Evaluation of Section 28: The experiences of witnesses
Published: May 2017
Section 28 (s.28) of the Youth Justice and Criminal Evidence Act 1999 is a ‘special measure’ that allows vulnerable and intimidated witnesses to pre-record their cross-examination before trial. The Ministry of Justice conducted a pilot to assess how the Section 28 special measure would work, for witnesses and for practitioners, to decide whether it should be implemented. The pilot ran from April to October 2014 in three crown courts: Leeds, Liverpool and Kingston-upon-Thames in London. The pilot was accompanied by a process evaluation, which included analysis of monitoring data and interviews with practitioners, vulnerable witnesses and/or their parents and carers.
As part of the pilot evaluation, the Ministry of Justice commissioned NatCen to conduct qualitative interviews with prosecution witnesses who received the S.28 special measure and with ‘comparable’ witnesses who received the Section 27 (S.27) special measure (allowing their primary evidence to be video-recorded and shown at the trial). The S.27 witnesses had given evidence in cases heard in the pilot courts or in three other crown courts: Sheffield, Manchester Crown Square and Wood Green in London.
The qualitative research with vulnerable witnesses and their parents or carers aimed to:
- explore witnesses’ views and experiences of S.28;
- explore the potential for S.28 to make it easier for witnesses to recall and give an account of events;
- compare the views and experiences of S.28 witnesses with similar S.27 witnesses.
A report on the witnesses’ experiences was published in early 2017, following publication of the full evaluation report in late 2016. You can download the witnesses’ report here. You can also view the full evaluation of the Section 28 pilot on the Ministry of Justice website here.
The evaluation used a qualitative approach of depth interviews with 16 vulnerable witnesses and/or their parents and carers and related to 11 different court cases. The interviews were conducted in ways that accommodated the range of witnesses’ ages (12 to 70s), communication and support needs and any disabilities and mental health issues.
Results and recommendations
The research found that Section 28 pre-recorded cross-examination could have a positive impact on aspects of the prosecution and trial experience for vulnerable witnesses. The defence barristers’ cross-examination styles were identified in more positive and neutral terms by S.28 witnesses than in S.27 trials. The duration of cross-examinations was apparently shorter for S.28 witnesses than for S.27 witnesses, and this was identified as advantageous even though the overall experience was stressful, unsettling and difficult for both sets of witnesses. Having the cross-examination before the trial was also identified by S.28 witnesses as having enabled them to focus on the future rather than only on the trial, even if there was a significant gap or delay between the pre-recording and the trial itself.
Reflecting on having given evidence at all, S.28 witnesses were more positively disposed to the process than S.27 witnesses, whether the defendant(s) had been convicted or not. Both sets of witnesses (and their parents/carers) welcomed the option of pre-recorded cross-examination provided by S.28, on the basis that it would reduce time spent waiting. Participants noted that early cross-examination could improve witnesses’ recall, but predominantly the measure was welcomed because witnesses could move on with life more quickly after it. This advantage was qualified by the fact that a trial may happen many months later, especially inconvenient for any S.28 witness with friends or family giving evidence in the trial. There was a recommendation to expedite linked trials in order to ensure that the advantages of S.28 are sustained.
Although advantages were identified with the S.28 status, it was clear that it is not sufficient in itself to improve witnesses’ experiences. The research showed clearly that the factors which made the most significant positive impact on the witness experiences were the same for both S.28 and S.27 witnesses:
- specialist support before and during the court case;
- clear and timely information about the progress of the case;
- guidance on their options and what to expect from the cross-examination;
- the chance to visit the court and meet key staff before the cross-examination;
- the option of having a registered intermediary;
- being cross-examined with clear questions, familiar language and careful pacing, enabling them to recall and tell their story and not feel intimidated or scared, and especially not being accused of lying or called a liar in the cross-examination;
- having a judge who actively managed the cross-examination so the witness was not, for example, accused of lying or asked confusing or repeated questions
The research identified a number of recommendations to optimize S.28 for witnesses and to improve the cross-examination experience for all young or vulnerable witnesses.
- ensure that information about giving evidence is received in an appropriate format by all witnesses who are considered for or receiving S.28 or other special measures;
- consider directing people to online information specifically for young witnesses, to give appropriate and clear information about going to court;
- ensure that specific information about having a pre-recorded cross-examination is communicated to witnesses eligible for S.28, so they can be involved in deciding whether to take it and will be aware of the advantages it can offer when taken;
- highlight requirement for special measures decisions to be discussed with witnesses, to engage them in decisions about options or explain why they cannot choose;
- identify how S.28 witnesses can be given regular updates about progress in the case (ideally fortnightly for both the cross-examination and the remainder of the trial) given the varied contact with official support staff have with victim-witnesses, and the constraints on their capacity;
- check processes by which all witnesses should be made aware of specialist support, to ensure S.28 witnesses are not less likely to be told because of age/vulnerability;
- highlight the requirement for police to inform eligible witnesses about pre-trial therapy and ensure any communications explain that it cannot involve discussion of the case, for S.28 either before cross-examination or between cross-examination and the trial;
- clarify with potential providers the basis on which pre-trial therapy can be offered to all witnesses but also to S.28 witnesses whose cross-examination precedes the trial;
- inform prosecution barristers that meetings with young and vulnerable witnesses can prove unsettling and so, whilst brief, they should still comprise genuine engagement;
- assess whether quality assurance processes for publicly-funded defence barristers could include commitment to avoid repetitive questioning and accusations of lying – when using S.28, or when cross-examining any witness using a special measure;
- explore whether judicial quality assurance processes and progression mechanisms can include commitment to challenge repetitive questioning and accusations of lying – when hearing from S.28 witness, or any witness using a special measure;
- assess whether S.28 is associated with similar conviction rates for similar S.27 cases, to explore whether or not pre-recorded is as persuasive as live cross-examination;
- if the conviction rates for cases involving S.28 appear to differ from similar S.27 cases assess whether this variation is associated with ground rules hearings being agreed before or invoked during cross-examination; as this study indicates, setting and using clear ground rules may provide for more effective cross-examination of vulnerable prosecution witnesses.