Written evidence submitted by the Victims Commisioner for England and Wales (PRE0022) 

About the Victims’ Commissioner   

The Victims’ Commissioner for England and Wales is dedicated to promoting the interests of victims and witnesses.  

The role of Victims’ Commissioner is set down in the Domestic Violence, Crime and Victims Act 2004[1] 

•                   promote the interests of victims and witnesses;   
•                   take such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses;   
•                   keep under review the operation of the code of practice issued under section 32  

The Commissioner is appointed by Ministers but is independent of government.   

Summary 

I was appointed on 16 October 2023 for 12 months. I am committed to representing all victims and witnesses and have a particular focus on those who are most vulnerable. I am committed to make sure the voice of the victim is heard in all policy and practice across the criminal justice system.   

In this submission I will limit my answer to questions in the terms of refence which relate specifically to victims and victim experience.  

Responses  
  

•       Every aspect of the practical operation of section 28, including the role of the police, the Crown Prosecution Service, legal representatives and the judiciary;  

•       The quality of technology used to operate section 28, and how this could be improved;  

I will answer this set of questions together. Overall, I am in favour of section 28 being available to all vulnerable and intimidated witnesses who want it. I am concerned to hear about the ongoing issues with some of the technical and logistical aspects of section 28.  

I am keen to read the Government’s impact assessment and the research on section 28 and trial outcomes being undertaken by Professor Cheryl Thomas (see below). If, as evidenced to this inquiry by witnesses in the session on 26th June 2023[2], either of those pieces of research do demonstrate a potential disadvantage to victims utilising section 28, I believe the Government should work on improving the scheme rather than abolishing it (see below). 
 

As I do not work directly with victims, I have limited information about the operation of section 28 in practice. I have heard anecdotal evidence, much of which the Committee will have heard, that there are issues in the respect of the technical aspects of Section 28. There also remain issues with listings, availability of barristers to undertake the hearings and renumeration levels of the same.  

The Committee will be aware that the Government has previously undertaken two process evaluations of Section 28, one in 2016[3] which focused on vulnerable witnesses and one more recently in 2022[4] which evaluated the roll-out of Section 28 for intimidated witnesses. Published in April 2023, the latter evaluation comprised of interviews with 42 individuals, 29 practitioners and 13 witnesses. Of these 13 witnesses, 11 had given evidence via Section 28. Whilst it is true to say that this is a small sample size, given the qualitative nature of the research it is still valuable. It is also reflective of the small cohort of victims eligible for Section 28, and that this cohort may have been inherently reluctant to discuss their experience of giving evidence due to fears of re-traumatisation. It is nonetheless demonstrative of the gap in evidence regarding the experiences of victims and witnesses who give evidence via Section 28. 

The Government’s Process Evaluation[5] spoke to a limited number of advocates and court staff who believed Section 28 has had a negative impact on scheduling and court listings due to the additional hearing, replaying the cross-examination at trial and a requirement for the same judge and advocates to be available at all hearings.   

Police officers interviewed as part of the evaluation ‘had mixed feelings over whether their workload had increased due to Section 28, with some describing an increase and others believing it had stayed the same. Some police officers said that, although the amount of work they did was the same, it had to be completed at an earlier point than in non-s.28 cases because of the earlier cross-examination'.  

The CPS lawyers also cited an increase in their workload, but this was again primarily at the start of the process when preparing the case for the earlier cross-examination, particularly ensuring that disclosure is completed in time.   

Overall, the impression police and CPS lawyers gave was that at the current levels the front-loaded nature of section 28 and associated workload was manageable, but that increased numbers of such hearings may quickly result in unmanageable workloads.   

Most of the court staff noted an increase in workload, though some thought it was manageable. Section 28 was associated with increased administrative burden such as booking court rooms. The systems used to do this were described as labour intensive.  

The technology was reported as reliable in the evaluation, however witnesses to this inquiry[6] did state a number of issues with the way in which section 28 is carried out with legal practitioners stating that the recordings are often unclear, facial expressions and nuance are lost, not least as witnesses are often sat some distance from the camera. Most witnesses are ill-equipped to provide evidence ‘face to camera’ whereas in a court room they will be told to direct answers to a jury. 

The legal practitioners also outlined issues with the ABE (achieving best evidence) interview being used as a witness’s evidence in chief, not least that police officers conducting these interviews have a different strategic aim to the one a trial advocate would have. This means that these recordings often have to be edited, which can interrupt the natural flow of the witness’ evidence. They suggested that all of these issues amount to a lack of parity between the defendant who will nearly always give live evidence at their trial and is, as such, able to build greater rapport with the jury compared to the victim/ witness who can seem removed and is unable to give his or her best evidence. 

