The Application of Section 28 and Related Measures in Sex Offence Cases

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Pre-recorded cross-examination offers unprecedented opportunities to focus on and regulate the treatment and questioning of intimidated complainants in sex offence cases. In this thesis, I investigate the application of s. 28 and related measures to adult complainants defined as “intimidated witnesses” under the YJCEA 1999, s. 17(4). Related measures are defined as ground rules hearings (GRHs), written questions on cross-examination and best practice on cross-examining vulnerable witnesses developed by the Court of Appeal and advocacy toolkits.

Methods comprised eight months court observation in s. 28 and non-s. 28 sex offence cases, including six months observing the extension of the s. 28 pilot to intimidated complainants at a s. 28 Pilot Crown Court and interviewing barristers instructed in cases observed.

Key findings include, that:

• the pilot was hampered by a lack of planning, guidance and a clear rationale;
•  intimidated complainants were perceived by barristers as less deserving of s. 28 and related measures compared to children and other vulnerable witnesses under the YJCEA 1999;
•  pre-recorded cross-examination tended to be slower and calmer but the quality of questioning and adherence to best practice varied at s.28 hearings because barristers considered that best practice on the treatment and cross-examination of vulnerable witnesses did not apply to intimidated complainants;
• procedural safeguards associated with the success of s. 28 for vulnerable witnesses - including ground rules hearings (GRHs) and written questions on cross-examination - were hollowed out in intimidated s. 28 cases observed;
• observations of s.28 trials reveal that pre-recorded testimony disrupted traditional understandings of oral trial and assumptions about how evidence should be presented.

My findings suggests an urgent need to review intimidated complainants’ procedural status and access to special measures in law and practice. To realise the full potential of recent reforms to the method of cross-examination, guidance and training is required to develop the application of s. 28 and related measures in sex offence cases and to promote consistency in standards of defence advocacy and the treatment of complainants in sex offence cases. Better design and delivery of pre-recorded evidence at trial is also called for to achieve best evidence.