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Newly published research suggests that pre-recorded evidence in chief and cross-examination, often referred to as “section 28 evidence”, may be more advantageous to the accused that 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 4392 cases, involving 4645 defendants and 28793 charges.

Key findings of the research

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 section 28 cases in 2016 to 2023 was 10%. This represents the percentage of guilty pleas on all charges in all pre-recorded evidence cases, and is the lowest guilty plea rate in the Crown Court.

The overall jury conviction rate on charges where this evidence was used is 61%. This shows that juries convict more often than acquit when this evidence is used. This analysis demonstrates that the view expressed in the 2023 Ministry of Justice section 28 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 pre-recorded evidence was used (61%) compared to when it was not used (70%), and the hung jury rate was 3 times higher with section 28 cases (2.3%) than without this evidence. (0.7%).

This lower conviction rate is regardless of:

• whether the s28 witness is a child/vulnerable or an adult/intimidated,
• whether the s28 witness is female or male, or
• whether the offence is a sexual offence or a non-sexual offence.

In relation to rape offences in particular, jury conviction rates when s28 evidence is used are substantially lower for all types of rape offence, whether for adult 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 section 28 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 prerecorded 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?

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

Contact us for pre-recorded evidence cases

Pre-recorded evidence is mainly used in Crown Court trials.  Seeking legal advice at the earliest opportunity will allow us to provide advice to you about the law and the evidence in either a police investigation or a prosecution.

If you have been interviewed by the police and face court proceedings we can make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

Examples of how we will prepare your jury trial can be read here.

We have offices across the East Midlands and will happily travel across the country to provide representation types of offences.

Alternatively you can use the contact form below.

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At VHS Fletchers, we recognise the key to providing a good service to our clients is being able to work as a team and provide a quick and reliable service.

Our ability to work as a team was certainly put to the test by our Derby criminal lawyers when they went to Make Your Escape, the immersive escape room experience in Derby.   As part of the Derby office Christmas celebrations they took on the challenge of the ‘Spellbound’ escape room with a difficulty rating of 5 out of 5.

According to the escape room staff, this was one of the most difficult rooms in the Midlands to escape from.   No other team had managed to negotiate the various clues and spells to escape on that day.

Our Derby lawyers Denney Lau, Nicola Hunter, Sarah Green, Georgia Collins, Chloe Wright, Siobhan Moore and Patrick Fisher and the team managed to escape in a record time of 46 mins 45 seconds, leaving nearly 15 minutes to spare.  On the night our team was supplemented by Dan Church, who had recently left employment with us to return to the independent bar.

There was no better way to illustrate the team spirit that can be found at our Derby office and their fast thinking in a difficult and pressured situation.  You’ll agree that the ability to think on your feet is a key attribute to successful legal representation.

Contact one of our Derby criminal lawyers

Now that they are free to continue to provide 24 hour advice and representation at police stations and at court, should you require our services than contact details can be found here.

Our advice and assistance in police interview will always be free of charge to you, and legal aid is often available for Magistrates’ and Crown Court representation.  We can assist you with application.

Alternatively, to contact us, you can use the form below:

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The Nationality and Borders Act 2022 created a new illegal entry offence contrary to section 24(D1) Immigration Act 1971.  The provision states that a person who:

• requires entry clearance under the immigration rules, and
• knowingly arrives in the United Kingdom without a valid entry clearance,

commits an offence.

The offences created by the 2022 Act modify existing offences.  There has already been a steady stream of people prosecuted for the offence under s 24(D1), which deals with people entering the United Kingdom via “small boats”.

At the present time there is no definitive sentencing guideline for an illegal entry offence.  It carries a maximum penalty of 4 years’ imprisonment.

