Rape and Serious Sexual Offence: @CBA Response to The Justice Committee Inquiry into the use of pre-recorded cross-examination, under Section 28 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 6 th December 2023Justice News247

CBA Response to

The Justice Committee Inquiry into the use of pre-recorded cross-examination, under
Section 28 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999

6th
December 2023

In Summary, our view is that:
i. Achieving the best evidence of an individual witness and helping the witness to
participate fully is the aim;
ii. Equally, helping the jury to make the best assessment of the witnesses’
truthfulness and reliability is essential to the fairness of the proceedings;
iii. S.28 has an important role to play where suitable witnesses will benefit from its
use;
iv. A bespoke approach should be taken to the application of S.28. It should not be
used routinely, and should not be assumed for those above the age of 13, without
something more than age to support its use. S.28 should be the exception rather
than the rule.

The following matters need to be addressed as a matter of urgency:
v. A fullreview of Special Measures procedure and practice as a whole, which must
be done in consultation with the CBA;
vi. A protocol for every stage of the s.28 process should put in place, reflected in the
Criminal Procedure rules, so as to provide a consistency of approach. This
should include guidance on significant tasks that arise uniquely from a s.28
hearing, for example, the need for trial counsel and the trial judge to be available
for s.28 hearings, the checking and editing of recordings, and preparation of
transcripts of cross-examination. The CBA should be involved in drafting this;
vii. Provision should be put in place, at least on a trial basis, where Courts across
each circuit set aside 2 days a month to Ground Rules and s.28 hearings;

viii. Consideration should also be given to proceedings involving s.28 hearings being
listed and dealt with on a regional basis, rather than being tied to a particular
Court centre. These two proposals (vii and viii) are advanced in an attempt to
facilitate the timely listing of these sensitive and important trials by making it
easier for suitably qualified counsel on both sides to conduct them.

ix. There should be early engagement in the s.28 process, informed and well-
founded s.28 applications, and a proactive approach to witnesses to whom the

procedure applies;
x. Further education of specialist RASSO counsel, prosecution and defence, and
the judiciary is needed — clarifying procedure, manner of engagement with
witnesses, and the extent to which challenge can be made in cross-examination;
xi. A review of the fee structure for s.28 hearings is required, providing for the
additional extraordinary tasks demanded as a result of the s.28 procedure being
adopted;
xii. Prosecution fees must be brought in line with those of the defence.

Introduction
1. The CBA represents the views and interests of practising members of the criminal
Bar in England and Wales.
2. The CBA’s role is to promote and maintain the highest professional standards in
the practice of law; to provide professional education and training and assist with
continuing professional development; to assist with consultation undertaken in
connection with the criminal law or the legal profession; and to promote and
represent the professional interests of its members.
3. The CBA is the largest specialist Bar association and represents all practitioners in
the field of criminal law at the Bar. Most practitioners are in self-employed, private
practice, working from sets of Chambers based in major towns and cities
throughout the country. The international reputation enjoyed by our Criminal
Justice System owes a great deal to the professionalism, commitment and ethical
standards of our practitioners. The technical knowledge, skill and quality of
advocacy all guarantee the delivery of justice in our courts, ensuring that all
persons receive a fair trial and that the adversarial system, which is at the heart of
criminal justice in this jurisdiction, is maintained.
JSC Consultation Response
4. The CBA has been asked to provide a written response to the Justice Committee’s
inquiry into the use of pre-recorded cross-examination, under Section 28 of the
Youth Justice and Criminal Evidence Act (YJCEA) 1999, and specifically to address
the 11 topics posed in the terms of reference. Each of these is addressed in turn
below.
5. By way of introduction, it should be clear that the CBA has been considering the
viability of the s.28 procedure as it currently stands for some time, and has sought
the views of a number of specialist RASSO1 practitioners at varying levels of call,

who regularly deal with cases involving rape and sexual offending involving
children and adults as victims and defendants. We have also consulted with those
who have deployed s.28 in the context of non-sexual cases, such as serious
violence, modern slavery and murder trials, again often involving children and
vulnerable adults. Between us there are decades of experience both defending and
prosecuting in cases to which s.28 applies.
6. Our experience goes back to the time before the introduction of Special Measures
under Part II of the Youth Justice and Criminal Evidence Act 1999 (the Act), now
24 years ago, and the development of s28 (prerecording of a complainant, or
qualifying witness’s cross-examination), and its use alongside other measures
available (such as pre-recorded ABE2 ’s as a witness’s evidence in chief) has been
carefully observed. As such, we are collectively, and possibly uniquely, able to
appraise how Special Measures have developed in law and application across that
time.
7. In practise, very little has changed in terms of the way in which the Special
Measures principles are applied: despite significant developments in social,
cultural and practice related attitudes. This is a problem. We have found that
entrenched and outdated views about the conduct of RASSO cases as a whole
remain, from all parties involved in the investigative and trial process. This is
exacerbated by a decline in public confidence in the conduct of such cases, and the
practice of cross-examination, which we have watched become increasingly
portrayed as a ‘dark art’ of advocacy, or even outright bullying, rather than the
difficult skill that professional and accomplished barristers develop over the
course of lengthy careers, learning from experience, continued education, and
even mistakes. Cross-examination is central to the trial process, and our experience
is that juries appreciate it when it is done well. Proper cross-examination does not
involve routinely bullying and / or demeaning a witness. In these very serious
cases, where juries carry a significant burden in the decision they ultimately have

to make, they want to see the evidence tested and the case proved. Invariably, this
is what gives them the collective confidence to convict: for example in cases where
a sexual complaint may be uncorroborated, and the defence is denial, or consent –
notwithstanding the burden and standard of proof.
8. It follows that in our view s.28, and the measures associated with it, should never
be considered as the panacea for boosting conviction rates, nor as a cure to the
backlog of cases within the Criminal Justice System.
9. Our concerns are significant, and they are wider than this response, and the issues
that we have been asked to address here. We wish to foreshadow that we consider
that there is a strong case for a review of Special Measures as a whole, and how
they are applied in the modern era. We consider there is a real need for very
close revision of this system, that has largely been untouched for the past 24
years, and of the s.28 provisions which have been pasted onto it, with good
intention, but without the infrastructure to make it workable in practice.
General Comments on s.28 YJCEA ’99
10. In our view s.28 may be an extremely useful tool in some cases, howeverin practice
it is being used far too widely, and offered or simply applied for as a matter of
course, and without proper consideration, discussion with the witness concerned,
or real consultation with prosecution counsel. Its extension to all vulnerable
witnesses (eg. those to whom s16 and s17 of the Act applies3) has compounded this