Professor Felicity Gerry QC, international QC at Libertas Chambers, London and Crockett Chambers, Melbourne, discusses the importance of being trauma-informed in a broader sense than victims and witnesses alone and the impact on court integrity
The Integrity of a criminal justice system is linked to trustworthiness and fairness.[ii] The prevailing cultural perceptions of and feelings about a system of justice may impact on public trust, confidence in and legitimacy of its courts. A research project for the judiciary of Trinidad and Tobago through the Judicial Education Institute of Trinidad and Tobago (JEITT) in 2018 found that an ‘effective way to create a positive perception of and engender positive feelings about itself is by making internal changes with users of the court systems as a main and central focus’. Under the mantras ‘Fair Process Matters’, ‘Equality and respect are fundamental’ and “Integrity is essential’, the research looked for effective and sustainable ways of making an impact on perceptions and feeling by implementing procedural fairness practices tailored to the users of court systems needs and concerns. The final report Proceeding Fairly considered the extent to which elements for procedural fairness existed in the court systems and the judiciary.
The takeaway is that procedural fairness should enable voice opportunity, the perception and experience of inclusion, transparency, and fairness, all of which can increase trust and confidence in court authority. This article considers trauma in court users and the risks of secondary stress for lawyers and judges as an integral part of this responsibility. Applying a ‘trauma informed lens’ to criminal justice policy can help to tackle the negative impact of trauma on victims and witnesses but taking a broader more inclusive ‘trauma informed’ approach encompasses all court users including accused persons, court staff, investigators and legal professionals and judges. This connects the concepts of procedural fairness with the methods to tackle trauma and in turn the court’s integrity.
The pervasiveness of trauma can create acute challenges for the criminal justice system by the negative impact of trauma on recall, coherence and evaluation of credibility and the ways in which the court process itself may entrench and augment vulnerabilities.
- Victims of sexual and violent crime can manifest serious diagnostic criteria years after the event. Rates may be higher in the context of more serious offences such as rape, armed robbery, or human trafficking.
- Many defendants are also victims of crime: There is sufficient research in the context of women prisoners who demonstrate serious vulnerabilities to conclude patterns of victimhood. Recent law reform has also recognised the trauma involved in forced criminality. The resources on human trafficking provide a range of trauma informed responses applicable from first responders to the judiciary.
- Research on bullying and sexual harassment in court tends to suggest that trauma as a factor for lawyers and judges has been largely ignored. The issue has more recently been dealt with as an issue for the well -being of individual actors but, as set out in Part 1, the experience of fairness can impact on the trustworthiness of the court.
It follows that court centres are places where trauma is ever present and tackling it appropriately for the range of users is a challenge.
Trauma can be serious and debilitative and, for some, sufficiently prolonged and unmanageable to lead to specific medical conditions, manifesting in both physical and mental health difficulties. This in turn can affect the evidence of the parties and the professionalism of stakeholders. These challenges can be exacerbated where there are cultural or linguistic differences or an educational background. Impeachment of a witness or bullying of a professional can be damaging. Court proceedings can be a high -octane environment. Trauma can create inconsistent or incomplete accounts and accounts may shift as those affected try to come to terms with the event and the effect upon them. Add to this the effect of cases, largely unresearched, on advocates, judges and jurors and we have the perfect storm of trauma risk being unacknowledged and unaddressed. This is not to suggest that there can never be a fair hearing but a trauma informed lens may be a way to improve all aspects of procedural fairness, if taken from the perspective of court integrity, rather than the role of the person as victim, witness or suspect.
In the criminal justice context, the case for trauma informed lawyers was raised in Australia through Roslyn Carnes publication Raising the Bar: a case for trauma informed lawyers. She recognised that legal proceedings might involve people coping with a range of adversities including some extremes such as adverse childhood experiences and intergenerational trauma:
As a powerful institution in society, law regularly encounters and deals with people, both as victims and offenders, whose lives have been shaped and harmed by traumatic events.
This research also recognised the risks to lawyers of vicarious trauma where lawyers are rarely prepared to deal with the trauma of others, never mind their own. The Guidance on Trauma informed courts by the American Bar Association urges lawyers, law schools, and bar associations to adopt trauma-informed, evidence-based approaches and practices.
