Should things be done about Res Gestae evidence?

Fatima Jama examines the law on the admission of res gestae evidence under section 118(4) of the Criminal Justice Act 2003 in light of DPP v Joseph Barton [2024] EWHC 1350 (Admin)

Introduction

The term “res gestae” translates from Latin as “things done” or “things transacted”. The doctrine of res gestae is a legal principle in common law that allows the circumstances surrounding an event to be admitted as evidence in court. It includes statements, actions, and occurrences so closely connected to an event that they help showcase its context and significance. In England & Wales, res gestae evidence is admitted under section 118 of the Criminal Justice Act 2003 (“CJA 2003”).

“(1) The following rules of law are preserved.

…

Res gestae

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,

(b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or

(c) the statement relates to a physical sensation or a mental state (such as intention or emotion).”

Res gestae has been broadly interpreted to include the immediate circumstances of an incident, misconduct that does not qualify as “bad character” evidence under section 98 of the CJA 2003 or conduct that is integral to the events in question.

The principle of res gestae is illustrated in the leading authority of R v Andrews [1987] AC 281. In this case, the defendant was accused of fatally stabbing the victim during a home invasion. Shortly after the incident, neighbours called the police, who arrived quickly. At that moment, the victim made a statement identifying his attackers. The trial judge admitted this statement, a decision upheld by both the Court of Appeal and the House of Lords. Andrews established that the prosecution must prove that the statement was made in response to an event that 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” and “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”.

The House of Lords set out the approach that the court should take to this evidence.

“1. The primary question which the judge must ask himself is: Can the possibility of concoction or distortion be disregarded?  

2. 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.

3. 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.

4. 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.

5. 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.”

In the recent case of DPP v Joseph Barton [2024] EWHC 1350 (Admin), the High Court reinforced the position regarding the admissibility of res gestae evidence. The judgment, delivered on 07 June 2024, concerned an appeal focusing on the fairness of a prosecution relying on res gestae statements made by a domestic violence complainant under circumstances where: (i) the prosecution had no intention of calling the complainant as a witness; (ii) the complainant had withdrawn her complaints; and (iii) despite being available for trial, the prosecution refused the district judge’s invitation to summon her as a Crown witness.

The defendant argued that this situation placed him at a significant disadvantage, as it prevented him from questioning the complainant on any inconsistencies in her evidence. The district judge concluded that the prosecution was an abuse of process, a decision appealed by the DPP.

The High Court overturned the district judge’s ruling, stating it was “wrong in principle.” The Court clarified that the prosecution was under no obligation to call witnesses who had not provided formal witness statements intended for reliance in the trial. Furthermore, the Court noted that the complainant never submitted a witness statement and had consistently expressed her reluctance to testify against her husband. The High Court emphasised that the defendant would not suffer any prejudice if the complainant were called by the defence or by the court itself.

Consequently, the High Court allowed the DPP’s appeal and directed that the case be retried by a different court panel. This decision highlights the nuanced approach required in cases involving the admission and handling of res gestae evidence, balancing procedural fairness with the rights of all parties involved in the legal process.

As the CPS’s policy of deploying res gestae in domestic violence cases is bolstered by the case of Barton, it is worth reviewing whether it should still have a place in the statute. On one view, section 118 CJA 2003 adds little to the hearsay framework established by CJA 2003. Moreover, res gestae is founded on a flawed premise that sustains outdated myths about immediate reactions to trauma, despite advancements in the law.  

Res Gestae: frivolous and futile? 

The res gestae exception under section 118 CJA 2003 has been criticised for lack of purpose. Academics have argued that the provisions of sections 116, 114(1)(d) and other provisions within CJA 2003 provide sufficient coverage for admitting hearsay, and the res gestae principle is unnecessary.

Section 116 CJA 2003 extends the circumstances in which statements made by witnesses who are unavailable to give evidence at court can be admitted.

Section 114(1)(d) CJA 2003 gives the courts discretion to admit hearsay evidence in the interest of justice. The Law Commission envisaged that the courts would only exercise this discretion in exceptional circumstances. Courts have shown greater caution in the application of section 114(1)(d) CJA 2003, which the Law Commission likened to a “safety valve”.

Legal critics contend that employing section 114(1)(d) CJA 2003 with the meticulous scrutiny required by R v Riat [2012] EWCA Crim 1509, which mandates rigorous testing of evidence and thorough exploration of witnesses’ potential to give live testimony, would establish a more consistent and suitable decision-making procedure. The process of assessing admissibility in this manner is clearly structured and systematic, incorporating a non-exhaustive list of factors outlined in section 114(2) CJA 2003. In contrast, the res gestae exception under section 118 CJA 2003 has been under continual scrutiny due to the lax application of its underlying principle.

