Defendant’s Red Alert - Section 28 Youth Justice and Criminal Evidence Act 1999
Section 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) is bringing sweeping changes to the prosecution of sex crimes in England and Wales. For the best chance of a successful outcome to your case, your defence team must be ready to act swiftly, strategically and without hesitation as soon as you know that you might be facing allegations.
Building your defence must now be done at the earliest possible point in proceedings. Without the right legal team on your side from the very beginning, you could be severely disadvantaged in court. Even before charges are brought, Sutton Defence can begin structuring a comprehensive defence that will ensure your case does not suffer under Section 28’s new measures.
What is Section 28?
Witnesses can feel intimidated when appearing in court, potentially affecting the quality and quantity of their evidence. This concern is salient when a witness is considered vulnerable or intimidated by the prospect of testifying.
Section 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) allows for special measures to help children and vulnerable witnesses give evidence.
How will defendants be affected?
Section 28 of the Act will have a momentous impact on defendants. It enables complainants in sexual offence cases to put forward their cross-examination and any subsequent re-examination via video recording, raising significant concerns for defendants.
The most immediate issue for the defence is that, where cross-examination of a complainant will be submitted as a video recording to be played at trial, it must take place far sooner than usual. Whilst this schedule should produce higher-quality evidence in support of the complainant’s case, it could also severely hinder the defendant in providing a robust defence.
Building a defence without full disclosure
An effective cross-examination relies on the defence having access to all material relevant to the case. Although it is intended that full disclosure will take place before recording the cross-examination, in reality, it is highly doubtful that this will always be achieved. Pertinent, even decisive, evidence can come to light once a trial has begun, since police may only be able to appraise material gathered during an investigation gradually. In fact, a number of rape cases have collapsed after text messages uncovered part-way through trial proved the defendants’ innocence.
The defence being forced to assemble an initial cross-examination based on incomplete evidence risks prejudicing their entire case. Moreover, the defence is forced to take a disjointed approach to re-examination. Whilst further cross-examinations can be recorded as new information emerges, presenting a defence piecemeal can drastically weaken it.
To ensure that you put forward a vigorous, comprehensive defence from the beginning, you need a strategic lawyer with sharp insight working with you as soon as the allegation is made.
Expanded case management - clipping the defence’s wings?
A further issue for the defence is the significant level of case management involved under Section 28. At the Ground Rules Hearing, the judge can remove questions from the defence’s cross-examination that they believe are unsuitable. This raises concerns that the defence’s already frontloaded cross-examination will be further undermined and lose even more of its impact.
Your defence team must be thoroughly prepared to put forward a forceful defence despite these hindrances. The best defence lawyers are constantly thinking ahead and already have solutions for the type of issues that might arise, including those now introduced by Section 28.
The jury’s reduced opportunity to assess complainant credibility
Without the complainant being physically present in the courtroom, the jury is less able to examine their body language, tone and other non-verbal signs that can clue them into the veracity of the complainant’s account. This can have a detrimental effect for the complainant but also for the accused. It makes it all the more prescient that the defence team leave no stone unturned in their cross-examination to ensure the jury can make an accurate appraisal of the complainant’s evidence.
Facing Section 28
MORE THAN EVER YOU need proactive strategic thinking, efficient lawyers, willing and able to engage with the Crown at the first opportunity BECAUSE all the important strategic steps in the trial process need to be considered and applied at the earliest conceivable stage.
Your actual trial may be a long time in the future but the cross examination of the Complainant will be looming within weeks of you being charged.
Get ready. Be ready.
Contact our Sexual Offences Lawyers (Yorkshire, London, Birmingham, Manchester)