Trauma Informed Lawyering

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.

‘... if one set out intentionally to design a system for provoking symptoms of traumatic stress disorder, it might look very much like a court of law.’1

Being in the criminal justice system can cause or exacerbate trauma for a child. For example:

• A child may be asked to recall and recount events that caused trauma, resulting in ‘reliving’ the traumatic experience.
• A child may be exposed to an alleged abuser, or person who has caused or is associated with trauma.
• The court experience, including delays to the process, can reinforce disempowered feelings associated with trauma, which can trigger trauma-related stress or cause re-traumatisation.
• There can be difficulty for a child in disclosing material associated with shame – this is likely to be a particular issue for children with a history of experiencing sexual violence.2
• There is an overlap between the ways in which we think people act when they are lying and the presentation of post-traumatic stress disorder (PTSD) which can lead to incorrect judgments about the credibility of children with PTSD.3
• Whilst the traumatic event may be what brings the child into contact with the legal system, the child’s reaction to trauma can make them appear a risk, or be viewed as an aggravating rather than a mitigating factor.

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

‘Trauma can play out powerfully within a court environment. Emotions are heightened and although steps are taken to minimise discomfort, attending court can in itself be a traumatic event.’5

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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 [1999] ECHR 171 paras 89 and 91, emphasis added)

Different kinds of trauma

• Simple trauma ‘results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting adverse effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being’ (Substance Abuse and Mental Health Services Administration’s definition of ‘trauma’7).
• Complex trauma ‘describes both children’s exposure to multiple traumatic events – often of an invasive, interpersonal nature and the wide-ranging, long-term effects of this exposure. These events are severe and pervasive ... [and] usually occur early in life’ (National Child Traumatic Stress Network’s definition of ‘complex trauma’8).
• Post-traumatic stress disorder (PTSD) is a mental health diagnosis where a set of symptoms are present and are caused by a traumatic experience. The symptoms of PTSD include involuntary intrusions of the event (eg flashbacks, nightmares); hyper arousal; and avoidance of reminders of the event. People with PTSD may experience negative changes in cognition and mood (eg inability to recall aspects of the event; belief they are a bad person or deserved the event; feelings of responsibility or guilt).

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It is important to remember that evidence of trauma has the ability to damage as well help your client. Remember:

• Children are fragile. Adult decision-makers need to be conscious of this when making decisions that are critical of a child’s actions or which could appear to be a ‘character assassination’ of the child. If there is the need to explain certain poor decision-making in mitigation, explain to your client beforehand why you are describing it in a particular way; and if the judge is considering critical remarks in sentencing, draw to the court’s attention beforehand the impact this may have on the child.
• Although trauma can be submitted as a mitigating factor, judges and prosecutors may see trauma as an aggravator and an indicator of dangerousness. If the child’s reaction to the traumatic event led them into the criminal justice system this may be concerning to decision-makers and give the child the appearance of being a risk. Decision-makers may also interpret a child’s trauma history to mean that the child is too damaged to be safe in the community.
• The decision to remand or give a child a custodial sentence might be based upon a belief by the youth offending team (YOT) that the home environment is the cause of a child defendant’s trauma. Be careful to take full instructions from your client as to where they wish to reside and why,9 should you need to counter this view. Remember also that, if the home environment is the cause of the child’s trauma, a child without suitable accommodation has a right to be accommodated by children’s services.10
• Trauma symptoms can go unnoticed or be misdiagnosed as other mental health problems.

Systemic issues

Relevant systemic problems within the criminal justice system may not be recognised when trauma is raised on behalf of a client – for example:

• Racial bias. Highlighting trauma without addressing the racial biases that already exist in the legal system can creates an incorrect implication that Black, Asian and minority ethnic (BAME) young people are involved in legal proceedings because of background trauma rather than because of those biases. There is evidence that perceived systemic racial bias can be a barrier for BAME young people trusting their lawyer11 – and trust is an important element in a trauma informed lawyer–client relationship.
• Adolescent brain development. Adolescent brain development is an evolving neurological, physiological and psychological situation in all neurotypical children. Trauma does not impact all children in contact with the law, and responses to trauma vary among those who have experienced it. It is important that decision-makers are aware of the distinction. Unlike adolescent brain development, evidence of trauma relies on distinct responses to it. Advocacy around adolescent development relies on similarities among young people – however, trauma-informed advocacy is distinct from issues relating to youth. This means that expert support is all the more important when referring to trauma.

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You need to be able to identify whether the child you represent is affected by trauma. Identify likely sources of trauma, such as:

• historic trauma
• re-traumatisation connected with the allegations or the criminal proceedings themselves
  or
• trauma caused in response to indirect events – for example, learning of trauma to close family.

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:

• develop a positive working relationship with a traumatised child client
• know when to instruct an expert with knowledge of trauma and
• know how to navigate the legal process so a client can effectively participate12 in the proceedings and engage with their case without being traumatised or re-traumatised.

Autobiographical memory

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
Key facts:

• Autobiographical memory emerges at 2–3 years old – at this age it is limited, and individuals can recall isolated events.
• The length, volume and proficiency of autobiographical memory increases throughout childhood and adolescence.14
• Adolescents’ accuracy is similar to adults, although they tend to provide less detail and information, especially if they are not prompted.

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.

