Justice Committee
Oral evidence: The use of pre-recorded cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999, HC 267
Tuesday 23 January 2024
Ordered by the House of Commons to be published on 23 January 2024.
Members present: Sir Robert Neill (Chair); Tahir Ali; Rachel Hopkins; Dr Kieran Mullan; Edward Timpson.
Questions 152 - 267
Witnesses
I: Chris Hartley, Deputy Chief Crown Prosecutor, Crown Prosecution Service; Laura Hynes, National Vulnerable Witness Adviser, National Crime Agency; and Genna Telfer, Assistant Chief Constable, Hertfordshire Constabulary.
Written evidence from witnesses:
– Chris Hartley, Deputy Chief Crown Prosecutor, Crown Prosecution Service
Witnesses: Chris Hartley, Laura Hynes and Genna Telfer.
Chair: Welcome to this session of the Justice Committee. We are looking at the use of pre-recorded cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999. Welcome to our panel of witnesses. I will come to you in a moment. We have to make our declarations of interest. I am a non-practising barrister, an honorary King’s Counsel and a former consultant to a law firm.
Edward Timpson: I am a barrister with a current practising certificate but not undertaking any direct court work. I am a former Solicitor General, former chair of CAFCASS, and former chair of the national child safeguarding practice review panel, and my brother is chair of the Prison Reform Trust.
Q152 Chair: A couple of other members of the Committee, Mr Ali and Dr Mullan, will be joining us shortly. They don’t have any relevant interests to declare. Perhaps the witnesses would introduce themselves.
Genna Telfer: Genna Telfer. I am assistant chief constable of Hertfordshire Constabulary and the lead for victims and witnesses nationally.
Laura Hynes: Good afternoon. My name is Laura Hynes and I am the national vulnerable witness adviser, employed by the National Crime Agency.
Chris Hartley: Good afternoon. I am Chris Hartley. I am a deputy chief Crown prosecutor at Yorkshire and Humberside, with particular responsibility for section 28.
Q153 Chair: Let’s start with a bit of background for those who perhaps are not familiar with this. Section 28 was introduced with a view, I think, to making it easier for witnesses to give evidence if they fall into certain categories. That is the key thing, isn’t it? Perhaps the biggest change we have seen is an extension in its use from child witnesses to other people who meet a test of vulnerability. I think that is a fair way to look at it.
It was, as you know, one of a number of measures in the 1999 Act to assist witnesses who might otherwise have difficulty in giving evidence, or might be reluctant to do so. So far, we have had the pilots; today we have been to Kingston Crown court, where there was one of the first pilots. Now we have a general roll-out. I would be interested today in hearing about your perspective. Is it working effectively? Does it achieve the objective, first, of making it easier for victims in those categories to give evidence?
Genna Telfer: The feedback from forces is that it is generally well received by victims who have applied for section 28 and been granted it. There is a real feeling that if section 28 was not available some victims might have been lost through attrition, because they might have been unable to give evidence. A case study might bring that to life slightly. A victim who was subject to a very serious sexual offence had issues with her speech, her mobility and her memory recall, because she had suffered a stroke. The view of the officer in the case was that a recording under section 28 would not have the human impact that having the witness in court would have had, but he said there was absolutely no way she would have made it into a courtroom.
There is a balance. If we use recorded evidence it may not be as effective as a witness appearing in person, but will it make the difference with a victim not giving evidence at all? The victims we are talking about, who come under the criteria, are very vulnerable; otherwise, we would not be offering them section 28. In the case I mentioned, there was a very robust process. It went back and forth several times with the CPS. Medical evidence was required and ultimately it was signed off by the judge. In some cases, it feels like a Catch-22 scenario, where it is really difficult for victims to give evidence.
Q154 Chair: Yes, because you fairly acknowledge the risk that there might be less impact on the jury. We shall come on to that. We had evidence from Professor Thomas that seems to suggest that. We often talk of section 28 in terms of rape or serious sexual offences, but it doesn’t necessarily apply to them. From the stats that you may have, what percentage of section 28 cases relate to RASSO-type offences, sexual offences, and how often do they relate to those that are non-sexual, such as assault or robbery? Any idea on that?
Chris Hartley: Unfortunately, we don’t have that data, but I think from my own experience in Yorkshire and Humberside that the vast majority will be connected to sexual offences, whether the victim is a child or an adult. Modern slavery, the other area where there are intimidated witnesses, at the minute, is a very small percentage. It is something like 0.3% of our case load, so it is tiny, but that does not mean that section 28 has been used—simply that there is a modern slavery victim in our cases.
Q155 Chair: With your cases, how do you set about dealing with the dilemma that has been referred to as to whether section 28 is the best means of getting the impact that you want?
Chris Hartley: We have to recognise that section 28 is the last of the line of special measures that ultimately create a comprehensive package. I understand that it is probably one of the most comprehensive packages of measures available to victims and witnesses in any adversarial jurisdiction. The important thing is that it is a combination. It is a consideration of what is right for the victim or witness. It needs to be a bespoke consideration of their concerns and needs. The important thing from our joint perspective is having an informed conversation that is well documented and that we can articulate so that we make the strongest possible application.
When I ask our area leads for section 28 how many applications get rejected, the answer is that it is very few. The vast majority of applications are granted. Occasionally, we are asked to provide more information, because we have not quite got the application right, and in the main judges are willing to allow us to come back, having clarified things and sought more evidence in support. The important thing is which measures, in combination, will allow victims the confidence to give their account.
Q156 Chair: You are also aware that there are other measures, most commonly screens, being used. That is one step down, but it gets them into the courtroom.
Chris Hartley: Yes.
Q157 Chair: Do you have any statistics as to the guilty plea rate in section 28 cases, as opposed to non-section 28s?
Chris Hartley: I don’t. We do not have any official figures. From my own area I can say there is a general perception that there are fewer guilty pleas in section 28; but when I looked across, for example, victims of rape, the conviction rate was very similar in cases where section 28 was and was not used.
Q158 Chair: Perhaps we will come on to some of what Professor Thomas said on that. Is it because the CPS does not keep those sorts of statistics, or you just don’t have them to hand?
Chris Hartley: We don’t, unfortunately, keep those, and that is one of the lessons, in hindsight, about what we perhaps would have done differently. We certainly now need that.
Q159 Chair: Is it something the CPS is now going to do?
Chris Hartley: Yes.
Q160 Chair: Okay, that would make sense. I wondered about the national roll-out, as opposed to a pilot; we have seen quite an increase. The numbers from 2023 are some 5,800-plus charges, 1,000-odd defendants and 900-plus cases. It has expanded very rapidly. Has that national roll-out and the increase in volume affected the way section 28 is used by the police and the CPS?
Genna Telfer: It has not affected the way it is used. It has just affected the cohort of people available to receive it. The way it works is that the officer in the case would have a conversation with the victim in the early stages to consider their needs and what special measures were available. As you have said, it is not just section 28 but whether the other special measures, in combination or on their own would be more appropriate. Once they have had that conversation, the officer would try to have a conversation with the CPS as early as they could, to get robustness as to whether it was absolutely needed as the best way to support the victim. The officer would also explain the pros and cons of the special measures to the victim. With section 28, they might be told something along the lines that being there in person might be more impactive on the jury; but, as with anything, these cases are complex and it might not be section 28 that they used. It could be one of a range of measures that included section 28.
Q161 Chair: It might be worth setting out for the public, and generally for the record, what the other measures are.
Chris Hartley: You have already mentioned screens, which are one of the other special measures. For the environment for youths there is removing wigs and gowns. A live link means evidence is given either from another room in the building or, ultimately—part of the development under section 28—remotely, from another site. Linked to section 28, because you cannot have section 28 without section 27, is the admittance of the video account of the witness as the evidence in chief. Finally, I suppose, there are intermediaries. We can’t forget intermediaries.
Q162 Chair: Tell us a little about how intermediaries work, because that is a fairly new concept in many respects.
