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GUIDANCE ON INTERVIEWING CHILD WITNESSES IN SCOTLAND - Supporting Child Witnesses Guidance Pack

PART THREE PLANNING THE INVESTIGATIVE INTERVIEW

18 This guidance advocates the joint interview wherever possible, i.e that police and social work plan and conduct investigative interviews together. A formal planning meeting prior to the interview is strongly advised. This has several benefits. It will enable interviewers to discuss the needs of the child (see part 5. Special Needs). It will enable the interviewers to agree on the interview location - subject to consultation with the child and caregiver - and the procedure, recording of interview details, and so on. It will also allow for speedier and more informed progress in the investigation since risk assessments can be carried out together and reduce the number of interviews that need to be conducted. The decision as to whether or not to conduct an interview jointly will be a matter for both the Senior Social Worker and Police Supervisor involved with the case.

19 There may be a need, with certain cases, for collaboration with forces and child protection agencies in England and Wales. The police have cross-border powers to investigate and it would normally be a matter of police protocol as to which persons from which forces would lead the investigation, where the interview would take place, and so forth. Agencies involved in child protection in England and Wales follow the Home Office guidance, Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children. The procedures and practice outlined in this document generally complement that in Achieving Best Evidence.

20 Minutes should be taken for every planning meeting, in particular detailing all decisions made, who was involved in making them and justifications for making them. Copies of Minutes should be kept by both agencies.

Purpose of interview

21 All those involved in the case must clarify and define the purpose of the interview(s) to be conducted and also the topics to be explored, i.e. from a police perspective the purpose of the interview is generally to establish whether a crime has been committed or not, and if so what evidence is available from the child. It is vital that both interviewers enter the interview situation with a clear understanding of how this will further the investigation, and are sure that interviewing the child is a necessary next step to take (i.e. all other sources of information have first been exhausted). Naturally, there will be a degree of uncertainty as to what will come out of the interview, but by having all the background information at their fingertips, the interviewers should have some idea of the direction of the enquiry.

The interviewers

22 To reiterate, investigative interviews should be carried out by professionals who are "trained and competent" to conduct them - that is, trained to a standard approved by the Association of Chief Police Officers in Scotland and the Social Care Council (see paragraphs 16 and 17 above). Until these standards are achieved, availability of suitable interview personnel will still be an issue. Both interviewers should be familiar with the legal system and evidential requirements (e.g. different standards of proof for criminal and civil proceedings). They should also have some knowledge of the child's understanding of language and their needs (see part 5. Special Needs). Moreover, knowledge of the impact of abuse upon a child's cognitive, emotional and social development is desirable.

23 The lead interviewer may be from either the police or social work and will be identified after due consideration of all factors (preferred gender, race, experience of interviewing, any previous experience with the particular child, likelihood of establishing best rapport with the child). The lead interviewer will take primary responsibility for gathering information during the interview.

24 The second interviewer will also have a clear, active role. His/her duty will be to monitor and accurately record the questions, answers and demeanour of both the child and lead interviewer. Moreover, he/she will look for inconsistencies or gaps in the child's account, and any misinterpretations on the interviewer or child's part. The second interviewer can direct the lead interviewer and ask questions but only at the appropriate phase of the interview and following the guidelines set out below (see part 4. Conducting the interview, in particular).

Location of interview

25 The interview should be held in a suitable setting, one in which the child feels safe and comfortable. The child or his/her guardian should be consulted in advance about this matter if appropriate. The décor should be child-friendly and welcoming but not distracting. The interview room should be somewhere private, and devoid of background noise. This is particularly important for witnesses with hearing impairments where similar sounding words may be confused. It is also important that the interviewer accurately hears the child's response.

26 A small range of age- and gender-appropriate play materials can be available, e.g. crayons and paper, but should only be used where they will put the child at ease thereby making them more capable of giving their account and participating fully in the interview. A room full of toys is not advisable. Older children may find toys patronising and they may be unsuitable for younger and hyperactive children who are easily distracted.

