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Vulnerable witnesses and victims - a less stressful means of giving evidence by way of s28 YJCEA 1999

This week’s blog is brought to you by Kelly Sherif – pupil to Anne Richardson

Anyone who has been into a Courtroom knows how daunting an experience it can be. For a victim or witness this can be a disconcerting affair having to re-live accounts of an individual’s harrowing encounter with the defendant in the dock. Just the very thought of going into Court is enough to tip some witnesses over the very narrow edge of wanting to give evidence at all.

There are a range of special measures that can be put in place to assist witnesses with this and the one I wish to talk about is the s28 procedure.

This very provision will certainly prick the ear of any Barrister, Court Clerk and Judge who has had any experience of such hearings and the reasons are as follows.

Section 28 of the Youth Justice Criminal Evidence Act 1999 “special measures” provision is a relatively new concept and allows for vulnerable and intimidated witnesses to give their best evidence via a pre-trial visually recorded cross examination. The benefit to this is that evidence can be obtained months in advance of the trial and then is played back to the Court via a secure Vodafone playback system.

What adds to this means of ‘achieving best evidence’ is that usually witnesses are in a separate room within the Court building and evidence is achieved by linking the witness into the Courtroom via video link.

What I have seen so far in my first 6 months is that the s28 hearings bring about a definite ease, witnesses (sometimes with the support of an intermediary) seem to be able to speak more freely, perhaps given that they feel less intimidated by the whole Courtroom experience. Moreover, the defence counsel is not permitted to ask whatever questions they wish, instead they have to structure their questions accordingly with the assistance of a “toolkit” designed to help a vulnerable witness answer difficult and perhaps unsettling questions.

This approach to questioning it may be said could leave a defence advocate somewhat restricted as it were in their line of questioning, in that the questions need to be approved by the Judge and/or the intermediary beforehand and are therefore subject to change. Given that questions are pre-approved however does allow for a more rounded approach that is systematic.

Pre-editing of a s28 playback is already agreed and done by the Barrister in advance, this allows for Vodaphone to edit the playback well in advance of the trial date. Defence counsel can approach a trial with less apprehension knowing that a s28 has been approved and is ready to be played.

The Courts are compelled to accommodate the s28 hearings and therefore counsel is usually allowed into the Courtroom earlier at 9.30am to test that the playback is working correctly before the Court is assembled.

Playback itself is done on day 1 of the trial and that does mean that counsel cannot return to it, nevertheless, what is does mean is that defence counsel is aware of the case they have to meet and, on some occasions, it has led to the Crown reconsidering the case and in some circumstances dropping cases altogether.

The whole objective of s28 is to put one’s case in the best possible way, and what better than a vulnerable witness being able to feel more at ease in giving their evidence. The provision has been widely complemented by both MP’s and the CPS alike and with good reason.

New Court room protection for vulnerable witnesses

The technology is secure and requires not just one but three secure login identifications before it can be accessed. Barristers are asked to download a secure app on their mobile phones as well as a secure computerised login that is accessed whilst in Court. Only one Barrister at a time can access the system through their dedicated login.

The Court Clerk then also has to enter their secure login on the system before playback is achieved.

As I stated earlier, this is a new technology and as many of those involved in the roll out of new technological systems are aware, there are always some initial teething problems, for example at the moment, the playback does not allow for a rewind or fast forward of the evidence and if paused for any length of time the playback will time-out altogether and finding the way back to the precise moment it was at beforehand can be a task in itself. However, when all these relatively minor issues have been harmonised then this new means of evidence will certainly be a future triumph for the Justice system.

Kelly Sherif

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