Genna Telfer: I am going to defer to Laura, because she has a lot of experience in it.
Q163 Chair: That is your specialism.
Laura Hynes: It is. It is something I have done a lot of work on in the background, and part of my role at the moment is to oversee the registered intermediary team. That is the team that matches the request for an intermediary to the request from the end user. Effectively, a registered intermediary, under section 29 of the Act, is an aid to communication. It is a person with a professional background who enables them to help improve communication between the police interviewer or the advocates in court and the particular vulnerable witness.
Q164 Chair: What sort of professional background, generally, do intermediaries have?
Laura Hynes: The majority come, I would say, from a speech and language therapy background. However, we also have psychologists, primary school teachers, social workers and some more highly specialised intermediaries—for example, those who use British Sign Language or who communicate with non-verbal witnesses.
Q165 Chair: How do you match the right type of intermediary to the witness? Who does that?
Laura Hynes: The witness intermediary team is a part of the witness intermediary scheme in the Ministry of Justice. The end user, either the police or the CPS, makes a request on a form setting out the details of the witness and any diagnoses they have that help them to fall into the category that would make them eligible. Once eligibility is satisfied, we look for an accredited individual with the particular skills to help a person with those particular needs to communicate.
Chair: Thanks very much.
Q166 Rachel Hopkins: Building on that, Laura and Genna, you started to explain the role of the police in identifying whether a witness qualifies for a section 28 process. Could you elaborate any further on their role?
Genna Telfer: It is essentially just understanding the criteria under sections 16 or 17. That might be someone vulnerable either through mental health issues or a child, or, under section 17, someone who feels intimidated. They would have a conversation with the individual to see whether they fitted any of those criteria. As Chris mentioned, we have to have recorded their initial account, via a video-recorded interview under ABE—achieving best evidence—which can be used as part of the process for section 28. Does that answer the question?
Q167 Rachel Hopkins: Yes. I was on the visit today and we heard about achieving best evidence interviews. You said that for it to be used in the trial the examination in chief of the victim is recorded through the ABE, and that is conducted by the investigating officer. Would you elaborate on that process?
Genna Telfer: Yes, of course. The ABE interview is initially the primary investigation tool for the police. It is about understanding what has happened in the incident. It may serve a number of purposes. It may end up as evidence-in-chief in a criminal court; it may inform a social services assessment; or it may end up as part of family court proceedings.
There are College of Policing guidelines, which all forces have, but each force is individually responsible for the training that it carries out in relation to that. They train their officers to be specialist interviewers, who use a trauma-informed approach based on best practice and stated cases. I am sure that Laura will say more on that in a second. They try to get the best out of the individual, which may not always play in the best way in court as evidence-in-chief.
For example, the best way to get the story from a very young child witness might be by pictures or drawings. They might not necessarily be in chronological order, so when it gets to court it is sometimes difficult to understand. Laura will talk about some the schemes she is running. All that information is taken on board, so once free recall is complete, the interviewer will go on to the points to prove, so that the chronological element and the points to prove are there for when it becomes evidence in chief. We are constantly trying to learn and to improve how the interviews take place. Do you want to add anything, Laura?
Laura Hynes: I am happy to elaborate if you would like me to. Is there a particular area you are interested in?
Q168 Rachel Hopkins: It is more about the process, given that we also get feedback. We heard in court today that sometimes you might get most of the experience, but there is the questioning, and how that goes, and the different approaches you might then use.
Laura Hynes: Different approaches in the interview itself?
Q169 Rachel Hopkins: Yes, we are just trying to find out for the public record what this sort of interview—an ABE interview—would be.
Laura Hynes: What it looks like in practice.
Q170 Chair: How is it different, for example, from taking an ordinary witness statement?
Laura Hynes: Achieving best evidence is the name of the guidance issued with respect to interviewing all victims and witnesses in the UK. That guidance provides specifics around different groups of victims and witnesses. Effectively, when police officers are interviewing any victim or witness, that guidance should be followed. It is guidance on the processes that you use to obtain the most reliable information from your witness. It is affected by many other factors, but the process is intended ultimately to gather reliable information. The aim is reliable information and as much of it as possible, depending on the individual.
That is the process. What falls out of that is the product of the interview. With witnesses who are not considered vulnerable it is likely that you will end up with a written statement—a section 9 evidential statement, which is signed. The witness would then be expected to go to court and give their evidence live. For witnesses who are vulnerable or intimidated the process becomes the product, because it is recorded at the time of the interview. That interview is itself the evidence provided to the CPS, which becomes admissible. It goes through an editing process overseen by the CPS and the police. There is an agreement about what is edited from the recording before it lands in front of the jury. That is what the jury will see as the section 27 evidence-in-chief.
The reason for that, ultimately, if you consider history, is that many years ago, when children and vulnerable adults were not considered competent witnesses, they did not come to court. There has been a historical process of development over the years, starting with the Pigot inquiry, to try to refine the process to make it easier for vulnerable people to get to the point of court. One of the elements is the fact that it is very difficult for vulnerable people to go to court and stand in the room with the accused, in the stressful scenario that they will find themselves in. Not only is it stressful for the individual; it can and does have an effect on the quality of the evidence. Two considerations are in balance there. The purpose of the video is to ameliorate that, and take away the stress.
Research shows that when someone is interviewed about traumatic incidents in a far more relaxed, friendly, comfortable and safe environment, with somebody they have spent time getting to know, and who has spent time getting to understand how they best communicate—as close in time to the incident as possible—you are likely to get the best evidence. That is where the concept of the video-recorded evidence comes from. What Ms Telfer was saying in her information is that there is a fine balance between that and the ultimate use of the video, which can be as evidence-in-chief. Often it may be seen by family courts, for their purposes. Of course, the interview as it happens is an investigative tool for the police. Those tasked with carrying out these interviews are given quite a heavy burden. There is a lot to think about.
Q171 Rachel Hopkins: You picked up on some things in terms of refining the process; do you get any input from the CPS on how to approach some of the interviews, given the different aspects?
Chris Hartley: It is embedded, almost, that that doesn’t happen very often. It would be very particular and case by case, because within our rape and serious sexual offence teams we encourage early advice. That is the sort of potential line that might be taken if there was something on which the investigating officer thought it would be helpful to have a conversation beforehand. I would say it is pretty rare.
Laura Hynes: It tends to be the accepted norm that for vulnerable witnesses an attempt will probably be made to have the video adduced as evidence. Police therefore tend to move forward with the interviews fairly quickly, which is the nature of investigation, and to have a conversation later about how it will fit into the special measures. Occasionally, when an interview has been conducted—often because they are conducted under imminent need circumstances—there may be a conversation through the case file process between the CPS reviewing lawyer and the police, where they discuss the content and the potential need to ask further questions, and the format of those questions. However, in line with the historical development and the fact that the reason for the interviews is that we want someone not to have to repeat their account, the aim right from the start, so as to avoid that, should always be to conduct the best quality interview with the individual.
Q172 Rachel Hopkins: The interviewing officer would be conscious of the different uses to which the video could be put, including being played to a jury, and being represented as evidence-in-chief at trial. There is that understanding. You mentioned rape and serious sexual offences. Is it likely that most such cases would involve an ABE interview?
Genna Telfer: Yes, they would.
Chris Hartley: Yes, many would. There are, though, some instances when the victim of rape or a serious sexual offence might say that they don’t want it, and that is because of the fear that the defendant would be able to see them, and they do not want to be seen. Obviously, in those cases you cannot make the application until it is before the court, and therefore there is the chicken and egg of trying to give them the support they need. That is just an example where it would not happen.
Chair: That is a case where screens would work better.
