Is Pre-recorded Cross-examination (YJCEA 1999, s. 28) Achieving Best Evidence in Sex Offence Cases?

Briefing paper


This paper summarises doctoral research investigating pre-recorded cross-examination (s. 28 of the YJCEA 1999) and related measures in sex offence cases. Related measures are defined here as ground rules hearings (GRHs), written questions on cross-examination, and best practice on cross-examining vulnerable witnesses.

The research focused on the piloting of the s. 28 procedure for adult complainants who are “intimidated witnesses” for the purposes of the YJCEA 1999, s. 17(4). Methods included court observation and interviews with barristers during the first six months of the s. 28 pilot for intimidated complainants. The study provides a detailed snapshot of how the s. 28 pilot scheme was working at that time at a s. 28 Pilot Crown Court.

The study concludes that clearer law and guidance is needed to realise the potential of s. 28 and related measures in sex offence cases. Better investment in the design of recordings and playback is also called for to improve the presentation of pre-recorded evidence at oral trial.

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Main themes identified, include:

  1. Multiple barriers affected access to s. 28 and related measures in practice.

  2. Safeguards associated with improving the quality of cross-examination and experiences for “vulnerable witnesses” were deemed unnecessary or applied inconsistently.

  3. Pre-recorded cross-examination was slower and calmer but did not materially affect the nature of defence questions.

  4. Problems arose with the quality and playback of video testimony at trial, yet jurors were expected to evaluate the evidence the same way as live testimony.

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Briefing paper on s. 28 and related special measures in sex offence cases