Richard Glover :Senior Lecturer in Law and author of Murphy on Evidence
One of the principal dangers of admitting hearsay evidence in court is that a witness’s veracity cannot be tested by cross-examination. Notwithstanding that, where a witness is dead, or it is impractical for the witness to attend because she is out of the country, we may recognise the case for admitting hearsay under the Criminal Justice Act 2003. Similarly, the necessity of admitting hearsay may be evident where the witness is proved to be frightened of testifying because of the defendant’s threats. However, what if the witness was said to be frightened at the time of the alleged offence, but is in the court building on the first day of the trial? And what if the witness isn’t called by the Crown and the court doesn’t hear evidence about her reasons for not giving evidence, but admits her hearsay evidence anyway? The case for admitting the evidence appears weaker. All the more so if the Crown is relying on the res gestae principle, a common law exception to the hearsay rule described by David Ormerod as “redundant,” but preserved by the 2003 Act where “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.”
This was the position in the recent case of Barnaby v DPP  EWHC 232 (Admin), a relatively rare example of a res gestae case coming before the appeal courts. It was a domestic violence case concerned with a man’s alleged assault on his girlfriend and the admissibility of her hearsay statements. When the police arrived at the scene they observed marks around the complainant’s throat and on her cheek. She informed them, as she had the 999 emergency call operator, that the defendant had strangled her. However, she refused to provide a statement or sign the police officer’s pocket book, apparently out of fear of the defendant, who she said had “beaten her up” on the last occasion she provided a statement. Although the complainant was present at court on the first day of the trial, the prosecution declined to call her to give evidence or tender her to the defence. Instead, they relied on hearsay evidence in the form of the 999 call transcripts and the account she gave to the police who arrived shortly after her calls.
The Divisional Court found little difficulty in holding that the complainant’s evidence fell under the res gestae principle. On the facts of the case, this seems correct. The more troubling issue was the Crown’s failure to call the complainant or tender her evidence to the defence. The report doesn’t state expressly why she wasn’t called. The most likely explanation is that she was frightened of her boyfriend. That being so, one might have thought that, rather than res gestae, the most logical avenue for admission of this evidence would have been the 2003 Act provision regarding frightened witnesses, with its “interests of justice” test. Lord Justice Fulford also held that, where evidence was admissible under the res gestae principle, the Crown wasn’t obliged to rely on the statutory “interests of justice” gateway, which would have triggered consideration of the s.114(2) safeguards. These would also have been brought into play if the defendant had sought to exclude the evidence under s.78 of the Police and Criminal Evidence Act 1984 (Riat). However, inexplicably, the defence didn’t make the application.
In the absence of a s.78 application, it’s perhaps understandable that the Divisional Court wasn’t overly concerned about dismissing an appeal where the police, on the scene within 6 minutes, had observed the complainant’s injuries and the defendant remained silent in his police interview. Nevertheless, it is concerning that the complainant’s hearsay evidence was admitted even though she was at court. The Court of Appeal in Shabir stated that the law should reflect the decisions in Horncastle and Riat that “all possible efforts” should be made to secure the attendance of absent witnesses, and that the court should be satisfied to the criminal standard of proof that the witness didn’t testify out of fear. In Barnaby, the court simply accepted the Crown’s assertion, without testing it in court, that fear of her boyfriend, rather than fear of being found to be untruthful, was the reason for the complainant not testifying. This is particularly concerning because there was evidence that the complainant wasn’t of entirely unimpeachable character herself and misled the police over the defendant’s previous conviction. And, as she was at court, one might have thought that there was some doubt as to whether she really was frightened of the defendant.
Arguably, the Crown’s reliance on the res gestae principle in Barnaby doesn’t sit easily with judgments in Horncastle and Riat, or the Grand Chamber of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom, that reliance on hearsay should be a “last resort.” Where a witness is said to be in fear of the defendant, reliance on the res gestae principle allows admission of hearsay “through the backdoor,” without the need for that fear to be proved and without reference to the considerations that apply under statute. It also overlooks the “right to confront” witnesses, which was described recently as the “cornerstone of a fair trial.” (Adeojo)
So, following Barnaby, what conclusions can we reach? It’s suggested that in all such cases, where the res gestae principle is relied upon to admit the evidence of absent witnesses, said to be in fear of giving evidence, the following should apply:
(1) a hearing should be held to establish whether the absent witness is omitting to give evidence out of fear; and
(2) “interests of justice” safeguards that relate to the statutory admission of hearsay, should also be applied to the admission of evidence under the res gestae exception, where a witness is said to be “in fear.”
Richard Glover is a Senior Lecturer in Law at the University of Wolverhampton and author of Murphy on Evidence. He tweets at @MurphyEvidence.
This article originally appeared on the Oxford University Press blog.