Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland

PART 2: PLANNING THE INVESTIGATIVE INTERVIEW

21. The police and social work services are responsible for the planning and conduct of JIIs (see paragraph 16). The decision as to how to conduct the interview (the Interview Plan) will be made by the interviewers following detailed briefing by a relevant supervising officer from either the police or social work service. It is extremely important to plan the interview properly and, while there may be time limitations in exceptional circumstances, the best interest and needs of the child must always be the overriding principle. Appendix B provides an overview on the role of supervisors and managers in briefing and debriefing practitioners.

22. The briefing of interviewers is an essential part of the investigative planning process since it requires a supervising officer from either the police or the social work service to provide the interviewers with all detailed information gathered to that point and leading to the decision to conduct a joint investigative interview. This information is crucial to the development of an Interview Plan and to maintaining proper focus on the matter under investigation and the needs and interests of the child. The inter-agency planning process will decide which officer of the relevant service will conduct the briefing. That officer will then carry out a proper briefing, preferably in person, with the allocated interviewers. The briefing will take place as soon as possible after the joint decision meeting has decided that a JII is required and always before the JII takes place.

23. A planning meeting (called a pre-interview briefing in some areas) involving those allocated the task of conducting the JII prior to the interview is essential. This can be done either face to face or by telephone and has several benefits, enabling interviewers to:

• discuss the needs of the child (see part 4 on additional support needs) and/or any complicating factors in the case (see part 5 on complicating factors)
• agree on the interview location - subject to consultation with the child and carer - and the procedure, recording of interview details, and the roles and responsibilities of each interviewer
• 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.

24. A detailed record should be taken of every planning meeting, in particular noting all decisions made, who was involved in making them and justifications for making them. Copies of this record should be kept by both agencies.

Key points for planning

25. Appendix A (Quick Guide: Conducting the investigative interview) summarises the issues that need to be considered when planning, conducting and concluding the investigative interview. The list is not exhaustive; rather interviewers should view it as an aid for developing more comprehensive lists of issues to be considered when interviewing child witnesses. Interviews should always be tailored to the child, and to the circumstances of the investigation. Key planning points include:

• The child's age and gender
• The child's race, culture, religion, ethnicity, first language, sexual orientation/identity and whether an interpreter is required
• The child's cognitive ( e.g. attention and memory) and linguistic ( e.g. comprehension and speech, vocabulary) abilities and range of behaviours
• What information the child has already provided
• The child's present emotional state
• Any fears the child may have e.g. fears about deportation
• Any mental and/or physical health requirements
• Any mental, physical or learning impairments that require specialist input/attention or additional support and the potential for therapeutic support to influence and therefore contaminate the evidence
• Any supervisor/specialist input that may be required
• Whether a support adult may need to be present and if so, who would be best placed to undertake this role
• Whether any alleged abuse involved the use of video or cameras. (This does not necessarily mean that visual recording is not possible. It does mean however that if the decision is taken to record, then a particularly sensitive approach to informing the parent and child will be necessary.)
• The child's family composition and living arrangements
• The nature of the child's relationships with family members and/or carers
• Any sources of stress for the child and/or the family ( e.g. bereavement, marriage break-up, redundancy, house move, bullying, sickness/incapacity, domestic abuse)
• Any previous involvement with the police or local authority social work services - if so, the nature of such
• Details of previous action taken and support provided
• Whether the child has been subject to any medical examinations in relation to this, or any other, case
• Whether the child has been subject to any other investigations or inquiries in relation to this, or any other case
• Other sources of information (such as parents, carers, teachers, GPs, child psychologists) and any relevant health/medical examinations or assessments
• How to build rapport and undertake a practice interview
• Whether any drawings or other aids or props are to be used in the course of the interview and, if so, for what purpose
• Contingency plans ( e.g. for retraction of earlier statement, change in lead interviewer, or where the child becomes a suspect during the interview as well as or instead of a potential witness)
• Any potential areas of inconsistency and how they might be addressed
• The need to take an overview if the case involves multiple child witnesses and/or multiple suspects, e.g. to have one observer common to all interviews, to liaise with other police forces, or obtain access to more than one interviewing suite
• Decisions about any other observers should be taken at this stage
• Whether the child has been subject to a JII in the past
• The other available evidence in the case
• Timing
• Location
• Transportation arrangements
• Visual recording equipment availability (if mobile equipment, arrangements for collection
• Who is available to debrief the interviewer
• Who is available to support the child following the interview

26. Such factors may affect the strategy to be employed in the interview itself and the lines of enquiry that may be necessary to follow. Where the investigative interview is undertaken as part of a criminal investigation, the investigating police officers should, in the first instance, consult with their supervisor or manager and consider whether to seek the advice of the procurator fiscal ( PF) on any aspect of the investigative interview or the approach to be taken.