Q173 Dr Mullan: Digressing slightly on this topic, Mary Prior, the chair of the Criminal Bar Association’s RASSO sub-committee, says that “It is almost impossible for a police officer to conduct an ABE interview well, because of its dual function.” You touched on your thinking that it is not beneficial to the witness to have to do the interview again, but it strikes me that the exercise is asking a lot of the officer—to fulfil very different functions, potentially. Having listened to what Ms Prior said, could there not be an argument for deciding at a future point, “Now we need an interview to be conducted purely for the purposes of evidence-in-chief”?
Genna Telfer: I watched the session with Ms Prior, and the reality is that a police officer is never going to be a trained prosecutor. It comes back to the issue of having to put a really vulnerable witness through the process twice. As part of our investigation we would be questioning someone who had already lived a traumatic experience. If we have the prosecutor-led conversation again, we are doing that twice. Whether that would result in more convictions I don’t know, but it is a question of the balance between managing a vulnerable victim and getting the evidence that we all need. Ultimately, we are all part of the criminal justice system in which we want to protect not only this victim but any potential future victims; but we want to do the best we can for the individual we are dealing with.
Q174 Dr Mullan: Can the approach not be victim-led, so that you could say to them, “You previously did a recorded interview, which we can use as evidence, but you might find that a further interview helps to secure a conviction. You would have to weigh that against your experience of giving it,” and then let them decide?
Chris Hartley: It is certainly something that could be considered. Professor Thomas has, I think, previously touched on that dissociation. It would need to be worked through in terms of impact on agencies and, particularly, the court, but you can see that there is some merit in it, if that was possible.
Q175 Chair: As you said, very fairly, to start with, Ms Telfer, there is a dichotomy, isn’t there, with what is primarily an investigative tool being used effectively for evidential forensic purposes, which are not the same? That creates difficulty, doesn’t it, in terms of some elements of the content? With the best will in the world, as you rightly say, the police officer is trained to investigate, and what you need for an investigation is not necessarily the same as what you need to present the case effectively to the jury.
Genna Telfer: Yes.
Q176 Chair: Do you want to come in, Ms Hynes?
Laura Hynes: Guidance is provided to interviewing officers, in achieving best evidence and in some of the National Police Chiefs’ Council circulations, about how they should structure the interviews in order to get the best likelihood of achieving the balance.
Q177 Chair: But that may not be the same structure as you would wish to use in presenting a case to a jury.
Laura Hynes: No, the guidance is that it may not be, and, of course, you do not know how the prosecuting lawyer will want to do that in the fullness of time. The guidance is aimed at editing in a way that best enables the evidence-in-chief—the key components of what they say happened, which is what we want a jury to hear—to be sectioned away from the investigative material. I can give an example if it would help, but I don’t want to labour the point.
Q178 Chair: I think it comes back to this point, Chris: isn’t there then the issue for the CPS that you will have to be pretty careful about removing, for a start, anything that is inadmissible? That is the obvious point. Also, there is the risk of repetition.
Chris Hartley: Yes, that is potentially an issue because, with the best will in the world, because the ABE interviews are an investigative tool, they can be much longer than you would want to play to the jury. The accounts of victims or witnesses may not flow in the order that you would want. The interviewer may pick up on something part way through that takes them back to something else, because the individual has not thought about disclosing other aspects of what happened to them. Editing is done in conjunction with the defence, because ultimately we need to make sure, subject to agreement, that what goes in is what we wish to present.
Q179 Chair: That means of course that in addition to normal case management hearings you normally also require what is called a ground rules hearing.
Chris Hartley: The ground rules hearing would be for a section 16 vulnerable victim, either a child or a vulnerable witness, with either a mental or a physical impairment. That is where it would be required. It is not required for rape and serious sexual offence victims.
Q180 Chair: Not as such, but it would be if they were vulnerable.
Chris Hartley: Yes, that’s right.
Q181 Chair: How much extra work does that require the CPS to undertake in, say, a section 28 case, as opposed to the equivalent sort of offence where section 28 is not being used?
Chris Hartley: There is additional work, but it is not necessarily significant in the context that, if you were having a remote link because they have given their account through an ABE, essentially you are adding the application for section 28. If it was a child witness, obviously you have to build in the ground rules in the potential intermediaries’ consideration of questions that the defence wish to put forward. You would need to consider those. There is case management in terms of what is required for the ground rules and subsequently the section 28. Because it has now been happening for a little while, it has become business as usual. People are used to the process and they naturally follow it.
Q182 Chair: Was it something that was intended to be an exception becoming a norm?
Chris Hartley: Section 28?
Chair: Yes.
Chris Hartley: I wouldn’t say so. In the case of children and the vulnerable, you can see that there is great merit in the idea of a child being able to recount what happened as quickly as possible so that time does not diminish what they remember. Equally, in terms of the intimidated it is on a needs basis where they indicate that that is what they require. Speaking to ISVAs—independent sexual violence advisers—and witness care units, section 28 is seen as really important in mitigating the trauma and distress of giving evidence. It is a different reason, but the need is there.
Q183 Edward Timpson: I am going to take us back a step to how the decision is made to apply for section 28, or any other special measures. Before I do that, could we take a scenario where you have conducted an achieving best evidence interview? I understand that you try to do it when memories are still fresh and the witness or complainant is in a position to do so, but subsequently, as can happen, the issues in the case become clearer, and there may be further forensic evidence. What do you do in that situation if you have already conducted the achieving best evidence interview, knowing that you may have sold it to the witness or complainant on the basis that they need to tell their story only once?
Chris Hartley: Would that be before the case is charged?
Q184 Edward Timpson: Before the case is tried.
Chair: How do you deal with that?
Chris Hartley: If it was necessary for a further interview, if you video- interviewed them the first time, you would look to do that a second time. Obviously, depending on how far the case had got, if you had already conducted the section 28, you would need leave of the judge to be able to ask the witness any further questions. That may well be a ground where something new had arisen that required further questions to be put.
Q185 Edward Timpson: If the witness, who thought they would only have to give the interview once, said, “I’m sorry; I’ve said everything. I was told it would be once and I really can’t go through it again,” what would happen in that scenario? Would you have to judge whether you really have the best evidence available to you to present to the court?
Chris Hartley: We would have to consider it. In fairness, it is rare for further questions to be put post the section 28 hearing.
Q186 Edward Timpson: Could I ask about the process to come to a decision as to whether to apply for section 28 or any other special measures? So that we are clear for anyone who is following this today, who ultimately makes that decision?
Genna Telfer: In terms of the application or the grant thereof?
Q187 Edward Timpson: Putting forward the application.
Genna Telfer: For the application, the officer in the case would have to do the needs assessment with the victim. In certain cases—we talked about RASSO and early advice—they would have a conversation with the lawyer at that point. That is relatively robust, because it goes through the first reviewing lawyer, the prosecutor and ultimately the judge. The officer would do that via the form we use, an MG2, which will be a written application. Then, as Chris mentioned earlier, if there is any additional requirement for evidence on a medical issue they may have, that too is requested to support the application. It is an ongoing conversation and it might go back and forth several times before ultimately getting to a judge for a yes or no decision.
Q188 Edward Timpson: How do you satisfy yourself that the witness or complainant has an informed choice as to whether or not to go ahead with that approach, as was mentioned earlier?
Genna Telfer: We don’t have any qualitative measures. This is one of the issues we are also having around the victims’ court. How can I sit here and say that every officer across the country is having a meaningful conversation with every victim or witness? I guess one of the indications of success is that, when section 28 applications go through that process, we do not see many being knocked back at the CPS-police level, so they are supported for a decision by the judge. As to whether or not they are of good quality, they are making it through to the final bit of the process.
Q189 Edward Timpson: The reason I ask is that the Ministry of Justice did its own process evaluation around this, particularly around informed choice. Accepting that it is the MOJ’s evaluation and you may have other experiences you want to share, it found that “Practitioners raised concerns about whether witnesses were able to make an informed choice, with some suggestions that police may be influencing their decisions on what special measures to use or providing incorrect information.” Does that come as a surprise to you, or would you like to provide a different insight?
