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Section 28: A Quiet Revolution in Sex Offence Cases. Get Ready and Be Ready

Section 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) is revolutionising how sex crimes are prosecuted in England & Wales. As a result, your defence preparation and strategising must be frontloaded and done at the outset, within a much shorter timeframe. If this applies to you, you really cannot waste time. You must have a proactive legal team on your site from the day you know you may face allegations.

And even before the charge, you should take steps to prepare. You cannot start too early.

Below is my introductory guide to Section 28 and its importance. And if you need help, I can provide you with expert legal advice and representation. If you wish to discuss sexual offence defence and representation or other related matters, please do not hesitate to get in touch with me directly on 0800 054 1170 or fill out the contact form and I will get back to you as soon as possible.

Special measures for vulnerable and intimidated witnesses (including complainants in sexual offence cases) 

Giving evidence can be a stressful and difficult experience for many witnesses.  Attending court, and all the formalities that go with this, can make a witness feel intimidated.  This, in turn, has an impact on the quality of evidence provided. 

In order to combat the negative effects of this stress and anxiety, where witnesses are vulnerable or intimidated, special measures can be employed to obtain the best evidence possible from that witness.

Special measures for vulnerable and intimidated witnesses were introduced by the Youth Justice and Criminal Evidence Act 1999 (YJCEA).

Vulnerable witnesses are all child witnesses under 18; any witness whose quality of evidence is likely to be diminished because they are suffering from a mental health disorder; have a significant impairment of intelligence and social functioning; or have a physical disability or are suffering from a physical disorder.

Intimidated witnesses are those suffering from fear or distress in relation to testifying in the case. Complainants in sexual offences automatically fall into this category.

Section 27 of the YJCEA 1999 makes special provisions of adult complainants in sexual offence trials at the Crown Court – on application by a party to the proceedings, a video-recorded statement as evidence in chief under section 27 is automatically admissible unless this would not be in the interests of justice or would not maximise the quality of the complainant's evidence.

What is Section 28?

Section 28 of the Youth Justice and Criminal Evidence Act has gone one step further and allows vulnerable and intimidated witnesses to record their cross-examination or re-examination by video.  Where a special measures direction provides for a video recording of examination in chief to be admitted under section 27, it is possible under section 28 that a direction may provide for cross or re-examination to be recorded by video and admitted.                                             

As with other special measures provisions, it is designed to support complainants and witnesses and to help them give their best evidence. It involves having their evidence in chief and cross-examination played at the trial so that the witness themselves does not need to attend the trial.

Potential advantages and disadvantages of the changes to the system and its impact

In essence, in advance of the trial, the complainant will be cross-examined (and re-examined, as the case may be) while being recorded. When it came to the point in the trial when the individual would have been cross-examined, the video recording will instead be played.

In light of the recent discussion around these issues, we look at the potential advantages and disadvantages of the changes to the system, and how this will impact on our adversarial justice system.

Input from the complainant at an early stage

There has been serious concern in recent years concerning the process of giving evidence for complainants in sexual crimes. Having the complainant give evidence at an early stage may help reduce stress and anxiety. Not only this, it may actually help recall and result in much higher quality evidence. 

However, there are also issues in cross-examining at such an early stage. For the defence, there are obvious concerns in relation to early disclosure. It is very difficult to respond to disclosures and prepare a full defence very early in the process. This can make it very challenging for the defence to actually ensure that their defence is of the highest quality.

There may also be a considerable level of case management involved. For example, at the Ground Rules Hearing Parties are able to discuss what questions will be posed and the judge can remove any unsuitable questions prior to cross examination. There are concerns that this dilutes the ability for the defence to effectively question the complainant in cross-examination and in turn dilutes the adversarial nature of our criminal justice system.

Therefore, while we may be obtaining the best evidence from the complainant, the same may not be true of the accused.

Changing the courtroom atmosphere

It can also be said that, in giving evidence at an early stage, out with the courtroom, the complainant’s anxieties may be somewhat alleviated. However, this argument fails to appreciate that there are already special measures in place which deal with these concerns. For example, there are already measures in place which would allow for a complainant to give live evidence from a different room within the court or give evidence from behind a screen. The question therefore arises, in this sense, is the system really significantly different to the current protections measures?

There are also issues around difficulties in juries assessing the complainant or witnesses when they are not physically present in the courtroom. It may be difficult to pick up on signals in body language, tone and other non-verbal signs which feed into witness credibility. This can be both detrimental for the complainant and the accused.

Fair trial issues

There are also numerous issues around the right to a fair trial. Under Article 6 of the European Convention on Human Rights (incorporated into domestic law through the Human Rights Act 1998) every accused has the right to a fair trial and to be presumed innocent until proven guilty. In order to ensure these rights are protected, it is essential that the accused has the opportunity to conduct a full and proper cross-examination.

Training and improved technology

Ultimately, in order for any of these measures to be successful, far greater training is required. The advocacy involved is very different in pre-recorded cross-examination. Defence agents, the prosecution and judges all need to have suitable support and training to ensure that justice does not suffer.

Equally, technology must undergo significant improvements before these kind of measures can ever prove successful. In the report emanating from the first pilot involving under 16s, it was noted that the technology used in the pilot was inadequate. The report identified key issues including an insufficient amount of screen space dedicated to witnesses; issues with the sound quality during playback; the fact that the s.28 equipment caused live link rooms to be unable to be used for other live-link evidence; and an inability to play CCTV footage to witnesses during cross-examination. These issues are not trivial technical glitches – they have a very real impact on the delivery of justice. It is clear that the justice system is currently severely under-funded. Significant funding will need to be directed into these changes if they are to be successful.

How to protect the rights of all parties?

It cannot be denied that the system needs improvement. Recent media reports have highlighted that the system is not delivery justice for complainants. However, the answer to these problems cannot and should not be to erode the rights of the accused. A better balance requires to be struck. The piloting of the system may allow for problems to be ironed out. However, rushing new procedures into place will ultimately damage the justice system. We must strive to do better in a thoughtful, considered manner, which ensures that justice is not only done but seen to be done.

Contact Mark Kelly for Section 28 Legal Help - Specialist Sex Defence Barrister in London, UK

My professional experience, approachability and considerable expertise means that you will be in a very safe pair of hands when it comes to your defence, and my track record is second to none.

Serving Manchester, Birmingham, Leeds, London, Bristol and the rest of the UK, I can help you. If you wish to discuss sexual offence defence and representation or other related matters, please do not hesitate to get in touch with me directly on 0800 054 1170 or fill out the contact form and I will get back to you as soon as possible.


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15 March 2021