Recordings from past eventsTrauma informed
10 Oct 2017Legal updatesYOT guidance
This guide explains what trauma informed lawyering in the youth justice system is and why it matters.
Published April 2021
Going through the criminal justice system can, in and of itself, be a traumatic event for a child. Traumatic events can have a lifelong impact on a child’s health and wellbeing. Lawyers working with children in the criminal justice system need to be aware of trauma and its effects, to be able to identify the impact of trauma and, if necessary, to draw it to the attention of decision-makers.
You can view the expert seminar on this topic here.
Being in the criminal justice system can cause or exacerbate trauma for a child. For example:
The impact of trauma on an individual is psychological, but can also be physiological: children’s brains develop in response to trauma in ways that allow the child to survive traumatic stress and manage its effects. Trauma has been shown to adversely affect many of the neurobiological systems responsible for cognitive development and the regulation of emotions and behaviour. As a result, children who have experienced trauma often display a range of social, developmental and physical impairments.4
To be effective as a child lawyer, you need to be ‘trauma informed’.
Being a trauma informed lawyer, in part, requires developing and demonstrating characteristics that are intrinsic to positive human relationships – for example: empathy; responsive listening; restraint from judgment; and demonstration of authentic care and concern.6
Child clients who have experienced trauma may find it harder to trust their lawyer, so you must think of ways of countering this and engaging with a traumatised child.
‘... Dr Susan Bailey gave evidence during the trial in November 1993 that on each occasion when she had seen the applicant prior to the trial he had cried inconsolably and had not been able to talk about the circumstances of the offence in any useful way ... the applicant was suffering from post-traumatic effects and found it very difficult and distressing to think or talk about the events in question, making it impossible to ascertain many aspects ... [I]n view of V’s immaturity, it was “very doubtful” that he understood the situation and was able to give informed instruction to his lawyers ... In conclusion, the Court considers that the applicant was unable to participate effectively in the criminal proceedings against him and was, in consequence, denied a fair hearing in breach of Article 6 § 1 [of the European Convention on Human Rights (ECHR)].’
(V v UK  ECHR 171 paras 89 and 91, emphasis added)
The recall of personal events, specific to time
and place, which includes sensory, perceptual
and emotional aspects of the memory.
One way in which the mind copes with too much stress, so that a
person no longer feels connected to their body or thinks that they
are in a different place to where they actually are. The person
may appear ‘blank’ or withdrawn, or may appear to have stopped
listening or to be focusing on objects around them. It can last for
a short time (minutes or hours) or a longer time (up to weeks).
A symptom of PTSD. It occurs when someone enters high alert
as a result of a reminder of their trauma, so that even though
there may be no real danger their body acts as if there is. This
causes lasting stress after a traumatic event. Children exposed
to persistent trauma early in life may become permanently on
high alert, which in turn can cause problems with concentration
and/or affect their ability to participate in legal proceedings.
The process of adapting well in the face of adversity, trauma or
tragedy. The ability to ‘bounce back’ from difficult experiences.
Feeling as disturbed as during the original trauma.
A reminder of a past trauma. It can be something
external or internal, and can make a person feel
anxiety, sadness or panic, or cause flashbacks.
It is important to remember that evidence of trauma has the ability to damage as well help your client. Remember:
Relevant systemic problems within the criminal justice system may not be recognised when trauma is raised on behalf of a client – for example:
You need to be able to identify whether the child you represent is affected by trauma. Identify likely sources of trauma, such as:
There can also be other trauma-related disorders that are particular to children, such as adjustment disorder or attachment disorder. The latter can occur through neglect and deprivation in the child’s early years.
Identifying when a child is likely to be experiencing trauma is essential in order for you to be able to:
Some factors to look out for include:
Autobiographical memory is the recall of personal events, specific to time and place, and includes sensory, perceptual and emotional aspects of the memory. Throughout the criminal justice process, inconsistencies in memory can undermine credibility. Decision-makers may reject the credibility of an account due to assumptions resulting from inconsistencies. A failure to remain consistent or give enough detail about an experience is often perceived as an unreliable and fabricated account.13
Trauma is often linked with over-generalised memory. Earlier exposure to trauma, increased severity of trauma and/or number of trauma events are all associated with less specificity of memories.15 Ongoing trauma further limits recall length, and increases the number of omissions.
1. Consider asking a trauma expert (see more on page 9) to give an opinion on a child’s autobiographical memory and how this impacts on a child’s consistency. This can be used:
2. Familiarise your client with the language used by the court and the criminal justice system by
explaining hearings in advance.
3. Make the court environment less intimidating by enabling a court familiarisation visit or showing diagrams of who sits where (Criminal Practice Direction (CrimPD) 3G.2).
