Section 28: Pre-Recorded Cross-Examination for Vulnerable Witnesses

Cross-examination is often the most traumatic part of giving evidence in court — especially for victims of sexual offences, child witnesses, and people with communication difficulties. Until 2014, all witnesses had to be cross-examined at trial, in front of the defendant (via screens or video link if special measures applied, but in real time at the trial date).

Section 28 of the Youth Justice and Criminal Evidence Act 1999 — implemented progressively from 2014 — provides an alternative: pre-recorded cross-examination. The witness is cross-examined weeks or months before the trial date. The recording is played at trial. The witness usually does not have to attend the trial itself.

Benefits:

• The witness gives evidence while events are fresher in memory.
• Less waiting and uncertainty.
• The witness can move on with their life without the trial date hanging over them.
• The court has full evidence regardless of changes in witness availability later.

The Special Measures Direction (under section 19 of the Act) covers all the relevant adjustments including screens, video link evidence-in-chief, intermediaries, and pre-recorded cross-examination.

Section 28 applies to witnesses who are eligible under sections 16 and 17 YJCEA 1999:

• Section 16: children under 18 (mandatory eligibility) and adults whose ability to give evidence is likely to be diminished by mental disorder, learning disability, or physical disability.
• Section 17: witnesses whose evidence is likely to be diminished by fear or distress (intimidated witnesses). This category includes:
  • Complainants in sexual offences (automatically considered).
  • Witnesses in cases involving guns, knives, or organised crime.
  • Witnesses to domestic abuse.
  • Anyone the court considers will be affected by fear or distress.

Rollout timeline:

• 2014 onwards: child witnesses (section 16).
• 2020-2022: extension to vulnerable adult witnesses in violent and sexual offence cases.
• 2024: rollout to adult complainants in sexual offence cases at 75% of Crown Court centres.
• 2025-2026: nationwide for sexual offence complainants.

For witnesses who fall outside section 28 eligibility, other special measures are available — screens, live video link, removal of wigs and gowns, restrictions on cross-examination by defendants in person.

Process:

1. The prosecution applies for a Special Measures Direction including section 28.
2. The defence has a right to be heard on the application — the court decides whether section 28 is in the interests of justice.
3. If granted, a Ground Rules Hearing is held with the judge, prosecution, and defence — to agree the questions, ground rules, and any necessary adaptations.
4. The recording happens weeks or months before the trial. The witness attends a special facility (often a designated remand court or witness facility with video equipment).
5. The defendant watches by live link from a remote room. The defendant cannot be seen by the witness during the cross-examination.
6. The prosecution barrister asks initial questions; the defence barrister cross-examines; the prosecution may re-examine.
7. The judge supervises the questioning — limiting inappropriate or oppressive lines, allowing breaks, ensuring intermediary support if needed.
8. The recording is sealed and stored. At trial, it is played in court for the jury.

For witnesses with communication difficulties (children, learning disabled, autistic, mental health conditions), an intermediary may be appointed. Intermediaries are registered with the Witness Intermediary Scheme:

• They are not advocates for either side.
• They assess the witness's communication needs.
• They help the witness understand questions and convey answers.
• They advise barristers and the judge on appropriate question style, pace, and breaks.
• They are present during ABE (Achieving Best Evidence) interviews and section 28 recordings.

Other support measures often used alongside section 28:

• Court familiarisation visit before recording.
• Witness service support before, during, and after.
• ISVA/IDVA support throughout the process.
• Reasonable adjustments for disability under section 19 (e.g. sign language interpreter, support animal where assessed appropriate).

Section 28 is not a complete solution:

• Recording delays — recording is meant to happen well before trial but in practice often happens months before. The witness still waits.
• Re-call risk — the witness can be re-called at trial if substantial new issues arise. Rare but possible.
• Cross-examination quality — defence barristers say it is harder to prepare without seeing the full prosecution case develop. Some argue this disadvantages defendants.
• Variable judicial approach — the Ground Rules Hearing depends on the judge's commitment to special measures. Pilots in 2020-2022 showed variable practice.
• Coverage gaps — not yet available in all Crown Court centres for adult sexual offences. Check the local Crown Court via the Witness Intermediary Scheme.

Despite the limits, section 28 has measurably reduced witness drop-out rates and improved evidence quality in eligible cases. It is one of the most significant procedural reforms of the past 20 years for victim experience.