Chris Hartley: There will potentially always be situations where on reflection a victim or witness may come to a different view having experienced the process. That evaluation, which was published in 2023 but comes from 2022, related to a very small cohort of victims, witnesses and practitioners who were spoken to at the pilot court sites. I think they also spoke positively about how section 28 can support, but there will be situations, which is where that comes from, where they think they might have chosen differently had they known. That is why things like pre-court visits are important in helping to set the scene as to what is likely to be expected in the process. At the minute, they take place quite close to the hearing itself. If we can do it sooner, it means that if there is a change of position we can change our applications and go back to the judge, and perhaps have a different suite of measures.
The other thing we seek to bring in through our victim transformation programme and an enhanced service for vulnerable and intimidated witnesses, starting with adult RASSO victims, is an early conversation, once a case is before the Crown court and listed, to pick up whether we have the right selection of special measures, and to listen to what the victim is saying to us.
Q190 Edward Timpson: As things stand, are those conversations routinely taking place to go through the pros and cons of perhaps using a live link or screen rather than section 28 measures?
Genna Telfer: Yes. Every victim or witness is entitled to a needs assessment under the codes of practice. Everyone will have the needs assessment carried out. It might be that there is no need for any special measures, but that should be part of the discussion around the pros and cons. There is a national memorandum of understanding between the police and the CPS which shows that that should take place.
Chris Hartley: It is reinforced in the director’s guidance on charging that there should be what is called an MG2, a witness needs assessment, coming through. Certainly, if that document was not there with the information, the lawyers would be getting back in touch with the officer to request it, or, if it did not contain sufficient information, again they would go back.
Q191 Edward Timpson: Do you think that the process of making the decision as to whether to apply for special measures is too complicated, too regimented and may be difficult to follow for some witnesses or complainants? Maybe they feel it is being done to them rather than them being part of the decision making. Are there any parts of it that you think we could do better if we were allowed to do it slightly differently?
Genna Telfer: There should be a conversation in a way that the victim would understand. We might not sit there and talk about social measures; we might just sit there and say, “Do you want to be in a courtroom with the accused? Do you want to have your identity hidden?” They might come up with that suggestion in the first place. The conversation about things should be as natural as it can be. If a victim was asked afterwards whether they were told about section 28, they might not recognise it as section 28, but they might have had a conversation with someone about giving their evidence in a way that was pre-recorded.
Q192 Edward Timpson: Chris, I think you mentioned earlier how many of the applications once made—Genna may have mentioned it too—go on to being used as part of the court case. In your experience, in what circumstances may a judge refuse an application to use section 28?
Chris Hartley: Having spoken to our area leads, I would say that at the moment most applications are granted. A few are put back, in the sense that more information is required for the application, but where they are refused it is more to do with the operational aspect of arranging a section 28 before the trial. The criminal practice direction introduced considerations around delay. One was around whether the hearing itself would materially advance the date on which they would give evidence. If the section 28 could only be accommodated a short time before the trial, that would be a potential reason for the judge to say that there should be a live link to give evidence on the day of trial. It also introduced another ground where the judge would look at previous delay in the case and take that into account. It seems that delay in holding the section 28 is the main ground, if it is refused. Having said that, in our experience because of pressures on courts in listing cases, judges look to section 28 as a way of gathering the evidence of the victim or witness and then, if the defendant is not in custody, to put the trial to a longer trial date. It is having the opposite effect.
Q193 Edward Timpson: That is certainly the experience of the Committee, having heard from courts with which we had some contact. Is that a concern right across England and Wales, or are there regional variations? I don’t know whether you have compared your area with others to see if there is something driving that in particular courtrooms.
Chris Hartley: When I last spoke to the area leads, a number of areas reported that on their circuit section 28 was being used so that the trial could go to a longer date, so it is increasing.
Q194 Edward Timpson: Once an application under section 28 has been granted, there may be a delay until that actually takes place, which may provide time for a witness to rethink and come to the view that they do not want to take that particular route, but would prefer to be cross-examined through a live link, potentially even in person. Is that something they can do, and does it happen?
Chris Hartley: It does happen. I can’t say that it happens a lot, but if the victim or witness changes their mind and says they would rather use a live link or give their evidence in court but have screens, we will seek to support them with that. Generally speaking, most judges try to accommodate a change, even if it is the opposite and they have said they want a live link, or if, very close to the trial, they change their mind and want section 28. They will accommodate it. Sometimes, we have had situations where a judge said that they won’t entertain a section 28 application if it has gone past the PTP hearing.
Q195 Chair: We mentioned the valuable role that independent sexual violence advisers play in the whole of this process. We have not gone into that in much detail, but we know about it. Can you help me on one particular point about ISVAs in relation to section 28? In cases where there is a ground rules hearing, one of the things that is dealt with at such a hearing is agreeing the questions that can properly be asked in cross-examination of the witness. We have had some evidence to suggest that in some cases, not all, ISVAs are giving the questions as approved by the judge at the ground rules hearing to witnesses in advance so that they can prepare their answers. Are you aware of this practice?
Chris Hartley: I would say that absolutely should not happen. If it was happening, I would want it taken up straightaway. The cross-examination process should not be interfered with.
Q196 Chair: Absolutely. We are with you on that. Has either of you come across that at all?
Genna Telfer: Not at all.
Q197 Chair: I think you would all agree with the sentiments that Mr Hartley has just expressed. It would taint the whole process were that to happen. Understood. Another thing I was interested in is this. When the section 28 hearing takes place, normally the defendant will be in the courtroom; they have to be.
Chris Hartley: Yes.
Q198 Chair: I imagine you tell the witness that that will happen, that they will not see the defendant but they will be there.
Chris Hartley: That has been an issue in the past when the victim found out on the day. They were of the belief that the defendant would not be present. That is something we seek to reiterate and make sure that they are aware of. One of the special measures that might support them is knowing that we have applied for screens, so essentially you screen the screen.
Chair: Indeed.
Chris Hartley: That is a really important measure and is something that over the last 12 months courts have taken on board from feedback to make sure that every court centre, not necessarily every court, has the ability to screen screens. It was not always possible. Obviously, with some of the new technology now it is done at the flick of a button at some courts.
Q199 Chair: I understand that. A point was raised with us today that sometimes you can have a situation where, say, it is an historical allegation and the appearance of the witness may have changed materially since the defendant last saw them. They would be concerned if the defendant saw what they now look like. Is that something you have come across?
Genna Telfer: Yes. Quite often, victims don’t want the defendant to see them.
Chris Hartley: During the process the victim should never be able to see the defendant either, so they should never be on camera.
Q200 Chair: Understood. It was suggested to us at an earlier hearing, perhaps not necessarily entirely correctly, that section 28 cannot be done through a remote link. I think it can, can’t it? With the development of technology, you can now do it. For example, if somebody was in hospital, or something like that, you could do it remotely.
Chris Hartley: Yes. It is one of the ways that technology and section 28 are developing. There are three sites at the minute where you can have remote section 28. Part of the reason it was limited to three was to make sure that the technology worked, since it was court technology. As I understand it, generally it has been successful, and protocols have been worked through to roll it out wider. As you mentioned, there are situations, whether for significant health reasons, mental health reasons or infirmity, or where the person cannot leave a particular location, like a hospital or hospice, when you can do, I suppose, a remote bespoke process. We have done that a few times and it has worked really well.
Q201 Chair: We will come to the technology in a minute, but to deal with the particular bit where it is remote, you need an engineer sent from Vodafone or wherever. That is the way it works in practice.
Chris Hartley: It all needs to be set up.
Q202 Chair: Somebody has to go there and do that. Do you need a member of the court staff to go along to be there, or not? It is suggested that you might have to have somebody sworn to make sure that everything is done properly.
Chris Hartley: In fairness, that was one of the discussions that happened when there was talk of remote at the three permanent sites. The understanding at that stage was that judges were looking to have a member of court staff do that, but it depends on the judge. Some judges would definitely like a member of court staff to be there, but occasionally the judge will say it is not required.
