Written 11th September 2024 by Ruth Peters

Section 28 hearings refer to a specific provision within the Youth Justice and Criminal Evidence Act 1999 in the UK. This provision, being one of a number of provisions for special measures, allows for the pre-recording of cross-examination and re-examination of vulnerable witnesses before the trial begins.

Who is eligible for special measures?

The Youth Justice and Criminal Evidence Act 1999 defines who would be eligible for assistance by virtue of special measures.

Those under the age of 18 are automatically eligible as well as those witnesses where the court considers that the quality of evidence given by such a witness is likely to be diminished.

This is then further defined to include witnesses who suffer from a mental disorder within the meaning of the Mental Health Act 1983 or for whom otherwise there is a significant impairment of intelligence or social functioning or that the witness has a physical disability.

The legislation then goes on to define further categories of witness who would be eligible if the court is satisfied that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings.

The relevant legislation states that the court should take into account the following;

The nature and alleged circumstances of the offence to which the proceedings relate
The age of the witness
Such of the following matters as appear to the court to be relevant namely –

(i) the social and cultural background in ethnic origins of the witness

(ii) the domestic and employment circumstances of the witness

(iii) any religious beliefs or critical opinions of the witness

Any behavior towards the witness on the part of

(i) the accused

(ii) members of the family or associates of the accused; or

(iii) any other proceedings who is likely to be an accused or a witness in the proceedings

The court should also consider any views expressed by the witness

Where the witness is a complainant in respect of a sexual offence or an offence under sections 1 & 2 of the Modern Slavery Act any other offence where it is alleged that the behaviour of the accused relates to domestic abuse with the meaning of the Domestic Abuse Act 2021 the witness is automatically eligible for assistance unless the witness has informed the court that they do not wish to be eligible.

The history of special measures

Special measures were introduced by virtue of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) to help witnesses who may have difficulties in attending court and giving evidence due to their age, personal characteristics, or specific needs. Where the witnesses are considered vulnerable or intimidated, application of special measures may be granted to improve their experience and help them to give their “best evidence”.

Special measures include:

Screens (section 23 YJCEA);
Live links (section 24 YJCEA);
Evidence given in private (section 25 YJCEA);
Removal of wigs and gowns by judges and barristers (section 26 YJCEA);
Pre-recorded evidence in chief (section 27 YJCEA);
Pre-recorded cross examination (section 28 YJCEA);
Cross-examination with an intermediary (section 29 YJCEA) and
Aids to communication, such as a communicator or interpreter (section 30 YJCEA).

Special measures can also be combined if appropriate, for example, during a section 28 hearing, the recording can be screened to stop the defendant from seeing the witness.

The history of section 28 hearings

Section 28 hearings were first piloted in 2014 for vulnerable witnesses before being rolled out for that cohort across all Crown Courts in England and Wales.

In 2019, piloting of section 28 hearings for the s.17(4) intimidated cohort began in three early adopter courts: Leeds, Liverpool and Kingston-upon-Thames. In September 2021, the pilot was extended to four additional courts: Wood Green, Harrow, Isleworth and Durham.

In December 2021, the Secretary of State announced his intention to roll out section 28 nationally and soon after commenced a phased rollout. The seventh and final phase of the national rollout was completed in September 2022, with section 28 being made available across all Crown Courts in England and Wales for complainants in sexual offences or modern slavery cases

Identification of cases eligible for a section 28 hearing

In the majority of cases the police will identify whether a witness is eligible for section 28 special measures following which an application will be made by the Crown Prosecution Service to the court.

The court then determines the witness’s eligibility, primarily focusing on their vulnerability and the potential impact of a traditional courtroom setting on their ability to testify.

Ground Rules Hearing

Before section 28 hearing itself, the case will likely undergo a process known as “ground rules hearing,” where the judge, legal representatives, and intermediaries discuss the way questions will be put to the witness. This ensures that the questioning is appropriate for the witness’s age or condition.

The advocates must complete the GRH form in advance of the hearing. The hearing is when the questions to ask the vulnerable witness during the cross-examination are agreed and other arrangements for the section 28 cross-examination hearing are made. It is likely that the Judge will expect advocates to prepare the questions they propose to ask in advance and submit them to the Court for a decision to be made at the Ground Rules Hearing about whether they are appropriate for the particular witness.

If there is an Intermediary, they will be present at the Ground Rules Hearing.

Section 28 Hearing

During the Section 28 hearing, the witness is cross-examined and re-examined in a video-recorded session, typically held in a more informal and supportive environment than a courtroom. This recording is then used during the trial, sparing the witness the need to attend court again.

The Judge goes to the live link room with the barristers to meet the witness, and then returns to the Courtroom where they will be for the cross examination. The witness gives evidence from the live link room usually in the presence of the Intermediary and the usher but very occasionally with the Judge and (the advocate asking questions) present in that room. This is usually only for very young witnesses or where the intermediary advises that the witness will find it easier to answer questions when in the same room as the Judge and advocate.

The defendant is present in the courtroom. S/he will usually be in the dock, but in any event, should be somewhere where s/he cannot be seen on the cameras by the witness.

Use of the evidence during trial

Once the hearing is completed, the recorded testimony is carefully stored and later presented as evidence during the trial. This recording becomes an integral part of the proceedings, treated with the same importance as live testimony.

No further cross-examination or re-examination of the witness may take place unless specific criteria are satisfied, and the judge makes a further special measures direction.

What is the impact of section 28 hearings on criminal proceedings?

Late disclosure can cause issues in relation to s28 hearings. Often there may be disclosure during the trial which needs to be put to the complainant. If there is late disclosure that should have been put to a witness in cross examination, then the court will have to consider whether or not the complainant can be recalled.

This means that the defence need to push for full disclosure early in the process and have a section 28 hearing adjourned where disclosure remains outstanding.

Other issues that can arise relate to the availability of the barrister. The trial barrister should be available to deal with the section 28 hearing. It is not unusual to get to the stage where the trial barrister has conducted the cross-examination during the section 28 hearing but then becomes unavailable for the trial and another barrister has to be asked to take over the case. This is far from ideal.

Olliers’ expertise in representing clients with cases involving Section 28 hearings

Olliers has substantial experience in defending sexual allegations involving section 28 hearings and has an excellent track record in terms of Crown Court acquittals.

If you are facing an allegation involving any kind of sexual offence, please contact our new enquiry team on 0161 834 1515, email info@olliers.com or complete the web enquiry form below.