Pre-recorded Evidence in Sexual Offence Cases

Newly published research suggests that pre-recorded evidence in chief and cross-examination often referred to as Section 28 evidence, may be more advantageous to the accused than live evidence given in court before a jury. Conviction rates are reported to be 10% lower when this type of evidence is used (and up to 20% lower in rape cases).

In the 7-year period June 2016 -June 2023, s28 recordings were used in 4392 cases, involving 4645 defendants and 28793 charges.

Key findings

(1) Impact on plea

Contrary to suggestions made early in the piloting of Section 28, the existence of a s28 recording does not lead to more guilty pleas. In fact, a s28 recording is associated with fewer guilty pleas. The guilty plea rate in s28 cases in 2016-2023 was 10%. This represents the percentage of guilty pleas on all charges in all s28 cases.

(2) Impact on conviction rates- all offences

The overall jury conviction rate on charges where s28 evidence was used is 61%. This shows that juries convict more often than acquit when s28 evidence is used. This analysis demonstrates that the view expressed in the ‘2023 MoJ s28 Process Evaluation’ that it would be impossible to know whether s28 evidence impacted juror decision-making or outcomes is incorrect.

The jury conviction rate was almost 10% lower when s28 evidence was used (61%) compared to when it was not used (70%), and the hung jury rate was 3 times higher with s28 (2.3%) than without s28 (0.7%).

This lower conviction rate is regardless of whether:

• the s28 witness is a child/vulnerable or an adult/intimidated;
• the s28 witness is female or male; or
• the offence is a sexual offence or a non-sexual offence.

(3) Impact on conviction – rape offences

Jury conviction rates when s28 evidence is used in rape cases are substantially lower for all types of rape offence, whether for adult rape offences or child rape offences.

In most instances, the jury conviction rate for rape offences is 20% lower when the complainants’ cross examination is pre-recorded compared to when the complainant’s cross examination is not pre-recorded.

What the findings tell us

The findings that jury conviction rates are consistently and substantially lower for all offences when s28 evidence is used is very strong correlational evidence that juries experience pre-recorded cross examination differently than they do other forms of live cross examination.

Some possible influences on jury decision-making in these cases

The lower jury conviction rates with s28 suggest an “inequality of arms” between the main prosecution witness and defence witnesses in cases with s28 pre-recorded cross examination. That is likely to be especially the case between the defendant and the main prosecution witness if the defendant chooses to give evidence live in a s28 case while all of the main witness’s evidence has been pre-recorded (evidence in chief recorded under s27 and cross-examination/re-examination pre-recorded under s28).

Other factors may include:

• The lack of comparability between main prosecution witness and other witnesses including the defendant. The s28 witness is likely to be the only witness in a case where no evidence is presented live to the jury (either in court with or without a screen or via a remote link).
• The timing of the main prosecution witness evidence. The evidence of the main witness for the prosecution is presented first; it is the first evidence a jury will see/hear; it will all be presented by video playback (twice). All other witnesses are likely to appear in person and appear after the witness with all pre-recorded evidence.
• The evidence structured is differently for s28 witnesses from any other witness. This includes s27 ABE evidence in chief recording that has to serve a dual purpose of an investigative tool for police at the start of a case and evidence in chief to a jury at the end and (2) often more limited and formalised cross examination when s28 is used.
• The disjointed nature of evidence in chief and cross examination. This may arise for several reasons including, for example, the ABE is primarily recorded for police evidence gathering purposes and not specifically for trial evidence.
• The poor quality of pre-recorded evidence. This may apply to both s27 ABE (evidence in chief) and s28 (cross-examination) evidence.
• The poor quality of playback equipment in court including poor audio (necessitating written transcripts for the jury and resulting in the jury looking at the transcript and not the witness), screens too far away, images too small within screens, etc.
• It is also a possibility that s28 is used in cases where the evidence needed for conviction is weaker than in cases that do not use s28.

Conclusion

The authors of the research argue that the police and CPS should routinely advise witnesses of the lower jury conviction rate when pre-recorded cross examination is used. This would enable witnesses (especially adult witnesses capable of giving live evidence whether in court with or without screens or via a live link) to make an informed decision about which, if any, special measures they use to give evidence.

How we can help

We have over 30 years’ experience of criminal defence work and we ensure we keep up to date with any changes in legislation and case law. This means that we are always best placed to give our clients the best possible advice to advise.

If you would like to discuss any aspect of your case, please contact Tarsem Salhan on 0121 605 6000 or at tsalhan@salhan.co.uk.