4. The criminal justice system has acknowledged, for instance, the impact of trauma on the ability of victims of sexual violence to report their experiences.16 Evidence should be extended and drawn to the attention of decision-makers with regards to child defendants.
Trauma can have a significant impact on various aspects of the evidence gathering process. For example:
Presenting a decision-maker with evidence of a child’s trauma can be used to:
Consider obtaining expert evidence relating to a child’s experience of trauma. Expert evidence on behalf of a traumatised child defendant is likely to come from a child and adolescent forensic psychologist or psychiatrist, some of whom will also have a specialisation in trauma. Review the expert’s biography or ask any potential expert for their experience of providing reports for children living with trauma.
Ask your expert to carry out a trauma assessment, including:
The expert may also be asked to comment on the potential for legal proceedings to re-traumatise the child, and the consequent effect on the child’s health, wellbeing and development.
Where a medical report is commissioned by a party, then that party is responsible for arranging payment of the fees incurred, even though the report is intended for the court’s use.18 For a child defendant who has legal aid funding, the solicitor will need to obtain ‘prior authority’ from the Legal Aid Agency (LAA). It may be easier to obtain funding if you have written legal advice from counsel as to why it is required. Once you have the written advice from counsel, submit that and relevant supporting evidence with a CRM4 form to the LAA.19
Further guidance on instructing experts can be found in the CrimPD:
The Ministry of Justice and HM Courts and Tribunals Service have published ‘Good practice guidance: commissioning, administering and producing psychiatric reports for sentencing’.21 The guidance includes standard forms of letters of instruction and other documents.
This section will explain introducing evidence of trauma at the different stages of a criminal case, including:
In addition to the protections that are available to all defendants and witnesses, children in the criminal justice system are entitled to an additional consideration – the ‘welfare principle’ contained in the Children and Young Person Act 1933. Every court22 in which a child23 appears must uphold this principle, which states:
‘Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings,
and for securing that proper provision is made for his education and training.’24
The ‘welfare principle’ extends beyond the courts to certain authorities who must ensure their functions are discharged having regard to the need to safeguard and promote the welfare of children.25
The specific statutory bodies named in the legislation that apply to the youth justice system, include:
Policing policies, processes and interactions can impact children significantly, particularly when a child is traumatised and/or lacks emotional maturity.30
Be mindful that a child’s experience of trauma may affect their position in interview. For example:
If possible before interview, consider obtaining evidence relating to a child’s trauma and suggestibility.
This evidence could be used to:
When deciding whether a child should answer questions in police interview, take into account the effect trauma may have on the child giving an accurate or full account (see ‘Autobiographical memory’ above). By introducing trauma onto the record, you could help to preserve the child’s position if they do not give a full account or do not admit an offence – however, be aware that this could be a double-edged sword (see page 6) if the case proceeds to trial.
If you believe it will be harmful for a child to answer police questions because of the impact of historic or current trauma, you can put that on record at the beginning of the interview, along with whatever evidence you may have to support this belief.
It is recognised that a strip search can re-traumatise or trigger a child who has been a victim of sexual abuse33 and may not be appropriate for children who are agitated through fear or mental distress.34
When a decision as to the necessity for a strip search is considered, officers should have regard to the College of Policing’s Authorised Professional Practice (APP) for detention and custody, which states:
‘If a detainee is believed to be at risk of suicide or self-harm, seizing and exchanging clothing may not remove the risk but may increase the distress caused to the detainee and, therefore, increase the risk of them self-harming. Leaving a detainee in their own clothing can help to normalise their situation. Constant observation or observation within close proximity (level 3 or 4) may be a more appropriate control measure in these circumstances.’35
The public interest considerations of the Code for Crown Prosecutors Full Code Test place an obligation on prosecutors to consider whether a prosecution is ‘likely to have an adverse impact on [the child’s] future prospects that is disproportionate to the seriousness of the offending’.36
Where there is evidence of a child suffering with trauma, consider making written representations to the CPS, arguing that it is not in the public interest to proceed with a prosecution against a traumatised child.
These representations should address topics such as:
Expert evidence is likely to be necessary to support representations.
Legal proceedings can prevent a child from moving on from trauma. The criminal courts have duties under their ‘inherent powers’ and the Criminal Procedure Rules (CrimPR) ‘to take such steps as are necessary to ensure that [the child] has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial’.37
A child witness (other than a defendant), whether for the prosecution or the defence, is a ‘vulnerable witness’ for the purposes of s16 Youth Justice and Criminal Evidence Act (YJCEA) 1999 and is eligible for special measures under ss16–33 of the Act.
