Res Gestae and Victimless Prosecutions in Domestic Abuse Cases: Analysis of R v Sinfield [2021] EWCA 1227

R v Sinfield: In light of the recent increase in domestic abuse prosecutions where complainants have declined to give a formal witness statement or co-operate with efforts to investigate by police, Anthony Williams considers the arguments being made to justify those prosecutions – and whether they are properly founded.

In R v Sinfield [2021] EWCA 1227 (sometimes cited as R v AS), the Court of Appeal dealt with an application for permission to appeal in a case where the complainant not only failed to support the prosecution, but did not provide a witness statement to officers investigating the case. Whilst Sinfield is a 2021 case, it appears to have seen a resurgence in recent efforts to get domestic abuse prosecutions off the ground where a complainant has failed to cooperate with authorities (“evidence-led” or “victimless” prosecutions).

Having previously written extensively about reliance upon res gestae evidence in domestic abuse cases, I felt it was only proper that I should also consider whether it was appropriate to rely upon Sinfield to circumvent the need to investigate reasons why a witness is absent or uncooperative.

FACTS

The Defendant in Sinfield was charged with assault occasioning actual bodily harm, acting in breach of a Restraining Order, and criminal damage

On the night in question, the complainant called the police and told the operator “Can I have the police here immediately, please? … I’ve just been struck by my ex-partner.” Police arrived fifteen minutes later. They found the complainant bleeding from a laceration to the head. In the property they found bloodstains throughout the ground floor, a clump of hair in the hallway, and both a mirror and the complainant’s phone had been smashed. The complainant also appeared to be intoxicated. 

When officers asked the complainant what had taken place, she provided an account over around 30 minutes, which was recorded by the officers’ body-worn video cameras. In that footage she described what had taken place, but was reluctant to identify the Defendant, only describing that the perpetrator had not meant to be there as there was a restraining order preventing them from seeing her. The only person who had such a restraining order was the Defendant.

The Defendant was seen to park his car close to the complainant’s property around 24 minutes after she contacted emergency services. He was later arrested and smelt of alcohol.

The complainant did not provide a statement to officers and did not wish to give evidence or co-operate with authorities. In the circumstances, the Crown decided that they could proceed based on the limited evidence described above. The Defendant was tried at St Albans Crown Court and convicted. He did not give evidence on his own behalf.

JUDGMENT

In seeking leave to appeal, it was argued on the Defendant’s behalf that the evidence relied upon did not amount to res gestae, in that the complainant was not so emotionally overpowered by an event that the possibility of concoction or distortion could be disregarded. It was argued that as the complainant was an “available witness”, she should have been called as a witness to give evidence in the ordinary way. It was also argued that in any event, the evidence of res gestae should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. Leave to appeal was refused by the Single Judge and so the application was renewed at a hearing.

In the Court of Appeal’s judgment, the statements made by the complainant in the body-worn video footage fully satisfied the requirements of res gestae evidence. They also opined that it could have fairly been adduced under s114 Criminal Justice Act 2003 as hearsay. 

They went on to express the view view that the fact that the complainant did not want to give evidence, instead wanting to move on in her life, did not make the admission of the evidence unfair. They observed that “There is an important public interest in cases of this kind being heard, and the desire of the complainant is by no means determinative” (at paragraph 19). They concluded there was no proper basis for excluding the evidence under s78 PACE, observing that there is a distinction “between evidence that is detrimental to the defence… as compared with evidence which is unfair or prejudicial falling within section 78”. 

They ultimately concluded that the jury had been entitled to believe the evidence of the complainant in the form it had been given, and that the case against the Defendant had been formidable. They therefore refused permission to appeal.

IMPLICATIONS

R v Sinfield was a case decided on its facts. It did not change the law regarding the admissibility of res gestae evidence. 

In this particular instance, the Court of Appeal upheld the decisions made by the trial judge to admit the evidence in accordance with the law as it already exists. The Court in Sinfield did not purport to set any new principles itself – nor, in fact, did it do so. As the Court stated in its own judgment (at paragraph 13), “the search is for principle rather than example” and previous authorities setting out relevant principles are cited, including R v Andrews [1987] AC 281, Morgan v DPP [2016] EWHC 3414, and McGuinness v Northern Ireland Public Prosecution Service [2017] NICA 30). Ironically, it seems Sinfield is now being relied upon by prosecutors as an example itself to justify pursuing “evidence-led” prosecutions (where witnesses are no longer co-operative), especially in the absence of a witness statement from the complainant.

