CRIMINAL LAW NEWSLETTER
FEBRUARY 2014
replaced
YOUTH JUSTICE AND CRIMINAL
EVIDENCE ACT 1999 Section 28
A time bomb waiting to explode
in a Crown Court near you ?
In short, the cross-examination
of children or vulnerable adults
is to be video recorded at an
early pre-trial stage, preferably
soon after the video recorded
evidence-in-chief
has
been
obtained.
The pilot scheme is in progress,
Exeter was to be a participating
court centre and in the year
2012 to 2013 Exeter Crown Court
would have provided between
15 and 20 such trials. Exeter was
by
Kingston-upon-
Thames.
In 1989, The Advisory Group on
Video
Recorded
Evidence
described the trial process as a
“harmful oppressive and often
traumatic
experience”
and
proposed a scheme whereby
children would never appear in
court unless they wished to do
so
by
evidence
having
their
entire
videotaped
before
trial; the recording would then
be played to the jury at trial in
their
absence.
The
pre-trial
hearing would take place in
informal surroundings with only
the judge, counsel, and parents
or
guardians
present;
the
defendant
would
observe
greater
protection
through a television link or from
vulnerable
and
behind a two-way mirror and
witnesses through the Special
would be entitled to correspond
Measures Provisions ; albeit, pre-
with their counsel via audio link.
recorded cross-examination by
If fresh evidence or issue arose
way of section 28 of the Youth
during trial
Justice and Criminal Evidence
proceedings, the
for
intimidated
child would be recalled and
Act 1999 remains inactive.
undergo
examination
On 2nd December 2013, the
under the same conditions as
Ministry of Justice announced its
before.
decision to pilot the measure in
Video recorded examination-in-
Leeds, Liverpool and Kingston-
chief was enacted into section
upon-Thames this is still currently
54 of the Criminal Justice Act
taking place. However, strong
1991
debate exists as to whether or
further
but
rejected
the
Government
pre-recorded
cross-
not
section
28
should
be
examination on the basis that
activated.
recalling a child would impose
There are no updates about of
further upset. It is also plausible
the pilot available yet. However,
to suggest that the possibility of
the length of the trial period has
undergoing
multiple
been extended due to the lack
examinations
would
crossto
of cases required to gain a
overcome the reluctance to
credible insight into its potential
report
success.
offences
fail
and
successful prosecutions.
rejection
faced
ensure
This
considerable
Some
contend
recording
that
evidence
so
presoon
scrutiny because children are
after the child’s initial police
still required to attend the trial,
interview
would
an
evidence
and
evidentially
ordeal.
traumatic
elicit
thus
fresh
would
In 1997, the Labour
remove the risk of deterioration
Government sought to provide
of memory. In R v Powell [2006]
EWCA Crim 3 a conviction of
Despite the opportunity of pre-
indecent assault against the
court visits, a child cannot gain
three
familiarity
and
a
half
year
old
with
the
live
trial
complainant was quashed on
process. The measure would
the basis that the seven month
also remove the embarrassment
interval between initial interview
caused
and
her
intimate matters in public, as the
incompetent under section 53
absence of the public and jury is
YJCEA 1999. Subsequently, the
guaranteed. The absence of
Court of Appeal followed this
the jury is not a safeguard
decision in R v Malicki [2009]
offered by any of the activated
EWCA Crim 365. A series of
special measures, except video-
reports
have
that
recorded
lengthy
pre-trial
can
Since 1992, Western Australia
have an adverse effect on the
has used pre-recorded cross-
welfare of young witnesses. In
examination and it has been of
2004, “In
great
trial
rendered
identified
Their
delays
Own Words”
by
speaking
about
examination-in-chief.
success;
it
has
found that 70% suffered from
encouraged more children to
stress related symptoms, such as
give
lack of
wetting,
expressed that they would not
self-harming.
have given evidence live at
sleep,
depression
and
Similarly,
bed
‘Measuring
Up?’
evidence
who
have
trial.
identified that 52% suffered from
Those
the same symptoms as those in
activation argue that delays
2004,
would not be reduced to the
38%
severely
had
their
affected
studies
and
8%
against
extent
the
often
section’s
assumed.
dropped out altogether. Section
Disclosure is not always a quick
28 would also remove the stress
process
and
the
and intimidation caused by live
potential
need
to
trial formalities.
witness, in hindsight, reinforces
added
recall
a
this assertion and supports the
point
regarding
additional
My view: book your Counsel
suffering and potential multiple
early and make sure they are
cross-examination.
available for the trial.
although
ensure
section
the
Moreover,
28
absence
would
of
Good luck!
the
Rupert Taylor
public, the defendant will still
watch the proceedings and
thus the intimidation element will
remain.
OTHER NEWS
“Following the MOJ’s repeated
failure to heed the concerns of
the
legal
profession
anticipation
of
the
and
in
MOJ’s
announcement regarding the
provision of Legal Aid funding
the
Criminal
Bar
Association
asked barristers and solicitors to
consider whether a further Day
of Action should be undertaken
on
7th
March 2014.
Individual members of Devon
Chambers have reflected upon
the MOJ’s published position
and will not be attending Court
on
7th
March in accordance
with the CBA’s protocol.
In addition, the CBA has asked
that for a period of four weeks
following 7th March, members of
the Bar consider not accepting
“returns”. We all understand that
this will cause some inevitable
disruption
but
these
unprecedented
times
are
where
doing nothing is no longer an
option.
It is for individuals to choose
whether to take part in this and
any other future forms of protest.
The
individuals
Chambers
have
at
Devon
decided
to
support this action.
If
you
have
any
questions
regarding anything to do with
this issue please do not hesitate
to speak to one of the Devon
Chambers’ Clerking Team.”
THE CRIMINAL TEAM
Jason Beal
Nigel Lickley QC
Paul Rowsell
Garth Richardson
Barrie van den Berg
Rupert Taylor
Edward Bailey
Ramsay Quaife
Joanna Martin
Piers Norsworthy
Kelly Scrivener
Emily Cook
Julia Cox
Sally Daulton
Sarah Vince
Scott Horner
Devon Chambers
3 St Andrew Street
Plymouth
PL1 2AH
01752 661659
www.devonchambers.co.uk
clerks@devonchambers.co.uk