4.14 Supporting Adults through Criminal Justice Processes

1. Introduction

Everyone is entitled to be protected by the law and have access to justice. Although the local authority has the lead role in making safeguarding enquiries under the Care Act 2014, where criminal activity is also suspected the police should be informed at an early stage.

Types of abusive or neglectful behaviour which are also criminal offences include:

• physical abuse;
• sexual abuse including rape, sexual assault, sexual harassment and sexual exploitation;

• modern slavery;

• psychological abuse;
• so-called honour-based abuse, including forced marriage and female genital mutilation;
• wilful / deliberate neglect (see also Ill Treatment and Deliberate Neglect chapter);
• unlawful imprisonment;
• theft and fraud; and
• certain forms of discrimination (such as hate crime).

During court proceedings, a witness is considered to be competent (or capable) if they can understand the questions being asked and can respond to them in a way that the court can understand. Police have a legal duty to assist any witnesses who are identified as vulnerable and / or intimidated.

1.1 Involving the police

Early consultation with the police to discuss whether a criminal offence may have been committed can help to preserve forensic materials and digital evidence (from computers, smartphones and video doorbells for example). This is particularly important in case of suspected sexual abuse, domestic abuse and modern slavery.

It also provides an opportunity to consider whether the police can take any specific actions to protect victims, such as Domestic Violence Protection Orders (DVPO) / Domestic Abuse Protection Orders, a Forced Marriage Protection Order or a Stalking Protection Order for example.

When a crime is reported, the police will complete a victim needs assessment to identify any support which a victim may need, including any ‘special measures’. If a victim is identified as vulnerable or intimidated (see Section 2, Adult Witnesses who are Vulnerable or Intimidated), the police will outline what special measures are available to them and how they work.

Some victims or witnesses may require additional support during police interviews and investigations, and police officers involved will need to have specific skills in investigating and interviewing adults with disabilities and communication needs. This may include an appropriate adult being in an interview, it is crucial that any reasonable adjustments which are required are also made.

Police investigations should be coordinated with the safeguarding adult enquiry but may take priority. However, the local authority’s duty to ensure the wellbeing and safety of the adult continues throughout any criminal investigation.

Victims should be offered support from Victim Support and any other locally available resources, including court preparation schemes for example.

If an adult who is vulnerable has been arrested and detained by police for interview, they should be referred for support from an appropriate adult.  Any needs they have as a vulnerable adult should be considered alongside possible enforcement actions (for example, to consider if they have been exploited / coerced).

The role of the appropriate adult is to ensure vulnerable adults have all the support and guidance they need during the custody process and are treated fairly by the police. For more information see: Police and Criminal Evidence Act 1984 Code of Practice C.

An appropriate adult is needed whenever a vulnerable adult is:

• interviewed to find out how you may be linked to a crime;
• asked to give a written statement under caution or record of interview;
• asked to sign a written statement under caution or record of interview;
• asked to give their fingerprints or a DNA sample.

2. Adult Witnesses who are Vulnerable or Intimidated

The Youth Justice and Criminal Evidence Act 1999 enables vulnerable and intimidated witnesses to have special measures when giving evidence in court.

2.1 Vulnerable witnesses

Vulnerable witnesses are adults who have:

• a mental health disorder;
• a learning disability; and / or
• a physical disability.

Vulnerable witnesses can receive special measures if their ability to give evidence is likely to be negatively impacted due to their disorder or disability.

2.2 Intimidated witnesses

Intimidated witnesses are those whose ability to give evidence is likely to be negatively impacted because of fear or distress. In deciding whether a witness comes into this category, the court takes account of:

• the nature and alleged circumstances of the offence;
• the age of the witness;
• the social and cultural background and ethnicity of the witness;
• the domestic and employment circumstances of the witness;
• any religious beliefs or political opinions of the witness;
• any behaviour towards the witness by the accused or third party.

This also includes:

• victims of sexual assault;
• victims of offences under the Modern Slavery Act 2015;
• witnesses to certain gun and knife offences and other serious crimes, including murder and terrorism offences;
• victims of domestic abuse, racially motivated crime, crime motivated by reasons relating to religion, homophobic crime, gang related violence and repeat victimisation;
• those who are older and frail.

3. Special Measures

The Youth Justice and Criminal Evidence Act 1999 introduced a range of special measures to support witnesses so they can give their ‘best evidence’ and to help reduce anxiety when attending any type of criminal court.

Special measures available include:

• the use of screens or curtains around the witness box;
• the use of live (video) link evidence or recorded evidence (including pre-recorded cross examination);
• asking the public to leave the courtroom;
• the use of communication aids including computers, symbol boards and books;
• being able to request a supporter;
• asking the judge and barristers to remove their wigs and gowns; and
• the use of a specialist intermediary (see Section 3.1, Registered intermediaries) to help witnesses understand the questions they are being asked and to give their answers accurately.

The need for any special measures should be considered from the outset of any police investigation and discussed with adult/s involved.

Under the Code of Practice for Victims of Crime / Victims’ Code (Ministry of Justice) , all victims and witnesses can arrange to visit the court before any trial.

3.1 Registered intermediaries

Registered intermediaries (RIs) are impartial, self-employed, communication specialists who enable vulnerable witnesses to give evidence to the police and to the court in criminal trials. They aim to help witnesses to give their best evidence.

After completing an assessment, the RI will give the police a report summarising the communication needs of the vulnerable witness and the adjustments that are necessary to meet their needs. They will also provide a written report to the Courts if there is going to be a criminal trial.

3.2 Requesting a special measure

When a crime is first reported, a victim needs assessment is completed by the police and used to help to identify any special measures which a vulnerable or intimidated witness may want or need, and why they think these will help them give their ‘best evidence’.

The police then share these details with the Crown Prosecution Service who will ask the magistrate or judge to consider if the special measures can be applied.

Victims can change their mind about which special measures they would like, but applications should ideally be made as early as possible, as some (such as registered intermediaries for example) will be subject to availability.

Even if a special measure is not approved, other forms of support will be available for the victim.

4. Managing Police Investigations and Safeguarding Enquiries

Although a criminal investigation by the police may need to take priority over other enquiries, such as the local authority led safeguarding enquiry, a multi-agency approach remains important to ensure that the interests and personal wishes of the adult are considered throughout, even if they do not wish to provide any evidence or support a prosecution against an alleged perpetrator.

The welfare of the adult, and others, including children, is paramount and requires continued multi-agency risk assessment to ensure the outcomes agreed are in their interests and promotes their wellbeing.

Adults who have mental capacity to make  decisions about their safety may decide that they do not want any police action to be taken. Possible reasons for this could include that they are frightened of reprisals, are being coerced or intimidated or they fear their relationship with the alleged abuser will be damaged. It is important therefore that practitioners support adults and explore the reasons for their decisions.

If the adult requests that information about them is not shared with other safeguarding partners (including the police), their wishes should be respected. However, there are a number of circumstances where practitioners can share information without the adult’s consent, including when:

• other people are, or may be, at risk, including children;
• sharing the information could prevent a crime;
• the alleged abuser has care and support needs and may also be at risk ;
• a serious crime has been committed;
• staff are implicated;
• the person has the mental capacity to make such a decision but they may be under duress or being coerced;
• the risk is unreasonably high and meets the criteria for a multi-agency risk assessment conference referral (MARAC);

a court order or other legal authority has requested the information. In this situation, the adult should be informed that their information will shared unless doing so would increase the risk of harm to them.

For more information see Information Sharing and Confidentiality and Inherent Jurisdiction of the High Court chapters.