27. In particular, investigating police officers should consider the merit in seeking advice from the PF where they consider:

• It is necessary to seek clarification on the legal or evidential requirements which must be satisfied
• a child witness to have a mental, physical or learning impairment which may affect their ability to recount what occurred
• there is a potential requirement for the child to be seen by a relevant expert such as psychologist, speech language therapist etc.
• that records are available (such as medical records or social work records) which may be beneficial to the criminal investigation.

Purpose of the interview

28. The main purposes of the Investigative Interview are set out in paragraph 9. The interview, generally, provides a structured opportunity for a child to give their account of the circumstances which prompted the attention of the investigating agencies. This may involve for example, suspicion or concern that the child (or any other child) may be at risk of harm or have suffered harm. The information the child provides will help make a decision about the need for protection and establish whether a crime has been committed.

29. All those involved in the investigation must also, among themselves, clarify and define the purpose of the specific interview(s) to be conducted and also the topics to be explored. From a police perspective the purpose of the interview is generally to establish whether a crime may have been committed, and if so what evidence is available from the child. From a social work perspective the purpose of the interview is generally to gather evidence to determine the source and level of any risk of harm the child might face and to support any necessary decisions regarding the child's needs and any measures required to protect the child.

30. It is important to bear in mind that the Procurator Fiscal will be critically assessing the JII and looking to ensure that: the content is sufficient to support a charge (clarity about dates, clear about language e.g. what the child said and meant about body part(s) or what happened etc.); any discrepancies with other evidence have been explored; the JII was conducted in line with this guidance; and whether any gaps, inconsistencies or problems identified can be rectified.

31. The Children's Reporter is also interested in the interviewed child and whether the events raise concerns for any other children ( e.g. sibling, child who lives with perpetrator) and for that purpose: corroboration is not required (unless there is evidence that a child committed an offence in which case the same standard of proof required in criminal proceedings applies); there is a lower standard of proof (balance of probabilities); it is not essential to prove who, where or even when the incident occurred. In addition, the interview may provide concerns regarding the child's care and therefore other grounds for referral may be considered. As hearsay evidence is admissible in children's hearings court proceedings and the evidence of the interview is likely to replace the child in court it may therefore be more open to challenge. SCRA's policy on child witnesses states that the Reporter will not ask any child to give evidence in person in court where there is other evidence available that will satisfy a court as to the fact or facts in issue. A crucial factor in this assessment will be the quality of the interview of the child.

32. It is vital that both interviewers enter the interview situation with an open mind and a clear view of the approach they intend to take to assist the child to give any account of the facts and circumstances relevant to the investigation. They must also be sure that interviewing the child is necessary and proportionate to the issues under investigation. Naturally, there will be a degree of uncertainty as to what will emerge during the interview. But by familiarising themselves with all the background information and taking a strategic approach to the interview, investigative interviewers should minimise the need to re-interview the child.

Timing of the interview

33. When planning the interview, the child's routines ( e.g. mealtimes, bedtime, bath time) and any religious practices ( e.g. prayer times, holy days, or if fasting) 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). It is recognised that there will be situations where this is unavoidable.

34. The availability of recording suite or equipment should also be a key factor in planning the interview. 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.

35. Where possible, it is beneficial 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.

36. This helps determine the pace and length of interview, and any required breaks in accordance with and recognising the needs of the child. Interviewers should never persist in interviewing a child beyond a point where the child is no longer capable of sustaining concentration and shows signs of tiredness or of being overly distressed.