Gathering evidence

Trauma can have a significant impact on various aspects of the evidence gathering process. For example:

• Information processing. Children impacted by trauma may have trouble with information processing and receptive language. They may miss much of what is said to them, either because they are on the lookout for threat or because they dissociate.
• Disclosing information. A traumatised child may have grown up in a home where secrets are common and disclosure is discouraged. This is likely to inhibit the child’s ability to speak openly about experiences. There are many reasons why children may not want to share their trauma.
• Recalling information. The way memories of traumatic events are stored is different to how other events a person has experienced are stored. If a child has to recall events connected with traumatic events, they may struggle to recall them accurately or may not at times be able to access the memories. It may be particularly difficult for them to recall a temporal sequence of events, or to remember precisely when events happened.
• Guilt. A child may feel shame, that they bear responsibility, that they ‘deserved it’; or, they may feel a sense of loyalty to family or others involved in creating their trauma. A trauma informed lawyer needs to ensure that a decision-maker is aware that it is normal not to disclose a traumatic incident until, at the very least, the system is trusted by the traumatised person.

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Presenting a decision-maker with evidence of a child’s trauma can be used to:

• support legal arguments that may stop re-traumatisation practices
• support an individual child’s effective participation in the youth justice system
• support an argument to divert a child out of the criminal justice system
• argue against delays in the system – for example, where a child has been released by the police under investigation, is awaiting for trial or is at risk of having custody time limits extended
• support an application for bail by highlighting the negative impact of removing a child from their community
• ensure effective case management by raising judicial awareness on how the case should be managed and supporting applications for special measures or modifications
• support a defence, for example, self-defence where the act was in response to abuse or where the act was the result of child criminal exploitation
• explain difficulties with autobiographical memory and their giving evidence
• establish mitigation at sentence
• explain particular behaviour
• justify a recommendation for a particular outcome or treatment.

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This section will explain introducing evidence of trauma at the different stages of a criminal case, including:

• police
• court proceedings
• hearing evidence
• giving evidence
• defences where evidence of trauma can help
• mitigation/sentencing.

Overarching welfare principle

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:

• the local authority26
• the police27
• the YOT28 and
• the governor or director of a secure training centre or youth offending institution.29

The police

Policing policies, processes and interactions can impact children significantly, particularly when a child is traumatised and/or lacks emotional maturity.30

Police interviews

Be mindful that a child’s experience of trauma may affect their position in interview. For example:

• An interview under caution is likely to create distrust for a traumatised child. A traumatised child will need a degree of trust in the process and interviewer in order to give a full account in interview.
• A child who has been exposed to trauma is more likely to be suggestible.31 Suggestibility can affect a child’s evidence or responses in interview by making the child more likely to give the answer that they perceive the questioner wants.32 Evidence of suggestibility might be used to exclude a police interview in court.
• The experience of trauma can cause incoherencies and inconsistencies in a child’s recollection of an event, and/or dissociation from it.

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.

Strip searches

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

Court proceedings

Decision to prosecute

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:

• the facts of the particular case
• any documented history of trauma and
• any evidence of the likelihood that criminal proceedings will re-traumatise a child.

Expert evidence is likely to be necessary to support representations.

Safeguarding at court and modifications to the process

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

Special measures

Child witnesses

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. 

Child defendants

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:

• is well prepared for the kinds of questions that might be asked by others during the legal proceedings
• understands the roles of people who may be asking questions and why the questions are being asked
• has tools at their disposal to communicate distress or mitigate it – for instance, simple relaxation techniques such as squeezing a stress ball or counting colours in the room.

Ground rules hearings

GRHs are:

• mandatory in all trials using intermediaries and/or which engage the s28 YJCEA 1999 procedure
• good practice in all cases where there is a young witness or a vulnerable defendant with communication needs.41

At a GRH, the judge should:

• consider any applications for special measures for any witness (prosecution, defence) or child defendant, including use of an intermediary
• approve pre-submitted cross-examination
• consider any adaptations to questioning and/or the conduct of the hearing that may be necessary to facilitate the evidence of a vulnerable person.42

Intermediaries

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.

For further information, see Youth Justice Legal Centre (YJLC) ‘Intermediary guide’;43 and The Advocate’s Gateway, Toolkit 16: ‘Intermediaries: step by step’.44

Sharing evidence

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.

Giving evidence

When deciding whether to call the child defendant to give evidence, consider the following factors:

• the child’s need or desire to give evidence
• any repercussions that could arise from giving or not giving evidence
• the value of the child’s direct evidence
• protecting a child defendant from giving evidence – when a child is being cross-examined by another party, trauma informed lawyers should be vigilant about the questions asked in cross-examination; this can be established at the GRH (see page 14)
• continuity of representation will be particularly important for traumatised child – if, unavoidably, their advocate is not available for certain hearings, this should be explained to the child.

Adverse inferences

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:

• a youth advised to answer no comment in interview49
• ill-health, in particular mental disability, confusion, intoxication, shock etc50

Defences where evidence of trauma can help

Trafficking/exploitation

See YJLC’s ‘Legal guide to child criminal exploitation’ regarding the defence under s45 Modern Slavery Act 2015.52

Self-defence

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

Duress

A child defendant’s youth and experience of a recognised mental illness or psychiatric condition may be relevant to a defence of duress.55

Diminished responsibility and loss of control

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

Mitigation/sentencing

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:

• A child defendant may not want their trauma brought into the public realm. Be mindful of the child’s autonomy and, if necessary, ask for additional time and try to develop a good trauma informed lawyer–client relationship.
• Consider carefully how you present the evidence so as to mitigate, rather than aggravate (see ‘Trauma in criminal proceedings – a double-edged sword’ above).

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