Timing of interview

27 When planning the interview, the child's routines (e.g. mealtimes, bedtime, bathtime, etc.) and any religious practices (prayer times, holy days) should be taken into consideration. Interviewers may also wish to avoid taking children out of their school classes or from other locations where their removal might be conspicuous and/or cause embarrassment (e.g. youth or sports clubs).

28 However, in certain situations where there are clear grounds for concern over the child's welfare and safety, it may be imperative to talk to the child immediately.

29 If more than one interview is planned, interviewers should aim to conduct these at a regular time, keeping the child fully informed, thus reducing the child's feelings of uncertainty.

Number and duration of interviews

30 One of the major aims of the joint interview is to reduce the overall number of interviews conducted. Hence, it would be preferable if police and social work gather all the necessary information from just one single interview. This is not always possible. Sometimes it may take more than one interview to build rapport with the child or an interview may need to be terminated and rescheduled if a child becomes too upset (see paragraph 107 Debriefing and further interviews). Where more than one interview is to be conducted, it is important that the needs of justice be carefully balanced with the needs of the child. Extra information could be acquired following each subsequent interview. However, the greater the number of further interviews, the more likely each successive one is to be perceived as excessive and unnecessary and this will, in turn, affect the strength of evidence obtained. Furthermore, the emotional trauma and stress that the child may endure from repeatedly recalling the event(s) could have serious repercussions for their wellbeing. Another problem interviewers must be aware of, particularly with multiple interviews, is that of confirmation bias; suggestions might be instilled in the child's mind and then reinforced within and across interviews and interviewers. ³

31 It is good for both the interviewers and the child to have an approximate idea of how long the interview is likely to last. This will depend primarily on the child - their pace, attention span, specific needs, willingness to talk, etc.

32 The child will also benefit from having some idea of when breaks will be available. Interviewers should never persist in interviewing a child beyond a point where they are no longer capable of sustaining concentration and show signs of tiredness or distress.

Issue of consent

33 Although not a legal requirement, it is best practice to always seek a child's consent when wishing to interview them. The child's consent should also be separately sought in relation to the audio or video recording of that interview. In conducting the interview, the interviewer should have regard to the age and maturity of the child concerned and any special needs that the child may have.

34 Where appropriate, steps should also be taken to keep parents/guardians informed of the unfolding situation. In certain cases, the interviewers may need to see the child without the knowledge or consent of the parent/guardian. For example, where there are strong grounds to suspect that they are involved in the abuse. If this is necessary, a record should be made by both agencies detailing the reasons for excluding them.

35 Even where there are compelling reasons to exclude a parent or guardian from the investigative enquiries, they still have the right to courtesy and consideration.

Recording of interview

36 A record of the interview must be taken while it is being conducted. One advantage of the joint interview is that one interviewer records what is being said, or being demonstrated non-verbally, leaving the other interviewer free to listen to the child and think of appropriate questions.

37 It is current practice for interviewers to then write a joint record of the interview afterwards, as soon as is possible and while the proceedings are still fresh in their memories. Research (e.g. Warren & Woodall, 1999) shows that professional interviewers tend to misremember the questions they asked in an interview even when questioned immediately after the interview. This can have serious consequences if an interviewer obtained a response from a child as a result of asking a leading or misleading question but failed to remember that. Therefore, it is extremely important that the record taken during the interview is full, accurate, and verbatim.

38 Details should cover such things as room layout and seating positions. They must also include the date, time and duration of the interview; any breaks or interruptions; most importantly, the child's remarks and the questions that prompted these (in the exact words used); and non-verbal behaviour (the child's actions, e.g. "He grabbed me here ( pointing to body part)" and their demeanour). Observations must be objective - interviewers should avoid overly interpreting or making inferences from the behaviour of a child.

39 The original record should be retained by the Police and a copy sent to social work.

Note: At present, investigative interviews carried out in Scotland with child witnesses are recorded by hand. This is a demanding task and one which many practitioners have expressed difficulty with even when using the joint interview approach. It is recommended that alternative methods are investigated for the future. We refer practitioners to the provision in the Criminal Procedure (Scotland) Act 1995 ( see sections 260 and 262) allows prior statements by a child witness to be admitted as evidence at court in place of their evidence in chief. The legislation requires that the statement must be contained in a document, the definition of which includes audio and visual formats. The child is still required to come to court, in the event there are criminal proceedings, and must adopt the recorded interview as his/her evidence. S/he may also still be cross-examined on the contents of the recorded statement at court by the defence and the interviewers may be cited to court to be questioned on the manner of the interview.

