Criminal justice ~ Pre Recorded Cross-Examination and Re-Examination.

The Youth Justice and Criminal Evidence Act 1999 Part 2 Chapter 1 (YJCEA) introduced into English law a range of "special measures" which may be applied when "vulnerable and intimidated witnesses" give evidence at a trial.   Changes were made by the Coroners and Justice Act 2009 sections 98-103 which came into force on 27th June 2011.   The law is summarised on the Crown Prosecution Service website.

There is no doubt that for many witnesses attendance at court is a highly daunting and even frightening experience.  "Special measures" are intended to assist vulnerable and intimidated witnesses to give their best evidence in court by relieving some of the stress associated with giving evidence in the public arena of the courtroom.  Special measures apply to witnesses (whether prosecution or defence) but they do not apply to defendants.

Possible measures are -
Screening from the accused (section 23), evidence by live link (s.24), taking evidence in private (s.25), removal of wigs and gowns (s.26), video recorded evidence in chief (s.27), evidence via an intermediary (s.29) and aids to communication (s.30).  Crucially, the 1999 Act s.28 provides for video recorded cross examination or re examination but this section has not been brought generally into force but a Commencement Order introduced it from 30th December 2013 for certain proceedings in the Crown Court at Kingston-upon-Thames, Leeds and Liverpool.

A pilot of pre-recorded cross examination / re-examination was conducted at those venues and an Evaluation of the pilot has been published - (PDF 105 pages).   The judiciary's document - Transforming our Justice System - notes that the pilot resulted in "a better experience for witnesses, with the cross-examination taking place in around half the time compared to other cases, and also showed an increase in early guilty pleas by defendants. These measures should make a sometimes difficult experience a little less distressing."

The pilot related to cases sent to the three Crown Court venues in the period 30th December 2013 to the end of October 2014.  194 cases involved section 28 and 72% of those were sexual offences.  Whether this was an adequate amount of information is something on which views are bound to differ markedly.  However that may be, the Limitations of the pilot study are acknowledged in the report including this at para 1.3:

      On 19th March, the Ministry of Justice announced that section 28 will be rolled out across the country from September.  The announcement states:  "New measures that will spare rape victims the trauma and inconvenience of attending court hearings will be rolled out across the country from September. Victims of rape and other sex crimes will have their cross examination evidence pre-recorded and played during the trial.  Originally the rollout was not due to begin until next year but will now start in September after Justice Secretary Elizabeth Truss and senior judges agreed to accelerate the scheme."  

      In an extraordinary development, the Lord Chief Justice had to write to judges to correct the Ministry's announcement - Telegraph 23rd March.   In his evidence to the Constitution Committee, the Lord Chief Justice said that the announcement had "misunderstood completely" the position.  The true position appears to be that the pilot for children and other vulnerable witnesses giving evidence, which had taken place in three courts, in Liverpool, Kingston and Leeds, had been successful and the measures would now be extended to other courts.    A separate pilot for victims in sex offence cases would simultaneously be started in those three courts but would not yet be available nationwide.

The pilot evaluation refers to how the use of recorded cross-examination might influence jurors but of course the jurors could not be asked about this because jury research is not permitted. One study conducted by the Universities of Leeds and Nottingham suggested that the use of alternative trial arrangements, such as screens, live link technology and pre-recorded video evidence, had no consistent impact on juror’s evaluation of rape testimony or on their perceptions of a complainant’s credibility.  It also found no clear or consistent evidence of reduced emotional impact when video-mediated testimony was used, relative to evidence delivered ‘live and in the flesh’ directly in the courtroom.

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ice and Criminal Evidence Act 1999
The Lord Chancellor has used an interview in the Sunday Times to announce that from the autumn, Section 28 (pre-recorded cross-examination) will be used for adult complainants in all sex offence trials.

The reasons given are to spare victims the ordeal of giving live evidence, and to get more guilty pleas once defendants have seen the evidence. Don’t call me pedantic, but witnesses are witnesses or complainants, not victims. No one wants them to be needlessly stressed: that’s why the law already provides for evidence by live-link or behind screens, and why judges already intervene to ensure the proceedings are fair to all. Whether the CPS, defence, and Courts have the logistical and administrative capacity to pre-record every adult complainant as well as the under-16s is another matter.

The intended national start in September will cut across the Vulnerable Witness Training programme for young witnesses, which is not planned to be complete by then.
  - See more at: https://www.criminalbar.com/latest-updates/news/q/date/2017/03/20/monday-message-20-05-17/#sthash.rhGPcUGT.dpuf

Section 28 of the Youth Justice and Criminal Evidence Act 1999
The Lord Chancellor has used an interview in the Sunday Times to announce that from the autumn, Section 28 (pre-recorded cross-examination) will be used for adult complainants in all sex offence trials.

The reasons given are to spare victims the ordeal of giving live evidence, and to get more guilty pleas once defendants have seen the evidence. Don’t call me pedantic, but witnesses are witnesses or complainants, not victims. No one wants them to be needlessly stressed: that’s why the law already provides for evidence by live-link or behind screens, and why judges already intervene to ensure the proceedings are fair to all. Whether the CPS, defence, and Courts have the logistical and administrative capacity to pre-record every adult complainant as well as the under-16s is another matter.

The intended national start in September will cut across the Vulnerable Witness Training programme for young witnesses, which is not planned to be complete by then.
  - See more at: https://www.criminalbar.com/latest-updates/news/q/date/2017/03/20/monday-message-20-05-17/#sthash.rhGPcUGT.dpuf