Following a 4-day trial at Teesside Crown Court, Trinity Criminal and Regulatory barrister, Mairi Clancy secured the unanimous acquittal of a client who was charged with a historic sexual offence against a child.
The case involved a Section 28 Youth Justice and Criminal Evidence Act 1999 hearing.
After the s28 hearing, the prosecution disclosed material which arguably assisted the defence case.
Mairi sought to adduce the material as a s10 CJA 1967 admission.
The Crown argued that the material was not admissible because it had not been put to the witness during the s28 hearing.
Mairi successfully argued for the admission of hearsay evidence under s114(1)(d) CJA 2003 on the basis it was not possible for that matter to be put to the witness during the s28 hearing because of the late disclosure by the Crown.
The Court accepted Mairi’s submissions that the general line of questioning advanced at the s28 hearing gave the witness a chance to respond to the issue, and that the s10 CJA1967 admission was relevant to an important issue in the case, and therefore ought to be admitted in the interests of justice.
SUMMARY OF LAW
Section 28 of the Youth Justice and Criminal Evidence Act 1999 enables the recording of evidence and cross-examination prior to trial, subject to judicial discretion.
It applies to vulnerable complainants of a crime and witnesses, regardless of offence, and includes:
- all child witnesses
- any witness whose quality of evidence is likely to be diminished because they:
a. are suffering from a mental disorder
b. have a significant impairment of intelligence and social functioning
c. have a physical disability or are suffering from a physical disorder.
Practitioners may be assisted by the case of PMH [2018] EWCA Crim 2452 which gave guidance as to best practice for cases involving pre-recorded cross-examination:
- At the ground rules hearing, the judge should discuss with the advocates how and when any limitations on questioning will be explained to the jury.
- If this has not happened, or there have been any changes, the judge should discuss with the advocates how any limitations on questioning will be explained to the jury before the recording of the cross-examination is played.
- The judge can give the jury the standard direction on special measures with a direction on the limitations that the judge has imposed on cross-examination and the reasons for them before the recording is played.
- The judge should consider if it is necessary to have a further discussion with the advocates before their closing submissions and the summing-up on the limitations imposed and any areas where those limitations have had a material effect. In this way, the advocates will know the areas upon which they can address the jury.
- In the summing-up, the judge should remind the jury of the limitations imposed and any areas identified where they have had a material effect upon the questions asked.
- If any written directions are provided to the jury, the judge should include with the standard measures direction a general direction that limitations have been imposed on the cross-examination.
The law on hearsay- in the interests of justice
- s114(1)(d) CJA 2003 allows a statement to be admitted where it is in the interests of justice to do so and the statement does not come under one of the other categories of admissibility.
- S114(2) CJA 2003 sets out some of the factors the Court may consider when deciding whether or not to allow the admission of evidence in their discretion under this category –
a. Assuming the statement to be true, how much probative value does it have?
b. How valuable is it for the understanding of other evidence in the case?
c. Is there any other evidence that can be or has been given on the matter?
d. How important is the evidence in the context of the case as a whole?
e. The circumstances in which the statement was made
f. How reliable the maker of the statement appears to be?
g. Whether oral evidence of the matter stated can be given and if not, why not
h. Difficulty in challenging the statement and the extent that difficulty would be likely to prejudice the party facing it, the risk of unfairness
- Section 114(2) provides that “the Court must have regard” to nine factors when determining whether it was in the “interests of justice” for hearsay to be admitted under s.114(1)(d), there was no obligation on the Court to reach a conclusion on all nine factors or to embark on an investigation in order to do so (Taylor [2006] EWCA Crim 260; [2006] 2 Cr. App. R. 14)
- The Court of Appeal will only interfere with a judge’s decision as to the “interests of justice” test, if it was out with the range of reasonable decisions: Musone [2007] EWCA Crim 1237; [2007] 2 Cr. App. R. 29.
Timing of disclosure requests
- If the Crown discloses material after a s28 YJCEA cross-examination, meaning that the defence could not have asked the witness questions about that matter at the s28 hearing, the defence is precluded from seeking a s10 admission regarding that matter.
- It is open to the prosecution to seek to recall the witness (from the s28 hearing).
- No further cross-examination or re-examination of the witness may take place unless the criteria in section 28(6) YJCE Act are satisfied and the judge makes a further special measures direction under section 28(5) YJCE Act. Any such further examination must also be recorded via live link.
- Late applications for disclosure are likely to be fatal to any defence applications to recall a s28 witness. It is therefore important to submit disclosure requests promptly.
Mairi was instructed by Denise Jackman at Pearson Caulfield Solicitors.
Mairi accepts instructions in all areas of Criminal law as both defence and prosecution Counsel.