Section 28 Youth Justice and Criminal Evidence Act 1999 Martin Hawes DCP – Y&H RASSO Unit

What is Section 28? Section 28 of the Youth Justice and Criminal Evidence Act 1999 Allows for pre-recorded cross-examination for vulnerable witnesses Entirety of witness evidence is pre-recorded and they do not have to attend trial

Why are we using Section 28? Improve the experience of witnesses following high-profile reports & cases post Saville & Janner Enables witnesses to give evidence earlier in the proceedings when recollection likely to be fresher Maximise potential for early resolution – either strengthen Prosecution case or conclude no longer a realistic prospect of conviction Net effect - removes witnesses from the trial process and associated stress and anxiety

Who is Eligible for Section 28? ‘Vulnerable’ witnesses as defined by s.16 YJCEA 99 Children (Under 18 at time of special measures hearing i.e. PTPH) Adults – only if: 1. Suffers from mental disorder within meaning of MH act 1983, or 2. Has significant impairment of intelligence and social functioning, or 3. Has a physical disorder or disability AND the quality of their evidence is likely to be diminished as a consequence

Who is Eligible for Section 28? There must also be a video recorded interview which is compliant with ABE principles S.28 is limited to designated Crown Courts, therefore not Magistrates or Youth Courts Not limited to RASSO cases – general crime was the most frequently missed in the pilot sites

What do we need to do? S.28 has an expedited timetable – Uses the BCM custody timetable regardless of whether the defendant is in custody or on bail Defence entitled to know the full extent of Prosecution case at Cross examination Imperative to front load at PCA stage as Cross examination takes place 14-16 weeks after sending, rather than 10-14 months for normal trials

The Ground Rules Hearing Case management hearing where judge will check the state of readiness for cross examination OIC & any intermediary involved will be warned to attend Judge will approve questions for witness which are submitted in advance Judge likely to make onerous orders to secure compliance if any evidence or unused outstanding

The Section 28 Hearing Memory refresh to be arranged by OIC pre s.28 hearing Any editing of VRI as usual Cross examination in accordance with pre-agreed questions On National roll out recording will be digital and stored in cloud Collusion warnings given at conclusion of s.28 hearing – can cause difficulties if family members are disclosure witnesses at trial

The Trial S.28 witness can only be recalled with leave of the judge (S.28(6)) No further cross examination unless:- 1. New matter which could not have been ascertained with due diligence at s.28 hearing 2. In the interests of justice (very few instances of leave being granted during pilot)

Intermediaries Aid the witness with communication NCA led service National shortage – likely to be 2018 before any increase in numbers Balancing the need to capture the evidence of young children ASAP and ensure they are able to achieve their best evidence if assistance required The younger the child the greater the need Please speak to CPS if unsure

S.17 YJCEA 1999 Extends the pilots to include ‘intimidated’ witnesses Eligible ONLY if a victim of sexual assault or modern slavery (S.17(4)) AND in ‘fear or distress’ about testifying Leeds, Liverpool and Kingston Crown courts only