This echoes research undertaken by my office and published under the previous Victims’ Commissioner.[7]   

As part of the review, researchers conducted a survey of Crown Court judges and magistrates about special measures and figure 1 shows their response to the question, "in this sub-group of trials in which special measures are used, how often are the following special measures used?" 

Figure 1 Proportion of respondents who answered 'Always or almost always' or ‘Often 

As you would expect given the timing of the research (during Covid and before roll-out began in earnest) section 28 is infrequently used.  

During the course of the research on special measures researchers became aware that there appeared to be a bias amongst some judges and magistrates against the use of video evidence. Researchers were told by witness service staff that they were conscious that some victims and witnesses who were entitled to use pre-recorded video evidence or a live link, were being discouraged from doing so. 

Sometimes the opinions of others about how witnesses are perceived by the jury when giving evidence on live link, negatively impacts whether the witness wishes to use live link, even when they would really like to and this would be the best way for them. 

Witness Service staff member 

This experience was also relayed by victims who reported that they were persuaded that their testimony would be more effective if they gave their testimony in person, rather than via a video link. 

 I was advised NOT to have any measures in court (like a screen etc) as I was told juries prefer to see you fully. I also made a 3 hour video statement so I didn't have to take the stand in court. My judge didn't want to play the video (he thought it was too long) so I was made to take the stand. 

Victim of Rape 

Our data suggests that there may be a belief amongst the judiciary, magistracy, police and CPS that that witnesses and victims are more authentic and believable if they present their testimony in person, without the use of video.  Judges made a number of spontaneous comments in the survey to this effect. For example: 

The evidence of a witness in the courtroom always has more impact, and more human reality, than a face on a screen. That is human nature. 

Crown Court Judge 

The survey suggested that despite most judges believing that the presentation of evidence via a live link or being pre-recorded makes for a better experience for victims and witnesses, some also hold concerns that providing their evidence in this way makes it difficult for the jury to empathise with them. It was noteworthy that, while 42% of Crown Court judges felt that ABE interviews were very effective in lessening witnesses’ anxieties around giving evidence, only 26% felt they were very effective in achieving best evidence.

The judges’ spontaneous comments suggested that this is in part because they may appear, and indeed physically be remote from the court room. This can be thought to make their testimony less emotional and that it will have less impact that in-person testimony. This judge also alludes to an unfairness in relation to the defendant, who has to appear in person: 

I believe that many witnesses communicate better with screens than over a live link. What they do not understand is the impact that these measures have on the quality of their evidence and their overall credibility. They appear remote, particularly via the link, and juries find it difficult to empathise with them. They also appear to be seeking unwarranted protection, which is in marked contrast to the defendant who has to sit in the dock for the whole trial and almost never gets special measures, if when they are entitled to them. No. My main concern is that special measures often reduce the impact of a witness's evidence. 

Crown Court Judge 

Some judges’ felt that video evidence obscures the victim’s and witness’ evidence as the jury are not able to get a sense of the person providing the evidence which makes them less believable. One or two suggested that due to the size of the screen and the quality of the picture, appearing over a video can make it difficult to read and interpret body language. Which was also evidenced by legal practitioners to this inquiry[8] (above). 

How can the most important prosecution witness be properly assessed when the jury have to squint at the screen? Video recorded evidence means jury see the witness on a small screen at a distance, the pace of the evidence is wrong. It doesn’t give the jury the chance to concentrate on the important parts of the evidence. They don’t get a 'feel' for the witness in the same way as when the witness is traditionally examined in chief by a person who has prepared step by step questions to enable the evidence to come out in a chronological flow. 

Crown Court Judge 

An unpublished literature review conducted by my office in autumn 2021 (in part in response to this evidence) analysed several research studies[9] that considered the effect of different methods of delivery of victim testimony on juries. 

The conclusions drawn from that review were: 

•       There is no compelling evidence that the use of pre-recorded evidence or live-links, whether by child or adult witnesses, has a significant effect on verdicts in criminal trials. 

•       In respect of child witnesses, individual jurors may harbour a preference for evidence delivered live and in person. However, the evidence suggests that this preference does not translate in any consistent or reliable way into collective verdict outcomes. 

•       In respect of adult witnesses, the evidence base is significantly more limited, but relatively robust studies, in Australia and England, indicate that the use of pre-recorded evidence or live-links by adult female rape complainants does not significantly influence (mock) jurors’ evaluations and verdicts. 

