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Pre-trial cross-examination, alongside intermediaries, was the most innovative special measure (SM) for vulnerable witnesses introduced by the Youth Justice and Criminal Evidence Act 1999, in s 28. It has only taken 20 years for s 28 to be implemented in all Crown Courts in England and Wales (November 2020). This rollout is currently restricted to witnesses qualifying under s 16: child witnesses under 18 (a definitional boundary dispute is outlined below) and witnesses with a mental disorder, or mental or physical disability. The three original pilot courts, Leeds, Kingston upon Thames, and Liverpool, are running a further pilot for witnesses falling within s 17(4), adult complainants of sexual assault or modern slavery (or witnesses to the latter).
Many advocates remain sceptical of the impact of testimony where the witness is not live in the courtroom, perceiving a ‘distancing effect’ which might impair jurors’ ability to read nonverbal clues and evaluate credibility. The Scottish government commissioned a meta-analysis of empirical research studies of mock jurors across many adversarial jurisdictions, which concluded that there was no compelling evidence that having child witnesses or adult rape complainants testify in pre-recorded hearings or through videolink impacted adversely upon jurors’ evaluation of credibility, or collective verdict outcomes (Munro, Impact of the Use of Pre-Recorded Evidence on Jury Decision-Making: an Evidence Review (2018)). We should have the definitive answer as to whether advocates’ concerns are validated with the evaluation of the extended pilot by Cheryl Thomas for the Senior Presiding Judge, which includes interviewing actual jurors about their perceptions of the evidence tendered through the s 28 procedure.
Section 28 has rolled out in the midst of an ever-mounting backlog of Crown Court cases. This was already at crisis levels before the onslaught of COVID-19, due to the Ministry of Justice’s refusal to fund enough sitting days (38,411 cases as of 31 December 2019). For example, in DL [2019] EWCA Crim 1249 the complainant, nearly five, said she had been raped by her father. She had her ABE interview two days later, then waited to be cross-examined for 28 months; the court deemed the CPS’s excuses unacceptable. Twelve months later, the Crown Court backlog was 58,827 cases (5,779 being sexual offences, and 12,537 being violence against persons). The House of Commons Public Accounts Committee on 24 March 2021 reported that they had ‘limited confidence’ in the Ministry’s plans for reducing the ‘huge’ backlogs, particularly in criminal courts.
Vulnerable complainants of, and witnesses to, sexual offences, domestic abuse, and other serious violence, including uncounted children, are ensnared by this backlog, potentially for years. Delays lead to degradation of their memories and hence their testimony. They attend court, sometimes repeatedly, for listed trials, only to find that they have been postponed. Cases involving very young complainants are initially listed for many months down the road, so that years of their childhoods may become menaced by the thundercloud of pending criminal proceedings. Unsurprisingly, the attrition rate is increasing exponentially as they and their families decide that it is no longer in their best interests to support prosecution; they want to get on with their lives and receive meaningful psychotherapy, not the form permitted under current CPS Guidelines on the Use of Therapy which skirts around the abuse.
We offer here some proposals to fulfil and expand the potential for s 28 to protect more vulnerable witnesses, by obtaining their full and best evidence at an early stage, thereby reducing the attrition rate while enabling justice to be done when the case finally gets to trial. Our proposals sit alongside our reiteration of the urgent need for the MOJ to publish the updated edition of Achieving Best Evidence (ABE) (Hoyano, ‘ABE 2016/19 has gone AWOL’, Counsel May 2020).
