Pre-record (Not fade away)

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Andrew Ford examines the use of s 28 of the Youth Justice and Criminal Evidence Act.

 In June 2013 a pilot scheme was announced by the Justice Secretary “to allow young and vulnerable victims to give evidence and be cross-examined before the trial starts”.


The first recordings took place in April 2014. The Crown courts at Kingston-upon-Thames, Leeds and Liverpool were chosen as pilot areas. Each court is processing a significant number of such cases – known as “section 28 cases”. This is particularly so in the two northern courts.

The original Commencement Order for s 28 (Statutory Instrument No 3236 of 2013) applied only to those three courts. The Pilot was due to last six months. This period has been extended. Whether or not it is also extended geographically, the principles for questioning young and vulnerable witnesses should be known by all.

Section 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) is the last of the “Special Measures” to be given operation in the Crown court. Implementation of the section was under discussion for some years. The idea was to speed up the various stages of a case so that cross-examination could take place closer in time to the allegation.

A witness is eligible if:

  • he or she is under 16 at the time of the special measures hearing; or
  • he or she suffers from a mental disorder within the meaning of the Mental Health Act 1983 or has a significant impairment of intelligence and social functioning or has a physical disability or a physical disorder, and the quality of his or her evidence is likely to be diminished as a consequence.

Identifying a section 28 case

At charge, or certainly no later than the defendant’s first appearance before Magistrates, a case is identified as a s 28 case. It is immediately sent to the Crown court for a Preliminary Hearing. A timetable of Directions is set covering four stages:

  • the Ground Rules Hearing;
  • Cross-Examination, under s 28;
  • the Plea & Case Management Hearing (PCMH);
  • Trial.

Although these stages envisage four hearings, experience is showing that the stages can merge. This is due simply to the demands of Practice and of Listing. The court can move straight to arraignment following cross-examination. Equally, the Ground Rules Hearing can immediately precede cross-examination, provided suitable questions have been drafted in advance. The process is dramatically shortening trials. It can obviate the need for a trial at all once the defendant has seen the calibre of the witness.

The police and the Crown Prosecution Service (CPS) The police need to have the s 28 criteria in mind when receiving the complaint. Early communication with the CPS is essential. The onus is on the CPS to serve papers – in particular the evidence of the s 28 witness – as soon as possible. There are two hearings which the CPS needs to warn witnesses for: the s 28 cross-examination, and the trial. No witness who has already been cross-examined should be warned for trial. This is easily forgotten, but it defeats the legislative purpose of the scheme.

The witness

Due to the s 28 criteria, there will almost always have been an “Achieving Best Evidence” (ABE) video interview conducted beforehand. This stands as the witness’s evidence in chief in the usual way. No part of the s 28 procedure affects the normal approach to this interview. It is not played until trial. It can be edited in the usual way. The eligible witness is given two early dates at the Preliminary Hearing. The first date is an appointment to watch his or her ABE interview. The second date is to attend at court for cross-examination. At court the witness meets the judge and both counsel. Introductions are made. The parties return to the courtroom at about 9.30 or 9.45. In the courtroom the witness is seen on screen by a live link and is cross-examined.

The defendant is in the dock. The whole procedure is video-recorded. After the hearing the parties collect a disk of the recording. That is (or should be) the witness’s very last involvement in the entire case.

The lawyers

The practical implications for counsel are considerable. Counsel must be familiar with the relevant toolkit from The Advocates’ Gateway. Counsel must know the whole of his or her “brief” early on. You cannot wait until trial.

Prosecution counsel

You have to know all about the case, and the witness, in order to have any input at the Ground Rules stage. Why does the witness qualify under s 28? What are his or her particular needs? Upon what might the witness be challenged? What is the defendant likely to say at trial weeks hence if s/he gives evidence? How good or bad was the ABE? An important question is whether the witness requires an intermediary. This is a practice which the Crown Court at Leeds has embraced well. There is an opportunity to re-examine. This is a skill which is often abused in the course of an ordinary trial. Under s 28 there is scope for the skilful prosecutor achieving much with the witness. Remember, by the trial date both the ABE and the cross- examination will be dated. It will be too late to clarify anything. The witness will not be there. The prosecutor really does need to know his or her “brief”.

Defence counsel

The case must be effectively trial-prepared by the time you cross-examine, even though the trial may not yet be for weeks. There is no requirement to put every aspect of the defence case. Each and every discrepancy need not be explored. There is, however, the potential to have to recall the witness if something vital was not asked. The omission may not be counsel’s fault. There may be a late change in instructions, or fresh disclosure, or something arising from what another witness later says at trial. There is a very real concern about insufficient disclosure occurring pre-cross-examination.

