Achieving justice for victims and witnesses with mental distress

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expert report carefully in relation to the specific incident,each of the material times, and the functions required to be awitness, while observing the caveats outlined below.Seeking expert adviceIt is appropriate to seek expert evidence or medicalinformation in the following scenarios:1. If the witness uses their mental distress to explain whythey should not be treated in the same way as everyoneelse either:• in relation to retelling the incident accurately orcoherently, or• in relation to withstanding cross-examination andgiving evidence at trial.2. If the OIC or the prosecutor notes the witness’spresentation or behaviour indicates issues relating tocredibility and reliability, and discussions with the witnesshave not satisfied these concerns.Outside these scenarios, medical records should be consideredconfidential and irrelevant. Moreover, inconsistencies or otherpotential indications of unreliability do not provide carteblanche to access a witness’s medical records or seek expertadvice. Processes set out in relevant prosecution guidanceshould always be adhered to. 46Who are the ‘experts’?The most appropriate person to approach will depend to someextent on the witness’s condition and the level of treatmentthey are receiving. After achieving informed consent it is goodpractice to ask the witness who they suggest would knowtheir condition best, professionally. The expert should alwaysbe someone who is closely involved in the witness’s care, toavoid gathering generic information. It might include one ormore of the following:• psychiatrist• GP• counsellor or psychotherapist• community psychiatrist nurse (CPN)• support worker• social worker• the person’s personal assistant• mental health advocate.46. Ibid, ‘Medical records – duty of disclosure’, ‘Expert evidence’and Annex A.Asking the right questionsThe following are the minimum questions that should beasked of any expert, to ensure expert evidence is as robustand specific as possible (adapted as necessary).1. What is the nature and extent of the witness’s mentalhealth condition, with particular reference to the symptomsexperienced by the witness? How does any treatment theyare receiving affect the witness?a) What specific symptoms does the witness experience –of the condition and/or the treatment?b) When do these symptoms occur?c) Are there any particular triggers for these symptoms?d) Are there any alleviating or aggravating factors?2. Might the nature or extent of the witness’s mental healthcondition significantly affect their (i) perception (ii)understanding or (iii) recollection of an incident? If so, inwhat specific way(s) might it affect (i), (ii) or (iii)? To whatextent would (i), (ii) or (iii) be affected in comparison tosomeone without this mental health condition?3. With reference to the incident in question, might thewitness’s mental health condition affect their (i)perception, (ii) understanding or (iii) recollection to theextent that it could undermine the credibility or reliabilityof their account given:a) at the time the incident occurred?b) at the time they reported the incident to the police?c) at the time of subsequent interviews?d) at the present time?In what specific ways might it impact on the credibility orreliability of the witness’s account at each of these times?Are there any aggravating or alleviating factors? Are thereany measures which can be taken by the prosecutor tomitigate these and support the witness to give credibleand reliable evidence?4. How might the nature or extent of the witness’s mental healthcondition affect their ability to give evidence and withstandcross-examination, particularly with reference to their:a) response to questioning and interrogationb) concentration and attentionc) ability to communicated) interaction with other people.Are there any aggravating or alleviating factors? Are thereany measures which can be taken by prosecutors tosupport the witness to give their best evidence and ensurecross-examination does not cause further distress and/orexacerbate their condition?26
Analysing expert evidenceExpert evidence gathered this way may illuminate decisionsabout relevance, credibility and reliability, and ability towithstand trial. Nevertheless, a number of caveats should beobserved:• There are limitations to expert evidence and often it is anexpression of a single opinion.• In the field of mental health, there can be no definitiveanswers or objective opinions.• Medical records can be controversial, as diagnostic labelsare fluid and disputed, so people may be given a numberof different diagnoses over time.• A difficult relationship may exist between the witness andthe health professional, which may cloud the expert’sjudgement and distort their assessment.• There is evidence of stigma about mental distress evenamong psychiatrists and other medical experts.Action• Always weigh expert evidence carefully and do notpresume that information is necessarily objective orauthoritative.• Discuss any expert evidence with the witness and seektheir views about how their mental distress might affecttheir credibility and reliability, as they will often beexperts in their own strengths and weaknesses.Action• If the evidence satisfies the disclosure test, do not disclosethe whole report or medical record automatically.• Edit expert evidence so only the necessary parts of it arepassed to the defence, to ensure sensitive and irrelevantmedical information is not released unnecessarily. Wherefeasible, involve the witness in the editing process.Case study – using expert evidencefor case preparation 47In a domestic violence case the reviewing lawyer was madeaware by police that the victim had experience of mentaldistress. A statement from the victim’s GP was sought to assistthe application for special measures. The prosecutorconducting the case said:“I met the victim for the first time on the day of thetrial. The GP statement was useful for me when I hadto go and speak to her about the trial, to prepare herin terms of what would happen, what her needs wereand whether I could be of any reassurance (withoutdiscussing the evidence itself, of course).”Using expert evidenceWhile expert evidence which bolsters the credibility orreliability of a witness’s evidence can not be served as partof the prosecution case, it may be usefully used in a numberof ways:• to inform decisions about the evidential test and realisticprospect of conviction• to bolster the confidence of the prosecutor and witness inproceeding with the case• to be served as rebuttal evidence if the defence calls thewitness’s credibility or reliability into question in court• to inform and strengthen applications for special measuresand reasonable adjustments, where it includes indicationsof support needs.47. This example was reported to Mind as part of survey researchto inform this toolkit and steps have been taken to protectanonymity.27
Page 1 and 2: Achieving justice for victims andwi
Page 3 and 4: ContentsForeword 5Terminology 6Intr
Page 5: ForewordAll prosecutors and advocat
Page 8 and 9: Mental health - experiencesand impl
Page 10 and 11: Experiences of mental distressThe t
Page 12 and 13: MemoryInterpretation of eventsConce
Page 14 and 15: CAUTIONAsking about mental health s
Page 16 and 17: As prosecution guidance clearly sta
Page 18 and 19: 1. PrinciplesCredibility and reliab
Page 20 and 21: Relevance and duty of disclosureKey
Page 22 and 23: Action• Decide whether informatio
Page 24 and 25: A process for achieving a fair tria
Page 28 and 29: Supporting people to give theirbest
Page 30 and 31: Special measures to minimise mental
Page 32 and 33: Reasonable adjustments• Interview
Page 34 and 35: Firefighting on the day in courtKey
Page 36 and 37: Recap: Mental health -experiences a
Page 38 and 39: Asking the witness - key principles
Page 40: About MindMind has been speaking ou

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