Section 28 Youth Justice and Criminal Evidence Act 1999
S28 allows prosecutors to apply for cross examination of vulnerable witnesses to be pre-recorded in cases where their evidence in chief has been recorded by way of an ABE interview (under S27).
National Roll Out
In the summer of 2016 it was announced that implementation of Section 28 YJCA 1999 would be rolled out nationally following the pilot scheme that has been running in Kingston, Liverpool and Leeds since 2014.
At the time of the announcement it was hoped that the national roll - out would be complete by March 2017. It is now expected to begin in the spring of this year; starting with the category of vulnerable witnesses who were eligible for the pilot (i.e. s16 witnesses who are under 16 years old, those suffering from a mental disorder or a significant impairment of intelligence or functioning or a physical disability or disorder and, in both cases, the quality of the witness testimony is likely to be diminished as a result) and eventually moving on to s17 witnesses (i.e. children up to the age of 18 or intimidated witnesses – those who evidence will be diminished in quality through fear or distress, and complainants in sexual offences or Modern Slavery offences)
Key concerns identified during the Pilot
The experience of the pilot was broadly considered a success and was evaluated in a MOJ report (which can be found here: https://www.gov.uk/government/publications/process-evaluation-of-pre-recorded-cross-examination-pilot-section-28)
However, a number of key concerns emerged from that report which practitioners ought to be aware of:
First and foremost, the expedited timetables for disclosure, particularly in cases involving child witnesses subject to ongoing family court proceedings and cases involving technical/expert evidence were considered by some to put a heavy burden on the police. 5 police officers interviewed suggested that they were not sufficiently resourced to manage the expedited s28 cases:
“You have one officer that might have 20 cases, of which ten might be section 28 cases. All of them have their own timescales and their own challenges, and different things. You have a real juggling process that each of the officers in the case have to do to progress all the section 28s and to progress the section 27s at the same time” (Police)
The MOJ report was published long before the recent cases of disclosure failures were brought to the public’s attention and a review called in cases of sexual offences. It remains to be seen whether objection to the s28 special measure can successfully be taken by the defence on the basis of a real concern that early disclosure of vast quantities of evidence will not be complied with prior to the cross-examination recording. Should evidence emerge during the course of the trial and after the s28 recording is made, the only real recourse is to recall the witness. In some cases, the risk of this occurring may outweigh the benefits of the special measure.
- Early instructions from the defendant
A key challenge for defence solicitors was the early obtaining of proper instructions. Credit for a guilty plea is all but lost after the s28 hearing has taken place. The expedited timetables therefore require an early building of rapport and additional upfront time spent with defendant in order to properly advice and take cogent instructions on plea.
- Cross Examination restrictions and the provision of questions in writing
Advocates in s16 cases will be required to provide cross-examination questions at the ground rules hearing to the judge and potentially an intermediary. Discussion amongst the Bar appears to suggest that experience during the pilot has been mixed in this regard with some judges apparently requesting that questions be disclosed to the prosecution. This is not required and ought to be challenged.
Advocates appearing in s28 hearings will need to undergo training and be familiar with the various toolkits (available here: http://www.theadvocatesgateway.org/toolkits).
Further useful information can be found in the Judicial Protocol issued by the LCJ in September 2014 (available here: https://www.doughtystreet.co.uk/documents/uploaded documents/yjcea-protocol-092014.pdf)
and updated guidance from 2017 (available here: https://www.judiciary.gov.uk/wp-content/uploads/2017/09/guidance-on-the-use-of-s28-youth-justice-and-criminal-evidence-act-28092017-1.pdf).