Some three years ago, whilst I was preparing to train Australia’s first English-style witness intermediaries, a senior police officer from the New South Wales Child Abuse Squad told me about a rooster in a police interview. A rooster? Really? I thought I had misheard but I had not. The child complainant brought her pet rooster into the interview suite where it sat quietly on top of the recording machine. The rooster’s presence was described as ‘a source of great support’ to the witness.
There are plenty of examples of dogs being used to support witnesses. For example, in another child abuse investigation in Australia, a complainant with intellectual disabilities was accompanied by her assistance (or ‘service’) dog during the witness intermediary’s assessment of the child’s communication needs and abilities. The dog was the complainant’s constant companion and had a major calming effect on her, including during the police interview.
A rooster supporting a witness’s participation in a forensic interview is quite possibly unique, but in a few courts in England and Wales therapy dogs are being used to support witnesses before they give evidence. The BBC reported in February 2018 that three dogs have been visiting Truro Crown Court three mornings a week, comforting witnesses before they give evidence. Animals can also be used to support witnesses in police interviews and when they give evidence at court. This article explores the legal and practical issues associated with animals supporting witnesses in investigative interviews, in the witness box or in the live link room.
Animals and ABE
In England and Wales, Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, or simply ‘ABE’, advises officers planning interviews to gather as much information as possible about the witness (Ministry of Justice, 2011). This includes the witness’s own views about how they can be supported in an interview. ABE is silent on animals supporting vulnerable or intimidated witnesses, however there seems to be no reason in principle why this could not happen if properly planned for. Rapport between the interviewer and witness is very important and the presence of a witness’s service animal or pet could help the interviewer establish and maintain this. If the matter proceeds to trial and the prosecution seek to adduce the recorded interview in place of the witness’s evidence in chief (s 27 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999)), an objection based solely on the fact that an animal was present is unlikely to succeed. Arguably a support animal should be out of screen shot, unobtrusive and any animal interruptions should be edited out before a video interview is played to a jury.
A witness accompanied by an animal in the witness box or court TV link room raises additional issues. The animal could prove to be a distraction or prejudice to a defendant; arguably a lovable-looking dog might engender sympathy for the witness.
‘Facility’ dogs and juries in the US
One of the first known instances of a dog in a courtroom providing a young witness with support occurred in 1992 in Mississippi (Spruin, 2016) and courts in the United States ‘are increasingly permitting such witnesses to be accompanied by specially trained dogs while on the stand’ (Ensminger, 2016). The Court House Dogs Foundation, based in California, states on its website: ‘juries that we have spoken to have not found the dog’s presence beside the witness to be distracting or inappropriate. They understand that some witnesses, especially children, require additional support during a trial.’ Independent research about facility dogs in court and their impact on juries would be welcome.
Across the US there are numerous court decisions and statutory references relating to animals providing witness support. For example, in State v Dye, 283 P.3d 1130, (Wash. App. Div. 1, 2012) the Court of Appeals of the State of Washington said that the defendant’s right to a fair trial had not been violated when the court allowed a facility dog to sit next to the adult victim of a burglary as he testified. The victim had significant developmental difficulties and had been very anxious before trial. The trial court had rejected the defence’s arguments that the dog would be a distraction and would cause extreme prejudice, however it did offer ‘to make appropriate accommodations for the [defendant’s] allergies’. The judge instructed the jury not to make any assumptions or draw any conclusions based on the presence of the dog. The Court of Appeals found no prejudice to the defendant and rejected his appeal.
Practical and statutory considerations
In England and Wales there is no statutory special measure covering animals. Though animals might aid communication they are not a ‘device’ within the meaning of s 30 YJCEA 1999 ‘Aids to Communication’. A court direction about the use of an animal for support would be pursuant to the court’s inherent power to ensure that the hearing is fair. There are practical considerations too. Who is responsible for the animal? What if a dog growls at someone or is disruptive to the courtroom proceedings in some other way? These were among the issues considered by the Colorado Judicial Department in Access to the Courts: A Resource Guide to Providing Reasonable Accommodations for People with Disabilities for Judicial Officers, Probation and Court Staff: ‘The care and supervision of the assistance dog is the sole responsibility of the owner. The court is not required to provide care, food or a special location for the animal… An assistance dog may be excluded from the courthouse if there is reason to believe the animal’s behavior poses a direct threat to the health or safety of others. A service animal that displays vicious behavior towards other customers may be excluded. In addition, a court is not required to accommodate an assistance animal if it would result in a fundamental alteration to the nature of the business. A dog that barks during a hearing may be excluded. In the event an assistance dog is excluded, the individual with the disability should be given the option of continuing his or her participation in the court services.’