Q203 Chair: There is no guidance. There are no practice directions around it; it is down to the individual judge.
Chris Hartley: Yes. I think the guidance is still being dealt with.
Q204 Chair: Is it work in progress?
Chris Hartley: It is work in progress.
Q205 Chair: I imagine it would be helpful to have a standard approach wherever possible. If you like, Mr Hartley, take some instructions.
Chris Hartley: It is almost imminently signed off, but the guidance is there.
Q206 Chair: If it comes out before we publish our report, perhaps you would kindly send it to us. That would be helpful.
Chris Hartley: Yes.
Q207 Chair: Mr Hartley, you mentioned that in reality, because of all the other pressures on listing and so on, there is inevitable pressure in non‑custody cases where you have the evidence in the can, for want of a better expression, and it can be pushed back before the actual trial takes place.
Chris Hartley: Operationally, it can be pushed back, but probably the greatest number of complaints we get in rape and serious sexual offences relates to delay in the final outcome.
Q208 Chair: The fact is that, although they have given their evidence and have had that traumatic bit, none the less they have not had a resolution and potentially they are still waiting a long time for that. Is that a problem you find with this?
Genna Telfer: Yes. You can have two family members involved. If a child has given evidence under section 28 but a parent then gives evidence at trial, the child could have given evidence 12 months before the parent does, and as a family unit it is really difficult for them to move on. That is some of the feedback we have had.
Q209 Chair: Laura, is there anything that can be done to try to mitigate the potential risks of that, or is it something you just have to live with?
Laura Hynes: To mitigate the potential risk of delay?
Q210 Chair: Or the impacts of that, as Ms Telfer has just explained. There is pressure on the witness, but also, I suppose, a risk of some contamination of the evidence later. How can that be done?
Genna Telfer: From our point of view, we would just try to give them as much information as we could as to why it was delayed, and keep having conversations about why it is still really important to keep them engaged, but ultimately listings are outside our control.
Q211 Chair: When you are having conversations so that they can make an informed choice, whatever the theory, the fact is that in practice there can be an extra delay. Is that part of the training for intermediaries and others? Are people told to tell them about that risk? Are officers or whoever is chatting to them about it told how best to approach it?
Genna Telfer: I couldn’t say whether it is part of the training, but where we are at the moment is absolutely well known.
Q212 Chair: Laura, is that something your unit in the MOJ deals with, advising people that they should let witnesses and victims know about that as one of the factors?
Laura Hynes: It doesn’t fall under my unit, albeit part of my role is to advise police forces on practice. I hear on the ground a lot about the impact of these problems.
Q213 Chair: Do you advise police forces how to deal with that?
Laura Hynes: Not directly.
Genna Telfer: I will take that away. There might be something we put out. I am sure it is being done, but I can’t say—
Q214 Chair: You can’t talk about the consistency of it. Ms Telfer, in your written evidence you made reference to the fact that section 28 hearings “were listed to suit availability of the professionals and not for the victim/witness providing their evidence.” Can you elaborate what you meant by that?
Genna Telfer: It was feedback from across various forces, but one of the issues we have had is that, where they do not have the relevant professionals, whether a defence barrister or someone else, some dates have been moved on occasion. We had one example where three young females had been subjected to sexual offences. The day before their section 28 was supposed to take place it got moved, which led to one of them withdrawing from the evidence altogether. They build themselves up to give evidence and then any move in dates is difficult. We are already dealing with people who are vulnerable. For anyone involved in any of those types of crime it is horrific. It would be traumatic for anyone, so that doesn’t help.
Q215 Chair: That would apply to cases other than section 28 as well. If you have a fixture and it is moved for whatever reason, it can be quite a blow for the witnesses.
Genna Telfer: Yes.
Q216 Dr Mullan: I want to ask some questions about recording from an audio-visual perspective and the playing of best evidence interviews. Some of the evidence we have heard is that just the set-up of the shot is not particularly conducive to creating an engaging statement in the way you might get from hearing somebody talk live in a courtroom. Examples included distracting furniture being in the shot, perhaps some distance between the witness and the camera, and the lighting not being very good. Would you say that reflects your experience of seeing those videos and that there is a mixture of quality?
Genna Telfer: There is guidance on the technology that should be used. All forces are responsible for the upkeep on the investment and the technology they are using, but it is all set against a minimum set of standards around that technology. As we said earlier, the issue with the ABE interview is that it is not necessarily about presenting the evidence; it is about getting the information. You might have a victim who does not want to face the camera. They may have been involved in an offence that was recorded and they do not want to look at the camera. There may be different reasons.
One of the things fed back to us is that if someone is on a very small television in the corner of a courtroom it will never come across as well as a massive screen that everybody can see. The technology is of a standard that should be suitable, but there will be factors affecting how that presents in courts. HMCTS has a roll‑out programme around some of the technology it is using to display that, but, ultimately, if a jury cannot hear or see a victim particularly well, it will not come across as well.
Q217 Dr Mullan: Chris, does your experience from the CPS perspective, seeing these being played in court, echo that?
Chris Hartley: Definitely. Technology has moved on. When courts were equipped to display videos, potentially there was a big screen on a wall at a distance and the jury was able to see, as they want to see, the reaction to questions, hear the intonation of the voice, and see facial expressions and body language. It is difficult. The recording equipment for the section 28 has been variable, even between courtrooms, never mind between court buildings. It has been difficult.
The court is changing the operating model for recording. The feedback on the new system is much better with the roll-out of new equipment such as at Leeds, where we have three courts that have been equipped with not just bigger screens but screens in places where people can get an appreciation of the evidence close up. One screen between two jurors makes a phenomenal difference. The feedback I have from the head of our RASSO team in Leeds is that judges are keen to use those courtrooms because of the difference it makes. That is one of the challenges in getting data. A lot of the analysis is looking at cases that have gone through under previous systems, and we probably need some analysis of what difference the improved technology can make.
Q218 Dr Mullan: If it is not a good set‑up, should we even be using it? You have just said that anecdotally people so appreciate the difference that they are keen to go into particular courtrooms. I assume that victims and witnesses are not told, “By the way, the set-up in some courtrooms is not ideal. You will be seen only from a distance, and the lighting won’t be great.”
Chris Hartley: I suppose that, until the small number of courts had the new equipment, that was the norm; that was what you were used to and it was felt to be acceptable. Obviously, juries are able to make decisions and reach outcomes which include convictions, but it could be better.
Q219 Dr Mullan: If the physical set-up is a certain way and there is a limitation as to where the screen can be placed, the jury do not get to say, “We’re really not able to see this properly,” or can they say, “We as a jury don’t think we are getting good enough evidence and the person will have to come in”? I presume they cannot do that.
Chris Hartley: We have had situations where the recording has been poor and you may well then have to request a transcript to help. It is not perfect. The last thing you want is to expect the victim to come in and recount it when they were not expecting that to happen.
Q220 Dr Mullan: In the decision on an application I presume the judge cannot say that a courtroom or suite of rooms is not ideal for it and they do not advise it. I presume they cannot take that into account as a factor.
Chris Hartley: In Leeds, if you have a case with video-recorded evidence, you choose one of those three courts if you can. Obviously, other courts are set up, but it has not been rolled out. Obviously, in that ongoing development, hopefully, if HMCTS is able to roll that out and deems it a success—anecdotally, the feedback is really positive—that would be welcome.
Q221 Dr Mullan: We touched on attendance at court and the achievement of best evidence interview. Are people able to choose to have their identity hidden for those interviews and, if so, how does that get implemented? What is the technique as such?
Laura Hynes: When you talk about having your identity hidden, are you talking about having your appearance hidden rather than witness anonymity?
Q222 Dr Mullan: Their appearance.
