The pros and cons of pre-recorded cross examination

The Ministry of Justice has today published new research evaluating the use of pre-recorded cross examination (Section 28) for intimidated witnesses.

Section 28 (s.28) of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 allowed eligible witnesses to pre-record their cross-examination or re-examination before the trial. It was intended that the s.28 recording can be presented during the trial without the witness needing to attend and experience fear or distress about testifying.

It was not until 2019 that piloting of s.28 for witnesses defined as eligible for assistance on grounds of fear or distress about testifying began. These witnesses, often victims, known as s.17 (4) – after the clause in the Act –  included survivors of rape and modern slavery. It took until 2022 for the provision to be rolled out across the country.

The research

In the 2021 Rape Review Action Plan, the government made a commitment to evaluate the use of s.28 for the s.17(4) intimidated cohort.

This process evaluation was conducted to help understand whether the s.28 provision for s.17(4) intimidated witnesses worked as intended and to highlight what parts of the process were working well and whether any improvements were required. The research comprised two elements: interviews with 29 criminal justice practitioners and interviews with 13 intimidated witnesses.

Key findings

The findings were complex with perceived benefits and drawbacks. In terms of the witness experience the main findings were:

• Both practitioner and witness groups noted an improved experience for witnesses giving evidence via s.28, compared to cross-examination live at trial. A key factor in this was the physical separation from the defendant(s), but also that they were able to seek support/therapy at an earlier point in time. However, there was still some confusion for witnesses over when full therapy could be accessed.
• The cross-examination experience could still be unpleasant and stressful for witnesses, mostly due to the style of questioning by defence advocates. The wait to know the outcome of the trial could also be difficult, made worse by minimal contact from police. Additionally, some witnesses reflected that s.28 did not improve their experience or evidence, with reasons including perceived loss of impact and presence of the defendant at the court building.
• Although some practitioners suggested that delays were less likely in s.28 cases, there were witnesses who reported delays to their cross-examination, which were found to be unsettling. This was particularly true if the delay was short-notice and of a sufficient length to necessitate re-watching their Achieving Best Evidence (ABE) interview again, yet another potentially re-traumatising experience.

Witnesses experiences of how well informed they were kept varied. Overall, though, they spoke positively about communication from police during the investigation and through to the cross-examination, finding it helpful to be kept fully informed even when there were no new updates. There was a distinct shift in contact following the cross-examination, particularly communication about the trial and verdict – quite obviously the single most important pieces of information.

Views on justice outcomes

Most professional interviewees thought s.28 would have a minimal impact on the number of guilty pleas, because, in their view, defendants in sexual offences tend not to plead guilty due to the shame/stigma of these crimes. There were mixed views on the impact of s.28 on witness attrition and engagement. Some practitioners suggested that witnesses tend to stay engaged once the suspect has been charged, whereas other practitioners gave examples where they felt the witness would not have given evidence without a s.28. Some witnesses corroborated the latter suggestion, stating that they would have likely dropped out or could not have survived if they had to wait for the trial.

Most practitioner interviewees thought that pre-recorded evidence would have minimal impact on convictions and acquittals and little impact on how long a case took to be settled.

Overall practitioners thought there were potential benefits to the witnesses, but raised concerns about technology, scheduling, and courtroom availability.