Vulnerable and intimidated witnesses often give evidence from a live link room. Many of these rooms are compact with minimal space for the witness and the member of the court staff, let alone a member of the Witness Service, an intermediary, a dog or its handler. Space could be an issue in the witness box as well. Of course, in some cases it might be reasonable to apply for a direction for an animal in the dock to help a vulnerable defendant stay calm and follow proceedings. It happened in Chelmsford Crown Court in 2017: ‘Judge lets pensioner take cat into the dock to calm his nerves as stalking trial starts,’ The Telegraph reported (March 2017). No doubt there would have been specific security and safety issues if the application had been for a dog in the dock. For example, a dog lead could be used as a weapon, but how else would a dog be kept under control?
The use of animals in investigative interviews or at trial raises issues of security, health and safety, procedure and directions to juries as well as the perpetually difficult issue of funding in the public sector. Who would pay for facility dogs, their training, upkeep and insurance? Who would fund the cost of bringing the dog to court and the handler’s time? There is ample anecdotal evidence from Australia and the US that animals can provide comfort and support to vulnerable and intimidated witnesses, but clearly the use of animals in police interviews and courtrooms in England and Wales would need thoughtful planning. To date there has been very little research on animals in court and mock courtroom studies and a pilot study with police and courts in this jurisdiction would be valuable. But the absence of such research should not be a stumbling block; most special measures, statutory or otherwise, were tried first and research followed on.
Contributor Professor Penny Cooper BSc (Hons), Barrister, PhD, 39 Essex Chambers and Institute for Criminal Policy Research.
Oliver’s Tale: a new avenue of support for vulnerable witnesses with CCCU
The practice of using specially trained dogs in North America – known as ‘court facility dogs’ or ‘justice facility dogs’ – to support vulnerable witnesses in the criminal justice system has been widely adopted, writes Dr Elizabeth Spruin.
Raised for this purpose and socialised from early puppyhood, they are also professionally trained for two years by an internationally recognised Assistance Dog International (ADI) program. These dogs have been particularly successful in supporting vulnerable witnesses during forensic interviews and court testimony (Ullman, 2007; Parish-Plass, 2008). Anecdotal evidence has shown that Facility Dogs provide comfort for witnesses (Holder, 2013), reduce stress (Herzog, 2010) and even increase witness relaxation and happiness (Dellinger, 2009; Holton, 2015). It has further been suggested that animate touch (eg holding a dogs leash or petting a dog) whilst testifying can also lead to an increased sense of wellbeing, decreased anxiety, lower heart rate, increased speech and memory functions, and heightened mental clarity (Justice, 2007; Sandoval, 2010). Despite much anecdotal evidence pointing to the positive effects on vulnerable witnesses, to date, there has been no empirical research to support the reliability of the evidence that has been produced (Spruin et al, 2016). Furthermore, this type of support has yet to be explored or trialled in the UK justice system, as this type of assistance dog has yet to be developed here. From this perspective, the research community has an important role to play in regard to gathering the scientific evidence needed to support the growing evidence in the area.
Recently, researchers from Canterbury Christ Church University (CCCU), began working with an ADI organisation in America, Duo Dogs. In January 2017, Duo donated Oliver (pictured below), a professionally trained facility dog, to help in our research. Whilst there are around 200 of these dogs working across North America, there are no ADI organisations in Europe that train these types of assistance dogs. Oliver is thus the first justice facility dog placed in Europe and only one in the world placed at a university for research purposes. Oliver will be helping researchers at CCCU fill the gaps in knowledge relating to the use of facility dogs in the legal setting. Along with helping to facilitate the first global evaluation of these dogs, Oliver will also be supporting vulnerable witnesses during the criminal justice process on a regular basis. The overarching aim of the work that Oliver will be involved with is to provide criminal justice agencies and practitioners with evidence of how these dogs could benefit vulnerable witnesses throughout the criminal justice process. Building this type of evidence base could open up these practices on a more global scale and has the potential to radically progress and modernise the support offered to vulnerable witnesses, both in the UK and abroad.