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Pre-trial cross examination of witnesses: “inimical to the interests of justice”?

Penelope Gibbs
29 Jun 2022

Has the government shot itself in the foot when it comes to protecting victims’ interests? It has trumpeted the expansion of pre-trial cross examination of vulnerable witnesses as a huge step forward in making the justice system better for victims. But is it really?

There are some witnesses who would probably never give evidence live in a Crown Court. They are too young or too afraid (for good reason) to face the formality of a court and the many players in it, including often the defendant. Courts take special measures to protect vulnerable witnesses (often victims) and defendants. One of these is Section 28 or pre-trial video cross examination of witnesses. It was piloted in 2014. The idea was that one bit of a criminal trial – the pre-trial cross examination of witnesses – should be fast-tracked and held in the least stressful way possible. So, when all the parties are ready – often months after charge but months before the rest of the trial – the defence and prosecution lawyers assemble in the court (with the judge presiding) and cross examine the witness who is linked to them on video from another room in the court. The video of the cross examination is then kept until the trial when it is played to the jury as part of the prosecution evidence.

There are huge advantages to a witness in having a section 28 cross examination – they don’t have to wait months or years for the trial, they don’t have to be in the same room as the defendant, and their cross examiner is at one remove from them – on video. But is it good for the justice system and for justice itself?

The system has been massively expanded without anyone actually knowing what impact it has on justice outcomes. I blogged on this in October 2016 and we still don’t know. The Ministry of Justice had just published a process evaluation about section 28. A process evaluation is, as it says on the tin, about process not outcomes. So it couldn’t properly assess the impact of section 28 on whether defendants decided to plead guilty, nor on the outcome of trials if they maintained innocence. It didn’t even set up proper criteria for selecting which witnesses would definitely benefit psychologically from giving pre-trial evidence on video.

But victims’ groups have put pressure on the government and the court backlog continues. Hence the expansion of section 28 to more areas and to a wider variety of witnesses including victims of knife crime. But there are many detractors. They point out several reasons why its not working

  • Many prosecutors think juries may be biased against this evidence. This is not juries’ fault. There is a huge difference between watching a cross-examination live and watching a video. Video produces a disconnect, live or not. Also pre-recording the evidence means juries cannot ask any extra clarification questions. Max Hardy, who often prosecutes in such cases, tweeted “I have misgivings about how impactful evidence is when watched by a jury on a screen recorded months before a trial. Live link has a real place but sometimes there is nothing like being in the room with the jury”. If the jury is disconnected from this evidence they may be more likely to acquit, which does not serve the needs of victims.
  • Section 28 plays havoc with court listings and thus may not actually reduce the court backlog (though does undoubtedly reduce delay for witnesses). The pre-recorded cross examination is day one of the trial, but has to be listed way before the rest of the trial. This means getting all involved in the trial booked for one day. “S28 causes massive disruption to the diaries of legal professionals as they have to be available for the s28 hearing and then for the trial. It also adds to the burden of case preparation meaning that the case has to be prepared twice”. So great have been the difficulties in listing that the government has now said (Criminal Procedure Rules, Practice Directions amendment March 2022) that it is not essential to have continuity of defence counsel – so a different defence advocate may do the pre-trial cross examination from the trial itself. As solicitor Stephen Davies points out: “The Defendant is left in an invidious position speaking to multiple lawyers, at the most pivotal time in their life”.
  • The government are struggling to find defence counsel willing to take on section 28 cases (and it typifies the kind of case barristers are striking about now) since, even if they stay on the case, they do double the work of a normal trial without double the pay.

We all want to improve victims’ experiences of the criminal justice system but the delays in our system and its adversarial nature make this a tall order. It is very difficult to make a highly adversarial system victim and witness friendly. The Secret Barrister sums this up brilliantly in their latest book “Nothing but the truth”. “Academic justifications don’t change the fact that when standing in court and advocating on behalf of my client, I may well be compounding the already unbearable suffering of an entirely innocent victim of the most hideous abuse. When I put to her that her complaint is vindictive…deriding her evidence as a fabrication, I am giving voice to her worst fears…Even though a not guilty verdict does not necessarily mean that a jury thought the complaint was false…a victim may carry that verdict, and my words to her, for ever, as a vindication of what she suspected all along; that there was no point, because the system was never truly going to believe her”.

Pre-trial video cross examination saves a witness from being accused of lying in front of a live audience, but may increase the chance of an acquittal, which will in turn lead to a lack of faith in the system. When a prosecutor says Section 28 is  “actually inimical to the interests of justice” and a defence barrister says “S28 cases will very soon cause the whole system to grind to a halt and topple over the cliff” surely we should at least pause the roll-out?