Remove the admission of anABE interview under s 27 as a precondition for the witness to be eligible for a s 28 hearing: Many vulnerable witnesses continue not to be identified as eligible for ABE interviews by the police, and so CJA 1967 s 9 written statements are obtained instead. Some trial judges have ordered the police to conduct an ABE interview at a PTPH, just to enable the witness to have a pre-trial hearing, but this runs counter to the ethos that the witness should be interviewed early and not have to repeat the entire narrative for evidential purposes. Recording an interview may not be appropriate, eg where the abuse was filmed, or the complainant was abused on many occasions and several meetings with interviewers are required in order to reduce the story to a single chronological statement, with the role of multiple suspects clearly set out. Sometimes the ABE interview is problematic, so that crucial parts may not be admissible. Prosecuting counsel may conclude that the ABE interview, especially where there are several, should not be used, because the chronology has become too confused, or there are too many distracting peripheral details, for the jury to understand the Crown’s case. The witness might be too distressed at the initial interview to present her account effectively, but later, after reflection, could give a better account. But this means then that the witness must await trial to give all of her evidence. There is no intrinsic logic to requiring the ABE interview to be admitted before the witness has access to s 28, which also has the purpose of achieving best evidence.
Give prosecuting counsel flexibility to lead evidence-in-chief at the pre-trial hearing, followed by cross-examination and re-examination: It is striking how passive prosecuting counsel must appear to a jury in a s 28 case, having virtually nothing to do with the presentation of the Crown’s most critical witness. The police present examination-in-chief – while they are in the midst of an investigatory interview exploring what offences were committed, when and by whom, so as to meet the charging criteria. Then defence counsel takes over. Allowing prosecuting counsel their usual flexibility to decide how best to frame the Crown’s case, and to interact in a meaningful way with the witness by conducting a more substantial, or indeed a complete, examination-in-chief at the s 28 hearing, can allow the evidence to be presented more coherently to a jury than might be possible in an ABE interview. It also would overcome the problem of an unusable or non-existent ABE. The model we propose was recommended by the seminal Pigot Report (1989, [2.27], [2.31]), which envisaged that the video interview would only substantially replace direct examination at the pre-trial hearing. It was the model used by the pioneering jurisdiction for pre-trial testimony of child witnesses, Western Australia, from 1992 (when police interviews were not usually video-recorded); now, the interview may constitute examination-in-chief, or a witness’s entire evidence may be ordered to be recorded at a special hearing, including examination-in-chief being led by prosecuting counsel, according to how the court considers best evidence can be achieved (Hoyano & Keenan Child Abuse Law and Policy across Boundaries (OUP 2010) at 644-648). The Australian Royal Commission into Institutional Responses into Child Sexual Abuse in 2017 recommended a flexible model be adopted by States and Territories, to include the use of an investigative interview as some or all of the evidence-in-chief at the pre-trial hearing, followed by cross-examination and re-examination (Recommendations 52-55).
Clarify the eligibility criteria for s 28 where the ABE interview was conducted when the child witness was under 18, but had a birthday in the interim before trial: It has never been suggested that where a child witness gave an ABE interview and had turned 18 by the trial, it would be inadmissible under s 22. The problem arises regarding a pretrial hearing because of an apparent conflict between s 21(8)(b) and s 21(9) (which create a puzzling circularity as to when the witness ‘has already started giving evidence in the proceedings’), Explanatory Notes 103 and 104, and CrimPD para 18E.1(i). The Crim PD stipulates eligibility if the witness is under 18 at the time of the s 28 special measures determination (SMD), providing some leeway, but this interpretation is not obvious from the enabling legislation. Even if the CrimPD is correct, systemic delays in getting these cases to the SMD application cause witnesses to lose the benefit of s 28 for cross-examination. Laura Hoyano provides a technical analysis of this conundrum in Blackstone’s Criminal Practice 2022 ch.D14. Here, we focus on the solution. The trigger for access to s 28 should be an ABE interview conducted when under age 18. Then the young witness would remain eligible for pre-trial cross-examination, regardless of lengthy delays caused by files ping-ponging between police and prosecutors (HMCPSI, 2019 Rape Inspection reported that 54.4% of police files did not comply with the expected standards for charging), overloaded prosecutors unable to charge promptly, and seemingly intractable listing problems.
Extend the scope of courts using s 28 to the Youth Courts when district judges retain ‘grave crimes’ trials instead of sending them to the Crown Court: Recently district judges have been retaining jurisdiction over cases such as rape and serious violence, often youth-on-youth, with the beneficent intention that the offences be tried in a child-centric court. But these grave cases are then tried by a single adjudicator instead of 12, without a requirement for a reasoned verdict. Another serious consequence is that a complainant or other child witness in the case who would be entitled to s 28 in the Crown Court is deprived of it because that SM is not available in Youth Courts.