•       The position in respect of adults in other trials is less clear, and requires further investigation, but there is not as yet compelling evidence of a verdict impact when jurors’ views are situated within collective deliberations.  

There is one study worth detailing here, not least because unlike the others it was conducted in this jurisdiction: ‘A ‘Special’ Delivery? Exploring the Impact of Screens, Live-Links and Video-Recorded Evidence on mock Juror Deliberation in Rape Trials: Louise Ellison and Vanessa  Munro’ (2013)[10] 

This study, based in England, used 160 volunteers to observe the reconstruction of a rape trial. The trial was not based on a real case but comprised many of the elements that often occur in contested rape cases. The parties had previously been in a relationship and when the man came to collect some of his belongings, they had some wine and then the woman alleged that the man attempted to have sex with her and, when she refused, he raped her.

The ‘trials’ used a number of methods of presentation: a live television link; a screen; a video-recording of the pre-trial interview with the police and cross-examination conducted via a live link; and the witness also appeared in person with no special measures. The video evidence was recorded using achieving best evidence (ABE) guidelines. The jury deliberations were recorded and analysed using qualitative methods.  

There was some evidence that not being present in the courtroom may have influenced the credibility of the witness for a small number of jurors, but there was limited evidence that it had any major impact once the jurors had deliberated. The researchers concluded there was ‘…no predictable or consistent influence associated with divergent modes of testimony delivery in adult rape cases.’

The researchers suggested concerns over special measures might be overstated. 

There are obvious limitations with the research to date, not least that it has not been undertaken with real juries, but it does not show a direct link between outcomes and method of evidence delivery.  I assume Prof. Thomas’s research will explore this in more detail.

It cannot be disputed that there remain some technical and logistical issues with the delivery of section 28 which must be dealt with as a priority.  

I am broadly supportive of the Law Commission’s recommendation in their consultation on Evidence in Sexual Offence Prosecutions[11]: that where there is no ABE or the quality is poor, both evidence in chief and cross-examination should be pre-recorded at the same time in one hearing. I would go further and suggest that where section 28 is being used, this should become standard practice to give the victim/witness the best possible chance of giving their best evidence.  

This slight delay from the police-conducted ABE interview to the day of recording trial evidence with court advocates could also allow for some ‘‘guidance’ that answers should be directed straight to the camera, so it looks like answers are being directed to a jury. Additionally, this would allow rooms used for this purpose to be set up to produce a better recording of evidence which is intended for a court room.  One example could be that the camera is placed nearer to the victim/witness.   

It is important victims/witnesses are given options, including pre-recorded cross examination, designed to minimise the trauma of the trial as much as possible. Equally important is that they are able to give their very best evidence. 

•       The effect of the use of section 28 on the experience of vulnerable and intimidated witnesses, victims, defendants and juries;  

There is currently a dearth of robust research into how the roll out of section 28 is working in practice. In particular, research into the effect of the use of section 28 on the experiences of victims and witnesses is limited.  

There are two evaluations in train, one is an impact assessment being undertaken by the Ministry of Justice (MOJ) which is expected to be published around Easter 2024, the second which was due to be published in September this year is being undertaken by Professor Cheryl Thomas KC, the Committee heard an outline of this research directly from Prof. Thomas in the evidence session on 26th June 2024[12].  

The Government’s evaluation[13] found that rape victims who pre-recorded their evidence were more likely to have a better experience of the court process. Perceived benefits included finding the experience less intimidating, having a better recall of events, knowing exactly when they will need to give evidence and being able to access services such as therapy once this has done. However, these perceived benefits were not universal and often had caveats attached.  

For example, one witness interviewed for the evaluation reported that they were not given the option to meet their barrister in advance of the cross-examination, despite CPS guidance setting out an expectation that barristers should meet with witnesses in advance. This led to a situation where they met their barrister and the judge together for the first time on the day the cross-examination took place. They reported finding this “very overwhelming” and, as a result, they were “not paying attention whatsoever”.  

Witnesses interviewed for the evaluation also reported they were offered very limited information about the process of giving evidence or attending court, either from police or victims’ support organisations.  

Further to this, despite one of the perceived benefits of section 28 being the ability to access support services earlier, participants in the evaluation reported low levels of involvement with support organisations. Victims have a right under the Victims’ Code to be told about and referred to support services by the police when they report the crime.  However, some participants in this evaluation report being told by police that support was often not available in their case even when they had requested it.  

