Liverpool social services have developed a detailed witness profiling system to help people with learning difficulties get justice if they are victims of crime. Along with support for witnesses themselves and close links with other professionals, it provides a new way forward, argue Geraldine Monaghan and Mark Pathak

Many people would assume that if a person with learning difficulties has been abused, and there is enough evidence to charge their alleged abuser, justice will be done when the case comes to trial.

Sadly, this is not the case. In reality, people with learning difficulties who have been abused might be denied justice if police and lawyers underestimate their capacity to act as effective witnesses.

In Liverpool, the social services department decided to try and tackle the situation and has been encouraging law enforcement agencies to look beyond the stereotypes, as well as preparing and supporting potential witnesses.

In June 1997, Liverpool social services department set up a unit to examine complaints of abuse made by or on behalf of people with learning difficulties. A painstaking and protracted police and social services joint investigation into a large institution led to one of the complainants being accepted as a prosecution witness, and the unit was asked to offer some support when that person gave evidence at a series of trials.

When we analysed what had happened during the investigation we found a number of pertinent issues. Police officers, who may be unfamiliar with learning difficulties, had to make judgements about a person's capacity to give evidence in court. They were cautious, their judgements based on the presumption that people with learning difficulties should be spared the distress of giving evidence in court. Because of this, many potential witnesses were being "screened out". But things could and should be better.

There has been a growing interest in the citizenship rights of people with learning difficulties, and in that context we followed up our work by developing a range of strategies. The unit has been able to work jointly with police officers from several Merseyside stations, providing a one-stop point of contact for advice, queries and assessments of victims and witnesses with learning difficulties which the police have come to regard as reliable, responsive and efficient.

The police and Crown Prosecution Service now recognise our expertise and request that we provide witness support. Because of our remit we have been able to be flexible and co-operative in our dealings with the police and the CPS to secure an appropriate, individual service for people with disabilities from other agencies in the criminal justice system, not just social workers.

The Young Persons and Criminal Evidence Act 1999 makes it clear that there are significant issues for the criminal justice system, and for citizenship rights, in the process of preparing a case for prosecution, where witnesses have learning difficulties. To date the role of the CPS is to act on the evidence presented, not to direct investigations from the beginning.

However, according to Sir David Calvert-Smith, the director of public prosecutions, the CPS's approval and its active canvassing of support and preparation work where witnesses have learning difficulties has meant Liverpool has been able to steal a march on the legislation. We have spent a good deal of time and effort creating and maintaining close working links with the CPS and as a result are finalising new joint protocols for the conduct of cases where victims and/or witnesses have learning difficulties.

While the police are the principal investigative agency, their experience, collectively and individually, of complainants and witnesses with learning difficulties is limited and there is an understandable tendency to regard them as an homogeneous group with similar characteristics and abilities, rather than as individuals with variable characteristics and abilities. A stereotypical view has prevailed, which inevitably led to a cautious, even reluctant, approach when considering them as potential witnesses.1

This led, in the investigation which precipitated our work, to a situation where just one service user gave evidence in four individual trials involving more than 29 separate serious assaults (sexual and otherwise). We believe that others could have been credible witnesses and shared the burden of giving evidence. This is not an unrealistically optimistic view; there will always be service users with learning difficulties who cannot, or will not be part of any criminal or complaint process. However, each individual and particular set of circumstances should be examined on its own merits.

However, to make this possible people will require varying, but always substantial, levels of preparation and support. This support should not in any way contaminate the evidence; neither should it sacrifice the individual in the pursuit of justice. The support role needs to be clear, explicit and accepted by all parties, including defence and prosecution lawyers. This demands professional confidence and experience of learning difficulties issues and practice as well as of the criminal justice process.

Our support and preparation programme provides an integrated service which is tailored to particular circumstances and individuals. This way of working reflects the recommendation of recent research regarding crime victims with learning difficulties.( The Law Society Mental Health and Disability Sub-Committee, Submission to the Home Office Working Group: Vulnerable and Intimidated Witnesses, 1997)

Our witness preparation and support work aims to help individuals with learning difficulties do justice to themselves and their evidence in court. The court must recognise and meet their special needs, so far as is consistent with the principles of justice. To this end, we met with prosecution lawyers, police and the CPS before the case to discuss the needs of the witness and to ensure that there would be appropriate contact between ourselves and the other parties. The initial meeting regarding the first witness we worked with proved so useful that we agreed to provide a written report of our verbal contribution to the conference.

We called this report a "witness profile". In each case we have been involved in, the CPS has applied for the witness profile to be submitted to the trial judge and both prosecution and defence barristers. The CPS has applied to have our witness profiles accepted for use by the trial judge and both sets of counsel in 10 trials in the past 18 months. All these applications have been granted, each on a one-off basis. Our intention, which has been endorsed by the CPS, is to have their use confirmed by protocol.

The purpose of the witness profile is to prepare the court for the particular witness - "this witness in this trial". It is not enough simply to support and prepare the witness by explaining and demonstrating what may happen in court. If people with learning difficulties are to be heard, the criminal justice process must be capable of acknowledging their needs.

The most obvious example of this is by the provision of the special measures made available to help all vulnerable witnesses, such as screens and video links. But other adjustments are also important, such as adapting legal syntax, language and pace to suit the concentration and comprehension of the witness. Such adaptations are challenging to the legal profession and the witness profiles attempt to deal with the challenges constructively, by advising the barrister to avoid, for example, double negatives and dual-focused questions.

It also alerts him or her to the changes in non-verbal behaviours likely to indicate loss of concentration in the witness. Our provision of this dedicated witness support service, including detailed witness profiles, has secured a significant role for social workers in the criminal justice system, by ensuring that "identification of vulnerability should focus on the witness' individual needs and specific problems rather than by applying definitions of psychological categories or clinical conditions".( The Law Society Mental Health and Disability Sub-Committee, Submission to the Home Office Working Group: Vulnerable and Intimidated Witnesses, 1997)

If people with learning difficulties are to participate as fully as possible, all agencies must, at each stage of the process, make allowances for the fact of disability, as suggested by Sanders' substantive equality model.(Sanders et al. Victims with Learning Disabilities: Negotiating the Criminal Justice System, University of Oxford Centre for Criminological Research, Occasional Paper No. 17, 1997) This model needs to be consistently applied if it is to be successful and it requires the commitment of all agencies. We are actively seeking that commitment and have made considerable progress towards its achievement.

Some of the groundbreaking initiatives described here are already successful and have been welcomed by other agencies and service users. We have been able to identify specific needs and then create a service to meet them. We have been able to incorporate good practice and research findings in devising systems, because built into the way the team functions is a commitment to reviewing our work and performance in a constructively critical way so we can learn from our mistakes and improve practice.

We have had some experience of offering advice and guidance, including a framework for action, to colleagues in other authorities. Professional feedback and trial outcomes endorse the approach we have taken, so we are keen to share our ideas and methods. To this end we are responding to a request to write a practitioners' guide, which we hope will be published by the end of the year.

Geraldine Monaghan is manager, and Mark Pathak is investigations officer, Liverpool social services department investigations unit