Number and duration of interviews

37. One of the major aims of the planning stage is to ensure that those conducting the JII are in possession of all available information which will allow them to elicit all requisite facts from the child, thus reducing the overall number of interviews conducted. It is preferable if all the necessary information was gathered 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 paragraphs 155- 159 on debriefing and further interviews).

38. Where more than one interview is to be conducted, it is important that the interests of justice are carefully balanced with the needs of the child, e.g. the emotional trauma and stress that the child may endure from repeatedly recalling the event(s) could have serious repercussions for their wellbeing. Interviewers should aim to conduct these at an appropriate time, keeping the child fully informed, thus reducing the child's feelings of uncertainty.

39. Further information may come to light during the course of the enquiry which would necessitate a further interview of the child. Further interviews should be avoided where possible. In deciding whether a further interview is necessary, account should be taken of the welfare of the child, the public interest, (including the risk to other children) and the interests of justice.

40. 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. A biased interviewer is one who holds prior beliefs about the occurrence or non-occurrence of certain events. Consequently this may shape the interviewer's line of enquiry such that they obtain statements from witnesses that are consistent with prior beliefs ( e.g. see White, Leichtman & Ceci, 1997). Biased interviews are not just restricted to professionals who interview children but can include parents, teachers and others, such as interpreters or experts who are not trained/experienced in talking to children.

What consent is needed?

41. There must be transparency in the process between interviewers and parents or carers when telling them about the variety and types of usage recordings can be put to, and who might be able to view the recordings in certain circumstances. Additionally, interviewers must be aware of the differing circumstances where consent is, or is not, required, and must ensure that consent is obtained when necessary. The views of children and those with parental responsibility should be taken into account if appropriate, and they should be kept appropriately informed of progress. They should also be familiar with the National Child Protection Guidance which contains more detailed advice on consent and data protection issues.

42. Consent is not legally required from parents or children before interviewing them or before visually recording the interview. Nor is consent required to view a recording of an interview when:-

• it is necessary to view a recording of the interview for the purpose of investigation of a criminal complaint, or by the children's reporter for the purpose of investigating a child protection concern.
• the content of a recording (or more accurately, an interview) materially affects the conduct or outcome of an investigation, e.g. when aspects of the investigation may have to be re-visited or re-done.
• There is a Court Order requiring disclosure.

43. Consent is legally required to view recordings where for example, the reason to view does not form a direct part of the purpose for obtaining (as outlined in paragraph 8) the recording, such as: -

• Competence Evaluation - a formal process of monitoring the professional and technical competence of interviewers to assist professional development, support professional qualification, inform performance assessment, or facilitate a registration scheme;
• Complaint - a notification from an interested party of dissatisfaction with aspects of the conduct of an investigation or interviews, which may require formal investigation in respect of possible disciplinary or professional misconduct procedures, or the monitoring of standards.

44. In Scotland, a person of twelve years or more is presumed to be of sufficient age and maturity to give consent. Where consent is required to view a recording, agreement should be sought and obtained from the child where appropriate and interviewers should explain the reasons behind this. They may find it helpful to read the information leaflet at Appendix D which sets out a variety of potential uses, and use the form provided at Appendix E of this guidance to obtain written consent.

The lead and second interviewers (including switching roles)

45. The lead interviewer may be from either the police or social work and roles will be agreed at the planning stage after due consideration of all relevant factors. This may include consideration of who the child/young person may best relate to.

46. The second interviewer will have a clear, active role. When the interview is visually recorded, their role will be to monitor the dialogue and demeanour of both the child and lead interviewer. This includes looking for inconsistencies or gaps in the child's account, and any misinterpretations on the interviewer's or child's part. The second interviewer may, as required, intervene in the interview to clarify or enable the child to add to their account, particularly where gaps or inconsistencies have been identified. Where it is agreed by the interviewers during the planning stage, the second interviewer's queries may be raised during or at the end of the interview, as agreed. When the interview is not visually recorded, part of the second interviewer's role will be to record the interview verbatim.

