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The twelfth amendment to the 2015 CPD was issued today (23rd March 2022) and will be effective from tomorrow (24th March 2022).
The amendments concern section 28 Youth Justice and Criminal Evidence Act 1999 and the very difficult and – from a practitioner’s point of view – unpopular pre-recording of cross-examination and re-examination of witnesses. It will be noted that the present Government has indicated that section 28 will be extended to cover many more offences than it is currently being considered and used for.
It may also be recalled that when section 28 was first mooted the idea was that listings would take into account trial counsel’s availability or even suggested that the section 28 hearings would take precedence so judges would allow instructed counsel to leave existing trials to do the hearings. Perhaps this was an acknowledgement of the huge amount of work that goes into the preparation of these hearings. It seems that acknowledgement has gone.
A section 28 hearing will now be determined by the List Officer or as directed by the judge bearing in mind the circumstances of the witness, the availability of the judge, the advocates and a courtroom with the relevant equipment. Counsel do at least come before the availability of a courtroom. Just.
Further a judge has the discretion to decide whether they will require the same advocate to appear at both the Ground Rules Hearing (‘GRH’) and the section 28 hearing. Similarly, it is not mandatory for the advocate who performed the section 28 to represent the defendant at trial. So, although the idea of continuity of counsel is a consideration, the practical effect of the system means that it really has fallen away. Likewise, the GRH and section 28 need not be listed before the same judge, an aspiration of the scheme that was swiftly abandoned.
It is obvious that witnesses need to be able to give their “best” evidence and the current delays in our system simply do not always allow for this to happen. In theory section 28 presents an equitable method. But practitioners may feel that with the forecasted expansion of its usage then a tighter control of who/when is required. The decision to relax the rules suggests that the hard-pressed List Officers are struggling with a massively over populated case load and not always having a full quota of judges, so they will be forced to fit these very important hearings in when they can without reference to the advocates’ diaries. Putting aside the issue of remuneration – what is our position when asked to take over someone else’s prepared cross-examination – perhaps agreed in advance by an intermediary- and we don’t think it sufficient or complete? Or it takes an angle that evidence served subsequently renders redundant?
Continuity of counsel in these cases is imperative for the fairness of the proceedings for both sides of the Bar. They are hearings that require significant preparation and consideration. It does a huge disservice to the very idea behind them that counsel can change between the GRH, the section 28 and trial. This latest amendment is a practical step that takes into account the difficulties that are being witnessed in the procedure that is still relatively uncommon. It is to prepare the courts for a steady increase in its usage. A cynic may suggest that it would be useful for statistical purposes that more section 28’s are heard because that is, according to the Ministry of Justice, the start of the trial. I do not know if that is the purpose or not – I doubt that it is and I am hopeful that it is not.
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