FEBRUARY 2014
YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 Section 28
A time bomb waiting to explode in a Crown Court near you ?
In short, the cross-examination of children or vulnerable adults is to be video recorded at an early pre-trial stage, preferably soon after the video recorded evidence-in-chief has been obtained.
The pilot scheme is in progress, Exeter was to be a participating court centre and in the year 2012 to 2013 Exeter Crown Court would have provided between 15 and 20 such trials. Exeter was
replaced by Kingston-upon-Thames.
In 1989, The Advisory Group on Video Recorded Evidence described the trial process as a “harmful oppressive and often traumatic experience” and proposed a scheme whereby children would never appear in court unless they wished to do so by having their entire evidence videotaped before trial; the recording would then be played to the jury at trial in their absence. The pre-trial hearing would take place in informal surroundings with only the judge, counsel, and parents or guardians present; the defendant would observe through a television link or from behind a two-way mirror and would be entitled to correspond with their counsel via audio link. If fresh evidence or issue arose during trial proceedings, the child would be recalled and undergo further examination under the same conditions as before.
Video recorded examination-in-chief was enacted into section 54 of the Criminal Justice Act 1991 but the Government rejected pre-recorded cross-examination on the basis that recalling a child would impose further upset. It is also plausible to suggest that the possibility of undergoing multiple cross-examinations would fail to overcome the reluctance to report offences and ensure successful prosecutions. This rejection faced considerable scrutiny because children are still required to attend the trial, an evidentially traumatic ordeal. In 1997, the Labour Government sought to provide greater protection for vulnerable and intimidated witnesses through the Special Measures Provisions ; albeit, pre-recorded cross-examination by way of section 28 of the Youth Justice and Criminal Evidence Act 1999 remains inactive.
On 2nd December 2013, the Ministry of Justice announced its decision to pilot the measure in Leeds, Liverpool and Kingston-upon-Thames this is still currently taking place. However, strong debate exists as to whether or not section 28 should be activated.
There are no updates about of the pilot available yet. However, the length of the trial period has been extended due to the lack of cases required to gain a credible insight into its potential success.
Some contend that pre-recording evidence so soon after the child’s initial police interview would elicit fresh evidence and thus would remove the risk of deterioration of memory. In R v Powell [2006] EWCA Crim 3 a conviction of indecent assault against the three and a half year old complainant was quashed on the basis that the seven month interval between initial interview and trial rendered her incompetent under section 53 YJCEA 1999. Subsequently, the Court of Appeal followed this decision in R v Malicki [2009] EWCA Crim 365. A series of reports have identified that lengthy pre-trial delays can have an adverse effect on the welfare of young witnesses. In 2004, “In Their Own Words” found that 70% suffered from stress related symptoms, such as lack of sleep, bed wetting, depression and self-harming. Similarly, ‘Measuring Up?’ identified that 52% suffered from the same symptoms as those in 2004, 38% had their studies severely affected and 8% dropped out altogether. Section 28 would also remove the stress and intimidation caused by live trial formalities.
Despite the opportunity of pre-court visits, a child cannot gain familiarity with the live trial process. The measure would also remove the embarrassment caused by speaking about intimate matters in public, as the absence of the public and jury is guaranteed. The absence of the jury is not a safeguard offered by any of the activated special measures, except video-recorded examination-in-chief. Since 1992, Western Australia has used pre-recorded cross-examination and it has been of great success; it has encouraged more children to give evidence who have expressed that they would not have given evidence live at trial.
Those against the section’s activation argue that delays would not be reduced to the extent often assumed. Disclosure is not always a quick process and the added potential need to recall a witness, in hindsight, reinforces this assertion and supports the point regarding additional suffering and potential multiple cross-examination. Moreover, although section 28 would ensure the absence of the public, the defendant will still watch the proceedings and thus the intimidation element will remain.
My view: book your Counsel early and make sure they are available for the trial.
Good luck!
Rupert Taylor
OTHER NEWS
“Following the MOJ’s repeated failure to heed the concerns of the legal profession and in anticipation of the MOJ’s announcement regarding the provision of Legal Aid funding the Criminal Bar Association asked barristers and solicitors to consider whether a further Day of Action should be undertaken on 7th March 2014.
Individual members of Devon Chambers have reflected upon the MOJ’s published position and will not be attending Court on 7th March in accordance with the CBA’s protocol.
In addition, the CBA has asked that for a period of four weeks
following 7th March, members of the Bar consider not accepting
“returns”. We all understand that this will cause some inevitable disruption but these are unprecedented times where doing nothing is no longer an option.
It is for individuals to choose whether to take part in this and any other future forms of protest. The individuals at Devon Chambers have decided to support this action.
If you have any questions regarding anything to do with this issue please do not hesitate to speak to one of the Devon Chambers’ Clerking Team.”
THE CRIMINAL TEAM
Jason Beal
Nigel Lickley QC
Paul Rowsell
Garth Richardson
Barrie van den Berg
Rupert Taylor
Edward Bailey
Ramsay Quaife
Joanna Martin
Piers Norsworthy
Kelly Scrivener
Emily Cook
Julia Cox
Sally Daulton
Sarah Vince
Scott Horner
Devon Chambers
3 St Andrew Street
Plymouth
PL1 2AH
01752 661659
www.devonchambers.co.uk