R v Ginar

The recent Court of Appeal case of R v Ginar established the following principles:

• The statutory maximum sentence for this new offence is four years’ imprisonment. So too is the maximum sentence for an offence under section 24(B1) of the 1971 Act of knowingly entering the United Kingdom without leave. Before the amendment, the maximum penalty for the predecessor of that offence was six months’ imprisonment.
• It is apparent that Parliament regarded that previous level of sentence as insufficient, both for the existing offence of entering without leave and for the new offence of arriving without a valid entry clearance. The four-year maximum is also longer than some other offences which may be committed in an immigration and asylum context.
• The present offence is inherently less serious than an identity document offence of the kind for which the court in R v Kolawole [2004] EWCA Crim 3047 indicated as attracting a sentence in the range of 12 to 18 months, even on a guilty plea and even for a person of previous good character.
• The predominant purpose of sentencing in cases of this nature will generally be the protection of the public. Deterrence can carry only limited weight as a distinct aim in the sentencing of those who have travelled as passengers in a crossing such as that upon which the applicant embarked. The circumstances of those who commit offences of that kind, as opposed to those who organise them, will usually be such that they are unlikely to be deterred by the prospect of a custodial sentence if caught.
• The following considerations are relevant as to culpability and harm.

There is legitimate public concern about breaches or attempted breaches of border control, and this type of offence, which is prevalent, will usually result in significant profit to organised criminals engaged in people smuggling.

A key feature of culpability inherent in the offence, save in very exceptional circumstances, is that the offender will know that he is trying to arrive in the UK in an unlawful manner: if it were otherwise, he would take the cheaper and safer alternative route which would be available to him.

The harm inherent in this type of offence is not simply the undermining of border control but also, and importantly, the risk of death or serious injury to the offender himself and to others involved in the attempted arrival, the risk and cost to those who intercept or rescue them, and the potential for disruption of legitimate travel in a busy shipping lane.

• The seriousness of this type of offence is such that the custody threshold will generally be crossed and that an appropriate sentence, taking into account the inherent features but before considering any additional culpability or harm features, any aggravating and mitigating factors and any credit for a guilty plea, will be of the order of 12 months’ imprisonment.
• Culpability will be increased if the offender plays some part in the provision or operation of the means by which he seeks to arrive in the United Kingdom, for example by piloting a vessel rather than being a mere passenger; or if he involves others in the offence, particularly children; or if he is seeking to enter in order to engage in criminal activity (for example by joining a group engaged in modern slavery or trafficking). Culpability will be reduced if the offender genuinely intends to apply for asylum on grounds which are arguable.
• Consideration of aggravating and mitigating factors must of course be a case-specific matter, but the following may commonly arise and will call for either an upwards or downwards adjustment of the provisional sentence. The offence will be aggravated by relevant previous convictions, by a high level of planning going beyond that which is inherent in the attempt to arrive in the United Kingdom from another country, and by a history of unsuccessful applications for leave to enter or remain or for asylum. Even if the previous attempts did not involve any criminal offence, the history of previous failure makes it more serious that the offender has now resorted to an attempt to arrive without valid entry clearance. The weight to be given to that factor will of course depend on the circumstances of the case.
• The offence will be mitigated by an absence of recent or relevant convictions, good character, young age or lack of maturity, mental disorder or learning disability, or the fact that the offender became involved in the offence due to coercion or pressure.

Cases of this nature will often have powerful features of personal mitigation, to which appropriate weight must be given on a fact-specific basis. The circumstances which are relied upon as arguable grounds for claiming asylum, such as the offender seeking to escape from persecution and serious danger, are likely also to mitigate the offence of arriving in the United Kingdom without a valid entry clearance.

Some offenders may have been misled as to what would await them in this country if they paid large sums of money to the criminals who offered to arrange their transport. Some may have suffered injury or come close to drowning in crossing in a dangerously overcrowded vessel. It will be for the sentencer to evaluate what weight to give to circumstances of that nature in a particular case.

Instruct an expert in defending an illegal entry offence

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about the law and the evidence in either a police investigation or a prosecution.

