Res Gestae Evidence in Domestic Allegations – DPP v Barton [2024] EWHC 1350 (Admin)

Res gestae is most often used in summary cases involving domestic allegations where the complainant withdraws their support for the prosecution. In such circumstances, if a contemporaneous account of the allegation has been provided by the complainant, the prosecution can apply to admit it as “res gestae” evidence.

The case of DPP v Joseph Barton [2024] EWHC 1350 (Admin), garnered media attention given Joey Barton’s profile. The Court made a number of findings in relation to the fairness of a prosecution which relies on “res gestae” statements in circumstances where (i) the prosecution has never intended to call the complainant, (ii) the complainant has retracted a complaint; and (iii) the prosecution declines the judge’s invitation to call the complainant despite their being available.

Law

The principle of res gestae was specifically preserved by s. 118(4) of the Criminal Justice Act 2003:

(4) Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

(a)the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.

…

In the guiding authority of Andrews [1987] AC 281 Lord Ackner set out the approach Courts should take when considering the admissibility of res gestae evidence:

• The primary question is whether the possibility of concoction or distortion can be disregarded.
• The judge must consider the circumstances in which the statement was made to be satisfied that the events were so unusual or startling that they dominated the thoughts of the victim and removed the opportunity for reflection/concoction or distortion.
• The statement must be sufficiently “spontaneous” to the event in question.
• The judge must be alive to any other “special features” that may impact the assessment of the evidence and the question of concoction or distortion.

Facts of DPP v Barton

On 2 June 2021 C called 999 saying Joey Barton had hit her. The police arrived 25 minutes later and spoke to C. She told two officers there had been a disagreement during which Mr Barton had pushed her down and kicked her head. A lump was visible on C’s head and captured on the officers’ body-worn footage. Mr Barton was charged with common assault.  C refused to provide a witness statement so the case against Mr Barton relied on the account C had provided during the 999 call and to the officers.  In advance of the trial C sent a retraction letter stating that she had been intoxicated on the night in question, and she was not sure what she had said was accurate. She said she had spoken to friends who were present on the night, and she now believed that her injuries had been caused accidentally by one of them.

At the first trial listing the prosecution declined an invitation from the judge to take a statement from C. They confirmed that they would not be calling her as a witness due to concerns about her truthfulness.

The defence successfully argued that it was an abuse of process for the prosecution to refuse to call C in circumstances where she was available as a witness. The DPP appealed that decision.

High Court proceedings

On appeal to the High Court the prosecution submitted:

1. The prosecution was under no obligation to call C to give evidence. C had never been treated as a prosecution witness and there was good evidence, in light of her retraction statement, that she might give untruthful evidence.
2. Any perceived unfairness could be cured by the defence calling C or by the Court calling C of their own volition.

The defence submitted:

1. The prosecution’s decision to refuse to interview or take a statement from C constituted a manipulation of the process as their right to cross examination was removed (Issue 1).
2. Had the District Judge not found there had been an abuse he would have “inevitably” excluded the res gestae evidence under s. 78 PACE. The defence referred the Court to the following observations of Lord Ackner in Andrews: “I would, however, strongly deprecate any attempt in criminal proceedings to use the doctrine as a device to avoid calling, where he is available the maker of the statement. Thus, to deprive the defence of any opportunity to cross examine him, that would not be consistent with the fundamental duty of the prosecution to place all relevant material facts before the court, so as to ensure that justice is done.” (Issue 2).

The High Court rejected the defence arguments and found that the District Judge’s decision was wrong in law.

Determination on Issue 1

The High Court re-affirmed the principles set out in R v Russell-Jones [1995] 1 Cr. App. R. 538, namely that; the prosecution has a wide discretion when deciding which witnesses to call, it is only obliged to call those witnesses whose statements have been served and it is not obliged to call a witness where it is anticipated, with good reason, that their evidence will be untruthful or incapable of belief.

Issue 2

The Court found that it was not inevitable that the District Judge would have excluded the evidence under s. 78 of PACE, making the following observations:

1. The facts of Andrews were distinguishable from the present case and were not made against a factual background in which the complainant had provided a retraction statement or where the evidence the complainant would give would be supportive of the defence.
2. Lord Ackner’s observations were not apt to cover cases of domestic violence, particularly where the complainant may have a range of reasons for not wanting to give evidence or might want to give evidence which the prosecution properly regards as being unworthy of belief when compared to the res gestae statements.

The Court considered McGuinness v Public Prosecutions for Northern Ireland [2017] NICA 30 in which the Court of Appeal for Northern Ireland found that the prosecution, in relying on res gestae evidence, were not seeking to avoid calling a witness who may provide inconsistent or untruthful evidence, but were providing support for the complainant in circumstances where the parties have reconciled whilst at the same time seeking to deal with the conduct of the Defendant.

Analysis

The finding of the High Court is significant in giving support for the “suspect centric” approach set out in CPS guidance on prosecuting domestic abuse cases. This states that the prosecution should consider, from the very outset, the possibility of proceeding without the support of the complainant.  Practitioners, therefore, need to be aware of the support that Barton gives to proceeding on body worn footage, or emergency call evidence alone.

Harry Laidlaw