Drawbacks of Section 28 and pre-recorded cross examinations

Lesley Manley
By: Lesley Manley April 5, 2024

Lesley Manley discusses the benefits of Section 28 of the Youth Justice and Criminal Evidence Act 1999, as well as the unintended drawbacks, such as lengthening court proceedings and the potential for ‘telegraphing’ questions to witnesses in advance, in Solicitors Journal.

Every solicitor and barrister who routinely operates in the Crown Court will be very familiar with Section 28 of the Youth Justice and Criminal Evidence Act 1999. For the current generation, it provides our courts with the option to pre-record evidence in advance of a trial for vulnerable complainants of a crime, as well as witnesses, including children. This includes recording cross-examination prior to trial, subject to judicial discretion.

Things were not always so. A generation ago, there were no such provisions available for witnesses under either category. Instead, old style committal proceedings in the Magistrates Court were the norm for serious crimes before they were then sent on to the Crown Court for trial. Once there, children and vulnerable adult witnesses were invariably unable either to comprehend or to cope with the procedure.

Having seen a good number of children who were witnesses to crimes, or victims of crime, testify in both the Magistrates Court and the Crown Court without the advantage of the current regime, the experience was often unsatisfactory for everyone concerned. Giving evidence and being cross-examined in open court can be a traumatic experience for any witness, even more so for a child or a vulnerable witness.

Thankfully, a wholesale transformation has since taken place. This includes the advent of special measures, computer screens, live link Achieving Best Evidence (ABE) recorded interviews – which includes video-recorded interviews with vulnerable and intimidated witnesses where the recording is intended to be played as evidence-in-chief in court – and most recently, vulnerable witness training and pre-recorded cross-examinations. Well-established as a core part of this procedural transition, Section 28 allows children and vulnerable individuals to participate in the justice system much more effectively.

Since 2020, courts have offered the Section 28 service to such witnesses in at least one court in every region. Ideally, the Section 28 recording is completed as close to the time of the offence as possible through an expedited timetable. This aids witnesses’ memory recall and aims to reduce the distress experienced by some witnesses when giving evidence to a full courtroom at trial. Both the defence and prosecution lawyers are present in court during the pre-recording, as well as the judge and the defendant(s).

Where the judge directs, Section 28 allows vulnerable victims and witnesses to have their cross-examination video-recorded before the full trial. The witness usually meets the Judge and counsel in advance of the recording being made. Requests such as no wigs, for example, can be accommodated. Their evidence is then played during the live trial, which, in most cases, means that the vulnerable person does not need to attend in person.

In practice, Section 28 applies to vulnerable complainants of a crime (commonly referred to as victims) and witnesses, regardless of offence. These include: all child witnesses, and any witness whose quality of evidence is likely to be diminished because they are suffering from a mental disorder, have a significant impairment of intelligence and social functioning, a physical disability, or are suffering from a physical disorder.

Manifestly, procedures under Section 28 provide tangible benefits for these individuals, not least for victims (and other relevant witnesses) who are fully supported at every stage in their journey through the court system. The questions that they are asked (in court, or outside it) will often be approved in advance at ground rules hearings (GRH), and if required, intermediaries will be appointed. Court familiarisation visits are also undertaken in advance of trial, while participation takes place at a much earlier stage and usually on a fixed date.

Notwithstanding the obvious upsides to everything that is facilitated and enabled by Section 28, there are also downsides. Perhaps the most obvious is the very real danger that protecting a child or vulnerable witness can by excessively prioritised, resulting in the need for a speedy trial for defendants being unintentionally compromised.

Although it is right that the court must pay due regard to protect the interests of either a child witness or a vulnerable witness, this must not be done at the potential expense of the defendant. In particular, the necessity for a speedy trial for defendants cannot be seen to be of lesser importance. The right to a speedy trial is, of course, both a hallmark of the rule of law, which forces prosecutors to diligently build their cases within a reasonable amount of time, and a fundamental human right, which requires courts to avoid any unreasonable delays from arising.

Regrettably, I have experienced first-hand delays that can only be regarded as unreasonable. The most recent example involved a Section 28 hearing in a court in the Northern Circuit in March 2022 and a subsequent full trial which was originally scheduled to take place in August 2022.

But due to a lack of court time, the trial was adjourned to July 2023. Again, there was no court time and the trial had to be adjourned a second time to September 2024. The defendant remains on bail with their liberty restricted, facing a custodial sentence of over 10 years.

Similarly, in another case in which I am involved, a child was cross-examined at a court in South East England under Section 28 in March 2023. At the time, the case was scheduled to be tried in August 2023. But unfortunately, no judge was available and the case was adjourned to Easter 2025. Meanwhile, my client remains on bail, still facing a potential custodial sentence of more than ten years.

In both of these examples, defendants are experiencing unnecessary delays of two years between the Section 28 hearing and the trial because of continuous rescheduling of their respective trial dates.

But in practice, perhaps the most concerning consequence arising from Section 28 is the potential danger of an injustice occurring as a result of pre-recorded cross-examinations. Although questions are provided and approved on the basis that they will not be ‘telegraphed’ to witnesses in advance, the reality is that there is a clear potential for this to happen either deliberately or inadvertently. This danger arises in all cases where there is cross examination after a GRH, not just Section 28 hearings.

Again, this has been evident in my personal experience: having been involved in a rape case where a witness drastically altered a crucial detail of her evidence between what she said in her initial account to the Police in terms of the clothing she was wearing at the time of the attack and in her subsequent ABE. The change of account was a very powerful point for the defence.

The ABE had been recorded in the first year of the pandemic. The Cross-examination took place in 2023. The GRH took place in open court prior to the Section 28 hearing.

When I cross examined the complainant about this highly significant change she explained that her change of account had been ‘discussed with the Officer’ and then gave the explanation that she was ‘confused’.

It transpired that this conversation between the complainant and officer had happened at the court familiarisation visit after my questions had been served. Neither the prosecution nor defence had been told anything about the discussion in advance of the Section 28 hearing. No notes or statements about this had been provided. There was no explanation as to how this discussion had arisen. It does not follow that the pre-prepared questions had necessarily been disclosed. However, it is vital that the integrity of the process is preserved and should be seen to be preserved.

To mitigate against such problems from happening, notes of significant conversations and interaction between officers and witness service volunteers must be taken and provided to both prosecution and defence. Also, if any questions have in fact been discussed with a witness in advance, both prosecution and defence ought to be informed of that and the reasons why.

It would also be highly beneficial for research to be undertaken which examines the reactions of jurors, both to video link cross examinations and to Section 28. Many members of the bar perceive that juries can sometimes be less inclined to convict defendants in these circumstances because of the artificial distance that is created between witnesses and jurors by the use of technology. The MOJ has already published an evaluation process of Section 28 proceedings. It is clear that further evaluation will be needed.

Lesley’s article was published in Solicitors Journal, 4 April 2024.

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