REGINA v A

Where the statutory commencement arrangements make video-recorded cross-examination under section 28 available only to witnesses eligible under section 16 of the Youth Justice and Criminal Evidence Act 1999, a witness who has reached 18 when the special-measures determination is made is not eligible on grounds of age. Section 22 preserves video-recorded evidence in chief for a qualifying witness, but it does not make section 28 available.

An erroneous section 28 direction is a procedural irregularity. It does not by itself render a conviction unsafe. Pre-recorded cross-examination is not inherently unfair where safeguards protect effective testing of the evidence. Ground-rules directions may adjust the form of questions to a vulnerable witness if they do not prevent relevant cross-examination or compromise the defence challenge.

The appellant was convicted in the Crown Court at Snaresbrook of two counts of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The complainant, who was 16 when her ABE interview was recorded, was 18 when the prosecution applied to pre-record her cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999.

The trial judge permitted the section 28 procedure and, at a later ground-rules hearing, required limited amendments to proposed defence questions. The appellant contended that section 28 was unavailable and that the questioning restrictions made his convictions unsafe. The central issue was whether either matter affected the safety of the convictions.

1. Appeal dismissed. The court held that the trial judge had erred in permitting the complainant’s cross-examination to be pre-recorded under section 28 of the Youth Justice and Criminal Evidence Act 1999.

2. Eligibility under section 16(1)(a) depends on the witness being under 18 when the court makes the special-measures determination. The complainant had reached 18 by that time. Although she was a qualifying witness under section 22 because her interview had been recorded while she was under 18, that provision extended the primary rule only to admission of the recording as evidence in chief under section 27.

3. Neither section 21 nor section 22 made the complainant eligible under section 16, nor did either provision make section 28 available. The phrase concerning evidence given otherwise than by video recording in section 21(3)(b) did not enlarge the measures available under section 18. The relevant commencement order restricted section 28 at Snaresbrook to witnesses eligible under section 16.

4. That error did not make the convictions unsafe. The improper use of section 28 was a procedural irregularity, not an automatic invalidation of the proceedings. Pre-recorded cross-examination is not inherently unfair to a defendant. The defence had identified no prejudice from using the procedure, and the jury were correctly directed that the recorded evidence had the same status as evidence from the witness box.

5. The ground-rules directions were also unobjectionable. They did not prevent cross-examination on any relevant defence topic. The amendments were proportionate adjustments to wording and form, and did not impair the appellant’s ability to challenge the complainant’s evidence. The jury were directed that the limited manner of questioning did not reduce the extent to which her evidence was disputed.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2022] EWCA Crim 988.
• Crown Court at Snaresbrook — the appellant was convicted of two counts of sexual assault and sentenced to 10 months’ imprisonment, suspended for two years.