Widen rules of eligibility to deem complainants of and witnesses to domestic abuse, as defined in the Domestic Abuse Act cl 1, to be eligible for pre-recorded hearings: In theory complainants in abusive relationships could qualify individually if they could jump through the hoops of proving they are in fear or distress about testifying under s 17(2), but currently this still would not give them access to pre-recorded evidence, even if they have been ABE-interviewed. Extending automatic eligibility for this SM now to this category to capture their evidence at the earliest opportunity would help reduce the exceptionally high rate of attrition when they are subjected to inducements, pressure or manipulation to withdraw their complaints during the prolonged pre-trial period, and assuage their fears about testifying by offering them certainty (see our Counsel articles ‘Prosecution Strategies in AR Cases’ (August and September 2020)). It could reduce the number of complainants who must be declared hostile witnesses, and even incarcerated, to enable the Crown to adduce their evidence, and also avoid the difficulties posed by ‘victimless prosecutions’. Creating a better chance of protecting them early could also alleviate the burdens on the criminal justice system in having to deal with repeat complaints from the same complainants against the same suspects. New South Wales has just expanded its prerecording eligibility to include adult complainants of serious violence, including domestic and sexual offences, alongside witnesses or complainants at significantly greater risk of harm from coronavirus; some other Australian jurisdictions already had extended access to pre-trial hearings specifically to domestic violence complainants.
It is essential that system victimisation be minimised for these vulnerable witnesses by: solving these eligibility issues; extending eligibility to more witnesses who cannot be expected to endure the pressures of an already overloaded criminal justice system struggling to its feet due to COVID-19; and enabling prosecuting counsel to present their evidence most effectively in a flexible model of s 28 which has been road-tested in other jurisdictions.
John Riley is a barrister at 23 Essex Street Chambers. Called in 1983 and having been in the CPS from 1986-91, John has long experience of prosecuting and defending a wide range of criminal cases and is regularly instructed in some of the most sensitive criminal cases. He specialises in serious sexual cases, vulnerable witness and abusive relationship cases.
Pre-trial cross-examination, alongside intermediaries, was the most innovative special measure (SM) for vulnerable witnesses introduced by the Youth Justice and Criminal Evidence Act 1999, in s 28. It has only taken 20 years for s 28 to be implemented in all Crown Courts in England and Wales (November 2020). This rollout is currently restricted to witnesses qualifying under s 16: child witnesses under 18 (a definitional boundary dispute is outlined below) and witnesses with a mental disorder, or mental or physical disability. The three original pilot courts, Leeds, Kingston upon Thames, and Liverpool, are running a further pilot for witnesses falling within s 17(4), adult complainants of sexual assault or modern slavery (or witnesses to the latter).
Many advocates remain sceptical of the impact of testimony where the witness is not live in the courtroom, perceiving a ‘distancing effect’ which might impair jurors’ ability to read nonverbal clues and evaluate credibility. The Scottish government commissioned a meta-analysis of empirical research studies of mock jurors across many adversarial jurisdictions, which concluded that there was no compelling evidence that having child witnesses or adult rape complainants testify in pre-recorded hearings or through videolink impacted adversely upon jurors’ evaluation of credibility, or collective verdict outcomes (Munro, Impact of the Use of Pre-Recorded Evidence on Jury Decision-Making: an Evidence Review (2018)). We should have the definitive answer as to whether advocates’ concerns are validated with the evaluation of the extended pilot by Cheryl Thomas for the Senior Presiding Judge, which includes interviewing actual jurors about their perceptions of the evidence tendered through the s 28 procedure.
