There is no evidence to suggest that pre-recorded video evidence from complainants and witnesses in sexual offence trials reduces jury conviction rates, the Ministry of Justice said yesterday.  

Its research contradicts an MoJ-commissioned study published last year by Professor Cheryl Thomas at University College London, which found an average of 20% fewer rape convictions in trials that used pre-recorded evidence – and conviction rates were 10% lower in trials overall.

Thomas' research looked at cases over seven years to June 2023. Section 28 of the Youth Justice and Criminal Evidence Act 1999, introduced in 2016, allows eligible witnesses to pre-record their evidence in order to reduce stress and anxiety. This recording is then played at the trial.

The report published yesterday, Impact Evaluation of Pre-recorded Cross Examination for Vulnerable & Intimidated Witnesses, looked at cases between January 2019 and 2022. It found that 's.28 has reduced the length of time to cross-examination with no discernible impacts on case outcomes or court functioning'. For all cases where pre-recorded evidence was used, it found the conviction rate was 63.9%, compared with 64.7% in cases where s.28 was not used. In adult sexual offence cases, the conviction rate was 54.8% where pre-recorded evidence was used and 53% where evidence was given live. 

The researchers concluded that s.28 'does not appear to have an effect on a jury’s decision to acquit, or convict' and that 'the impact of s.28 usage was calculated very close to zero'. The three researchers are statisticians employed by the ministry, but the report states that views expressed 'are not necessarily shared by the Ministry of Justice (nor do they represent government policy)'.

Speaking to the Gazette, Thomas criticised the methodology used by the researchers in the most recent report. In all cases, regardless of whether there were multiple offences charged and a mixture of acquittals and convictions, the research considered any case to be a conviction where the jury found a defendant guilty of one offence. 'They have designed a study that excludes more then 80% of verdicts,' said Thomas. 'When juries deal with a case they almost always return multiple verdicts and the ministry is only counting one verdict in a case. For example, if there were 10 charges of rape and one conviction, the Ministry of Justice’s research doesn’t count the nine acquittals,' she said.

Overall, the report is 'making a pretty big statement in saying that s.28 does not affect a jury’s willingness to convict. I don’t think their analysis is strong enough to say that'.

Backing Thomas, one Crown court judge, who did not want to be named, told the Gazette: 'Professor Thomas’s research accurately reflects the experience of judges up and down the country'. The judge said that 'juries just do not view [pre-recorded] evidence in the same way' as live evidence from a witness in court.

Mary Prior KC, chair of the Criminal Bar Association, said: 'At best this survey demonstrates neutral results.  We would be concerned if adult victims were told that the research suggests that section 28 is the best way to give evidence.'