Criminal Practice Directions 2015 Amendment No. 5
The Fifth Amendment to the Criminal Practice Directions 2015 provides the rules governing case management where Section 28 Youth Justice and Criminal Evidence Act 1999 (YJCEA) is used. In addition, the Lord Chief Justice issued guidance on the use of s.28 YJCEA 1999 during the pilot scheme. While the latter is in force these two documents should be read together.
Details
Section 28 YJCEA 1999 provides for video recorded cross-examination and re-examination where a relevant special measures direction is made. This provision of the Act is currently only in force as part of a pilot scheme at Leeds, Liverpool and Kingston Crown Courts. Eligible witnesses under the scheme are those defined as vulnerable by section 16 (under 18 year olds and those with relevant mental health conditions) and those referred to in section 17(4) – complainants in respect of sexual or section 1 or 2 Modern Slavery Act 2015 offences.
- When Section 28 is fully rolled out, eligible witnesses will include all under 18 year olds and anyone with relevant mental health problems [Crim PD 2015, paragraph 18E.1].
- The prosecution must formally notify the court that the case is eligible for special measures under section 28 YJCEA 1999 at the first hearing in the magistrates’ court [paragraph 18E.9]. A transcript of the ABE interview and the application for special measures must be served on the court and the defence at least 7 days prior to the PTPH (including the report of any registered intermediary). The defence serve their response within 14 days [Crim PD 2015, paragraph 18E.15 – 18E.16]
- During the application for the special measures direction the judge may hear submissions from both advocates. If the application is granted the judge should make orders and give directions about disclosure and preparation for the ground rules hearing and the section 28 hearing [Crim PD 2015, paragraphs 18E18 – 18E.21].
- A ground rules hearing will take place, followed by a hearing at which the cross-examination and re-examination will be recorded (the section 28 hearing). The judge, advocates and parties, including the defendant, will usually assemble in the court room for the s.28 hearing. The defendant should be able to communicate with his representative and be able to hear the witness via the live link [Crim PD 2015, paragraph 18E.39]. Any editing of the recording must be done only with the order of the court [Crim PD 2015, paragraph 18E.48].
- If the defendant pleads guilty, any reduction for a guilty plea shall reflect the day of the recorded cross-examination as the first day of trial [Crim PD 2015, paragraph 18E.46].
- It is the responsibility of the defence advocate to ensure that they are available for the ground rules hearing, the hearing under section 28 and continuity at trial is obligatory except in exceptional circumstances [Crim PD 2015,paragraph 18E.59].
Commentary
Section 28 is designed to protect vulnerable witnesses and is an important safeguard for children having to go through the experience of giving evidence. However, practical challenges lie ahead. The Criminal Bar Association has expressed concern about the practice of disclosing pre-drafted cross-examination questions to the Prosecution. In addition, technical issues with the equipment involved is causing delay.