Section 28: the increasing use of pre-recorded evidence in criminal trials

The concept of pre-recorded oral testimony in criminal courts is not new. Although video-recorded evidence played at trial seems like a recent development, it was conceived decades ago and was originally intended to improve the evidence for children and vulnerable witnesses.

However, the recent expansion of the scheme to include additional Crown Courts means that more lawyers will need to engage with this trial format. Various aspects of this procedure are now worth considering anew.

This process would commence when the police decide that it is suitable for the witness, frequently the complainant, to give their account as a video recording, known as Achieving Best Evidence (ABE).

This recording then becomes the witness’s evidence in chief, which is played to the jury at trial. The footage can be edited by agreement, but a potential flaw of this method is that the prosecuting advocate is already bound by the narrative questioning set by the officer conducting the ABE.

This can discordantly affect how the prosecution case is presented to the jury, especially in factually complex cases. It is also vulnerable to the quality of police questioning, which may be habitually suitable for a cautioned interview with a suspect but not necessarily to adduce a jury-friendly version of events.

With the ABE recorded, a case heading for trial is then listed for a Ground Rules Hearing to set a timetable for the Section 28 recording of cross-examination. At this stage, notably, the guidance states that each player, including both counsel and the judge, must make themselves available for each stage of the process, regardless of other commitments.

This creates problems in setting appropriate timescales and requires a higher level of obligation than in cases outside the scheme, which can pose ethical problems, particularly for defence counsel.

Additionally, certain courts have directed that defence advocates provide a list of questions before the hearing date for judicial pre-approval. While prior discussion of the topics of cross-examination is undoubtedly a sensible exercise, pre-approved questions clearly risk the integrity of the process.

During the Section 28 hearing, the advocate will be inside the courtroom with the witness in a room in another part of the court. Appropriate time periods are set for questioning. It is incumbent upon an advocate to request permission from the judge to ask a derivative question should the witness’s answer give the opportunity to develop the point further.

Judges have a duty to intervene if unsuitable questions are posed or the style of questioning is inappropriate for the witness. Short questions in plain English are the order of the day. The scheme intends that both ABE and the recorded product of the Section 28 cross-examination be played to the jury at trial, with the witness absent.

It is also crucial that the investigation is adequately concluded (or at least advanced to a sufficient stage) before Section 28 is given consideration. For example, concerning a case involving a serious allegation of a sexual offence, the CPS took a charging decision whilst the defendant was still in police detention, just over 24 hours after the incident itself.

The evidence from her phone was central to the plausibility of the complainant’s evidence. An early charge and a sluggish investigation thereafter set in motion proceedings that were entirely uncoordinated.

From the start, the prosecution was set upon utilising the Section 28 procedure, to which the Crown Court at Isleworth agreed. However, serious delays in obtaining the phone evidence and practical deficiencies in the police procedure led to a prosecution case that was wholly out of step, as the complainant’s evidence could not be pre-recorded until the disclosure process had been resolved.

The merits of Section 28 evidence recorded shortly before the trial are therefore questionable and raise wider issues of whether the Criminal Justice System is even adequately equipped to deal with the tight framework and pace of the procedure.

When considering the scheme's future, one can only anticipate that Section 28 will encompass more cases as the procedure and technology improves.

Article by Piers Desser