BLOG: Section 28: Application and Implementation

After a lengthy delay since enactment, pre-recorded cross-examination under Section 28 of the Youth Justice and Criminal Evidence Act 1999 will soon be routine. Alexandra Scott considers the practical implications.

Although the legislation allowing for pre-recorded cross-examination of vulnerable witnesses has been in place for some time, it has taken a number of years for the criminal justice system to organise itself sufficiently for the procedures to be brought in.

Following the pilots held at Kingston, Leeds, and Liverpool since 2014, the procedural approach has been revised and the procedure rolled out across the country.  As at the start of November 2020, it is now in place in 62 Crown Courts across England and Wales

Defence practitioners who cover the whole spectrum of offending – but in particular serious violence and sexual offences – need to be aware of the implications for case management and preparation and adapt their approach to ensure the best outcome for their client.

As with many of the changes to the court process being brought in, s. 28 places additional burdens on the advocates, both prosecuting and defending.  It is therefore important to understand the reasoning behind s. 28.  Pre-recording cross-examination (and any re-examination) allows the witness to give evidence in advance of the trial date, in some case by several months.  In theory, this can significantly reduce the delay between the s.27 ABE interview and the cross-examination, which in turn shortens the ordeal for the complainant and means that their evidence may be more reliable, being closer in time to the alleged offence.  Both these aims are laudable, and the outcomes sought, desirable.  

Whether it works in practice is another matter.  Feedback from witnesses in the early pilots suggests that their perception of proceedings was that there was still a substantial delay between their s.27 interview and their s.28 cross-examination .  The explanation will be obvious to practitioners: the delay in charging decisions particularly in cases of sexual offences can be astonishing.  In a recent case, an offence was alleged to have taken place in June 2017, the s.27 ABE was carried out in July 2017, and the Defendant was interviewed in September 2017. His first appearance did not happen until October 2019.  With charging delays like this common, the decrease in delay afforded by s. 28 procedures is marginal at best.

Nonetheless, with proper engagement from the police and CPS at an early stage, there is a real opportunity to harness s.28 to improve the court experience for vulnerable complainants.  

In the current climate, with so few trial courts available and the backlog of jury trials accruing, it is hoped that s.28 can be brought in as part of the recovery plan, to protect the most vulnerable witnesses and make progress on those cases.  Using s.28 in this way brings at least some of the worst aspects of giving evidence for the complainants – and certainly the waiting and anticipation – to an end long before a jury will have sight of the case.  Pre-recorded cross-examination with only the judge, defendant(s) and a handful of barristers present, is far easier to facilitate and more compatible with social distancing.  Many practitioners will find themselves carrying out s.28 cross-examination on a regular basis in the immediate future.

But before the s.28 cross-examination can take place, there are numerous stages and related practical implications for all concerned.  Preparation in any s. 28 case will be front-loaded.

Importantly, the Police and CPS must be alive to the possible eligibility of a case for s.28 procedures from an early stage. They should flag this up with the defence and the court, ideally at the Magistrates’ Court.  However, failure to do so does not preclude the use of s.28 later.  S.28 can only take place when a s.27 ABE has been recorded.  In some cases, if appropriate, a witness who has in fact given a written statement can be asked to attend for a s.27 ABE so that they can benefit from s. 28 later on in proceedings.  Of course, in those circumstances the written statement will form part of disclosure.

Once the case reaches the Crown Court, case management directions are adjusted to ensure that two things can take place ahead of the s.28 cross-examination: disclosure can be completed and a Ground Rules Hearing (‘GRH’) can take place.  Ahead of the GRH, the GRH form must be completed and Counsel must confirm that they are familiar with the relevant Toolkits.  Most judges require proposed questions in advance.  By now most advocates will be familiar with this step, having been obliged to familiarise themselves with this as part of vulnerable witness training.  Whether the defendant is required to attend the GRH seems to depend on the individual judge.

In early pilot cases, the GRH was listed on the same day as the s.28 cross-examination, but it has been reported that issues often arose, frequently revolving around disclosure, which could not be rectified in the short space of time before the s.28 was listed.  It is, therefore, now common practice to allow approximately a week between the two hearings.

Early and effective disclosure is crucial to ensuring that Defendants are not prejudiced by this procedure.  In order for cross-examination to be effective, all relevant disclosure must have been made in advance.  The Courts do not envision allowing a vulnerable witness to be recalled to deal with new information in the normal course of events.  This means that both the CPS and the defence solicitors must be alive to the issues at a very early stage.  Proper instructions need to be taken well in advance of the GRH, compliant defence statements served and focussed disclosure requests made.

The s.28 hearing is the first day of the trial, even if it takes place a year in advance.  This has implications for fees for litigators and advocates, but also consequences in terms of credit – if a Defendant chooses to change his plea after the s.28 cross-examination, it is treated as a plea on the first day of the trial.  

Afterwards, editing of the s.28 – which is not encouraged – can be agreed between counsel who must then apply to the Judge for the edits to be allowed.  This is rare, and should be done within a week, and certainly well in advance of the trial.  Both counsel are expected to check the content of the recording – indeed some courts, notably Kingston, list the matter for this to take place.

An essential requirement is continuity of counsel throughout at the GRH, for cross-examination and at trial.  The implications for counsel are obvious; all the dates must be set in advance around counsel’s availability and caution should be exercised about accepting work with might overrun into any of the hearings.  It appears that the judiciary are aware of the additional and logistical burden this places on counsel and will try to be flexible. Communication across court centres to facilitate this as far as possible should be encouraged.

As with many of the reforms to the Criminal Justice System, s.28 is one which will be accelerated in uptake and use as a result of Covid-19, and both professions will have to learn the ropes swiftly.  In the long run its implementation may result in an improvement to the experience of complainants.

Alexandra Scott is a barrister at Carmelite Chambers.  She has a thorough knowledge of the law relating to sexual offences and considerable experience in dealing with vulnerable clients and witnesses as part of her wider practice.