Section 28 of the Youth Justice and Criminal Evidence Act 1999 provides that where a witness’s video recorded interview has been admitted as their evidence in chief, the court may direct that any cross-examination and re-examination of the witness also be video recorded and that recording admitted as evidence. A witness is only eligible to give evidence in this manner where the witness is either under 18 at the time of the hearing or is otherwise eligible on grounds of incapacity.
The Youth Justice and Criminal Evidence Act 1999 (Commencement No. 18) Order 2020 (the “2020 Order”) expands the availability of recorded evidence to proceedings before the Crown Court in sixteen further locations (where the witness is eligible).
The section 28 procedure provides that where the video recorded interview of a vulnerable witness has been admitted as their evidence in chief, the court may also direct that any cross-examination or re-examination of the witness be video recorded and the recording admitted as evidence. All parties can identify the requirement for a section 28 measure, but in the majority of cases it will be the police who will identify whether a witness is eligible.
For the purposes of section 28, vulnerable witnesses are defined as:
- All child witnesses under 18; or
- Any witness whose quality of evidence is likely to be diminished because they are suffering from a mental disorder or physical disability or significant impairment of intelligence or social functioning.
If a witness is to give video recorded evidence, this will be done by way of a separate hearing, known as a “section 28 hearing”. The questions to be put to the vulnerable witness are agreed in advance.
At the section 28 hearing itself, the witness and any intermediary will be set up in a link room with counsel. The defendant will be present in the court room whilst the witness gives evidence in the link room. The defendant will usually be in the dock or otherwise out of view of the cameras so that the defendant cannot be seen by the witness.
At trial, the recorded police interview and the video recording of the section 28 hearing will be played for the court.
No further cross-examination or re-examination of the witness may take place unless permission is given by the court (which will make a further special measures direction). The court can only give permission where something has subsequently come to the attention of one of the parties which it was not aware of (and could not with reasonable diligence have ascertained) at the time the original recording was made, or where it is otherwise in the interests of justice to do so.
Before the 2020 Order came into force on 24 August 2020, a section 28 hearing was available at 18 Crown Court centres in England and Wales. The 2020 Order expands the centres at which video recorded may be given to 16 additional locations. These are: Basildon, Canterbury, the Central Criminal Court, Chelmsford, Croydon, Guildford, Harrow, the Inner London Sessions House, Isleworth, Lewes, Maidstone, Snaresbrook, Southwark, Stafford, Wood Green and Woolwich.
The section 28 procedure is designed to help protect young and/or vulnerable witnesses from some of the distress caused by giving live evidence at trial by removing the need for the witness to come face-to-face with the defendant and by careful pre-selection of the questions to be put to the witness that will be agreed by counsel and the court in advance. This procedure has been rolled out in stages to Crown Court centres across England and Wales and it is welcome news for witnesses and victims that the procedure is now more widely available as a result of the 2020 Order.