In the first of two articles, Piers Desser, Criminal Litigation Partner at Ronald Fletcher Baker, explains the origins of pre-recorded video evidence used in courts and describes how the scheme works in practice.
The concept of pre-recorded oral testimony in criminal courts is not new. Despite the fact that video-recorded evidence played at trial feels like a recent development, it was conceived decades ago and was originally intended to achieve better evidence for child and vulnerable witnesses.
The virtues of presenting evidence to a jury in this manner have been debated in the House of Commons on numerous occasions and the recent expansion of the scheme to include additional Crown Courts will mean that more lawyers will need to engage with this format of trial. Various aspects of this procedure are now worth considering afresh.
It was the Criminal Justice Act 1988 that first made it possible for a witness to give evidence from outside the court room by way of a live link. Realising the potential, Douglas Hurd, the then Home Secretary, commissioned an enquiry to consider further initiatives.
The resulting Pigot Committee drew upon a wide variety of evidence to make what were at that time radical proposals. They included fully pre-recorded evidence for some witnesses, particularly in cases involving sexual allegations.
In some ways it was ahead of its time and it has taken years for some of those proposals to come into practice – made possible in part by Section 28 of the Youth Justice and Criminal Evidence Act 1999, which deals directly with pre-recorded evidence.
‘Potential for risks to a fair trial’
The benefits to justice were clear. Age and maturity should be supported by a legislative framework allowing evidence to be amplified with clarity by a procedure that provided protection against potentially unfair pressures of the adversarial system and robust examination.
Allowing witnesses to give their account in a more comfortable environment, not on the witnesses stand, and at an appropriate pace would lead to more reliable evidence, the committee reasoned.
The demerits of the scheme were the potential for risks to a fair trial. Cementing a witness’s evidence months before the trial itself creates a risk that the witness would need to be recalled. The trial process is notoriously dynamic and pre-recording the evidence of a complainant was always likely to lead to practical hurdles should new information arise.
Also, it was anticipated that cross-examination would be restricted to an extent that made it difficult for an advocate to properly challenge the evidence of the witness, dulling the long-established techniques for undermining credibility.
Nevertheless, Section 28 was rolled out to a number of pilot courts and the procedure quickly built up its own conventions upon implementation.
In practice, the procedure commences with the police deciding that the case is suitable for the witness, frequently the complainant, to give their account as a video recording, known as Achieving Best Evidence (ABE). This means that the genesis of the procedure relies upon an officer making such a decision.
This recording then becomes the witness’s evidence in chief – which would be played to the jury at trial. The footage can be edited by agreement, but a potential flaw of this method is that the prosecuting advocate is already bound by the narrative questioning set by the officer conducting the ABE.
‘Vulnerable to the quality of police questioning’
This can have a discordant effect on how the prosecution case is presented to the jury, especially in factually complex cases. It is also vulnerable to the quality of police questioning, which may be habitually suitable for a cautioned interview with a suspect but not necessarily to adduce a jury-friendly version of events.
With the ABE recorded, a case heading for trial is then listed for a Ground Rules Hearing to set a timetable for the Section 28 recording of cross-examination. Notable at this stage is that the guidance states that each player – both counsel and the judge – must make themselves available for each stage of the process, regardless of other commitments.
This creates problems in setting appropriate timescales and requires a higher level of obligation than in cases not within the scheme, which can pose ethical problems particularly for defence counsel.
Additionally, certain courts have directed that defence advocates provide a list of questions in advance of the hearing date for judicial pre-approval. Whilst prior discussion of the topics of cross-examination is no doubt a sensible exercise, pre-approved questions is clearly a risk to the integrity of the process.
During the Section 28 hearing itself, the advocate will be inside the court room with the witness in a room in another part of the court. Appropriate time periods are set for questioning and it is incumbent upon an advocate to request permission from the judge to ask a derivative question should the witness’s answer give opportunity to develop the point further.
Judges have a duty to intervene in the event that unsuitable questions are posed or the style of questioning is not appropriate to the witness. Short questions in plain English are the order of the day. The intention of the scheme is that both ABE and the recorded product of the Section 28 cross-examination are played to the jury at trial, with the witness absent.
Next time: In the second article to be published soon, Piers gives further insight into Section 28 through personal experience and concludes his explanation of the scheme with consideration of its future.