year old, and the assessment process should take this under consideration.
There were certain crucial aspects of assessment that were mentioned. These offered an explanation as to why the RIs thought the assessment provided a good indication of the child’s performance: (1). RIs felt that obtaining background information about the child from relevant parties (e.g. teachers, carers, etc.) was essential in informing how to tailor the assessment. (2). The quality of the relationship between the RI and interviewer was also central to the success of the investigative interview. RIs stated the work should be collaborative with each person’s role clearly defined. In addition, the involvement of the officer during the assessment was crucial for helping them understand the witnesses’ communication. (3). The assessment also provides a great opportunity for the interviewer and RI to build a rapport with the child, which may reduce the witnesses’ anxiety prior to the interview. (4). There was a lot of discussion around the choice of assessment task with regards to ensuring these are compatible with the communication skills required during the legal process.
Particular challenges raised by the RIs were in relation to making sure that assessment recommendations were followed through by practitioners during questioning. RIs highlighted the importance of being able to review questions to ensure they were compatible with the child’s individual communication needs. If changes were made prior to questioning then the communication was much smoother. Often at this stage it was clear to see whether the RI’s recommendations had been taken on board, and whether or not the questioner had fully internalized the information.
In court, the support of the judge was crucial for ensuring that recommendations from assessment were followed. Many RIs gave examples of positive experiences. Nevertheless, some RIs highlighted awful experiences in court where the judge paid no heed to their recommendations. This resulted in poor questioning on behalf of the advocate which added to the trauma of the experience for the child.
Finally, the RIs felt their practice evolved with experience in the role, but that the training was not adequate with regards to assessment practice. It is worth noting that all of the RIs had been trained prior to 2016. The new, revised training has extensive coverage of assessment practice which should now alleviate these concerns. Peer support from other RIs was viewed as essential for the development of assessment practice. Nevertheless, other than peer review of reports, there is no formal mechanism in place for reviewing each person’s assessment techniques.
Other than the research discussed above very little research has been conducted on pre-questioning assessments or the RI provision in general (see Henry et al., 2017; Mattison & Dando 2020). Based the research reviewed above I suggest the following recommendations for practice and research:
- The elements of communication assessed must be compatible with the objectives of the legal procedure in which the witness is to be questioned (e.g. interview vs. video identity parade vs. cross examination).
- For pre-interview assessments by an RI the interviewer should be involved rather than side-lined as an observer. This is crucial for allowing the interviewer to build rapport with the vulnerable person. Afterall, it is the interviewer who will be asking the questions during the interview.
- Interviewers, advocates and judges need to understand that being questioned during the legal process is a complex task for vulnerable witnesses, that draws on a variety of different communication skills. They should never underestimate how difficult this can be for some vulnerable people, nor overestimate their ability to question successfully without an assessment having taken place.
- Questions to be asked of the witness should be reviewed by an RI to ensure best evidence and a smoother questioning process.
- Recommendations for questioning provided after an assessment must be carefully reviewed and understood by the questioner. If the information is not internalized then it cannot be properly applied to practice.
- All professionals need to understand that the success of the questioning relies on a collaborative process between a number of experienced individuals with the common goal of ensuring best evidence.
- Provisions need to be put in place to evaluate live assessment practice. This will ensure the quality of assessments and increase practitioner confidence.
- It would be interesting to research the impact of pre-interview assessments on the rapport experienced between the interviewer and the vulnerable person.
- Research is urgently required on the assessment techniques used. Some of the assessment techniques have not been empirically researched with regards to their utility for assessing communication in the context of the legal system. This research would instil confidence in assessment approach as well as highlight those techniques that are most useful.
My next blog post in the series will focus on how to assess a vulnerable person’s anxiety, attention and emotion regulation. Practical techniques will be discussed and relevant research will be outlined.
References
Henry, L.A., Crane, L., Nash, G., Hobson, Z., Kirke-Smith, M., & Wilcock, R. (2017). Verbal, visual, and Intermediary support for child witnesses with autism during investigative interviews. Journal of Autism and Developmental Disorders, 47, 2348-2362.
Mattison, M. L. A., & Dando, C. J. (2020). Police officers’ and Registered Intermediaries’ use of drawing during investigative interviews with vulnerable witnesses. Psychology, Crime, & Law, 26, 167-185.
Ministry of Justice (2011). Achieving best evidence in criminal proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures. London: Ministry of Justice.
Smethurst, A. J., Carthy, N., Milne, R., Gillespie-Smith, K., & Collins, K. (in press). Can communication assessment provide a reliable indication of a child’s communication at interview? Psychology, Crime, & Law.