A change in the landscape for victimless prosecutions?Martin Sleight
Lee Stewart Barnaby v The Director of Public Prosecutions  EWHC 232 (Admin) – A change in the landscape for victimless prosecutions?
As the Crown Prosecution Service places increasing focus on securing convictions in domestic-violence cases, there is a sense that victimless prosecutions have become far more common, particularly in the Magistrates’ Courts.
For that reason, the High Court’s decision in the case of Lee Stewart Barnaby v The Director of Public Prosecutions  EWHC 232 (Admin) that a complainant’s accounts given in 999 calls and to the police were admissible within the res gestae principle is likely to quickly become an important authority.
In this article, Martin Sleight analyses the High Court’s decision and offers some practical advice to practitioners about how to proceed when the issue of res gestae arises.
Facts of Barnaby v DPP
Between 6.33am and 6.49am on Friday 11 April 2014, the complainant (Ms Gibb) telephoned the police on 3 occasions. She said that her boyfriend had “just strangled her” and, as of the second call, was still in the house. Over the course of the 3 calls, she gave her name, address and identified her boyfriend as Lee Barnaby.
Ms Gibb asked the 999 operator to instruct the police not to tell Mr Barnaby she had reported the incident as she was scared and he had “done this before”. Throughout the calls, she was sobbing.
About 6 minutes after the final call, the police arrived at the address. She told the officers: “[I had been asleep] [and] woke up and found him strangling me… He bit my cheek whilst strangling me and calling me a bitch and cunt…” They noticed the complainant had a red band, about 3 inches wide, across her throat and a mark to her cheek in the shape of a crescent. However, she refused to provide a statement or sign the officers’ notebooks, expressing concern that Mr Barnaby would hurt her and her son.
Whilst the officers were present, the complainant received a text message, ostensibly from Mr Barnaby, which read “I’m sorry for what I did”. Following his arrest, the police found a text message on Mr Barnaby’s phone sent to a former partner at 12.15pm on 11 April 2014 which said “… Strangled and bit Glenda this morning. Lost plot”.
One of the officers recorded that Ms Gibb had also told him that Mr Barnaby had “tried to strangle her before and that he had gone to prison for a number of years as a result of the attack”. Whilst the defendant did have a 2006 conviction for assault occasioning actual bodily harm, the complainant in the case was in fact the sister of Miss Gibb.
Mr Barnaby gave a ‘no comment’ interview.
At trial, neither the prosecution nor defence called the complainant. Instead, the prosecution sought to adduce both her account on the 999 calls and her initial account to the officers as res gestae. Following submissions, the Magistrates’ Court held that both out-of-court statements were admissible within the res gestae principle. After giving evidence, the defendant was convicted and sentenced to 16 weeks’ imprisonment for an offence of battery.
Before going any further, it is worth considering what is meant by res gestae. Section 118(4)(a) of the Criminal Justice Act 2003 defines res gestae as a statement:
“… made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.”
Readers will be familiar with the leading authority of R v Andrews (D)  AC 281 which set out the following guidance in assessing whether an out of court statement falls within the res gestae principle:
- The primary question which the judge must ask himself is: Can the possibility of concoction or distortion be disregarded?
- To answer that question, the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation, the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
- In order for the statement to be sufficiently ‘spontaneous’, it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus, the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
- Quite apart from the time factor, there may be special features in the case which relate to the possibility of concoction or distortion. In the instant appeal, the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
- As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.
The admissibility of hearsay is governed by Part 34 of the Criminal Procedure Rules.
Part 34.2 provides that a hearsay application must be made where a party seeks to rely on any of the following sections of the Criminal Justice Act 2003:
(a) Section 114(1)(d) (evidence admissible in the interests of justice);
(b) Section 116 (evidence where a witness is unavailable);
(c) Section 117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings);
(d) Section 121 (multiple hearsay).
Section 118 is notably absent from 34.2 with the effect that a party arguing that a statement is admissible as res gestae does not have to make a written application.
However, they will still need to satisfy the court that the statement meets the res gestae criteria.
What was it that led to the conclusion res gestae?
Turning to the case of Barnaby v DPP, at paragraph 31 of its judgment the court gave the following reasons for upholding the magistrates’ decision that the 999 calls and initial account to the officers were admissible as res gestae:
“In the present case, it appears that the first two 999 telephone calls were made whilst the appellant was still at the victim’s home, given she was whispering when speaking to the operator and she said that the appellant had “just” tried to strangle her. During the third call, she indicated the appellant had recently left the property. She was upset and repeatedly rang the emergency number. The police responded speedily following the last of the calls, given they arrived within 6 minutes. In that sense, Ms Gibb’s statements to the officers were a continuation of the earlier exchanges with the 999 operator. She was still agitated and upset, and the officers noted that the marks from the alleged assault were still visible on her neck. In my judgment, in the context of an incident in which there was clear evidence of recent attempted strangulation, and given Ms Gibb’s emotional state throughout the various conversations, the court was entitled to dismiss the possibility of concoction or distortion. To borrow the language of Lord Ackner, this would have been a startling and dramatic event that would have dominated the thoughts of Ms Gibb and her utterances would have been instinctive and spontaneous. In those circumstances, the court would have been entitled to discount any suggestion that the allegation had been concocted for the advantage of Ms Gibb or the disadvantage of the appellant. The possibility of error does not arise in this case: the choice was either that Ms Gibb was telling the truth or the entire incident had been made up and it is unsustainable to suppose that this was an event about which she could have made a mistake.”
For prosecutors seeking to rely on out-of-court statement, it is submitted there are 2 important points to note from the court’s judgment:
- The court made a clear distinction between whether the possibility of ‘concoction’ and ‘distortion’ could be safely disregarded. Given the allegation itself was acutely clear, the court was in a position to immediately dismiss any possibility of distortion.
