BSQ Briefing - Pre-Recorded Cross-Examination to Become the Norm in Sexual Assault Trials – Examining s.28 of the Youth Justice and Criminal Evidence Act

In a famous legal saying cross examination has been described as the “greatest legal engine ever invented for the discovery of truth." The right to cross examination, where an accused is entitled to have questions put to their accuser in a court of law in a criminal trial has long been recognised as a key component of a fair trial. It is also one of the defining characteristics of the British criminal justice system. 

But there are limitations to the right to cross examination. In certain domestic violence and sexual cases for example, accused persons are no longer entitled to represent themselves and directly question a complainant. If they will not appoint a lawyer, the court has the power to appoint counsel to conduct cross-examination on an accused’s behalf.

More recently there has been an even more dramatic change in the law impacting on the right to cross examination introduced by virtue of s.28 of the Youth Justice and Criminal Evidence Act 1999 (“YJCEA”). This is now being rolled out across the country and applies mainly in sexual assault and modern slavery cases. To help complainants avoid the stress of giving live evidence in open court, which many find traumatic, the Government has introduced what are legally referred to as “special measures” allowing complainants to have their cross-examination pre-recorded on video and played at trial. 

In practice, this means that complainants in sexual assault case will no longer have to attend trial proceedings in person to appear in front of a jury. Both a complainant’s initial evidence – the statement they first give to the police when a case is opened known as their “evidence in chief” – and any later cross -examination - will be recorded on video in advance of a trial. So, what many have always regarded as one of the dramatic highpoints of a trial – where a complainant is cross-examined by the counsel for the defence – is no longer a guaranteed right for a defendant. Instead, a jury will be played recorded footage of the complainant’s evidence which it will have to consider without hearing from a complainant in person.

In every case where this provision is to be relied on, the Prosecution must apply for the court’s permission for these “special measures.” An application for the video recording of a complainant’s initial statement or ‘evidence in chief” falls under s.27 of the YJCEA and cross-examination s.33 of the same Act. The Act says that complainants in cases involving sexual allegations automatically fall into the category of ‘vulnerable or intimidated’ witnesses that these measures are intended for (s.17(4) YJCEA). Witnesses can opt out of the special measures if they wish.

Being eligible for special measures does not however mean that the court will automatically grant them. The court must satisfy itself that the special measure or combination of special measures is likely to maximise the quality of the witness's evidence before granting an application. This is a question for the court to determine having regard to the interests of justice.

In BSQ’s experience, applications for special measures should not be taken for granted. In several instances, BSQ had applied to challenge applications on behalf of our clients for these measures to be adopted. Whilst no one would question that these measures may be justified in cases involving traumatic sexual ordeals, cases involving children or the especially vulnerable adult witness there are other situations where considerations of fairness may require a witness to give evidence in person. The best evidence for the jury, where appropriate, is inevitably when they are in the same room as the witness and can assess nuances of reaction.

If you need a criminal defence lawyer, our solicitors are highly experienced in this area. For more information visit our sexual allegations solicitors guide.

If you are accused of sexual misconduct and require legal representation, please contact our London offices on 020 3858 0851.