Section 114(1)(d) CJA 2003 encompasses a broader scope than the res gestae exception, allowing for the admission of evidence that would not qualify under the res gestae rule. Both have limitations: neither can justify admitting evidence from a known witness who opts to remain anonymous. Both res gestae and section 114(1)(d) CJA 2003 have been interpreted to allow the admission of hearsay evidence from an unidentified witness who could not be located and thus remained unknown rather than choosing anonymity.

Res gestae is commonly employed in domestic abuse cases where the complainant does not cooperate with the prosecution. However, in leading cases such as Morgan v DPP [2016] EWHC 3414 (Admin), Ibrahim v CPS [2016] EWHC 1750 (Admin), andR v Sinfield [2021] EWCA Crim 1227, the evidence could have been assessed and admitted under alternative provisions of CJA 2003, specifically under sections 116 or 114(1)(d) CJA 2003.

In Morgan the recording of a 999 call and body worn video from the officer at the scene of an incident of domestic violence was admitted as res gestae and an application to exclude this evidence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE 1984”) was refused. The witness refused to attend and there was evidence that she was terrified at the prospect of going to court and of having to re-live the incident through giving evidence. There is no indication whether or not a properly made section 116 CJA 2003 application would have been successful, but the court’s comment that special measures “could not address this witness’s concerns” suggests it may have been. It could be argued that the more suitable route to admitting hearsay evidence in this case could have been considered under section 116 CJA 2003.

In Ibrahim, another instance of domestic assault, a 999 call was admitted as res gestae even though there was a delay of 1.5 hours between the incident and the call. The complainant refused to cooperate with the police, provide a statement, or appear in court to testify, citing fear of the defendant. It is evident in this case that the issue could have been addressed under section 116 or 114(1)(d) CJA 2003, rendering the use of the res gestae exception unnecessary.

Sinfield demonstrates another instance of domestic violence where a 999 call and a hearsay account provided to officers at the scene, captured on body-worn cameras, were accepted as res gestae evidence. The complainant was not called to testify; the judgement does not clarify why, merely noting that “For whatever reason, the complainant did not make a statement about these events and did not wish to give evidence” and later stated that “the complainant did not want to give evidence…she instead wanted to move on in her life.” Despite this, the court ruled that the evidence met the criteria for res gestae and could also have been admitted under section 114 CJA 2003. Although the court might have examined the reasons for the complainant’s absence more thoroughly, it is evident that the case could have been considered under section 114(1)(d), which might have offered additional scrutiny.

The res gestae test is not a robust one. Many of these cases involving “emotionally overpowered” statements could and should be considered under section 116 CJA 2003, with proof of fear admitted under section 114(1)(d) CJA 2003 if necessary because these provisions have a more coherent framework and more in-built protections for the defendant.

Moving with the times

Critics argue that many complainants, especially those that are vulnerable, do not show behaviours consistent with the res gestae principle. This analysis is particularly relevant when examining why res gestae is supported in cases involving domestic and sexual abuse. In contemporary society, there is growing recognition that some may react to trauma by becoming emotionally numb and non-communicative. The res gestae doctrine favours spontaneous and visibly agitated individuals over those who may respond with quiet, reflective, frozen, or passive behaviours. This preference undermines principles of legal fairness and credibility.

Consequently, despite our understanding of trauma responses, the use of “emotionally overpowered” statements preserves outdated and harmful perceptions of how a “credible victim” behaves. Criminal practitioners, academics and judges are keenly aware of these issues in various contexts. Jurors in trials receive directions to prevent them from making prejudicial assumptions based on outdated beliefs. The Crown Court Compendium now contains in section 20-1 (Sexual offences) a section on the danger of assumptions. It is imperative that we apply similar scrutiny to the principles governing res gestae.

Conclusion

Res gestae maintains misconceptions about immediate reactions to trauma, favouring those who can already articulate their experiences. If the criminal justice system struggles to prosecute cases of domestic and sexual abuse, the solution does not lie in reverting to outdated notions to admit evidence, but re-evaluating our expectations of evidence and assessing how the criminal justice system treats complainants. sections 116, 114(1)(d) and other provisions within CJA 2003 provide sufficient coverage for admitting hearsay with appropriate safeguards. Continuing to allow res gestae evidence forces judges and juries to make unfounded assumptions that contradict our intuitive understanding of human reactions. However, the High Court decision in Barton demonstrates that res gestae is here to stay and indeed may well open the floodgates to res gestae applications being made in every domestic violence case brought by the CPS.