Section 28 of the YJCEA 1999 enables a child witness’s cross-examination to be recorded prior to trial, subject to judicial discretion. In order for s28 to be available, the child witness must have given an ABE recording of their evidence in chief. If this has not taken place, it may take place upon judicial direction.
Where a young child may be a relevant defence witness, for example in a case where self-defence is being raised in response to a domestic violence allegation, the courts have been known to allow a child to give evidence in chief in a pre-recorded interview in the presence of a psychologist with another appropriate adult who can ask the child questions.
A child defendant’s access to special measures is limited to the giving of evidence via a live link38 and/or with the assistance of an intermediary.39 However, the best practice principle for vulnerable witnesses applies equally to child defendants.40
Consider instructing a child psychologist or intermediary with relevant expertise to assess the child and comment on the special measures and/ or adaptations to the trial process that may be appropriate to ensure that re-traumatisation and/ or triggering is avoided and to enable the child to give best evidence. The adaptations that should be put in place to assist a child defendant in giving evidence should be discussed and formalised at a ground rules hearing (GRH) (see page 14).
Ensure that the child:
Consider an application for the modifications that are contained in CrimPD Part 3G ‘Vulnerable defendants’ to ensure the effective participation of vulnerable child defendants. These include:
At a GRH, the judge should:
Consider applying for an intermediary to support a traumatised child defendant through the court process. This application can be made for the whole of trial, or for the giving of evidence only, depending upon the needs of the child.
Depending upon the different needs of the child, an intermediary report may recommend adapting language and using writing, diagrams, drawing and pointing to figurines, body maps, body part pictures and models, which may help to externalise events.
A traumatised child will need to develop resilience to be able to go through legal proceedings. Some tools that can help with your client’s resilience include:
The CPS, Department of Health and the Home Office have provided guidance ‘Therapy:
Provision of therapy for child witnesses prior to a criminal trial’.45 You can argue that traumatised defendants should be entitled to the same protection under the ‘equality of arms’ doctrine under Article 6 of the ECHR. Furthermore, in R v Grant-Murray46 the Court of Appeal confirmed that the principles in R v Lubemba47 – in which the court highlighted best practice for vulnerable witnesses – apply to child defendants.
Arguments from the CPS guidance to consider include:
You are required to share all of the evidence in the case with your client, despite the fact that they are a child. If you feel that some evidence may trigger or re-traumatise the child, you should discuss this with them. Ultimately it is the client’s decision whether or not they look at or comment on the evidence.
If parts of the evidence will be particularly difficult for the child to hear, discuss potential strategies for managing this with the judge. This will usually be in the form of increased breaks or potentially dealing with a particular issue in writing.
When deciding whether to call the child defendant to give evidence, consider the following factors:
Trauma may have a bearing on a child’s decision to remain silent and/or on not mentioning facts when initially investigated.
Evidence of trauma will be relevant to:
(a) whether an adverse inference direction should be given at all and
(b) if such a direction is given, whether the tribunal of fact should draw an adverse inference.
CPS legal guidance requires prosecutors to take ‘special care’ when addressing failure to mention facts/silence from vulnerable defendants such as youths or those with mental health issues.48
An inference under s35 of the Criminal Justice and Public Order Act 1994 (silence at trial) should not be drawn when it appears to the court that ‘the physical or mental condition of the accused makes it undesirable for him to give evidence’.
In determining whether an adverse inference should be drawn in relation to silence, the Court of Appeal has found that circumstances which may justify silence include:
See YJLC’s ‘Legal guide to child criminal exploitation’ regarding the defence under s45 Modern Slavery Act 2015.52
In exceptional circumstances, evidence of a child defendant suffering with a recognised psychiatric condition connected with the experience of trauma may be considered relevant to the issues that a jury or fact finder will have to consider, such as honest belief in the need for force to be used.53
Practitioners should be aware, however, that the circumstances in which such evidence is admissible are fact-specific and extremely limited, particularly in relation to the reasonableness of the force used.54
A child defendant’s youth and experience of a recognised mental illness or psychiatric condition may be relevant to a defence of duress.55
Where a child defendant seeks to advance either or both of the partial defences to murder, evidence that they suffer with a recognised psychiatric condition (including a condition caused by the experience of trauma) may be admissible and relevant to a matter(s) in issue.56
Evidence of trauma can make the difference between custody or remaining in the community. Presenting this evidence at mitigation is not, however, a straightforward task, and practitioners should be alive to the following issues:
Written by Shauneen Lambe in collaboration with Claire Mawer, Katya Moran and Laura Cooper at the Youth Justice Legal Centre. With thanks to Dr Zoe Given-Wilson, Aswini Weereratne QC (Doughty Street Chambers) and Leonie Hirst (Doughty Street Chambers).
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by The Dawes Trust.