Laura Hynes: The rule of thumb with special measures and vulnerable people is that adaptations are possible, with the permission of the court, if there is a good rationale for them. There have been cases where vulnerable victims have been on camera without their faces being shown. I could give examples of children who wanted to build a den because they would feel safe. Ultimately, if that is the only way that child is going to move forward and participate, we would have a rationale as to why and how we would go about doing that, each on its own merits.
Q223 Dr Mullan: Is the guidance specific in saying that those types of adaptations should be made, if appropriate?
Laura Hynes: The guidance wouldn’t say “should”.
Q224 Dr Mullan: “Should if appropriate”? Does it specify that type of adaptation as one of the things you might do?
Laura Hynes: I don’t think the guidance uses the word “should” explicitly. The guidance is careful around how it is worded on the basis that for vulnerable people you are looking for a bespoke answer to whatever their particular needs are. The guidance, in effect, wraps the legislation around it and talks about bespoke planning based on the needs assessment for that individual. You would not automatically do that for everybody. You would perhaps come across a witness where it became a sticking point, and therefore to move forward we would rationalise and have a plan for that. It is not ideal.
Q225 Dr Mullan: Are you confident that everyone understands that one of the things you might do is obscure someone’s appearance?
Laura Hynes: If you mean practitioners, the people who are conducting the interviews—
Dr Mullan: Yes.
Laura Hynes: —I think that, as with any skill, you will get a variation of understanding and comprehension of what people can and should do. There are practitioners who really understand the guidance and who apply it very intelligently, and there are practitioners who may not apply it as intelligently. Some of that is related to the pressure and stress that is put on people charged with conducting these interviews because, ultimately, their decisions may be examined in the Crown court and they have to give good reason for why they did something. It takes a little bit of—bravery is probably a strong word—strength to absorb the guidance, understand the legislative framework and apply a bespoke set of solutions to that and see it forward to court and stand up for it. That is what I would like to see more of.
Q226 Dr Mullan: Thank you. An example given in one courtroom was that they said they were not capable of pausing it. I wonder if it might be that they don’t know how to pause it. Is that the sort of thing you hear?
Chris Hartley: That is one of the vagaries of the current court system. The courts also trial the PRE system at a number of courts where you can do that. It is a completely different operating system that is much more user-friendly in terms of the recording, the pausing, the playing, the editing and the booking, in the sense that it does not need to be booked, whereas on the current system there is a limit on how many recordings can be done. You have to book a session. Whether the session is going to be 30 minutes, 35 minutes, 45 minutes or three hours, you have to book a sitting.
Q227 Dr Mullan: I have a final question. We touched a little bit before on the editing, but can I clarify something? Is it the CPS that does the final editing, following input from others? You said the ABE interview can be quite long with stuff that both parties agree needs to be in there, but who leads on that process and does the editing?
Chris Hartley: Ultimately, with the ABE, we need to sign off the editing and reach an agreement. If there was disagreement between defence and ourselves, we would seek the judge’s input on what was appropriate. Then you have the section 28. If there are any editing requirements, the judge makes a direction at the end of the section 28 for parties to agree any editing within an agreed timeframe.
Q228 Dr Mullan: Who does it? Does the CPS then go away and edit it?
Chris Hartley: The section 28 is the court, through the court contract.
Dr Mullan: Okay.
Q229 Chair: Somebody has to do the physical editing.
Chris Hartley: Yes. The CPS would take the responsibility around the ABE, with police support, but the section 28 is through the court.
Q230 Chair: It is slightly odd because, in a sense, it is your evidence. You are the prosecutor. You are bringing the charge. You have to prove it beyond reasonable doubt on the basis of your evidence, don’t you, but you do not have complete ownership of it?
Chris Hartley: We take ownership of what is produced before trial, but ultimately, the section 28, essentially, is a court hearing, and therefore it is within the domain and jurisdiction of the court, which is why it is a court responsibility.
Q231 Chair: If I am the judge and I say, “This passage is inadmissible. I want it out,” it is the court that takes it out, rather than the CPS?
Chris Hartley: Of section 28?
Q232 Chair: Of section 28 or whatever it is, yes. That may not happen very often, but if that is what comes up, somebody in the Court Service physically has to do those cuts.
Chris Hartley: Yes, or, as has been pointed out, whoever is the tech provider, because it is in the contract.
Q233 Chair: I think they are all on contract to Vodafone, aren’t they, at the moment or one of the other providers?
Chris Hartley: Currently.
Q234 Chair: At the moment, the contract is with Vodafone. You would have to get somebody at Vodafone and say, “You’ve got to take this bit out of the recording.”
Chris Hartley: In PRE, which is the newest service, it is not Vodafone.
Q235 Chair: That is another service coming that has a different provider, as I understand it.
Chris Hartley: I understand so.
Q236 Chair: There are some other practical things you have to do, aren’t there, even if you are doing it in the normal way with the witness in a different room in the court? You have to make sure that there is somebody there to help them. If they need to refer to a document, you have to make sure in advance that the document is in the room. You don’t want to break it off, do you?
Chris Hartley: Yes, and that is something we are learning about setting that expectation, which is where the pre-trial court visit is really helpful. They see the room and they are told if there is going to be a need to refer to something. They are told because you do not want them to come into a room for the second time when they are going to give evidence and, ultimately, it is laid out slightly differently and there are other things that they were not expecting, which then throws them.
Q237 Chair: Do those pre-trial visits always happen? I think we would all agree that they should. In your experience, all three of you, do you know if it is delivered in practice rather than in the intended theory?
Chris Hartley: They are, yes. There will always be the occasion when it does not for one reason or another.
Q238 Chair: But generally, you are saying that it does.
Chris Hartley: There is lots of positive feedback on that.
Genna Telfer: There should be constant dialogue as well, in any case, whether that is by telephone or through a visit.
Q239 Chair: One of the things that was raised with us at Kingston was that, with the current technology, if you put a document to someone, you can see them looking at the document, but you might very often want to refer to CCTV evidence. If it is a robbery case or something like that, there might be some CCTV of the incident, and you would say, “Would you look at this, please?” The problem is that when you are doing that, at the moment, you lose the witness’s face off the screen, so the jury cannot see their reaction to it. Is that something that is being looked at with the new developments and with the new technology that is being trialled to see it if it is possible to keep the defendant’s face on screen so that you can see what their reaction is to looking at the CCTV, which may or may not contradict what their evidence has been?
Chris Hartley: In fairness, I have not had that one mentioned. It is a court system, but certainly in the meetings we have with HMCTS, the judiciary and police partners, we can mention that.
Q240 Chair: Has it been raised with anyone else on the panel?
Genna Telfer: I am not aware of it.
Laura Hynes: It has not been raised with me.
Q241 Chair: Okay. We have raised it. It might be worth feeding back. Can I come on to a different topic? We understand there is a balance in all these cases, as you told us at the beginning. When section 28 was introduced and then there was the decision to move from pilots to a national roll-out, it was very much put at the time by the then Lord Chancellor, mostly Mr Raab, that this would increase the guilty plea rate. In fact, the reverse has happened, hasn’t it? If anything, the guilty plea rate in these cases has gone down, according to the statistics. That seems to be a fact, doesn’t it?
Chris Hartley: I think perhaps that is referenced by Professor Thomas.
Chair: Yes.
Chris Hartley: The difficulty is that we do not have our own data. The Ministry of Justice and HMCTS are currently undertaking an evaluation that will include outcomes, and that will, hopefully, be something. Professor Thomas has looked at the outcome per charge, and we and the court, in defining outcomes, look at defendants.
Q242 Chair: I think, Ms Telfer, you recognised anecdotally that that is a concern people have. You talked about acquittal rates and conviction rates, but the evidence that we had from Professor Thomas was that the guilty plea rate was 10%, as opposed to 15% for rapes generally. Ms Hynes, do you want to come in on that?
