‘Res Gestae in Domestic Abuse Cases – Any Change?

I. Introduction

The common law has developed a ‘rule against hearsay’. For present purposes, ‘hearsay’ is evidence that emanates ultimately from someone, W, who has not attended Court to give evidence.

Over the years, the common law has developed:

• Exceptions to the rule against hearsay, i.e. principled explanations of when something that looks like hearsay is, in fact, not hearsay at all; and
• Various grounds where hearsay at trials could, with the Judge’s leave, be admitted.

The Criminal Justice Act 2003 now simply restates and re-structures this case law so that it is all in one convenient place; so far as is relevant here, it does not substantively change the law itself. Suffice it to say that, overall, it remains very hard to get ‘true’ hearsay admitted in an English criminal trial.

One of the principles of the common law that emerged as an ‘exception’ to the rule against hearsay, i.e. the cases under the first bullet point above, is the principle of ‘res gestae’. In English, it translates as ‘things done’. Res gestae can best be illustrated with a clear example:

Example: W calls 999 and asks for the police. W exclaims, “Stop strangling me”; W says that with a voice of terror and as if she is struggling for breath. There is audible shouting from someone else in the background, D, and much smashing of property. W does not attend the trial of D, her partner, where D is accused of assault and criminal damage. The prosecution tries to introduce the 999 call at the trial of D; the words in that call, “Stop strangling me”, are the res gestae evidence, “E”.

So, res gestae (E) is the unreasoned instinctive utterances of someone in response to something dramatic happening to/around them where those utterances are so connected with that dramatic event that what they are saying or doing (where their actions imply the truth of a fact) could not possibly have been false.

II. The Domestic Abuse Context

Because of the strength of the rule against hearsay, our system generally operates on the basis that witnesses of fact need to attend at Court and give evidence.

Judges have the power to grant ‘special measures’ for vulnerable witnesses to make the process of giving evidence less intimidating.

Where a case is planned from the outset as one where the evidence flows from someone who will not attend, considerable thought is given – by the prosecution – as to whether there is a realistic prospect of conviction (“RPOC”) without that witness’ attending.

Domestic abuse is now taken seriously by the police. Frontline response officers will attend as a priority to these reports; they will also be pro-active when they are there.

Almost all response officers now have body worn video which they use prolifically to capture first accounts from witnesses.

These days, once the officers have attended, they are then often supported – after they move on to the next ‘job’ – by a local team of specialist investigating officers who take over the investigation and prepare the case for trial themselves. These specialist units work more effectively than ever before and it is clear, in most police areas, that domestic abuse cases are becoming increasingly well-prepared.

There is now greater social awareness of what domestic abuse is, its various forms, and the harm (particularly for children) that is caused by it; that greater social awareness is now evident in the way juries are now directed by judges and, indeed, the conclusions those juries sometimes reach.

This is not an article about domestic abuse more generally. There is plainly a distinction between “bad behaviour” in relationships and “abusive” relationships: L v F [2017] EWCA Civ 2121, at [61]; that distinction can sometimes be hard to draw.

Those who are victims of domestic abuse have often had their self-confidence and sense of self-worth manipulated and eroded by someone else over time. Any pre-existing vulnerabilities or sources of shame they had before their relationship with their abuser has probably been used against them. Victims are often emotionally drained and feel immense levels of shame. A victim’s whole social or support network (friends, work colleagues, family, etc.) has often disappeared for one reason or another; there is often no-one else left in their lives to intervene or sound warning bells – that is sometimes a deliberate strategy by their abuser. Victims often act on the belief that their perpetrator is the most cherished and important thing to them; to ask a victim to give up their relationship with their abuser is, often, to ask them to give up the very thing they have sacrificed so much for. Whilst victims might be supportive at the time of an incident, their supportiveness may wane when they realise what they might stand to lose. Further, requiring the victim to attend Court is to make them face even more powerful feelings of shame about how they came to be so reduced by their abuser. Many choose to stay in their relationships because they cannot, or do not want to, contemplate life outside of them even if they can when speaking to the police in the immediate aftermath of a horrible/traumatic event.

I set out the above as an explanation for why the law of res gestae so often arises in domestic abuse cases – the complainant very often does not attend at trial.

III. The Case Law

In my view, the case law on res gestae can be summarised as follows:

• Where there is doubt as to what W actually said or did, i.e. what E is, then this is a matter usually going to the weight of the res gestae evidence rather than its admissibility: Ratten v R [1972] 1 A.C. 378 (PC) (“Ratten”) at 389D and Andrews [1987] 1 A.C. 281 (HL) at p.301F;
• If the Court believes there is a possibility of concoction or distortion on the part of W as to the truth of E (where E, if it was true, was probative of D’s guilt), and the possibility of concoction/distortion cannot be disregarded, then the res gestae evidence should not be admitted: Andrews at 300H. There will plainly be some cases where doubt as to what W actually said, E, may call into question whether the possibility of concoction or distortion on the part of W can be disregarded: see Wills and Wills v CPS [2016] EWHC 3779 (Admin) (“Wills”), below;
• To that end, if the circumstances/events, “C”, where E was uttered, are such, for W, that: “…[C] was so unusual or startling or dramatic as to dominate the thoughts of [W], so that… [E] was an instinctive reaction to [C], thus giving no real opportunity for reasoned reflection [on W’s part]…[so that the Judge is satisfied that]…the involvement or the pressure of [C] would exclude the possibility of concoction or distortion [by W]…”

In that situation, the Judge will likely admit the res gestae evidence: Andrews at p.301A-B;

