DPP v Barton
The facts in Barton tell a familiar story. Mrs Barton called the police and alleged that she had been assaulted by her husband. This was recorded in a 999 call. Police officers arrived shortly afterwards. Mrs Barton repeated her accusation of assault. This was recorded on body worn video. Police officers observed an injury and obvious distress. Mrs Barton never provided a witness statement. Further, following the decision to prosecute her husband she wrote to the Crown Prosecution Service suggesting she had been drinking heavily and the account she provided at the time may be unreliable. She also made clear that she did not support a prosecution. This scenario will be familiar to all criminal lawyers. It is not unusual.
The Crown Prosecution Service is required to adopt a robust approach when prosecuting allegations of domestic abuse, even when an alleged victim does not support the prosecution. The prosecution decided to continue with this case based on the 999 call and the body worn video on the basis that it was admissible as res gestae evidence. The court at first instance erroneously stayed proceedings as an abuse of process because the prosecution was able to call the alleged victim and were declining to do so. This was clearly wrong and will not be the focus of this article. The focus will be on the use of res gestae evidence.
Res Gestae
This common law exception to the rule against hearsay is preserved by section 118 of the Criminal Justice Act 2003. It allows hearsay evidence to be admissible in circumstances where a statement is made “by a person who is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.” It is important to note that there is no requirement to show that the witness is unavailable through fear or for any other reason. Therefore, often res gestae evidence will come from a witness who may be reluctant or unsupportive but is nevertheless available to be called as a witness.
The assessment of whether evidence should be admitted as res gestae is based on the cases of Ratten [1972] A.C.378 and Andrews [1987] A.C. 281. The crucial issues are these:
- Can the possibility of concoction or distortion be disregarded?
- In making this assessment, the court must assess the circumstances in which the statement was made.
- For the statement to be sufficiently spontaneous, it must be so closely linked with the event that was being described as to still be dominating the thoughts of the maker of the statement at the time.
- Are there any special features that are relevant to the possibility of concoction or distortion, such as a possible malicious intention on the part of the maker?
- In assessing possible factual errors in the account that was given, can this be explained as normal human error, or does it go to the inherent unreliability of the statement?
It will therefore always be necessary to carefully consider whether evidence is admissible as res gestae, and it will be useful to use the factors identified above to assess admissibility. The focus should always be on the nexus between the statement and the event and whether there is anything which makes the statement inherently unreliable (such as intoxication/provable lies/malicious intention) or where it is impossible to exclude the possibility of concoction or distortion. It will be a balancing exercise as to which matters prevent the evidence being admissible and those which will simply go to weight.
The use of res gestae in the sensitive and specific circumstances of domestic abuse was considered in Barton. The following points emerge from the judgment:
- The prosecution is not obliged to call a witness who has never provided a witness statement or who they anticipate will give evidence that is untruthful. The prosecution enjoys a wide discretion in this regard. The court applied well established principles in R v Russell-Jones [1995] 1Cr. App R. 538. The prosecution has an unfettered discretion in terms of witness statements it chooses to serve. Once a decision is made to a serve a witness statement the discretion whether to call a witness is fettered and if it is exercised inappropriately the court can ask the prosecution to tender the witness or call the witness itself.
- It is not a requirement that res gestae evidence can only be admitted where the individual making the statement can be shown to be “in fear.” In the context of domestic abuse cases, it will often not be unfair to adduce the res gestae evidence of a complainant where they are not called as a witness and are not shown to be “in fear.” The public interest may well demand such an approach.
- If the evidence is admissible as res gestae evidence, as with all hearsay evidence, the court can nevertheless exclude it pursuant to section 78 of the Police and Criminal Evidence Act 1984. The court referred to R v Riat [2013] 1 WLR 2592 and the non-exhaustive considerations in section 114 (2) of the Criminal Justice Act 2003 as a useful way to assess admissibility under section 78.