Laura Hynes: I am so sorry. There is an important point on that. The report I read from Professor Thomas talked about a 10% guilty plea rate for section 28 as compared to 15% for rapes. I am not a statistician in any way. However, the way I read this was in relation to the historical development of section 28, which came about because historically there were concerns that the most vulnerable people were not getting to court in the first place. I don’t think I recognise that as a rate going down, but it is a figure that could possibly account for 10% of people who might never have got there in the first place. We do not have a comparator.
Q243 Chair: Rape is not all section 28. The other interesting point that she makes is this. The guilty plea rate in section 28 cases, 10%, is about five times lower than the guilty plea rate for all sexual offences, which is 56%. That does not seem to be disputed. The Judicial Office also raised some concerns about the fact that once the cross-examination is done the parties are locked into positions.
Chris Hartley: Yes. In fairness, we occasionally see some guilty pleas following, but not significant numbers. On that comparison, what Professor Thomas has provided is a snapshot, and we do not have the data or the volumes to look at, but you can see with some offences that there will be, because of the nature of the evidence, naturally a higher guilty plea because the evidence is potentially much firmer.
Q244 Chair: You may have forensics. You may have other things.
Chris Hartley: You may have forensics. You may have several eyewitnesses at the time, and therefore it is not necessarily a like-for-like comparison.
Q245 Chair: I think we understand. Professor Thomas is generally accepted as the leading authority in this field where there is not a vast amount, we concede, of data around this at the moment. Perhaps there should be. Do you think we might be better off if there was more systematic data collection on these things?
Genna Telfer: Yes, of course, because that would help us understand it, which is the key aim, isn’t it? There are two points in relation to Professor Thomas’s work, and that links to what Laura said. What is the attrition when someone has applied for section 28 and then not been granted it? If they attend court having requested section 28 and having it refused, what is the longer-term impact on them? Yes, we want them to give evidence, but if the result of giving that evidence is so traumatic that it has a significant impact on them, that is not really supporting that victim either. They are really complex cases. The cohort of individuals we are talking about who will qualify for section 28 are by virtue of section 28 already vulnerable, so the way they come across to a jury may not present in the same way as someone who does not fall under that criteria.
Chair: I understand that.
Q246 Rachel Hopkins: Just pressing a bit further with Professor Thomas’s evidence, she stated that the jury conviction rate when section 28 is used with offences that fall within the section 17(a) adult intimidated witness category is markedly lower than the jury conviction rate for the same offence in the same time period but where section 28 evidence is not used. Why do you think that the jury conviction rate is lower when section 28 is used?
Genna Telfer: I do not know the answer to that. Professor Thomas’s report talks about the other factors. The initial bit talks about being in person. The other factors go into a range of different things. When she has completed her work with juries and asked that question, maybe we might get some more information. I would struggle to answer that other than what she has already put in her report about the other factors.
Q247 Rachel Hopkins: Are there any reflections from anyone else?
Chris Hartley: It is a difficult one to answer. We do not know the number of cases involved. The time period that she has used is still part of the roll-out. It includes trials up to the end of 2022. For section 17 victims, the wider national roll-out, apart from the pilot sites—the three pilot sites from 2019 and the four further sites added in 2020—did not occur until February to September 2022, so it potentially does not capture many section 17 victim trials from the roll-out. We also have developments in the technology that have come into play.
It is a difficult one to respond to. I know from some data I collected on cases between January and October 2023 that the conviction rate for a rape-flagged case with section 28 and without section 28 was very similar.
Q248 Rachel Hopkins: Interestingly enough, that point about rape cases with intimidated witnesses when section 28 evidence was used was 28.1% lower than cases where it was not. Are you saying that your stats and hers—
Chris Hartley: I suppose this is the difficulty. Professor Thomas looks at charges. We look at defendants.
Q249 Rachel Hopkins: So it’s apples and pears, slightly.
Chris Hartley: It is almost impossible to compare. You cannot even take different periods and try to see whether they can be reconciled because you have looked at different things in what you assess as a successful outcome.
Q250 Rachel Hopkins: Okay. We have picked up that it might be worth having more data collection over a longer period to help inform this.
Chris Hartley: That will be the interesting thing that might come out of the Ministry of Justice/HMCTS evaluation when it is looking at outcomes, the impact on court efficiency, length of trials and things like that.
Q251 Rachel Hopkins: Given some of the evidence we have, should the police and CPS advise witnesses of the lower conviction rate in section 28 cases, or are you saying they should not?
Chris Hartley: I don’t feel that we can. These are bespoke applications that are very personal to the individual. If we feel that from the information that the police have collected in consultation with the victim—because that is our focus—that this is the only way that they are going to be able to give their best evidence, we have to respect that and seek to put in place the measures that will support them to do that, as it is the only way that they get access to justice. What happens if we say we are not making the application and that was the only way that they would have given their evidence? They do not even get their opportunity to come before court in whichever form they can to have their account heard and considered.
Q252 Dr Mullan: Can I press you slightly on that? I am not surprised that there might be some evidence that could well prove to be credible that you convict fewer people when you are using video evidence. I have sat on a jury and I can completely imagine that to some people that will be a less credible form of evidence and they are less likely to be emotionally engaged, or whatever it might be.
You have painted it as a black and white picture that if we do not make this evidence available those people do not get their chance at all and therefore it is definitely worth doing it because you are getting a slight chance of a conviction versus zero conviction, but I imagine people probably sit on a continuum, and there might be a cohort of people who would much prefer to give video evidence and you have a better chance of getting them to court with that. If push came to shove, they would, if they had to, give evidence in person. Do we have to be more clear-eyed and say that those people, if it turns out to be correct, have to understand that they are diminishing their chances of a conviction?
Is there a separate question? We are all absolutely focused on the role of the court for the victim, but the criminal process has a purpose beyond the individual victim; it is there to convict people and take them out of society and punish people. Do we lose out as a society because we are using a type of evidence that means that fewer people get convicted and people who should be in prison are not in prison? Is the only consideration purely the victim, or is there a wider consideration for what gets convictions?
Genna Telfer: I said at the start that we are thinking about any future intended victims as well as the victim we have in front of us, but if going through that process is so damaging to that victim that you are doing further damage to them, how can that be right? It comes back to the issue that these are complex needs for individuals. We have had cases where section 28 has been refused. I could give an example of a 13-year-old boy with a brain tumour who was required to give evidence at court, and the feedback in that case was that it was really impactive on his mental health.
I am not suggesting we would do as much damage as the original crime, but these are individuals who really need our support, and it is a balance between securing a justice outcome and doing what is best for the victim. I don’t think it is black and white.
Q253 Dr Mullan: You are confident that we won’t see a slight edging forward of the boundaries, and that it will stay limited to people where without it there isn’t going to be any prospect of a conviction.
Genna Telfer: I don’t know whether the assumption is that this has become a bit of a norm, but there is a complicated process, as described earlier, to secure a section 28 in the first place, and it is very robust. It is not the case that it makes it easier for everybody, certainly not from a policing perspective. Actually, it creates more work to do that because they have to submit the MG2 and they have to go to the CPS and have that conversation. It is easier to not apply in the first place. It is absolutely about the needs of the victim and the requirement for that.
Dr Mullan: Thank you. That is really helpful.
Q254 Edward Timpson: Hindsight is a wonderful thing, of course, but do you think that, rather than getting to the stage where perhaps it has become an accepted norm in some types of cases and the very understandable desire to make sure that vulnerable witnesses get as much support through the process as possible, we have ended up in a situation whereby, without data telling us what this is doing to them, for them and for the whole judicial system itself, we may be making poor decisions without that data to hand? Should the roll-out have been paused until we had a fuller and better understanding of the impact that it was going to have, not just in individual cases but on the whole section 28 use and the confidence and respect that everybody who works within the court system, and more widely within the criminal justice system, needs to have in it in delivering justice?
Chris Hartley: I suppose the timing was outside our control. We were informed when it would roll out and, as we should, we made sure that we were ready for it when it did. You are definitely right that hindsight is a wonderful thing. We, as in the collective—I look towards the court as well—perhaps should have had in place a mechanism for collecting data.
