Section 28 of the Youth Justice and Criminal Evidence Act 1999 enables the recording of evidence and cross-examination prior to trial, subject to judicial discretion. Provisions which came into force on 30 September 2021 extend the application of s.28 to complainants in respect of sexual offences, or offences under sections 1 or 2 of the Modern Slavery Act in proceedings before Durham, Harrow, Isleworth or Wood Green Crown Courts.
The Youth Justice and Criminal Evidence Act 1999 (“the Act”) provides, at section 28, for the video recording of cross-examination or re-examination to be admitted as evidence. To date, this provision applied in all Crown Courts in England and Wales, but only where the witness was eligible for special measures under section 16 of the Act. This covered witnesses who were either under the age of 18 at the time of the hearing, or were suffering from a mental disorder within the meaning of the Mental Health Act 1983 or otherwise had an impairment of intelligence or social functioning which the court considers would diminish the quality of their evidence.
The new provisions which came into force on 30 September 2021 mean that section 28 of the Act now applies where a witness is eligible for special measures by virtue of section 17(4) of the Act – this covers witnesses who are the complainants in respect of a sexual offence or an offence under sections 1 or 2 of the Modern Slavery Act 2015. These provisions are applicable only to proceedings before four Crown Courts: Durham, Harrow, Isleworth or Wood Green.
The aims of section 28 of the Act are laudable, and all will agree that the protection of young and vulnerable witnesses, and complainants in sexual and Modern Slavery Act cases should be of paramount importance. It is, however, important to note that these laudable aims cannot be achieved in a vacuum, and that, in practice, the protections afforded under section 28 will be undermined if the other crucial aspects of the pre-trial process are not adhered to. For example, it is imperative that the Crown have complied with their disclosure obligations in good time to allow for the effective pre-recording of cross-examination otherwise there is a serious risk of injustice both to the defendant, and to the witness, if subsequent questioning becomes necessary due to either late disclosure, or issues which only become apparent once the trial is under way. It would be helpful to see evidence of the effectiveness of the current provisions which are in place, before understanding what the impact of significantly extending the application of section 28 of the Act will be. This initial pilot scheme will be an important test of a system which is already under significant pressure.
Vivien Cochrane, Partner, Shearman Bowen