Section 28 has rolled out in the midst of an ever-mounting backlog of Crown Court cases. This was already at crisis levels before the onslaught of COVID-19, due to the Ministry of Justice’s refusal to fund enough sitting days (38,411 cases as of 31 December 2019). For example, in DL [2019] EWCA Crim 1249 the complainant, nearly five, said she had been raped by her father. She had her ABE interview two days later, then waited to be cross-examined for 28 months; the court deemed the CPS’s excuses unacceptable. Twelve months later, the Crown Court backlog was 58,827 cases (5,779 being sexual offences, and 12,537 being violence against persons). The House of Commons Public Accounts Committee on 24 March 2021 reported that they had ‘limited confidence’ in the Ministry’s plans for reducing the ‘huge’ backlogs, particularly in criminal courts.
Vulnerable complainants of, and witnesses to, sexual offences, domestic abuse, and other serious violence, including uncounted children, are ensnared by this backlog, potentially for years. Delays lead to degradation of their memories and hence their testimony. They attend court, sometimes repeatedly, for listed trials, only to find that they have been postponed. Cases involving very young complainants are initially listed for many months down the road, so that years of their childhoods may become menaced by the thundercloud of pending criminal proceedings. Unsurprisingly, the attrition rate is increasing exponentially as they and their families decide that it is no longer in their best interests to support prosecution; they want to get on with their lives and receive meaningful psychotherapy, not the form permitted under current CPS Guidelines on the Use of Therapy which skirts around the abuse.
We offer here some proposals to fulfil and expand the potential for s 28 to protect more vulnerable witnesses, by obtaining their full and best evidence at an early stage, thereby reducing the attrition rate while enabling justice to be done when the case finally gets to trial. Our proposals sit alongside our reiteration of the urgent need for the MOJ to publish the updated edition of Achieving Best Evidence (ABE) (Hoyano, ‘ABE 2016/19 has gone AWOL’, Counsel May 2020).
Remove the admission of anABE interview under s 27 as a precondition for the witness to be eligible for a s 28 hearing: Many vulnerable witnesses continue not to be identified as eligible for ABE interviews by the police, and so CJA 1967 s 9 written statements are obtained instead. Some trial judges have ordered the police to conduct an ABE interview at a PTPH, just to enable the witness to have a pre-trial hearing, but this runs counter to the ethos that the witness should be interviewed early and not have to repeat the entire narrative for evidential purposes. Recording an interview may not be appropriate, eg where the abuse was filmed, or the complainant was abused on many occasions and several meetings with interviewers are required in order to reduce the story to a single chronological statement, with the role of multiple suspects clearly set out. Sometimes the ABE interview is problematic, so that crucial parts may not be admissible. Prosecuting counsel may conclude that the ABE interview, especially where there are several, should not be used, because the chronology has become too confused, or there are too many distracting peripheral details, for the jury to understand the Crown’s case. The witness might be too distressed at the initial interview to present her account effectively, but later, after reflection, could give a better account. But this means then that the witness must await trial to give all of her evidence. There is no intrinsic logic to requiring the ABE interview to be admitted before the witness has access to s 28, which also has the purpose of achieving best evidence.
Give prosecuting counsel flexibility to lead evidence-in-chief at the pre-trial hearing, followed by cross-examination and re-examination: It is striking how passive prosecuting counsel must appear to a jury in a s 28 case, having virtually nothing to do with the presentation of the Crown’s most critical witness. The police present examination-in-chief – while they are in the midst of an investigatory interview exploring what offences were committed, when and by whom, so as to meet the charging criteria. Then defence counsel takes over. Allowing prosecuting counsel their usual flexibility to decide how best to frame the Crown’s case, and to interact in a meaningful way with the witness by conducting a more substantial, or indeed a complete, examination-in-chief at the s 28 hearing, can allow the evidence to be presented more coherently to a jury than might be possible in an ABE interview. It also would overcome the problem of an unusable or non-existent ABE. The model we propose was recommended by the seminal Pigot Report (1989, [2.27], [2.31]), which envisaged that the video interview would only substantially replace direct examination at the pre-trial hearing. It was the model used by the pioneering jurisdiction for pre-trial testimony of child witnesses, Western Australia, from 1992 (when police interviews were not usually video-recorded); now, the interview may constitute examination-in-chief, or a witness’s entire evidence may be ordered to be recorded at a special hearing, including examination-in-chief being led by prosecuting counsel, according to how the court considers best evidence can be achieved (Hoyano & Keenan Child Abuse Law and Policy across Boundaries (OUP 2010) at 644-648). The Australian Royal Commission into Institutional Responses into Child Sexual Abuse in 2017 recommended a flexible model be adopted by States and Territories, to include the use of an investigative interview as some or all of the evidence-in-chief at the pre-trial hearing, followed by cross-examination and re-examination (Recommendations 52-55).
