Guidance on child witness interviews is flawed, say two experts

By JOHN FORSYTH
Published on 16/07/2012 00:00

SCOTTISH Government guidance on conducting investigative interviews with children who may have been victims of physical or sexual abuse has been criticised for failing to require interviewers to adhere to consistent procedures that would draw out the most reliable evidence.

Writing in the journal of the Family Law Association, advocate John Halley and David La Rooy, reader in psychology at the University of Abertay, say that the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland has introduced scope for inconsistency in approach by interviewers that runs counter to the current understanding of the scientific underpinnings of effective forensic interviewing of children.

The guidance was published in December in the aftermath of the Orkney child abuse debacle and a succession of cases in which sheriffs and High Court judges had criticised the quality of joint police and social worker interviews that had been sometimes downright bizarre and which had contaminated the testimony they had taken from children, rendering it evidentially unreliable.

The danger in some cases was that 
children might not have been protected at the time they needed to be, and in other cases that unfounded and unsupported allegations against an adult had been fiercely pursued, based apparently on the personal convictions of the interviewer, causing serious damage to the individual and the 
family affected.

Particular frustration was directed at the unreliable approach to noting what had been said by the child in interview. Interviewers were offering as evidence statements that had been written up from notes that they had jotted down while conducting the interview, or in some cases had constructed afterwards from memory.

It had been acknowledged as best practice for some time that interviews should be recorded on DVD to allow the defence, prosecution and court to see what had been said, and how it had been said, so that leading and confusing questions could be challenged or defended.

At the time the guidance was published, Justice Secretary Kenny MacAskill announced that £315,000 had been set aside to deliver 36 interview suites and 55 mobile recording kits across Scotland, putting an end once and for all to complaints from police and local authorities that they simply could not afford to comply with what they acknowledged were the requirements of best practice.

Mr MacAskill said: “Visually recorded accounts from child witnesses can be used as prior statements, an alternative way in which vulnerable children in the most serious cases can give their main evidence. The roll-out of this recording equipment complements our ongoing work to support child and other vulnerable witnesses to give their best evidence.”

A Scottish Government spokesman said this week: “The roll-out of the recording equipment has been led by Lothian and Borders Police and they expect it to be complete by August.”

Kenny MacAskill also said in December: “It’s important that police officers and social workers are properly trained to support children throughout the process and this revised guidance presents best practice to ensure that investigative interviews are as child-focused and stress free as possible in order for them to give their best account.”

It is this aspiration that has provoked the new criticism.

Halley and La Rooy say that the most reliable evidence is “uncontaminated free narrative” rather than writing down the answers, if any, given to a series of direct questions by adult interviewers. They refer to a protocol devised by the US-based National Institute of Child Health and Human Development (NICHD) as the “gold standard” of child interviewing. Its approach seeks to learn from, and build upon, what is known about how children’s memories work.

The method advocates a precisely structured approach for interviewers to follow.

Interviewers are required to approach interviews in a particular sequence, asking particular questions in each phase. The rationale, broadly, seeks to first “train” the interviewee in the method of detailed free recall (referred to as episodic memory training, or practice interview), before passing on to questions relative to the substantive issue in focus.

David La Rooy said: “The essence of the NICHD protocol approach is that it has been demonstrated, by robust research, to elicit longer free narrative from the interviewee than any other known method.

“It is likely to produce more uncontaminated detail of what a child remembers or understands and is, therefore, likely to be more reliable and useful as evidence.”

La Rooy and Halley are concerned that the NICHD protocol was included as an appendix in the previous Scottish Executive guidance, from 2003. It is referenced in the updated version but without the same apparent endorsement as authority.

“The sequence of questions is so important,” La Rooy continued. “For example, the protocol spells out that the interviewer has to make clear to the child at the very beginning that ‘don’t know’ is an acceptable answer. It now seems that it is up to the interviewer to decide on the basis of answers already given when to let the child know that. What does that do to the evidential value of answers given up to that point?”

La Rooy and Halley are concerned that it appears from the 2011 guidance that there has been considerable influence from the perspective of untested and unscientific approaches. They point to reference in the guidance to the use of anatomical dolls and props as aides in the interviewing of children.

“The research is unequivocal and robust that these techniques should not be employed in a legal context, and their employment is likely to completely undermine the quest for uncontaminated free narrative and the reliability of the evidence,” they said.

While cases still working their way through the courts are dealing with issues that arise from investigations that were conducted prior to the December 2011 guidance, John Halley is concerned that apparent ambiguity about standards will lead to new traumas for children and adults.

“Research and harsh experience tells us that a structured approach properly adhered to allows the child the best chance to provide a free narrative uncontaminated by errors or leading questions or personal beliefs on the part of the interviewer. I don’t understand why they’ve moved away from requiring it.”

La Rooy and Halley are also concerned that the 2003 guidance was clearly “authored” by leaders in the field, including Professor Amina Memmon, formerly of the University of Aberdeen. There is no clear author of the 2011 guidance.

A Scottish Government spokesman said: “It is a Scottish Government publication developed in conjunction with stakeholders, so there’s no one author. It’s the work of a range of stakeholders brought together by the Scottish Government’s victims and witnesses unit.”

Concerns that the step forward represented by the absolute requirement for DVD recording has been matched by a step back from the absolute and consistent standard of interviewing have been raised directly with the Lord Advocate.

A Crown Office spokesman said: “The Crown Office and Procurator Fiscal Service worked with the Scottish Government and other partners to produce the revised guidance and thereafter continued to work with the Association of Chief Police Officers in Scotland (ACPOS) to progress the roll-out of visual recording equipment across Scotland. The guidance is kept under review and is revised where the need arises.”