47. It may be necessary, on occasion, for the agreed roles of the interviewers to be transferred in the course of the interview. This may be because it is clear that the child indicates a strong preference to communicate directly with the second interviewer rather than the lead interviewer. This may denote a change in the 'lead' interviewer role for the remainder of the interview and is more than the expected interventions ascribed to the second interviewer (as per paragraph 46 above)). Where it is necessary to change roles interviewers should ensure that this is undertaken in as seamless a fashion as possible. It is recommended that interviewers always plan for this exigency in their interview planning discussions and agree how this will be managed if and when necessary, This can be done, for example, through using a pre-agreed 'signal' between the interviewers or by using a brief break in the interview and resuming with changed roles. It is very important that this should not be done if it will disrupt the flow of information which the child is able to give or if it is to the detriment of the child and their capacity to participate effectively in the interview.

48. Where the interview is visually recorded, the second interviewer may make some written notes to facilitate the conduct of the interview as it proceeds, and note any interjections and salient points. Any such written note may form the basis of any urgent child protection action needed, and must always be retained and submitted along with the visual recording as a production.

49. For visual recording, when the supervisors responsible for planning the enquiry decide who will conduct the interview, they have the option of deciding whether both interviewers will sit in the interview room, or whether one should sit in the control room, observing and communicating using the technology. The control room houses the visual recording equipment, including a TV screen to allow simultaneous viewing of the interview, and an audio link to the interview room. This facility allows for the possibility for the second interviewer to be sited here, in communication with the lead interviewer via an earpiece (see paragraph 53). It is recognised that there may be occasions where the recording site does not have a control room as such, or the interview is visually recorded using mobile equipment.

50. An appropriate system of communication between the interviewers should be agreed beforehand, especially if an earpiece is to be used, which will allow the lead and second interviewer to address/revisit/expand upon particular issues or adapt the prepared interview strategy according to the developing needs of the child or the information being given by the child. Interviewers should familiarise themselves with this technique and practice using earpieces prior to undertaking a JII. Contingency plans in case of equipment failure should also be confirmed.

51. Whether the second interviewer is in the interview room or control room, they should be monitoring the progress of the interview, noting salient points only, which would include any disclosure made. Making very detailed notes defeats the objective of visual recording of focussing on the child. The second interviewer's role is to devote attention to monitoring the progress of the interview, the child's reactions, and communicating to the lead interviewer any issues requiring follow up.

52. The second interviewer (where present in the room) may also directly question the child. If the second interviewer has an issue that needs to be raised, this should be indicated to the lead interviewer during an appropriate pause. This can be done by a physical signal if the second interviewer is in the interview room, or using a pre-agreed phrase if the second interviewer is communicating via an earpiece from the control room. The pre-agreed phrase could be a single word, with the second interviewer saying nothing more until the lead interviewer is able to pause and signal readiness to listen, e.g. by using a phrase such as "I'll just look at my papers".

53. The interjections or suggestions made by the second interviewer (where communicating by ear-piece from the control room; see paragraph 49) should also be noted as part of the recording process. Where interviews are conducted in this way, at all times it should be ensured that the interjections of the second interviewer are properly noted (and audio recorded for the avoidance of any doubt) and available as part of the complete interview record.

The presence of a 'support person' at interview

54. The number of people present at interview should be kept to an absolute minimum, to avoid intimidating or inhibiting the child. This would normally mean the interviewer(s) but the presence of some professionals such as an interpreter may be essential. In certain cases, however, a child may wish for, and benefit from, having a supportive adult present. Where this is deemed necessary, the reasons for this (or the reasons for refusal when this has been requested) must always be recorded.

55. The need for the presence of a 'support person' should be considered, when relevant or appropriate, during the planning of the investigative interview. There is no legal requirement to have one present during the interview. The need for a support person will depend entirely on the circumstances of the case. If a support person is deemed necessary, careful consideration must be given as to who can fulfil this role. Care must be taken when considering relatives as they may have their own issues and concerns. The underlying principle is to get the best information from the child, not to create concerns or to cause difficulties/divisions within families.

56. Every effort should be made to establish that any support person identified is not a witness or potential witness, nor someone who has a personal interest in the case. Ideally the support person should not be the child's parent or carer. This is important where, for example:

• the parent/carer is suspected of being directly involved in the offence
• the parent/carer's relationship with the offender is likely to lead to a conflict of interest (see also part 4, paragraphs 180- 182 on personnel at interviews with children who have additional support needs in the JII setting)
• their presence may adversely influence the capacity of the child to participate in the interview, or adversely influence the content of any information the child might provide.