Discussion
Many will argue that Barton is a further erosion of an accused person’s right to challenge evidence against them. On the other hand, others will argue that res gestae evidence is a useful and necessary tool in robustly pursuing allegations of domestic abuse. It is often the case that victims of domestic abuse will make an allegation of assault and because of the nature of the relationship will not wish to pursue a prosecution against their abuser. 999 calls are not new but what has perhaps allowed courts to view res gestae evidence more sympathetically is the ability to record the initial account on body worn video. This does allow for an assessment of demeanour in a similar way that a jury or magistrates court would assess a witness who gave evidence.
It is, however, clear that if the prosecution exercises its discretion responsibly, it will no longer be enough to simply argue that the witness is available and could and should be called by the prosecution. It is always open to the defence to call a complainant (this was a point made in Barton) if they wish to do so. There is always a danger that prosecutors could become too reliant on res gestae evidence; however, it is expected that at the very least, a court would have to be assured that efforts had been made to obtain a witness statement before considering the admission of hearsay. In circumstances where it was revealed that no effort had been made to obtain a witness statement (when the witness is available) an application to adduce hearsay evidence would surely fail.
Rather than becoming bogged down in whether the witness could be called (often they will be available) the focus should be on the questions that emerged from R v Andrews (above.) How contemporaneous with the event is the statement? There is no maximum period but the further away from the event that the statement is, the less likely it is to be admissible as res gestae. Do the overall circumstances mean the possibility of concoction or distortion cannot be excluded? Where was the statement made? In what circumstances? Was the maker sober? Is there any other undermining material impacting on the reliability of the maker of the statement? Is there any supporting evidence such as injury? Many of these issues will impact on whether the evidence is res gestae and will feature in many section 78 applications.
It remains to be seen how willing the courts will be to admit res gestae evidence. The case of Vilhete v CPS [2024] EWHC 2171 (Admin) is an example of an appeal by way of case stated upholding a decision to admit res gestae evidence and following Barton. This was a case where the complainant had made a statement but then withdrew support for the prosecution. One of the issues raised by the complainant was the negative impact being compelled to attend court would have on her mental health. Following, what were found to be reasonable enquiries, a balanced decision was made not to compel her attendance and rely on the 999 call and body worn video. This was allowed it having been found that this was not a “lazy” application, and that the prosecution had made all reasonable enquiries and had reached a balanced decision not to compel her attendance. This is perhaps indicative of how courts will approach such cases in the future if the prosecution act responsibly and are able to justify why a witness is not being called.
Conclusion
Prosecutions based on res gestae evidence are here to stay, particularly in cases of alleged domestic abuse. Increasingly, prosecution and defence will have to deal with cases based wholly or mainly on res gestae evidence. It is right that every case will turn on its own facts and each should be carefully considered on its own merits. It should never be forgotten that hearsay, by its very nature, is not the best evidence. The direction of travel, however, is clearly in favour of courts allowing res gestae evidence to be admitted in domestic abuse cases even when the witness is available and is not in fear. The key question, however, is how willing a court or a jury is to convict in cases based mainly on res gestae evidence.
Lee Fish is a highly sought-after and experienced barrister who is recommended in the leading legal directories as “exceptional” and “a very well-skilled and excellent performer”. His criminal practice covers serious, substantial and high-profile cases and he has developed notable expertise in the prosecution and defence of those accused of manslaughter, murder, rape and other serious offences. Lee has been appointed to CPS Serious Crime Panel, Specialist Fraud Panel and Rape and Serious Sexual Offence Panel.
New Park Court Chambers is a Tier 1 set for Crime and has one of the most established and widely experienced criminal teams on the North Eastern Circuit. With 14 KCs and 70 barristers, the set routinely receives instructions in major cases attracting nationwide media attention. They focus on complex casework within the full spectrum of criminal proceedings and can offer advice at the investigatory stage through to Crown Court or Appeal Court proceedings.
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