If you are arrested or know that the police wish to speak to you about any criminal allegation including an illegal entry offence make sure you insist on your right to free and independent legal advice.  We will be present in your interview to advise through the investigation stage.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all types of offences.

Alternatively you can use the contact form below.

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As a firm we have had to react to changing circumstances over the last last few years.  This has resulted in us investing time and resources in an increased number of trainee solicitors.

Legal aid in crisis?

Once again the Government has ignored advice as to the financial difficulties legal aid firms face.  This advice included the necessity for an immediate and significant rise in fees to permit the sector to remain viable.

Instead, the Secretary of State, Dominic Raab, has imposed a real terms cut in fees against a background of fee levels that have been, at best, frozen since the 1990s.

The position is such that the Law Society has begun to advise that firms review their reliance on criminal legal aid work and begin to plan to withdraw from providing the service.

Recruitment and Retention crisis

The furlough scheme allowed criminal lawyers the time to re-evaluate there position, with many across the sector choosing academia, family law, the independent Bar or civil practice.

Perhaps the biggest threat to staff recruitment and retention has come from the Crown Prosecution Service who launched an aggressive recruitment campaign in January 2020.  Firms across the country have seen an exodus of staff to the prosecution that offers salaries that may not be matched in private practice and, on the face of it, a better work life balance.

Investment in trainee solicitors

In response to this combination of factors we have chosen to increase our investment in trainee solicitors specialising in criminal defence.  We know that the work will always be interesting and hope that those who apply will remain committed to what can be a difficult and challenging job but ultimately a rewarding one.

As a result we currently employ six trainees across our offices.

We ensure that they obtain their police accreditation so that they are able to provide advice and representation to those being interviewed by the police, under the supervision of solicitor and Higher Court Advocate Shannon English.  This ensures a consistency of approach to their training and allows them the pleasure of taking part in our out of hours’ rota.  Advice is provided to those in police custody 24 hours a day, 7 days a week.

Thereafter they learn the skills they need through hands on experience preparing cases that are due before the Magistrates’ Court, Crown Court and the Court of Appeal.

Our trainee solicitors will undertake the courses required for qualification, but will choose the options that are bested suited to a career in criminal defence including courses preparing them for securing their Higher Rights of Audience.

At the end of training period there is invariably posts available across our offices as an assistant solicitor, representing clients at the police station and before the Magistrates’ Court with the opportunity for career development to become a Solicitor Advocate representing those facing allegations before the Crown Court.

Meet our trainee solicitors

Kinga Nowak joined VHS Fletchers in June 2021, having initially completed a law degree in her native Poland before moving to the UK.  She took an access course in criminal law before completing her Law Degree at the University of Lincoln.   Following that Kinga completed her Legal Practice Course and Masters in Law at Nottingham Trent University.

Kinga will qualify in June 2023.

Declan Smith joined VHS Fletchers in July 2021, initially as a Paralegal at our Chesterfield Office before commencing his training contract.

He graduated from the University of Derby in 2020 with an undergraduate degree in law, before continuing his studies completing the Legal Practice Course in the spring of 2021 with the aim of qualifying as a solicitor.

Declan is to qualify as a solicitor in August 2023.

Danielle Lunn joined VHS Fletchers in July 2022 as a Trainee Solicitor at our Nottingham office.

Her undergraduate legal studies were completed at Manchester Metropolitan University in 2020, graduating with a first-class honours Law degree. She then went on to complete the Legal Practice Course and Master’s in Law at Nottingham Trent University achieving a distinction.

Danielle will complete her training in January 2024.

Chloe Wright joined VHS Fletchers in January 2022 as a Trainee Solicitor at our Chesterfield office.

Having graduated from Sheffield Hallam University in the summer of 2020 with an undergraduate degree in Law., Chloe then continued her studies at Leeds Beckett University, completing the Legal Practice Course in the spring of 2021 before completing a masters degree the following summer.

Chloe will qualify in January 2024.