There are advantages to using a recorded interview as the child's prior statement in this way. ⁴ It should reduce the need for repeated precognition; and the impact of the interview is preserved in a way that can be lost in a handwritten record of interview. Pilot work is currently being taken forward to test out how best such an arrangement would work in practice.

Meantime, in assessing whether to use audio or video tapes, a number of factors should be borne in mind. A Court will wish to satisfy itself regarding the age and capacity of the child as to whether s/he can adopt the statement so that the recorded interview can stand as evidence in chief. ⁵ It will also be for the Procurator Fiscal to determine whether a recorded interview can be used in this way. Formally, a prior statement will not be admissible unless the witness who made it would have been a competent witness to the proceedings at the time the statement was made. In that case, the court could still seek to satisfy itself that a child witness was competent. On an administrative level, two copies of a tape must be made and a transcript of the interview taped in this way must be provided to the Procurator Fiscal.

Other persons present at interview

40 Personnel should be kept to a minimum, to avoid intimidating or inhibiting the child. In most circumstances, it is best for only the two interviewers to be present in the room with the child. In certain cases, however, a child may wish for, and benefit from having, a support adult present. Every effort should be made to establish that this person is not a witness or potential witness, nor someone who has a personal investment in the case. Moreover, in certain circumstances, the support person should not be a parent or carer. This is important if, for example, the parent/carer is suspected of being directly involved in the abuse or their relationship with the abuser is likely to lead to a conflict of interests (see also part 5 about personnel at interviews with children who have a disability, are very young or whose first language is not English). Under no circumstances should the interview be conducted in the presence of the person alleged or suspected to be causing the child harm or distress.

41 If a support adult is to be present, they must be aware that they are not to participate in the interview itself (i.e. no answering of questions, or prompting of the child). They must also watch their body language and facial expressions to avoid conveying any emotions or intentions towards the child. Their role is to support in the sense that their presence during the interview is comforting and reassuring.

42 It must be noted, however, that the presence of a supporter might be more of a hindrance to the child, especially if that adult is someone the child has a particular relationship with (e.g. teacher, parent) and the child feels uncomfortable about them knowing intimate details of their personal life. If a parent insists on being present and the interviewers do not feel this would be appropriate, the police do have common law power to exclude them from the interview.

43 If a supporter is present, it is best that they are there only for the rapport phase until the child is settled. They should always sit out of the line of the child's vision but can move to physically comfort the child if the need arises. One possibility, if the child is willing, is to have the adult sit in an adjacent room. This can often placate the worries of both the child and the adult, whilst ensuring the interview remains private and unhindered. The child is informed that the adult is next door and on hand should they be needed.

Non-disclosure

44 While the purpose of the investigative interview is to establish whether the child is or has been exposed to risk from abuse or other types of criminal conduct, interviewers must never enter the interview with the intention of only seeking information that substantiates a suspicion/allegation. Interviewers must always keep an open mind. Thus, they should aim to obtain information regarding several alternative hypotheses, e.g. details that refute the suspicion/allegation and offer another explanation for the event(s). Note the point above that was made about confirmation bias.

45 A child's age, their perception of how safe it is to talk to the authorities, their family circumstances, religion, culture or other factors may determine whether or not he or she discloses.

46 When a child does not disclose evidentially relevant information during an interview, this is an acceptable outcome, not a failure on anyone's part especially the child's. It may be that the child is not yet willing or able to tell, or that they have not been the victim of, or witnessed, any wrongdoing. Where there is no disclosure, interviewers should remember to properly conclude the interview following the guidance set out in paragraphs 105 and 106 ( Closure phase).

47 It is also not uncommon for children to deny or retract earlier allegations, although no inferences should be drawn from this. Interviewers should prepare and plan for all these eventualities.

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