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Section 28: the increasing use of pre-recorded evidence in criminal trials. Part 2


Home / Insights / Section 28: the increasing use of pre-recorded evidence in criminal trials. Part 2

In his second article about the use of pre-recorded video evidence in courts, Piers Desser, Criminal Litigation Partner at Ronald Fletcher Baker, gives further insight into the scheme through personal experience and wraps-up with a look to the future.

My own recent experiences of Section 28 recordings touches upon three important areas for consideration. During a multi-defendant case in which a young witness gave pre-recorded evidence – the first such case to utilise the procedure at the Old Bailey – the risks of a witness being recalled were highlighted.

Concurrent to our proceedings, this witness was also involved in a separate case which dealt with issues of violence and gang affiliation.

Findings in that case had the potential to substantially affect the evidence of the witness, primarily going to his bad character, and it is entirely foreseeable that in other similar circumstances a trial could be derailed at short notice causing substantial delays and waste of resources.

It is also crucial that the investigation is properly concluded before Section 28 be given final consideration. In a case involving a serious allegation of a sexual offence the CPS took a charging decision whilst the defendant was still in police detention, just over 24 hours after the incident itself.

Central to the plausibility of the complainant’s evidence was the evidence from her phone. Early charge, and a sluggish investigation thereafter, set in motion proceedings that were entirely uncoordinated.

‘A prosecution case that was wholly out-of-step’

The prosecution was set upon utilising the Section 28 procedure, to which the Crown Court at Isleworth agreed. However, serious delays in obtaining the phone evidence and practical deficiencies in the police procedure known as Achieving Best Evidence led to a prosecution case that was wholly out-of-step as the complainant’s evidence could not be pre-recorded until the disclosure process had been resolved.

A Section 28 recording shortly before the trial is therefore questionable and raises wider issues of whether the Criminal Justice System is even adequately equipped to deal with the tight framework and pace of the procedure.

It appears to be the case that Section 28 creates potential difficulty for appellate lawyers. The final version of the recorded evidence is not stored on the digital platform common to all parties, and so cannot be readily accessed by fresh legal representatives who are assisting in an appeal.

A version is retained on a platform operated by Vodafone, but the procedure to obtain retrospective aspect is difficult. Firstly, the court is as yet unsure of its own procedure to grant access and appellant lawyers can find themselves batted back and forth between court and Vodafone to receive the verification details.

Once access is granted, then it is not necessarily clear that the footage displayed is the same as the footage that was presented to the jury. It can foreseeably lead to circumstances in which court transcripts are required to understand better what took place at trial.

All these problems impede proper exploration of appeal issues and are in serious need of formalising before we see a substantial increase in appeal points that involve Section 28 evidence.

‘There is significant work arising from cases of this type’

As the courts see more Section 28 cases the importance of funding in this area is brought further into the spotlight. The trial is technically deemed to have started once the recording of cross-examination begins.

Consequently, the Bar have quite rightly demanded that the Legal Aid Agency recognise the increased work of preparing for and conducting two segments of a trial, often many months apart.

From a solicitor’s perspective, there is also significant work arising from cases of this type. Aside from administrative matters, any case involving an ABE involves a careful and lengthy process of taking instructions, comparing transcripts and cross-referencing evidence from other sources.

Conducting preparation of a case in which the trial itself spans two points in time over many months inevitably involves the proper and necessary duplication of consideration of evidence.

Because of this, it is my opinion that lawyers should not be funded for, and so expected to have, only one opportunity to consider the primary case documents. The legal aid funding scheme for defence solicitors is desperately parlous in any event – and this true even more so in Section 28 cases.

When considering the future of the scheme, one can only anticipate that Section 28 will encompass more and more cases as the procedure and technology improves.

However, whilst it is clearly desirable to provide witnesses with the optimum conditions in which to give oral testimony it is contrary to the interests of justice to make special measures entirely routine, blunting the efficacy of the examination process.

For further information contact Piers Desser directly on 020 7613 7138 or email 

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