The Court most certainly did not create a blanket or hard-and-fast rule to be applied where complainants in domestic violence cases decline to give a statement or support a prosecution. On the facts and evidence of this particular case, the Court of Appeal took the view that the account given in the footage amounted to res gestae and did not consider there to be grounds to argue that the conviction was unsafe.

WILLS v CPS – WHERE THERE’S A WILLS, THERE’S STILL A WAY

It is notable that, whilst it was argued on behalf of the Defendant that the complainant was an available witness and should have been called, nowhere in R v Sinfield is the case of Wills v CPS mentioned. There is no discussion in the Court’s judgment whatsoever of what efforts were made on the part of the police, or the Crown, to investigate the possibility of securing the complainant’s co-operation or attendance at Court. There is no discussion of whether special measures or summonses were discussed or contemplated with the witness. 

It is mentioned in passing that the complainant “did not want to give evidence” and wanted to “move on in her life” (at paragraph 19), but earlier in the judgment it was said that “For whatever reason, the complainant was not prepared to make a statement about these events and did not wish to give evidence.” It is simply not clear from this judgment why the complainant did not, or could not, attend.

It is also a relatively short judgment (four pages) and relates only to the Defendant’s application for leave to appeal, not a fully-argued appeal against conviction in itself. 

For these reasons, it cannot be argued that the Court of Appeal either expressly or impliedly overturned the principles described by the High Court in Wills. It is arguable that they expressly declined to establish any principles overriding any existing case law.

PROMISES, PROMISES

On a related note, I have dealt with a seemingly increasing number of cases in recent years in which it appears police officers have informed witnesses that they would not have to attend Court if they provide a statement and support the prosecution – even asserting directly that the case will proceed as a victimless prosecution based upon their statement should they not wish to attend. 

As a result, complainants have provided detailed statements under the impression that this would be the only input required from them for the case to proceed. When subsequently expected to attend Court, they are – somewhat understandably – disappointed, angry or upset. These emotions can be exacerbated when the suggestion of being summonsed to Court arises. 

Firstly, anyone from whom a statement is taken may be expected to attend Court to give evidence and be cross-examined upon it, with the assistance of special measures or otherwise. It is a decision for prosecutors, not police officers, whether to rely upon that statement – or other material – as hearsay evidence.

Secondly, when deciding whether admitting prosecution evidence would have an adverse effect on the fairness of the proceedings under s78 PACE, the Court is entitled to have regard to all the circumstances of the case, including the circumstances under which that evidence is obtained. Any statement taken from a witness who is told that they will not be cross-examined or challenged about the account they give in writing is clearly open to criticism as unreliable.

As such, in addition to being poor witness care, officers providing false assurances to witnesses without input from prosecutors could end up jeopardising whole prosecutions.

CONCLUSION

There is, as the Court in Sinfield identified, a clear public interest in ensuring that domestic abuse cases are able to be prosecuted where possible. It is understandable that the Crown would want to use all proper and lawful means to pursue the prosecution in line with its published domestic abuse policies and legal guidance

Despite this, the Crown still cannot – and should not – default to res gestae without a proper investigation into the reasons why the complainant is not in attendance, or without taking steps to establish if their attendance and cooperation can be secured. It follows that the Crown cannot simply default to res gestae evidence in the absence of a statement, either.

There remains an obligation upon the Crown to demonstrate and satisfy the Court that:

  • there is a good enough reason for the complainant’s absence to justify depriving the Defendant of the right to cross-examine (Wills);
  • that the evidence in question amounts to res gestae, in that it is a statement made when a witness is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded (Andrews etc);
  • upon an application by the defence to exclude the evidence under s78, that it would not be unfair to admit the evidence.

Prosecutors should be expected to ensure that proper efforts are made by police to secure the complainant’s co-operation and attendance at Court. This includes efforts to take a statement from them, discussion of special measures with the complainant and carrying out a risk assessment to establish the impact of being required to provide a statement and/or attend Court upon them. 

If such efforts do not prove fruitful, meaningful steps should be taken to investigate and explain the reasons why with evidence in support, in order to furnish the Court with the information it needs to assess whether the evidence should still be admitted.

Where evidence can properly be relied upon under existing hearsay provisions, res gestae rules should not be used to circumvent them. A properly-argued Notice of Intention to Adduce Hearsay Evidence should be served instead.

As I have previously written, those defending should still be prepared to scrutinise the reasons being given for a complainant’s non-attendance or non-cooperation. They should consider whether the evidence in question actually meets the criteria to be relied upon – either as hearsay or as res gestae. They should also consider whether it is arguable that, in all the circumstances of the case, it would be unfair for that evidence to be admitted when it cannot be tested by cross-examination.

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