Monday, 3 April 2017

EXCLUSIVE @CrimBarrister on the proposed introduction of pre-recorded cross-examination for “victims of rape and other sex crimes”

There are so many potential blog topics from the current febrile political climate right now, it’s hard to know where to start.

There’s the rumbling row about s41 and whether the previous sexual history of complainants in sexual offences trials should be admissible, and if so in what circumstances – check out top blogger The Secret Barrister on this ( And then there’s the issue about the approach of the CPS to prosecuting sex cases, and alleged ‘victim blaming’, which has raised its head again today (see here:

However, there’s a particular topic about which the Ministry of Justice is presently fulminating: the proposed introduction of pre-recorded cross-examination for “victims of rape and other sex crimes” across the board. Though, as commentator Joshua Rozenberg and others have noted, the MOJ can’t even seem to get the mechanics of their own scheme right and are now embroiled in an embarrassing row with the Lord Chief Justice: see

A great deal has been talked about this scheme, but very little (it appears) by any barrister who has either prosecuted or defended in a case involving it. We’re led to believe is that the operation of s28 of the Youth Justice & Criminal Evidence Act 1999 has been universally praised, to the extent that the pilot schemes are now going to be extended nationwide.

As I have pointed out in one of my previous blogs (see:, this is yet another example of the MOJ at the very least misleading, and at worst deliberately trying to con, the public and themselves. Quite who the scheme was a resounding success with is unclear. During the less than extensive qualitative assessment of s28, it became apparent that no one had actually asked any of the lawyers who were being asked to make this work. Except three. Apparently 390 cases took place involving s28 at the three pilot centres (Leeds, Liverpool and Kingston), so a cursory glance suggests that perhaps one barrister was asked from each court centre about their experience. No info as to whether that was a Prosecution or Defence counsel either.

I have done a s28 case and I wasn’t asked, perhaps unsurprisingly as the MOJ wouldn’t want my answer as it doesn’t fit with their agenda. Just in case anyone’s in any doubt, there are substantial difficulties with how s28 works in practice, which would be exacerbated by the expansion of the scheme to include all sexual allegations.

The first of these is the timetabling of the trial itself. S28 cases are meant to be subject to an expedited timetable in relation to the service of evidence and disclosure on the Defence. However, this never happens in any sex case in reality. Last week I dealt with a rape trial in which I was still having relevant unused materials – which I ended up deploying in cross-examination – disclosed to me DURING THE TRIAL. So this was six months after the Defendant first appeared in the Crown Court and pleaded not guilty.

This is a major problem, because under the s28 scheme all such disclosure would have to be completed by the time of PTPH or before, since that is when s28 recording of cross-examination is supposed to take place. On recent experience the CPS would be struggling to serve the recording of the complainant’s evidence-in-chief by the PTPH, let alone before. In several recent cases, I have attended the PTPH having been served only with a case summary and a couple of statements on ‘recent complaint’. And the s28 recording of cross-examination is supposed to take place before this stage?

In the pilot case I conducted, there were also more hearings required than is supposed to be the case under the new Better Case Management scheme, due to admin problems at the court centre concerned. As required, I’d submitted the cross-examination questions in writing in advance to the court. When I arrived at the ground rules hearing – timetabled separately to the date on which the cross-examination was due to be recorded, which isn’t supposed to happen – the judge claimed not to have received my list of questions, even when I produced an email from the court office confirming receipt. Thereafter, I found the ground rules hearing being put off to the following day, necessitating the return of both myself and Prosecution counsel. Once we’d decided on the ground rules at an unnecessary additional 20-minute hearing, actual cross-examination wasn’t recorded for another two weeks.

All of this could, of course, have been done on the date of the hearing. But the court thought they knew better so two entirely unnecessary hearings had to be accommodated. As we’re always being told, court time costs a lot of money. Unsurprisingly, we haven’t been provided with any figures on the inevitable increased costs of such cases, presumably because it doesn’t suit the MOJ agenda.

Oh, and then the rest of the trial didn’t take place for another nine months. Ludicrous, but that was the earliest that the court could accommodate the required five-day hearing.

This raises another listing issue. If you’re defending, this means you have to ensure that you are available all those months later to conduct the rest of the trial.

I’ve heard tell with horror of some counsel being asked to step in and continue what is, in effect, a part heard trial. This not only poses professional conduct problems (what if you disagree with the way the most important cross-examination in the case has been approached? What if further disclosure has arisen which necessitates further essential questioning of the witness?), but the practical effect under the current Defence fee scheme is that only one brief fee is payable. Few if any experienced counsel will be taking these risks.

What does a jury make of pre-recorded cross-examination? The answer is, there is no empirical evidence from real trials since jurors aren’t allowed to discuss their deliberations. But the strong sense from those of us who actually conduct these cases is that juries like to see a witness live, responding to questions in real time, to make an assessment. Ask any sex prosecutor and they will tell you of the disadvantage they feel when grappling with footage. If a jury can’t properly see the whites of a witness’s eyes, they don’t feel the real impact of their evidence, simple as.

Perhaps the most important point, though, is that in all the media coverage and MOJ press releases, one fundamental point appears to have been forgotten: that a Defendant is innocent until proven guilty. S28 appears predicated on the basis that ‘victims’ must be spared the ‘ordeal’ of giving live evidence. Which pre-supposes that the alleged offence has actually been committed in the first place. And isn’t that the jury’s job to decide? Just saying.

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