​Updated Guidance on the use of S.28 Youth Justice And Criminal Evidence Act 1999

Catherine Duffy

Pre-recording of cross-examination and re-examination for witnesses captured by S.17(4) YJCEA 1999

On 27th September 2017 the Lord Chief Justice issued updated guidance on the use of s.28 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), pre-recording cross-examination and re-examination of witnesses.

Practitioners in Leeds will now be familiar with the use of section 28 YJCEA 1999 proceedings for vulnerable witnesses.

S.28 will be available for the purpose of proceedings taking place in Leeds, Kingston and Liverpool Court where the witness is eligible under s17(4) of the YJCEA 1999.

Section 17(4) provides that the following witnesses are eligible for special measures:

1. complainants in respect of a sexual offence; or
2. complainants in respect of an offence under sections 1 or 2 of the Modern Slavery Act 2015.

The updated guidance is a MUST READ for all those conducting s28 YJCEA cases.

Duties of the advocate

In the guidance there is again an emphasis that the defence advocate must ensure that he/she is available for both the ground rules hearing and the hearing under s.28. The guidance states that “continuity at trial is obligatory except in exceptional circumstances”.

“Advocates: It is the responsibility of the defence advocate, on accepting the brief, to ensure that he or she is available for both the ground rules hearing and the hearing under s.28; continuity at trial is obligatory except in exceptional circumstances. The judge and list office will make whatever reasonable arrangements are possible in order to achieve this, assisted by the Resident Judge where necessary.

37. When the timetable for the case is being set, advocates must have their up to date availability with them (in so far as is possible). When an advocate who is part‐heard in another trial at a different Crown Court centre finds themselves in difficulties in attending either the ground rules hearing, the s.28 hearing itself or the trial where s.28 has been utilised, they must inform the Resident Judges of both courts as soon as practicable. The Resident Judges must resolve any conflict with the advocate’s availability. The starting point should be that the case involving the s.28 hearing takes priority. However, due consideration should also be given to custody time limits, other issues which make either case particularly complex or sensitive, high profile cases and anything else that the judges should take into consideration in the interests of justice.”

The updated guidance can be found in the link below.

Guidance on the use of S.28 Youth Justice And Criminal Evidence Act 1999; Pre-recording of cross-examination and re-examination for witnesses captured by S.17(4) Yjcea 1999