1. Section 28 Youth Justice and Criminal Evidence Act 1999
Martin Hawes
DCP – Y&H RASSO Unit

2. What is Section 28?
Section 28 of the Youth Justice and Criminal Evidence Act 1999
Allows for pre-recorded cross-examination for vulnerable witnesses
Entirety of witness evidence is pre-recorded and they do not have to attend trial

3. Why are we using Section 28?
Improve the experience of witnesses following high-profile reports & cases post Saville & Janner
Enables witnesses to give evidence earlier in the proceedings when recollection likely to be fresher
Maximise potential for early resolution – either strengthen Prosecution case or conclude no longer a realistic prospect of conviction
Net effect - removes witnesses from the trial process and associated stress and anxiety

4. Who is Eligible for Section 28?
‘Vulnerable’ witnesses as defined by s.16 YJCEA 99
Children (Under 18 at time of special measures hearing i.e. PTPH)
Adults – only if:
1. Suffers from mental disorder within meaning of MH act 1983, or
2. Has significant impairment of intelligence and social functioning, or
3. Has a physical disorder or disability
AND the quality of their evidence is likely to be diminished as a consequence

5. Who is Eligible for Section 28?
There must also be a video recorded interview which is compliant with ABE principles
S.28 is limited to designated Crown Courts, therefore not Magistrates or Youth Courts
Not limited to RASSO cases – general crime was the most frequently missed in the pilot sites

6. What do we need to do?
S.28 has an expedited timetable – Uses the BCM custody timetable regardless of whether the defendant is in custody or on bail
Defence entitled to know the full extent of Prosecution case at Cross examination
Imperative to front load at PCA stage as Cross examination takes place weeks after sending, rather than months for normal trials

7. The Ground Rules Hearing
Case management hearing where judge will check the state of readiness for cross examination
OIC & any intermediary involved will be warned to attend
Judge will approve questions for witness which are submitted in advance
Judge likely to make onerous orders to secure compliance if any evidence or unused outstanding

8. The Section 28 Hearing
Memory refresh to be arranged by OIC pre s.28 hearing
Any editing of VRI as usual
Cross examination in accordance with pre-agreed questions
On National roll out recording will be digital and stored in cloud
Collusion warnings given at conclusion of s.28 hearing – can cause difficulties if family members are disclosure witnesses at trial

9. The Trial
S.28 witness can only be recalled with leave of the judge (S.28(6))
No further cross examination unless:-
1. New matter which could not have been ascertained with due diligence at s.28 hearing
2. In the interests of justice (very few instances of leave being granted during pilot)

10. Intermediaries Aid the witness with communication NCA led service
National shortage – likely to be 2018 before any increase in numbers
Balancing the need to capture the evidence of young children ASAP and ensure they are able to achieve their best evidence if assistance required
The younger the child the greater the need
Please speak to CPS if unsure

11. S.17 YJCEA 1999 Extends the pilots to include ‘intimidated’ witnesses
Eligible ONLY if a victim of sexual assault or modern slavery (S.17(4))
AND in ‘fear or distress’ about testifying
Leeds, Liverpool and Kingston Crown courts only