The evaluation also found the most important factor for victims and witnesses when choosing section 28 was the separation from the defendant and courtroom when giving evidence – however, participants reported they were not told the defendant would be able to watch their cross-examination in court during the trial. None of the participants were made aware they could apply for other special measures in tandem with section 28, such as screening during their cross-examination to prevent them from being seen by the defendant, or the removal of gowns and wigs. This suggests victims are not being properly informed about their rights or given the opportunity to make their experience as unintimidating as possible.  

These findings show that, section 28 can have a positive impact on the experiences of victims and witnesses when giving evidence, yet there are still a number of gaps that need to be filled.  

Crucially, I am disappointed to hear victims did not feel they were given enough information about how their evidence would be given in the court room i.e. that the defendant would be able to see them.  

In March 2016, during my previous term as Victims’ Commissioner, I published “What Works in Supporting Victims of Crime: a rapid evidence assessment”[14]. This review collated the international evidence on what works to support victims as they journey through the criminal justice system and beyond. It provided an assessment on the provisions that should be in place in order to deliver a beneficial service for victims.  This report concluded that victims placed as much weight on procedural justice (being treated with respect, having information shared with them and processes properly explained etc) as getting a guilty verdict.

With this in mind, I want Government and CJS agencies to make sure victims are properly informed about all aspects of the court process and the options available to them so they can make informed choices about how they deliver their evidence.  

Research to be published by the University of Nottingham suggests some witnesses who would have been eligible for section 28 decided not to go down this route as they wanted to avoid the ‘double trauma’ of a section 28 hearing and the trial itself where they may not be giving evidence but would still experience the anxiety of waiting for the verdict.  

There is also anecdotal evidence that trial listings are not being expedited where section 28 evidence is being used (see below).  Although I understand the current pressure on court time, this is unacceptable. Given the nature of the alleged crimes and the trauma experienced by the victims, I want to see these cases being given fixed trial dates with waits kept to a minimum, regardless of whether section 28 is used or not. Allied to this, it is vital victims/ witnesses are kept informed and given realistic information about timeframes.  

•       The level of use of section 28 before and since its roll-out, and the extent of up-take for cases which are eligible; 

•       The effect of the use of section 28 on the number of cases brought to trial, and on the outcome of cases; 

There are a number of issues with criminal justice data and section 28 is no different. Government has recently started publishing quarterly data[15] on trials conducted with section 28 evidence (see below) but this tells us very little about eligibility and uptake. I hope that the impact assessment will provide more detailed data so we can understand who is eligible and who is using section 28. 

There is even less evidence on the impact of the use of section 28, especially since the roll-out of section 28 to include intimidated witnesses. The Government did publish a process evaluation in 2016[16] of the pilot of pre-recorded cross-examination, which provided some limited data on the effect on trials. This process evaluation showed trials involving section 28 were slightly shorter and were less likely to ‘crack’. The evaluation also showed the use of section 28 resulted in a higher prevalence of early guilty pleas, meaning sometimes the victim did not have to go to trial at all. 

Overall, however, there is simply not enough up-to-date evidence to be able to answer this question effectively. As we will discuss in answer to the later question, ‘How to improve the data available on the use of section 28’, the only data metric currently collected is the number of witnesses who have given evidence via section 28. The scope of this metric is witnesses, not cases – therefore it is extremely difficult, perhaps redundant, to try to use this metric to make any estimation of the effect of the use of section 28 on cases being brought to trial.  

There is anecdotal evidence that cases involving section 28 evidence are actually taking longer to get to court, because court listers – who are under pressure to clear as many cases as possible – do not see these as high priority cases due to evidence already being secured. There is also a suggestion that section 28 is not having as positive an impact on witness attrition, in part because of the excessive delay in getting to court. We seem to have lost sight of one of the potential benefits of section 28, namely speeding up the process of securing an outcome. This is important to most victims but particularly those who have suffered the trauma of sexual violence.   

Section 28 can have a positive impact in terms of quickening the decision about whether or not a case will reach trial. In cases where section 28 is used, trials may collapse after pre-recorded cross-examination because complainants are seen to perform so well that defendants reconsider their plea options or so badly the prosecution decide to bring proceedings to an end. Whilst the latter may not result in the outcome that victims want, they are at least spared the anxiety of waiting to hear whether their case will get to trial and then waiting for a verdict.  

As above, I know that Professor Cheryl Thomas has been conducting research on this point and look forward to reading these findings in due course.  

