Lawyers have accused ministers of ignoring a crisis in the criminal justice system by continuing to release pre-recorded video evidence of rape survivors in England and Wales amid a strike by barristers.
The policy, which allows those accused of offenses including modern slavery to be cross-examined before trial before a limited number of people, was extended to five more courts on Friday, bringing the total to 63. Three-quarters of the courts are covered and all will be done by end of the month.
While lawyers support the thinking behind section 28, which also covers witnesses, they say there are insufficient resources and funding for it, especially in light of the indefinite strike over legal aid fees, which began on Monday.
The Criminal Bar Association said even before the strike began some barristers refused to do section 28 cases because of the amount of extra work involved without the extra money.
Kirsty Brimelow, the chair of the CBA, said: “It adds processes while you have your fingers in your ears and your eyes closed to the practical reality of how justice is delivered in the criminal courts. You cannot continue to introduce extra procedures with extra work for lawyers without proper funding.
“The case itself can be registered in one year. Then the lawyer has to prepare the case again when it comes to trial without extra money.’
Before taking evidence, lawyers must attend a “ground rules” hearing and must ask questions of the complainant. Section 28 interviews take precedence over other matters, even if counsel is in the middle of another trial, which may have to be suspended as a result.
Mary Aspinall-Miles, who sits on the CBA’s rape and serious sexual offenses team, said: “Nobody wants to hurt the complainants or the accused more than is necessary, which is why we support section 28 in principle, she said. “But the Department of Justice [MoJ] and the lord chancellor have tried to act as if it is business as usual while ignoring the mounting delays [in the courts].
“It doesn’t take into account the bigger picture. What will this actually do to crown court records? How will this work in practice? How will the resources be allocated to court judges to enable them to carry this out effectively and efficiently? And how will it interact with availability?”
On Thursday, the CBA said new Justice Minister Brandon Lewis had agreed to meet its leaders after they were angered by his predecessor Dominic Raab’s refusal to face them at the negotiating table.
Criminal lawyers are demanding a 25% rise in legal aid fees after their real earnings fell by 28% since 2006. They say such an increase is needed to prevent a criminal justice system collapsing due to cuts. The government has agreed a 15% increase, but only on new cases and the CBA says the backlog of around 60,000 crown court cases means the increase could take years to implement.
James Oliveira-Agnew, a lawyer who helps train vulnerable witnesses for other advocates. he said of section 28: “It’s a good idea, but as with everything that seems to go through criminal justice, it’s a good idea that hasn’t been properly thought through. It takes funding and people need to be paid a fortune for it. Otherwise, it’s just not going to work.”
The Ministry of Justice did not comment on the criticism, but Justice Secretary Rachel McLean said the pre-recorded evidence was vital to “overhauling the way rape victims are supported through the criminal justice system so that more cases come to courts and more rapists. safely behind bars.”