A list of questions in cross-examination must be drafted for the Ground Rules Hearing. Following R v Pooley; R v Lubemba [2014] EWCA Crim 2064, this can extend beyond s 28 cases, where appropriate. This authority is essential reading for anyone who practises in the Crown court. It can be accessed on BAILII and through The Advocates’ Gateway.

Defence counsel typically produces one or two sides of A4 consisting of a list of concise questions. They are short and to the point. They are clear and simple. There are no tag questions, multiple-questions, or propositions dressed up as questions. The judge will strike out any inappropriate questions. The prosecution too are invited to make any objection, or suggestions, as to how a question might better be phrased. The experience of the author is that this task is showing the Bar at its best, as a profession of specialist advocates. Once the ground rules for questioning are established the cross-examination proceeds. The more thought that has gone into the questions, and the more the questioner understands the particular witness, then the better is the process for each participant.

Experience shows that some latitude is given to go “off - script” when the witness says something unexpected. This is limited, but it has arisen in obvious cases where, for example, the witness gives an answer which it would be plainly wrong to just leave hanging in mid-air, which is how it will look weeks hence when the recording is played to the jury. But, almost without exception, the presumption is that the questions will be asked verbatim as they are drafted.

After the process there is scope for a conference with the defendant before trial at which the cross-examination might be watched and discussed.

Credit for plea

The scheme envisages the PCMH taking place after the cross-examination. There is consequently a theoretical argument in favour of some residual credit for Plea if the defendant then pleads “Guilty”. In practice, the anecdotal evidence is that either no credit at all, or the bare minimum credit, is given after cross-examination. To do otherwise would be to put a premium upon the defendant “taking his chance” with how the witness fares.

At trial

Counsel for the prosecution opens the case in the usual way. At the stage when the “s 28 witness” would normally be called, the ABE disk is played and stands as evidence in chief. Next, the disk of the pre-recorded cross-examination is played. The witness is usually the complainant and so it is often the first evidence to be given. A balanced Judicial Direction is given to the jury explaining the procedure and why it is done.

Technology

The process obviously involves another layer of technology. A split screen allows the jury to see both defence counsel and the witness. A limitation caused by the current technology is that the questioner (defence counsel) and the witness each occupy one half of the screen, as the jury see it. Experience is showing that there is little point in equal exposure of the questioner. The jury are scrutinising the witness, not counsel. This could be improved. Examples also exist of the court’s computer equipment not reading the format in which the recording of the cross-examination has been saved on the disk supplied.

General observations

The scheme can obviously present challenges. New evidence can emerge during the s 28 timetable (in one case another complainant emerged). In a multi-hander several defendants may have a legitimate interest in cross-examining the witness. The Ground Rules procedure envisages one advocate being appointed to do this. But what if the defendants are running different defences?

It is too early to give a broad conclusion from every perspective. At the time of writing there have been about 15 effective trials at Liverpool Crown Court in which juries have received evidence by way of pre-recorded cross-examination. The figures suggest a mix of verdicts in either direction. From the perspective of expedience, the procedure is attractive. Vulnerable witnesses never have to be warned for trial. There are no witness-handling issues at court. There are no cumbersome special measures procedures during the trial such as clearing the dock and public gallery so the witness can get from the door of the court to where they are screened.

It is often, but not always, the case that cross-examination is facilitated closer to the commission-date of the allegation. Witnesses can wait to report an old allegation, but still remain eligible under s 28 by the time they choose to do so. Here, the cross-examination does not occur by any appreciable margin closer to commission date. There are examples in other cases of a delay in charge. This is even though the witness acted promptly in reporting the matter, and the court thereafter in litigating it under s 28.

One consequence of s 28 is a feeling, anecdotally, that sometimes the witness can appear “removed” from the case. For certain witnesses who should not be in the Crown court in the first place, such as children, this is a good thing. Others argue that there is no substitute for having the witness in front of the jury.

Every case is different. It is certainly the case under s 28 that the jury hears no testimony from the witness which is actually current and immediate. They get a pre-recording of cross-examination some weeks prior, and an even older ABE.

The provisions are definitely easing the process for vulnerable witnesses, and not before time. Only time will tell whether they also succeed in giving such witnesses what they frequently seek from the process – the comfort of knowing that they were believed.

The pilot formally ended on 31 October 2014, but has been extended. The experience at Liverpool is that the procedures and demands of the scheme have been embraced with industry and skill, whatever its merits. The police and the prosecuting authority will continue to identify section 28 cases until 31 December 2014. The provisions of the scheme are set to continue in the pilot courts until April 2015.

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Andrew Ford

Andrew (Call 1997) is a barrister at 7 Harrington Street Chambers, Liverpool. He defends and prosecutes serious crime. Andrew is a Category 4 Panel Advocate on the Crown Prosecution Service list, and a specialist rape prosecutor. He is also an Advocacy Trainer for both the Middle Temple and the Northern Circuit, and is a Pupil-Supervisor.