- The court then felt able to disregard the possibility of concoction due to the combination of the following factors:
i. The highly emotional demeanour of the complainant during the 999 calls and when talking to the police in person;
ii. The proximity of the statements to the alleged assault, with the complainant saying to the 999 operator that she had ‘just’ been strangled and the police arriving within 6 minutes; and
iii. The visible injury to the complainant’s neck and face as clear evidence that she had been strangled and bitten as alleged in the res gestae statement.
Whilst every case will, of course, turn on its own facts, what is interesting is that the court in Barnaby v DPP could have confined its judgment by deeming the text message on Mr Barnaby’s phone – seemingly an admission of the offence – as being material to the court’s ability to disregard the possibility of concoction. That it did not touch upon the text message within its reasoning highlights that, in the appropriate case, the demeanour of the complainant coupled with evidence of an assault by way of injury can be sufficient.
How to object
What then should a defence practitioner do when the prosecution seek to rely on res gestae evidence? The following may be a useful check list:
Before going any further, ask if the out of court statement is in an admissible format. For example, if the res gestae evidence comes in the form of a 999 call, consider whether that call has been properly exhibited.Also, consider whether all parties are properly identified by statement. Clearly, a statement saying “John has just punched me” doesn’t particularly assist the court which will need to be satisfied exactly who “John” and “me” are.
- Submit that the evidence does not fall within the res gestae principle in the first place
Scrutinising the out-of-court statement against the following factors may help in framing an argument that the evidence does not meet the definition of res gestae:
(1) Are the contents of the statement clear enough so as to be able to discount the possibility of distortion? This is likely to be a point of particular relevance when dealing with 999 calls, which can be difficult to follow and often the allegation will not be as clearly particularised as in Barnaby v DPP.
(2) If the court is able to put aside the possibility of distortion, the following factors may assist in framing submissions that the possibility of concoction cannot be disregarded:
i. The length of time between the alleged offence and statement which is sought to be adduced as res gestae – has there been an ‘opportunity for reasoned reflection’?
ii. Is there anything in the content of the statement to suggest the maker has reflected upon it? If, for example, the complainant were to suggest a motive within the statement that may suggest there has been an opportunity for reflection upon the assault.
iii. Does the maker of the statement appear to be ’emotionally overpowered’ or simply emotional?
iv. Is there any advantage to the person who made the statement in saying what they did which may raise the possibility of concoction?
v. The presence or absence of any other evidence to support the account of assault. For instance, if when the police arrive there is either an absence of injury or an injury which is inconsistent with the account given, the court may not be able to discount the possibility of concoction.
3. Section 78 PACE 1984 application
Just because a piece of evidence is deemed admissible as res gestae, it may still be appropriate for the court to exercise its discretion to exclude it under s.78 of the Police and Criminal Evidence Act 1984.
The main thrust of any application under s.78 will usually be the difficulties which the defendant will have in challenging the statement without the person who made it being available for cross-examination.
It is also worth remembering the observation of Hughes LJ in Riat  EWCA Crim 1509 that:
“The non-exhaustive considerations listed in s 114(2) [of the Criminal Justice Act 2003] … are useful aides memoire for any judge considering the admissibility of hearsay evidence, whether under that subsection or under s 78 PACE, or otherwise.”
Accordingly, anyone making a s.78 application may wish to consider whether any of the following factors can be used in their case to support the proposition that it would be unfair to admit the res gestae statement:
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.
(s.114(2) Criminal Justice Act 2003)
One interesting factor in assessing a s.78 argument will be the approach the prosecution have taken to the maker of the statement and why it is that the maker is not available to give live evidence. On this point, in Attorney General’s Reference No 1 of 2003  EWCA Crim 1286 the Court of Appeal held that that “there is no black and white answer… [and] that it all depends on [the] circumstances in which the statements were made and on how practicable it is to make the witness available.” However, the court indicated that a statement admissible under res gestae would be liable to exclusion under s.78 if the Crown had sought to rely on res gestae rather than calling the witness if they believed the witness may give partly unreliable evidence.
Accordingly, consideration should be given to whether the prosecution have tendered the maker of the res gestae statement and, if not, what the reasons were for not doing so. In this regard, a useful phrase for a defence lawyer to keep up their sleeve is Lord Ackner’s observation that he would “strongly depreciate any attempt in criminal prosecutions to the use doctrine [of res gestae] as a device to avoid calling, when he is available, the maker of the statement” (R v Andrews  AC 281).
The court in Barnaby v DPP was satisfied with the prosecution’s approach on the basis that the Crown had taken a sensible decision in not calling the complainant due to the risk of her suffering harm if she gave evidence.
Other sources of evidence to be used in victimless prosecutions
This article has focused on res gestae statements and they are often the foundation for any victimless prosecution. However, they are by no means the only source of evidence on which the prosecution may seek to rely. Photos of injury, bad character and silence/admissions in interview may all form part of the Crown’s evidence.
Given the policy considerations at play, it is difficult to see anything other than an increase in the number of victimless prosecutions relying on res gestae evidence following the High Court’s decision in Barnaby v DPP.
In turn, this will lead to more legal argument and the Magistrates’ Courts may need to give greater thought to how they case manage such arguments.
To prepare for these arguments, both prosecutors and defence advocates will need to give consideration to the admissibility of such out of court statements focussing on continuity, the definition of res gestae in light of Barnaby v DPP and s.78 of the Police and Criminal Evidence Act 1984.
Martin Sleight practises exclusively in the field of criminal law. Read Martin’s profile.