Special Measures and Section 28: How Evidence Is Given in Sexual Offence Cases
The way evidence is presented can influence the progress of a criminal trial just as much as the evidence itself. In many sexual offence cases, witnesses do not give all of their evidence in the courtroom before a jury. Understanding Section 28 pre-recorded evidence defence issues from the outset allows the defence to prepare effectively, challenge evidence fairly, and protect the right to a fair trial.
Section 28 procedures were introduced to reduce the stress experienced by vulnerable and intimidated witnesses. However, those protections do not reduce the burden on the prosecution in proving the case beyond reasonable doubt. Every case at Holborn Adams is prepared with particular care over procedure, disclosure, and the quality of the evidence. Experienced sexual offence solicitors ensure that procedural safeguards are applied fairly to everyone involved.
Key Legal Principles Explained
The Youth Justice and Criminal Evidence Act 1999 makes provision for special measures for eligible witnesses. These measures may include giving evidence behind screens, by live video link, or through pre-recorded interviews and cross-examination.
Section 28 allows the cross-examination of certain witnesses to take place before the trial itself. That questioning is recorded and later played to the jury during the trial.
The timing is different, but the law is the same. The prosecution must still prove every element of the offence, and the defence retains the right to challenge the evidence through proper questioning.
Preparation must begin much earlier than many defendants expect. Once cross-examination has been completed under Section 28, opportunities to revisit the witness are limited.
Advice from a solicitor for sexual offence ensures that important issues are identified well before the Section 28 hearing takes place.
Why timing matters
Section 28 hearings often occur months before the trial itself. Defence preparation, disclosure requests and legal arguments must therefore begin far earlier than many defendants expect.
What Evidence Really Matters
The witness interview forms only one part of the evidential picture. Messages, photographs, mobile phone records, social media activity, CCTV, medical evidence, and independent witnesses may all influence the outcome.
Disclosure becomes particularly significant before a Section 28 hearing. Defence teams need sufficient information to prepare effective cross-examination. If disclosure is missing or delayed, it could affect the fairness of the process.
Digital evidence often provides important context, particularly communication made before and after the alleged incident.
During preparation, Section 28 pre-recorded evidence defence strategy is usually about finding evidence that should be disclosed before questioning rather than afterwards.
Experienced solicitors specialising in sexual offences review disclosure carefully, ensuring questioning is based upon verified material rather than assumptions.
Common Prosecution Arguments
The prosecution generally argues that special measures improve the quality of evidence by allowing witnesses to give their account in less stressful circumstances.
It may also argue that Section 28 preserves recollection by recording evidence closer to the relevant events.
Those procedural benefits do not prevent proper scrutiny of the evidence. Defence representatives can cross-examine to test inconsistencies, question the reliability of the evidence, and explore alternative explanations.
In many cases, disputes arise over:
- Consistency between different witness accounts
- The timing of complaints
- Digital communications
- Identification issues
- Context surrounding conversations or events
Each issue requires careful preparation well before questioning begins.
The defence should never assume that recorded evidence cannot be challenged simply because it was obtained under Section 28 procedures.
Defence Strategy and Expert Input
Preparation starts long before the Section 28 hearing.
Counsel and solicitors review disclosure together, identify disputed issues, and prepare structured cross-examination designed to test reliability fairly and effectively.
The defence also looks at the question of whether further disclosure should be sought before the process of questioning continues. Missing documents or incomplete digital evidence can have a major impact on any issues explored during cross-examination.
Using experts appropriately
Experts are instructed only when specialist knowledge assists the court.
Digital forensic experts may be required to examine devices or communications if authenticity, timing, or data integrity are in issue. Medical experts or psychologists may also be helpful in appropriate cases depending upon the issues raised by the evidence.
Experienced sexual offence solicitors ensure that questioning throughout the process is focused on matters that can genuinely affect the outcome and not on unnecessary confrontation.
Careful preparation of a Section 28 defence by way of pre-recorded evidence helps to ensure that the court will treat the evidence fairly whilst protecting the legal rights of the defendant.
Outcomes and Next Steps
Once Section 28 questioning has concluded, the recorded evidence becomes part of the trial process. The jury will usually watch the recording during the trial alongside the remaining evidence.
Preparation does not end after the Section 28 hearing. Disclosure obligations continue throughout proceedings, and further legal issues may arise before trial.
Applications as to admissibility, expert evidence, or procedural fairness may still need to be determined before the jury hears the case.
Each stage builds on the decisions made earlier in the case. Early preparation generally provides greater flexibility than attempting to address issues after evidence has already been recorded.
How Holborn Adams Prepares Section 28 Cases
Every case follows an evidence-led approach designed around the individual facts.
Our work includes:
- Detailed review of disclosure before questioning
- Careful preparation with counsel
- Identification of missing or incomplete evidence
- Strategic applications where procedural issues arise
- Ongoing advice throughout proceedings
Practical Guidance
If your case involves Section 28 evidence:
- Preserve all digital communications
- Do not contact witnesses
- Discuss disclosure concerns immediately
- Keep copies of relevant documents
- Follow legal advice before every hearing
Early legal advice provides more opportunity to address disclosure and prepare the defence.
Taking the Next Step
Cases involving Section 28 require careful planning well before trial. Obtaining Section 28 pre-recorded evidence defence advice at an early stage allows your legal team to prepare thoroughly, protect your procedural rights, and ensure every available line of defence is explored.
This article is for general information only and must not be relied upon as legal advice. If you need confidential advice in respect of sexual offence proceedings or Section 28 hearings, please contact Holborn Adams to speak directly with an experienced solicitor.