•       What effect the use of section 28 has had on listing, capacity and delays in the Crown Court; 

•       The availability of barristers to act in cases where section 28 is used;  

•       How to improve the data available on the use of section 28 

We know there is almost no data collected on the use of section 28. The only metric currently available via the Criminal Justice Delivery Data Dashboard is ‘Witnesses giving evidence via Section 28’[17]. This metric is unhelpful as adult rape cases are tracked by cases rather than witnesses involved. Theoretically, all witnesses recorded as having given evidence via section 28 during a certain time period might have been attached to just one case. It is therefore very difficult to gain an accurate picture of the prevalence of section 28 using the existing data.  

Additionally, this metric is flawed in the way it records the timeliness of the use of section 28. For example, the most recent statistics show that 139 witnesses gave evidence via section 28 during Q2 2023. However, there is an important caveat to this data – the evidence itself was not recorded during Q2 2023, rather the evidence was used at a hearing that took place during this quarter. Whilst this is still useful information to have, it would be more helpful to record data showing when the evidence was pre-recorded, to allow for analysis of whether the use of section 28 has any impact on timeliness of adult rape cases. We know rape cases are taking, on average, more than a year and a half from charge to trial, with many taking in excess of 2 years[18] so we would expect that these numbers would increase over time to reflect the roll-out as more trials are conducted with section 28 evidence.  

At the very least, I would recommend collecting data on the following metrics:  
 

• How many vulnerable and intimidated witnesses are eligible for     special measures, including Section 28.  

• How many were told about their right to access special measures, including Section 28.  
•                   How many decided to apply for Section 28.  

•                   How many were granted their application.  

•                   If applicable, when the Section 28 hearing took place.  

•                   When the trial took place.   

Under the Victims’ Code, all victims have the right to have their needs assessed by the police or Witness Care Unit to determine whether they are eligible for special measures. Collecting data on the size of the cohorts of eligible victims/witnesses and on the numbers of individuals who were told about their right to access special measures is a key means of measuring compliance with the Victims’ Code.  

Collection of this data is subject to police recording practices, which has historically been inconsistent in quality. I recommend training to improve recording practices, with a specific focus on recording of Victims’ Code metrics. I would also like to see evidence of work by MOJ to capture these data sets as part of the new Victims’ Code metrics that are currently in development.  

Given section 28 is one of several special measures that victims can apply for, it would be useful to see data on special measures disaggregated by type of special measures applied for.   

I believe availability of advocates to undertake both section 28 hearings and trials is a problem. In their recent report on the courts backlog[19] ‘Breaking Point’, Rape Crisis England and Wales outlined the issues faced by the court system in respect of rape trials. Barristers cite poor renumeration, low morale and sub-optimal working conditions as key reasons for leaving criminal practice. In addition, fewer trainees are coming through the system due to these unattractive conditions. 

Additionally, despite the Government pointing to its recent judicial recruitment drive as an example of actions taken to tackle the courts backlog, we know judges are generally appointed from this already small pool of Counsel, meaning that the recruitment drives are depleting the already insufficient pool of criminal law barristers. 

I want the Government to prioritise making criminal legal work an attractive proposition for trainees, with working conditions and renumeration packages that are sufficient to recruit and retain enough trainees to ensure our criminal justice system can operate effectively.  Section 28 can have a positive impact for victims and witnesses, but all aspects of the system need investment to ensure a joined-up, functioning criminal justice system. 

•                    How the operation of section 28 could be improved 

As stated elsewhere in this submission, the Government should give consideration to an ‘evidence hearing’ which deals with both evidence in chief and cross-examination where a victim/witness is granted pre-recorded cross examination. This hearing should take place in addition to the police-conducted ABE video, which are not conducted with trial in mind, allowing the evidence in chief which is presented at trial to be more coherent and focused. 

The Government must ensure the technology used in these hearings is fit for purpose, so that the jury can properly see and hear the witness. Consideration should be given to how evidence is captured for example the witness should be seated close to the camera, as it is vital the jury can see the witness’s facial expressions. The equipment used to play witness evidence to the jury must also be fit for purpose, with large enough screens placed in close proximity to the jury so that they can fully see and hear the evidence.

The Government must ensure that there is robust data collection around use of section 28 to ensure that we can understand who of those eligible is using this measure.  

The Government and Criminal Justice agencies need to prioritise clear and realistic communication with victims’ so that they can make informed decisions. 

Upon publication of the research currently being undertaken by Prof. Thomas and the MOJ, Government must undertake further consultation with stakeholders to better understand how section 28 could be improved.   

 December 2023