Patrick Fisher, known to many as Paddy, joined VHS Fletchers in July 2022 as a Trainee Solicitor in our Derby office.

He completed his undergraduate degree in Law at Nottingham Trent University, graduating in 2021 with a 2:1 classification.

Following this, he went on to study for his Legal Practice Course and Master’s continuing with his studies at Nottingham Law School.

Paddy is due to qualify in July 2024.

Kirsty Gregson joined VHS Fletchers in January 2023 as a Trainee Solicitor at our Nottingham office.

Kirsty completed her law studies at the University of Leicester in 2021, graduating with first-class honours. Kirsty then completed her Legal Practice Course and Masters in Nottingham at the University of Law.

Kirsty will qualify as a solicitor in July 2024.

Future Plans

We will shortly be recruiting for at least one trainee post based at our Nottingham office and due to start in July 2023.  We will advertise the post as usual on Crimeline, and our LinkedIn, Facebook, Twitter and Instagram pages.

Please keep an eye on those if you are likely to be interested.

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It’s funny how things change as the years pass by. Perhaps only ten years ago, if we were thinking about particular spikes in alleged criminal offending over the Christmas period, the one that would jump out would always be drunk driving.

These days it is common to come across drug driving due to advances in technology and the ability to detect an increasing range of substances in the body.

It is well documented that if people believe the chances of detection to be low, the temptation to commit a crime is higher. Most people know that there is considerable pressure on police resources. Therefore even when we see a police car on the roads, it is most likely already being deployed to an active incident, not cruising the streets looking for errant drivers.

Ironically, the story here tends to be related to the morning after.

The main event is often an otherwise minor road traffic accident attracting the attention of a passing police officer, resulting in alcohol and drug testing and an arrest for those still affected by the excesses of the night before.

Drugs can be particularly problematic as their journey through the body is much less predictable than alcohol, putting those users at risk for extended periods.

Road traffic law remains one of the most complex areas of criminal law, so if you are being investigated for any drug or alcohol-related driving incident or have been charged or summonsed to appear before a court, it is very much in your interests to contact us at the first opportunity. These offences will invariably result in a driving disqualification if you are convicted. The stakes can be enormous, particularly if you rely on a driving licence as part of your employment.

We will explore all available offences and mitigation and ensure you receive the finest representation.

Drug Driving – Sentencing Guidance

As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months.

Where there are factors that increase seriousness, the Court should consider increasing the sentence on the basis of the level of seriousness.

The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The Court should also consider imposing a disqualification in the region of 23–28 months.

The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors. The Court should also consider imposing a disqualification in the region of 29–36 months.

Drink Driving – Sentencing Guidance

The starting point applies to all offenders irrespective of plea or previous convictions.

Drink and drug driving defence solicitors

If you do make a mistake and find yourself in trouble, there is a lot we can do to assist you.

In some cases the police will want to interview you about the offence.  If this is the case, whether under arrest or as a volunteer, always make sure you seek our free and independent legal advice.  You can read about the benefits here.

The police must follow complex procedures to establish a case against you.  Our lawyers will be able to analyse the evidence to ensure that the procedures have been followed.  We can successfully challenge the evidence in your case.

A road traffic solicitor can also investigate issues such as ‘laced drinks’ which can raise the opportunity to avoid disqualification.  We will also consider other ‘special reasons’ that could be raised on your behalf.  This might include the shortness of distance that was driven.

Well-presented mitigation can make a real difference to the outcome. Even where a disqualification cannot be avoided, we can often achieve a reduction in length.

Legal aid might be available dependent upon your means and the circumstances of your case.  Alternatively, you will be able to fund your case through an affordable fixed fee.

Contact one of our drink drive solicitors at your nearest office if you are being investigated by the police or taken to court as a result of the Christmas drink drive campaign.  They will, of course, be able to discuss and other driving matters that you face.

Alternatively you can use the contact form below to ask for a call about your case.