‘… if one set out to intentionally design a system for provoking symptoms of traumatic stress disorder, it might look very much like a court of law.’
Being in the criminal justice system can cause or exacerbate trauma. You might be asked to recall and recount events that caused trauma, or 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 which can trigger trauma-related stress. There can also be difficulty disclosing material associated with shame which is likely to be a particular issue for those with a history of experiencing sexual violence. 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 those with PTSD.
Being a Trauma-Informed Lawyer, in part, requires developing and demonstrating characteristics that are intrinsic to positive human relationships, such as empathy, responsive listening, restraint from judgement, and demonstration of authentic care and concern.
Trauma-Informed Lawyers identify traumatised clients and think of ways to build trust with them. Powerlessness is a common trauma trigger. In order to minimise feelings of powerlessness it’s important to be transparent, as this builds trust. This means clearly explaining your role and what you can and can’t do for your client.
Delays in the court system, especially at the moment, can cause uncertainty, it is therefore important to be clear about what you know and when a decision might be made. Another important factor is to actively empower clients so that their voices are heard in decisions that affect them. Child clients especially can benefit from knowing that, unlike their relationship with other adults in their life, their relationship with their lawyer is one in which they have the decision-making power.
These efforts counteract feelings of powerlessness. Trauma-Informed Lawyers work to build trust with their clients and then support them by showing respect, patience and compassion. Building connections takes time and even when pushed away the Trauma-Informed Lawyer must remain patient, present and available to the client. With your client’s consent, additional support can be sought from third parties such as mental health professionals.
Recognising systemic issues such as racial bias should be at the forefront of a Trauma-Informed Lawyer’s mind. Highlighting trauma without addressing the racial biases that already exist in the legal system can create 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.
Being Trauma-Informed also means recognising the risks and signs of Trauma-Informed Lawyers becoming vicariously traumatised. Trauma-Informed Lawyers can only be effective if you yourself know when it is time to take a step back and practice self-care.
There is a great deal of trust placed in solicitors who are expected to always act in their clients’ best interests. It is important to regularly take a step back and think “am I doing what is best for my client?”
How can we help?
- By instructing experts like forensic psychologists and psychiatrists to support evidence of trauma and then presenting this evidence to decision-makers.
- By providing expert advice and support at investigation stage. Policing policies, processes and interactions can impact people significantly, especially children and young people.
- By challenging decisions to prosecute with reference to the public interest consideration of the Code for Crown Prosecutors Full Code Test. Where there is evidence of a client suffering with trauma, written representations can be made to the Crown Prosecution Service (CPS) arguing that it is not in the public interest to proceed with a prosecution.
- By making applications for the modifications that are contained in the Criminal Practice Directions for vulnerable defendants. This can include things like severance from other defendants, court familiarisation before the hearing, police protection from ‘intimidation, vilification or abuse’ from public or media, directions to the media about prohibition of taking photographs on court premises and reporting restrictions for children.
- By making applications for intermediaries, particularly to support traumatised children and young people through the court process.
- By arguing against an adverse inference from the silence of a traumatised client. An inference under s.35 of the Criminal Justice and Public Order Act 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’.
- By recognising that a client may not want their trauma brought into the public realm. When it comes to sentencing evidence of trauma can make the difference between custody or remaining in the community. We consider carefully how to present evidence of trauma so as to mitigate, rather than aggravate.
- By recognising that clients need to develop resilience to go through legal proceedings and providing practical tips to promote this.
If you would like legal advice from a specialist criminal solicitor, please call 0808 252 5231 or request a call back online.