Clarify the eligibility criteria for s 28 where the ABE interview was conducted when the child witness was under 18, but had a birthday in the interim before trial: It has never been suggested that where a child witness gave an ABE interview and had turned 18 by the trial, it would be inadmissible under s 22. The problem arises regarding a pretrial hearing because of an apparent conflict between s 21(8)(b) and s 21(9) (which create a puzzling circularity as to when the witness ‘has already started giving evidence in the proceedings’), Explanatory Notes 103 and 104, and CrimPD para 18E.1(i). The Crim PD stipulates eligibility if the witness is under 18 at the time of the s 28 special measures determination (SMD), providing some leeway, but this interpretation is not obvious from the enabling legislation. Even if the CrimPD is correct, systemic delays in getting these cases to the SMD application cause witnesses to lose the benefit of s 28 for cross-examination. Laura Hoyano provides a technical analysis of this conundrum in Blackstone’s Criminal Practice 2022 ch.D14. Here, we focus on the solution. The trigger for access to s 28 should be an ABE interview conducted when under age 18. Then the young witness would remain eligible for pre-trial cross-examination, regardless of lengthy delays caused by files ping-ponging between police and prosecutors (HMCPSI, 2019 Rape Inspection reported that 54.4% of police files did not comply with the expected standards for charging), overloaded prosecutors unable to charge promptly, and seemingly intractable listing problems.
Extend the scope of courts using s 28 to the Youth Courts when district judges retain ‘grave crimes’ trials instead of sending them to the Crown Court: Recently district judges have been retaining jurisdiction over cases such as rape and serious violence, often youth-on-youth, with the beneficent intention that the offences be tried in a child-centric court. But these grave cases are then tried by a single adjudicator instead of 12, without a requirement for a reasoned verdict. Another serious consequence is that a complainant or other child witness in the case who would be entitled to s 28 in the Crown Court is deprived of it because that SM is not available in Youth Courts.
Widen rules of eligibility to deem complainants of and witnesses to domestic abuse, as defined in the Domestic Abuse Act cl 1, to be eligible for pre-recorded hearings: In theory complainants in abusive relationships could qualify individually if they could jump through the hoops of proving they are in fear or distress about testifying under s 17(2), but currently this still would not give them access to pre-recorded evidence, even if they have been ABE-interviewed. Extending automatic eligibility for this SM now to this category to capture their evidence at the earliest opportunity would help reduce the exceptionally high rate of attrition when they are subjected to inducements, pressure or manipulation to withdraw their complaints during the prolonged pre-trial period, and assuage their fears about testifying by offering them certainty (see our Counsel articles ‘Prosecution Strategies in AR Cases’ (August and September 2020)). It could reduce the number of complainants who must be declared hostile witnesses, and even incarcerated, to enable the Crown to adduce their evidence, and also avoid the difficulties posed by ‘victimless prosecutions’. Creating a better chance of protecting them early could also alleviate the burdens on the criminal justice system in having to deal with repeat complaints from the same complainants against the same suspects. New South Wales has just expanded its prerecording eligibility to include adult complainants of serious violence, including domestic and sexual offences, alongside witnesses or complainants at significantly greater risk of harm from coronavirus; some other Australian jurisdictions already had extended access to pre-trial hearings specifically to domestic violence complainants.
It is essential that system victimisation be minimised for these vulnerable witnesses by: solving these eligibility issues; extending eligibility to more witnesses who cannot be expected to endure the pressures of an already overloaded criminal justice system struggling to its feet due to COVID-19; and enabling prosecuting counsel to present their evidence most effectively in a flexible model of s 28 which has been road-tested in other jurisdictions.
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