[2025] EWCA Crim 1279

On 21 June 2024 in the Crown Court at Kingston upon Thames the appellant was convicted of intentional strangulation, contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015. The victim of that offence was the appellant's domestic partner. On 21 November 2024, the appellant was sentenced by the trial judge, Mr Recorder Adam Gadd, to a suspended sentence order, comprised of 22 months' imprisonment suspended for 22 months, subject to various requirements, including an unpaid work requirement. The appellant appeals against his conviction on the following grounds by leave of the single judge:

Before considering the specific facts of the case it is helpful to consider briefly the relevant legal context. Section 118(1) 4(a) of the Criminal Justice Act 2003 preserves any rule of law under which in criminal proceedings a hearsay statement is admissible as evidence of any matter stated if the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded: the res gestae principle.

Body worn video footage is now commonly used as evidence and admitted under that section in domestic violence cases, where complainants often retract their complaint and do not give evidence. There are strong policy reasons for admitting the footage, as recognised in the case of DPP v Barton [2024] EWHC 1350 (Admin). In that case, police officers had arrived at the scene of an incident around 25 minutes after receiving a 999 call from Mrs Barton who said that she had been hit by her husband. Mrs Barton gave an account of the incident to one of the officers who witnessed a "golf ball" size lump on her head. A few minutes later she spoke to a different officer and stated that her husband had assaulted her. That discussion, which included Mrs Barton showing the officer her injury, was captured on the officer's body worn video footage. Mr Barton was charged with assault by beating, to which he pleaded not guilty.

The prosecution's position from the onset was that it was not going to call Mrs Barton as a witness, as she had refused to make a statement. That remained their stance at trial, although Mrs Barton appeared at court. Prior to the trial, at a case management hearing, a District Judge ruled that the body worn footage of what Mrs Barton had said was admissible in evidence under the res gestae principle. The application to admit the evidence was unopposed, but the Divisional Court described the admissibility ruling as "plainly correct" and consistent with the relevant principles summarised in Archbold. The District Judge also dismissed an application by the defence to exclude the evidence pursuant to section 78 of the Police and Criminal Evidence Act.

After the evidence had been ruled admissible, and prior to the trial, Mrs Barton sought to disavow it. She said that she had been drinking heavily and she was now unsure that what she had told the police was accurate. She now believed that the blow to her head may have been caused accidentally by a friend who was trying to take her away from Mr Barton. She sent a letter to the CPS in which she set this out and indicated that she was very distressed about the prospect of having to be called as a defence witness. When Mrs Barton appeared at trial the prosecution declined to take a statement from her, or to call her as a witness because of concerns that if they did she would not give a truthful account. The trial judge acceded to defence counsel's argument that Mr Barton could not receive a fair trial in those circumstances, and stayed the case as an abuse of process.

The Divisional Court, on appeal by way of case stated, overturned that decision. They pointed out that the defence could have called Mrs Barton themselves, which would put them in no worse position than if the prosecution had called her and she were treated as hostile. Alternatively, the judge could have called her and afforded both parties the opportunity to cross-examine her. On the question whether it would be appropriate to admit res gestae evidence notwithstanding that in a strict sense the victim was available as a witness, the President of the King's Bench Division, Dame Victoria Sharp said this at [64]:

As the single judge observed when giving leave, res gestae evidence is now commonly relied on as the only or main evidence in the context of domestic violence. This is in the public interest so that such crimes can be detected and the perpetrators punished. That does not of course mean that the Crown is given carte blanche in any case to choose not to call the complainant. But the value of res gestae evidence is not confined to situations like that in Barton where the complainant has not only retracted her statement but turned hostile. It is just as valuable in cases where the complainant is unwilling or unable to give evidence in circumstances other than those in which he or she is afraid to do so.

In the present case we are satisfied, for the reasons that we set out below, that the evidence in question was not only admissible res gestae evidence but obviously so, that there was no unfairness to the appellant caused by its admission and that in the light of it there was plainly a case to answer.