• E must be, “…so closely associated with [C] which has excited the statement, that it can fairly be stated that [W’s]… mind… was still dominated by [C]”: Andrews at 301C. That said, subsequent authority clarified that there is no requirement of contemporaneity in the expression of E to C: the primary question is whether there possibility of concoction or distortion can be disregarded. The passage of time is simply a “a factor” in the consideration of the primary question of whether the possibility of distortion/concoction can be disregarded: Ratten at p.389F-G and R (Ibrahim) v CPS [2016] EWHC 1750 (Admin) (“Ibrahim”) at [26]. Where there is other supportive evidence, such as:
  • Fresh or emerging injuries consistent with the content of E: Ibrahim at [27]; Barnaby v DPP [2015] EWHC 232 (Admin) (“Barnaby”) at [34]; DPP v Barton [2024] EWHC 1350 (Admin) (“Barton”) at [8];
  • Evidence of the tone or state of mind when E was expressed: Ibrahim at [27] and Morgan v DPP [2016] EWHC 3414 (Admin) (“Morgan”) at [24];
  • Evidence of others (or the scene) consistent with C: Ratten at 387-388, Andrews, A-G’s Reference (No. 1 of 2003) [2003] EWCA Crim 1286 (“A-G’s Ref”), Ibrahim at [27], and Morgan at [32];
  • Evidence as to W’s demeanour in the aftermath of C consistent with E: Ibrahim at [27] and Morgan at [24];

Then that must also be considered as part of that primary question.

• However:
  • Where there was a reason or motive for W to not tell the truth, then the Judge must be satisfied that E, arising from C, was such that there was, “… no possibility of any concoction or distortion to the advantage of… [W] or the disadvantage of the accused[, D]”: Andrews at 301E; and
  • If there is inconsistency in W’s various statements, then that may increase the possibility of concoction or distortion: Wills, at [16];
• The Court must be clear about the reasons for W’s non-attendance at Court: Morgan at [34]; there is a spectrum, however, between:
  • Situation one: The prosecution intends, all along, to rely upon W as a witness at trial and then – on the day of trial – W then does not attend. If the party seeking to introduce the res gestae evidence makes no or limited enquiries as to W’s non-attendance at trial (offers no reasons for it) and proceeds to ask the Court to admit the res gestae, then E is likely inadmissible: Wills, at [9];
  • Situation two – Where the prosecution has indicated, all along, that it does not propose to rely upon W as a witness of fact because they do not believe s/he will be a reliable witness at trial, but – in fact – they say that what s/he communicated in E at the time was true: Barton at [47] and [49]. Here, E may be admissible providing, where the party relying on it is the prosecution, they have complied with their duties of disclosure, i.e. to disclose anything in its possession that gives rise to its belief that W will not be a credible witness at trial: Barton at [50].
• Where there are cogent reasons for W’s non-attendance at trial, the party seeking to introduce E need not necessarily apply for a witness summons compelling W’s attendance: Vilhete v CPS [2024] EWHC 2171 (Admin) (“Vilhete”) at [60] and [63]-[64];
• The importance of W’s evidence to the case as a whole, and of its being tested in cross-examination having regard to the defendant’s defence, is a factor in determining whether the res gestae is admissible: Wills at [9] and Barton at [72];
• To that end, the approach summarised in Riat [2012] EWCA Crim 1509 (“Riat”) at [9]-[29] contains a useful checklist of factors in the consideration of deciding whether to exclude propose res gestae evidence: Barton at [71].

IV. Have Recent Developments Changed Anything?

Two recent cases, Barton and Vilhete, have certainly clarified the law in this area; Barton casts some doubt on the conclusion on an earlier case, the A-G’s Ref case, cited above.

The case of Barton contains the following striking paragraph: “In the sensitive and specific context of domestic abuse… it will often not be unfair to allow the prosecution to adduce the res gestae evidence of a complainant where they are not called as a witness, and there is an absence of fear. As is now well understood, it is not uncommon in such cases for there to be sufficient evidence to prosecute the alleged perpetrator of the abuse even where the complainant does not to support the prosecution. In our opinion, in such cases, the public interest may often demand the use of res gestae evidence, particularly recorded evidence, regardless of the cooperation of the complainant” (emphasis added) [64]

That paragraph of Barton is a paragraph, I suggest, that could easily be misunderstood. Both Barton and Vilhete were cases concerned with the cogency of the reasons advanced by an unsupportive W where their unsupportiveness was known before trial. The prosecution made it clear that it did not intend to call W to give oral evidence at the trial. That is not intended to create ‘one law’ for domestic abuse cases and ‘another ‘law’ for non-domestic abuse cases, creating a subset of principles for the law of res gestae in domestic abuse cases; rather – I suggest – it is intended to focus a Court’s attention on the different factors that legitimately exist in making decisions in the domestic abuse context that may not exist in other contexts.

Barton is not saying that Courts should strain to find res gestae evidence admissible in domestic abuse cases. Barton expressly directs the reader to Riat and the sequential approach, set out in that case, for the consideration and reception of hearsay evidence. One of the aspects of Riat is examining the prejudice that will be caused to the defendant by not being able to cross-examine W. Vilhete, whilst it spends many pages endorsing the Recorder’s findings as to the cogency of the complainant’s reasons for not attending, also involves the Divisional Court ultimately upholding the Recorder’s conclusion that a fair trial could take place without W attending. That case was one supposedly involving the use of force as self-defence on the part of the defendant.

What I take from the new cases is that there will now be a more sympathetic, nuanced, and – frankly – more modern approach taken to the reasons for a complainant’s non-attendance in domestic abuse cases. It will be an approach that appreciates the reality of the effect of domestic abuse on its victims and the common circumstances in which it arises.

Ultimately, however, these new authorities do not disturb the previous legal position: the real question, as ever, will be whether a fair trial can take place without W there to be cross-examined.