As I suspected: "Pre-Recorded Evidence: A Cause for Concern as Conviction Rates in Sexual Offence Cases Decline"

Craig MacKenzie
Craig MacKenzie

Published: January 12th, 2024

7 min

Newly published research suggests that pre-recorded evidence in chief and cross-examation, 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 4,392 cases, involving 4,645 defendants and 28,793 charges.

Key findings

(1) Contrary to suggestions made early on 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, and is the lowest guilty plea rate in the Crown Court.

(2) 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 (1) whether the s28 witness is a child/vulnerable or an adult/intimidated, (2) whether the s28 witness is female or male or (3) whether the offence is a sexual offence or a non-sexual offence.

(3) Rape Offences in particular: 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.

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.

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).

What influences jury decision-making in these cases?

  1. No 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).

  2. 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 witness are likely to appear in person and appear after the witness with all pre-recorded evidence.

  3. Evidence structured differently for s28 witnesses from any other witness. This includes (1) the 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.

  4. Disjointed nature of evidence in chief and cross examination. This may arise for several reasons: because the ABE is primarily recorded for police evidence gathering purposes and not specifically for trial evidence purposes; because the s28 style of presentation and questioning is different from ABE and also different from other in-court cross examination of other witnesses; because the witness is likely to look and sound different in the s28 recording than in the s27 ABE recording given the differences in recording location, set up and time.

  5. Poor quality of pre-recorded evidence. This may apply to both s27 ABE (evidence in chief) and s28 (cross-examination) evidence.

  6. Poor quality of playback equipment in court. This can include 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., and may apply to either or both s27/ABE and s28 evidence.

  7. Inherently weaker cases use s28. 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, and this is what is producing lower jury conviction rates in s28 compared with non s28 cases.

Conclusion

The authors of the research argue that:

"...it would be prudent for the police and CPS to routinely advise witnesses of the lower jury conviction rate when pre-recorded cross examination is used. That way witnesses, especially adult witnesses that would be capable of giving live evidence (either in court with or without screens or via live link), will be empowered to make their own informed decision about which if any special measures they require and wish to use in order to give their evidence."

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