During the research in Trinidad and Tobago, five elements to procedural fairness were identified: Accountability, availability of amenities, access to information, inclusivity and understanding. It was concluded that for a system to be trustworthy, reliable, and morally authoritative and then for justice to be done and seen to be done, it is not trite to suggest it has to be done with transparency and accountability and by contributing to a “felt sense of social justice” to the community it serves. The gathered data enabled researchers to conclude that perceptions and feelings of procedural fairness can impact on trust, confidence, and legitimacy, not merely for a successful party but to the extent that a losing party is more likely to accept court decision, if they felt the process was a fair one. The study showed that the public tend to be more concerned with fair processes as opposed to desired outcomes. The study also appeared to confirm the direct causal link between procedural fairness and obedience of the law and legal authorities.
Driving an ‘all of court’ approach to develop trauma informed processes that cater for witnesses (including complainants), suspects and defendants, investigators, lawyers (prosecution and defence), judges, jurors and court staff through consideration of therapeutic courts as a factor in service delivery suggests that change can be court driven with structured assessment and planning and building appropriate frameworks for understanding and mutual respect to secure public trust and confidence in the administration of justice.
Trauma informed approaches can be linked with the trustworthiness of authorities because people have to believe in a justice system, and it has to be accountable. This may be infinitely more visible in a court that operates with awareness of trauma issues. If a systemic approach is to be taken to trauma as an issue of procedural fairness, this requires a positive effort to be made to ensure a justice system at all its levels is both aware of and acting to reduce trauma. Taking trauma seriously is not revolutionary but to ‘operationalise effectively’ the scale and impact of trauma needs to be understood and support systems need to be in place. The research suggests that the quality of the process of fairness and the integrity of a court can only be enhanced by courts being trauma informed and taking practical steps to improve infrastructure and make changes in practice and process with trauma in mind. The tools for a trauma informed court may differ depending on the circumstances and the personnel. It might include the implementation of a feedback system, training in skills related to trauma informed practice, witness preparation, reflective practice skills, and more generally seeing how a court centre can reduce stress, not create it, including reducing waiting times and having regard to the risks of secondary stress, particularly from adversarial approaches or toxic professional or judicial conduct.
Taking trauma seriously is not revolutionary but to effectively operate the scale and impact of trauma needs to be understood and support systems need to be in place. The greater acknowledgement of the pervasiveness of trauma, the challenges it presents and the ways in which participation in the criminal justice process can come at the cost of individual therapeutic recovery, provides a mandate for further reform as a whole of justice approach as a question of integrity.
[i] Taken from a 2 part article in New Law Journal Felicity Gerry, ‘Trauma-informed courts (Pt 1)’ (2021) 171(7919) New Law Journal 16 and Felicity Gerry, ‘Trauma-Informed Courts (Pt 2)’ (2021) 171(7922) New Law Journal 16.
[ii] This article draws on 6 major sources (i) the Proceeding Fairly report on the Courts of Trinidad and Tobago https://www.ttlawcourts.org/jeibooks/books/Proceeding_Fairly_Report.pdf ; (ii) research by Ellison and Munro in ‘Taking trauma seriously: Critical reflections on the criminal justice process’ published in The International Journal of Evidence & Proof on October 4, 2016 https://journals.sagepub.com/doi/abs/10.1177/1365712716655168 ; (iii) the 2017 American Bar Association (ABA) publication The Impact of Trauma on the Attorney Client Relationship https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-36/sept-oct-2017/the-impact-of-trauma-on-the-attorney-client-relationship/ , (iv) the American Bar Association report to the House of Delegates in 2018 https://www.americanbar.org/content/dam/aba/directories/policy/2018-annual/2018-am-106a.pdf ; and (v) research and training for community legal services in Australia by Roslyn Carnes Raising the Bar: a case for trauma informed lawyers https://www.researchgate.net/publication/316539430_Raising_the_Bar_a_case_for_trauma_informed_lawyers and the International Bar Association Reports on bullying and harassment in the legal profession https://www.ibanet.org/bullying-and-sexual-harassment#research
Professor Felicity Gerry QC is admitted at the International Criminal Court (ICC) and the Kosovo Specialist Chambers (KSC) in The Hague, to the Bar of England & Wales and in Australia (Victoria and the High Court Roll). She has also had ad hoc admission in Hong Kong and Gibraltar. As an international QC she is regularly called upon to handle serious, complex and sensitive trials and appeals at every level of court. Her cases and advisory work often involve an international or human rights element, including genocide, war crimes, torture, terrorism, homicide, biosecurity, illegal logging, human trafficking and other major domestic and international crime. You can speak with Felicity on LinkedIn.