57. It must be noted, also, that the presence of a support person might be more of a hindrance to the child if that adult is someone the child has a particular relationship with ( e.g. teacher, parent) and the child feels uncomfortable about that adult knowing intimate details about their personal life and/or what may have happened to them.

58. Under no circumstances should the interview be conducted in the presence of the person alleged or suspected to be causing the child harm; or who may use any information to which they may become party; to further harm the child, or others, or prejudice the enquiry or its outcome.

59. Where the presence of a support person is deemed necessary, interviewers should always appropriately and fully explain their role as the support person to them before the interview commences. This includes any advice about when the support person might best leave the interview (if he or she is not to remain throughout). The support person should be given any available information leaflet which further outlines the purpose of their presence as the support person. They must be made aware that they are not to participate in the interview itself, i.e. no answering of questions, or prompting of the child. Efforts should be made to ensure that the body language and facial expressions of the support person avoid conveying any emotions or intentions towards the child. Their role is to support the child so that the child has sufficient composure or confidence to engage in the interview process. The presence of the support person during the interview should be comforting and reassuring.

60. If the presence of a support person is necessary, they should preferably sit out of the line of the child's vision but can be prepared to move to comfort/reassure the child if the need arises. However, any form of physical contact between the support person and the child should be avoided where possible.

61. Visual recording within an interview suite opens up the possibility of having observers sited outwith the room, so 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, while ensuring the interview remains focused. The child should be informed that the adult is nearby and on hand should they be needed to support the child and should be reminded of this as required throughout the interview.

62. When visually recording, it is important to keep everyone, including any support persons and interpreters, within the view of the widescreen camera's view. The faces of everyone present should also be visible, but this needs to be balanced with orientating adults to create a supportive and communicative relationship with the child. A supervisor/manager/interview adviser may observe from the control room or give advice in a particularly complex case (see part 5 on complicating factors).

63. In many interviews, the presence of the support person may only be required to 'settle' the child in such a way that helps the child achieve sufficient composure or confidence to engage with the interview. Normally this would be achieved during the introduction and rapport phases of the interview. In such circumstances, a judgement needs to be made by interviewers as to whether it is necessary or beneficial for the support person to remain in the interview for its duration. If not, then some arrangement should be made to enable the support person to absent themselves at an appropriate juncture without either distracting or disconcerting the child. This should be addressed with the support person before the interview begins. Where it is necessary to have a support person present the requirement for them to remain throughout the interview should be considered on a case by case basis. Where a support person leaves the interview (having successfully reassured and settled the child), they should remain nearby in case their re-introduction becomes necessary, either in the interview or during any temporary break.

64. The presence of the support person, and its benefit (or otherwise) for the interview, should always be discussed in the debriefing conducted by supervisors after the conclusion of the interview.

Interview that does not produce relevant information

65. While one of the main purposes of the investigative interview is to gather sufficient evidence to establish whether or not a crime may have been committed against the child or anyone else, 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. Accordingly, they should aim to obtain all relevant information from the witness, irrespective of whether this confirms or refutes the matter under investigation. Confirmation bias must be avoided (see paragraph 40).

66. When a child does not give 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 give such information, that the conditions in the interview were not conducive to it being provided, or that the child did not witness the act under investigation. Where no evidentially relevant information is provided, interviewers should remember to properly conclude the interview in accordance with the guidance (set out in paragraphs 149 and 150 on the closure phase).

67. It is quite common for children to deny or retract earlier statements at subsequent interviews, although no inferences should be drawn from this. Judgements should not be made at this stage regarding the child's ability to give evidence. Even if children appear confident during an investigation, the passage of time, second thoughts, possible intimidation and other factors can alter a child's ability to give evidence subsequently. Research suggests that the evidence children give will be the most fresh and accurate on first telling, closest to the original disclosure (Plotnikoff & Woolfson, 2001).

68. Interviewers should prepare and plan for all such eventualities. Where interviews are being conducted following previous retractions, these should be approached and prepared for in line with this guidance. Previous retractions should not therefore adversely influence the open-minded approach of interviewers nor their interview strategy or practice.