Pre-recording of cross examination evidence

Created on March 23, 2017

Pre-recording of cross examination evidence

There has been a lot of discussion over the last few months on the roll out of s28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999). The main question everyone is debating is ‘Whether it is okay to pre-record rape complainants’ cross examination evidence?’.

So what is Section 28 all about?

Section 28 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 states that where a video-recording is admitted as evidence in chief of a witness under section 27 of the YJCEA then a special measures direction may also provide for any video recorded cross-examination and re-examination of the witness to be admitted as well. 

There was an initial pilot scheme, which saw section 28 being brought into force on the 30th December 2013 at three court centres (Kingston-upon-Thames, Leeds and Liverpool).  Since 2013 section 28 has continued to be in force at these three courts. 

During the pilot scheme,section 28 directions were only available in cases where a witness was eligible for special measures under section 16(1) YJCEA 1999.  Eligibility was based on grounds of age and incapacity not fear. 

The Judges involved thought that the pilot schemes had been a success, this was reaffirmed by the Ministry of Justice.  So much so, that during summer 2016 Mike Penning (then Justice Minster) decided to announce that section 28 would be rolled out nationally. 

Subsequently it has now been reported that section 28 will be rolled out for section 16 (age and incapacity) witnesses by October/November 2017 and section 17 (fear and distress) witnesses by October/November 2018.

If you are currently in the legal profession you will know that in the last year or so there have been many organisations running training schemes for both judiciary and barrister looking at the skills required for questioning vulnerable witnesses. 

It has been speculated that the completion of the Inns of Court College of Advocacy (ICCA) training course“Advocacy and the Vulnerable” will become mandatory for all barristers who wish to practise in these types of cases.

What does thismean going forward?

Alleged victims of rape and other sex crimes will now have their cross examination evidence pre-recorded and subsequently played during the trial.  This is somewhat different to the current position where complainants would be cross-examined live during a trial (with the assistance of some special measures, if deemed necessary). 

Liz Truss,(the Justice Secretary) has been quoted as saying that the pre-recorded cross examination and re-examination evidence will “not reduce the right to a fair trial”. However, many lawyers have expressed their concerns about this on their blogs, law firms and chambers websites and on social media. 

Why are there some concerns?

There are many concerns to be raised when taking pre-recorded evidence some weeks or even months before trial.  The current system works by the cross examination of the complainant’s evidence being undertaken by the defendant’s barrister during the trial. 

It has been confirmed that further recordings can, and will be made if additional evidence comes to light.  However this all adds time onto proceedings. 

Many criminal defence lawyers have highlighted the need for themselves and their colleagues to be even more pro-active when it comes to seeking disclosure of evidence.  This is necessary to see whether anything arises which undermines the prosecution case.   Criminal defence lawyers have also highlighted the need for skilled and effective trial counsel to be instructed to undertake the pre-recorded cross examination, to ensure defendants are not disadvantaged and that there is a fair trial.

The full Ministry of Justice announcement can be read here:

The Lord Chief Justice has issued a correction to the Ministry of Justice’s ‘misleading’ press announcement.

If you need to speak to a solicitor regarding anything this blog post has raised, or any other criminal matter then please contact us via our contact page.

Camilla Rents

Camilla Rents

Camilla has specialised in criminal defence work since 2010 and has particular experience in cases involving sexual offences, serious violent offences (including murder) and money laundering and fraud.

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