Section 28 to be available in all courts by the end of the year
Giving evidence and being cross-examined in open court is a traumatic experience for any witness but more daunting for a child or a vulnerable witness
Section 28 of the Youth Justice and Criminal Evidence Act 1999 provides for special measures to help children and vulnerable witnesses give their evidence other than the usual way we all see in TV dramas – openly in court if front of everyone else. These measures, including the use of screens, live link from a different room, the presence of an intermediary to help the witness understand better the proceedings are there to help the witness give their best evidence and, and hopefully, provide greater equality of access to the justice system
One of the special measures under Section 28 allows for pre-recorded cross examination of children and vulnerable witnesses to take place before trial, regardless of the offence. The intention is to take away some of the anxiety surrounding the process of cross examination and so provide the court with better evidence. The recording is then played back during the trial itself, meaning those vulnerable witnesses aren’t required to attend the trial in person and do not have to wait many months or longer before giving their evidence. We all know that, over time, our memory and recollection of events may not always be a sharp as it was so this is, potentially, a hugely important tool in the justice process.
At the Ground Rules Hearing court, defence and prosecutors agree questions to ask the child or vulnerable witness, possibly with the help of an intermediary. (There are insufficient numbers of intermediaries and they are not always well used by the courts but that’s another story – lack of funding is undoubtedly a factor as is the variety of opinions of how and when they might best be used).
At the Section 28 hearing, all the legal parties meet with the judge and the witness and with witness support. The vulnerable witness then gives their evidence, is questioned and the proceedings are recorded for future use during the trial. The aim, as noted already, is to help the witness provide their best evidence. Of course, the evidence must be open to scrutiny by the court and can be seen by everyone in the courtroom, including the defendant when the recording is played back at trial. But, crucially, the witness does not have to be physically present in what we can all recognise as being an alien and often forbidding environment – the courtroom. Just think of the way courts are portrayed on television and in films : aggressive, confrontational, hugely formal….you get the idea.
After being piloted in three courts for children under 16 and vulnerable adults in 2013 in January 2017 it was rolled out to all young people under 18. It was then rolled out to a further 6, then a further 9 courts in the following months reaching at least one court in every region. Her Majesty’s Courts and Tribunal Service (HMCTS) now plan to roll out Section 28 provisions to all Crown Courts by the end of the year beginning this week with 16 new courts in and around London.
Supporting Justice joins other victim and witness support services and the Victims Commissioner in welcoming this.
This development has potential not only to help witnesses give their best evidence, taking some of the stress off them during what is, often, a traumatic process (following on the trauma of the offence) but will also help courts address some of the problems generated by the Covid 19 crisis. The creative use of available (and properly functioning) technology offers the opportunity to deliver effective and speedier justice; it should help reduce the significant build-up of unheard cases during the pandemic; it offers the chance to hear more cases remotely, taking pressure off the courts which are limited in their capacity during this pandemic.
But let’s not forget that our justice system is creaking (some might say “cracked”) and that for justice to be effective, transparent and fair we need to build on initiatives like this and see a system where all the component parts work well together, have a shared aim and, crucially, are adequately (at the very least) resourced.