The difficulty, which comes back to Genna’s point, is that the data can give you some hard facts because it is either yes or no in terms of what you collect. Some of the more personal, which is, “Would someone have given evidence were it not for—?” is more difficult to capture? The wider benefit of mitigating the trauma and distress is a more personal thing that you might not pick up from a pure data stream.
Genna Telfer: In the MOJ evaluation, there was commentary from a victim who said they would not have survived it had section 28 not been available. Ultimately, the victims in these cases are the ones we want to hear from, but how do you capture that in a way that is on a large scale and gives us the information?
In terms of the roll-out, my understanding is that the initial evaluation was felt to be robust, and it was piloted for a long period of time before it was then rolled out to the further cohorts. I accept what Professor Thomas has written in her report which questions the evaluations that were done in Scotland and potentially the limited scope of the MOJ evaluation. As Laura said, she is not a statistician and neither am I, but we will see what comes out in the full report. If there is something we can do to improve it, we absolutely will do as much as we can, fully accepting that we want to bring people to justice and manage our victims in the best way as well.
Q255 Edward Timpson: Both the National Police Chiefs’ Council and the Crown Prosecution Service submitted written evidence to this Committee saying that there should be more data, and even set out in terms what that data should look like. We have quite a lot of qualitative and anecdotal evidence about the impact of section 28 and we cannot just rely on quantitative to make the decisions in individual cases, but in order to get a richer picture of what is actually happening, what sort of data would you say to the MOJ that it should be collecting along with HMCTS?
Genna Telfer: There are two bits that I have already mentioned. There is the attrition data: if section 28 was either refused or may not have been granted, whether that would have resulted in attrition. The second bit is about the longer-term impact: where section 28 is refused and a victim is required to give evidence in court, does that have a negative impact on a victim, as I described? Those would be the key bits.
Chris Hartley: You have to add, in quantifying the number of applications by cohort in terms of section 16 and section 17, whether they are granted or refused, and if they are refused what the reason is. Again it is to build a picture, because part of the picture informs our considerations as well. Then, as you said in terms of outcomes, I think it is how you bring in the personal element, unless you do further evaluations with victims who have given evidence, as regular snapshots, to keep informing the overall picture.
Genna Telfer: Professor Thomas’s next bit of the report about juries will be significant because they will be the ones who can say how they are interpreting that evidence and whether it is effective or not.
Q256 Edward Timpson: Professor Thomas submitted some other suggestions for data collection. I am not going to read them all out, but I will just give you a flavour. Maybe they are things that you would find helpful both in your individual roles and collectively in how we improve the system around the use of section 28.
We have the identification of specific charges where section 28 evidence was used; whether more than one witness provided evidence via section 28, and, if so, which charges were covered by each of the witness’s section 28 evidence; the age, sex and ethnicity of witnesses where section 28 was used; and whether any other special measures were used in the case, and, if so, which ones and which charges they relate to. That seems to me to be all very sensible, but I don’t do your roles, so is that something that it would be helpful to have going forward as a way of evaluating the impact that this is having?
Genna Telfer: Yes, as you said, there is nothing in there that does not sound like common sense. The interesting one is the different special measures that are used together. While we are saying that section 28 is used, if it is also used with potential screening, it almost doesn’t matter that the jury cannot see the screen because the person is screened off anyway. Yes, that all sounds like helpful information.
Q257 Edward Timpson: I was thinking about the other roles that you have. Does that accord with where you would want to have better information?
Chris Hartley: I don’t think you can disagree with those suggestions. I can just see that the logistics of trying to gather that, particularly if it is by offence, are challenging. You cannot say that it wouldn’t be helpful for informing how the ongoing bigger picture has developed.
Genna Telfer: One of the other things that she mentions is the section 28 evidence being played first. The victim’s evidence is the first thing the jury sees, and later they see all the other witnesses. It is whether they have forgotten what they saw at that first point of contact. It would be interesting to know whether that was a factor. It would be within the court’s control to change, potentially, the line-up of how that is done.
Q258 Chair: In many cases, it depends on the section 28 witness, essentially, doesn’t it? You have to do the opening and then you have to call them first in a lot of cases, otherwise you do not set up the events at all.
Looking at where things might be improved going forward, I noticed the CPS evidence, Mr Hartley, taking up the possibility of decoupling the requirement for a section 27 ABE interview from the section 28 process. Perhaps you could expand how that could work in practice.
Chris Hartley: Essentially, if you have the ABE, it is used for the investigative initial evidential purpose. Ultimately, at the point of the section 28, you would seek to combine with the prosecuting advocate to take the victim through their evidence and then you would follow with the cross-examination.
Q259 Chair: You would do both in one day.
Chris Hartley: Potentially, you could do them both in one day, assuming that the victim was able to cope with that.
Q260 Chair: Taking breaks as necessary and so on for the victim.
Chris Hartley: The discussion began because of the likelihood that section 28 would be rolled out for victims of domestic abuse.
Chair: Yes.
Chris Hartley: The logistical position, certainly for the police in conducting so many additional ABE interviews, was significant. It was whether or not it might be possible to start with the witness statement and then, if it was appropriate to apply for section 28, possibly to use the section 28 as part of the evidence-in-chief and align the two as the evidence-in-chief and cross-examination.
Q261 Chair: That would mean that, in effect, they would only have to recount what could be a traumatic experience once, giving both their account and their testimony.
Chris Hartley: Yes.
Genna Telfer: We do not routinely give an ABE interview to all domestic abuse victims. This is probably for Chris to say rather than me, but the impact on the CPS in terms of time could be significant. That would be one way.
Q262 Chair: It probably means you can get the examination in chief rather shorter because you can be more concise.
Chris Hartley: Yes. As has already been pointed out, the investigators are not prosecutors.
Chair: It is not their job to do that.
Chris Hartley: The prosecutor would take the victim through their account in the order that they felt best relayed what had happened.
Q263 Chair: Yes, and that would require a change in the legislation, wouldn’t it?
Chris Hartley: Yes.
Q264 Chair: That is fairly straightforward. Okay. Beyond that, if you are going to use it, you have to invest. Is that a fair point? You have to have kit that is of good quality and working to do justice to it.
Genna Telfer: That is always a fair point. Yes, essentially, we have talked about the technology. The technology is—
Q265 Chair: At the moment, it has its drawbacks. You have to invest in training police officers, certainly in using the ABEs as the evidence-in-chief, as well as some investment in court time and support staff and so on for the witnesses. All of that has to be done.
Chris Hartley: We are seeking to invest and develop a victim transformation programme around not just officers speaking with the victims but, as it comes into the court sphere, around us taking on some of that responsibility and having some of those conversations, which can only better inform our applications.
Q266 Chair: One final point is that I think it is common ground that there is a difficulty sometimes when cases are listed in getting counsel available to deal with them.
Chris Hartley: It is a fair point. Given the volume of cases in the Crown courts at the moment and the volume of trials that the court is trying to list, we face issues across all case types. We find that because a case has overrun and there are too many trials listed, with too few advocates available, we face occasions when we cannot find an advocate.
Having said that, the numbers themselves are few and far between in RASSO cases. I think in the last quarter that reported on the court and effective trial figures, it was something in the order of five occasions across the whole of the court estate in three months. It is not a huge number. If we need to move counsel from what might be seen as a less-priority trial to a priority trial, we try to do that so that our neediest cases get the priority that they deserve so that they can go ahead.
Q267 Chair: The decoupling that you are suggesting might at least make it a bit more manageable in removing at least some, if not all, of the potential obstacles around getting cases listed more quickly.
Genna Telfer: Eventually, it just might move some of the demand around the system.
Chair: Thank you all very much for your time and your evidence today. It has been very helpful to us. If there is anything else that you think you would like to add or any more detail that you would like to give us, we can always receive written submissions. We look forward to the update on what is happening with the changes to practice and the technology. The session is concluded.