R v Ben Mason

Use of recorded evidence and pre-recorded cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999 does not of itself impair a defendant’s right to a fair trial. The arrangements must maintain a proper balance between the needs of a vulnerable child witness and the defendant’s rights.

Fairness depends on the safeguards and evidence in the individual trial. A jury may fairly assess reliability where it sees the child’s interview and controlled cross-examination, receives admissions material to the defence, and is properly directed about the limits of questioning. Directions must also make clear that the prosecution bears the burden of proving every element of each offence.

The applicant was convicted at Guildford Crown Court on 19 June 2021 of five sexual offences against a child under 13. The prosecution relied principally on the child’s recorded police interview and pre-recorded cross-examination under section 28 of the Youth Justice and Criminal Evidence Act 1999.

He renewed an application for permission to appeal against conviction, seeking an extension of time. He contended that restrictions on cross-examination made the trial unfair, that the jury direction on those restrictions was inadequate, that the evidence lacked sufficient safeguards and reliability, and that the summing-up conflated the burden of proof. The central issue was whether the section 28 procedure and the directions rendered the convictions unsafe.

1. Application refused. The court held that the applicant had received a fair trial and that none of the proposed grounds was arguable. It also refused an extension of time because granting one would serve no purpose.
2. Section 28 arrangements permit a child’s evidence and cross-examination to be recorded and played to the jury. They do not inherently undermine fairness. The governing requirement is a proper balance between the vulnerability of the child witness and the defendant’s fair-trial rights, consistently with R v YGM [2018] EWCA Crim 2458 and R v PMH [2018] EWCA Crim 2452.
3. On the facts, the jury saw both the child’s police interview and the recorded cross-examination conducted by defence counsel before a judge. Admissions placed before the jury covered material relevant to the defence case that the child had lied, fabricated stories and sought attention. The jury were also reminded that the child had made no allegation of sexual activity when questioned in 2017 about indecent images. The applicant identified no omitted question or topic that had not been covered by cross-examination or by other means.
4. The direction requiring the jury to bear in mind the limits imposed on cross-examination by the child’s age was proper and adequate. The asserted absence of procedural safeguards was factually unsustainable, particularly given the recordings, admissions and other evidence. The judge had repeatedly and clearly directed that the prosecution bore the burden of making the jury sure of every element of every count.

• Court of Appeal (Criminal Division) — refused the renewed application for permission to appeal against conviction and the application for an extension of time.
• Crown Court at Guildford — on 19 June 2021, a jury convicted the applicant of five sexual offences against a child under 13.