Case No: 4289/2014
Neutral Citation Number: [2015] EWHC 232 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/02/2015

Before :

THE RIGHT HONOURABLE LORD JUSTICE FULFORD

THE HONOURABLE MR JUSTICE JAY
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Between :

	Lee Stewart Barnaby 	Appellant	
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	The Director of Public Prosecutions	Respondent	

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Mr Brian Fitzherbert (instructed by Howell Hilton) for the Appellant
Mr Simon Heptonstall (instructed by The CPS Appeals Unit) for the Respondent

Hearing dates: 28th January 2015
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Judgment
Lord Justice Fulford: 
Introduction
1.	Lee Stuart Barnaby appeals by way of case stated against the decision of the Bodmin Magistrates’ Court on 6 June 2014 when the justices convicted him of a single charge of assault by beating on 11 April 2014. He was sentenced to 16 weeks’ imprisonment.
2.	The two questions formulated by the justices concern the introduction of hearsay evidence, as follows: 
i)	Were we correct in admitting the out of court statements of Glenda Gibb?
ii)	Were we correct in admitting the evidence of the 999 calls?  

The Facts
3.	During the early hours of Friday 11 April 2014, the complainant, Glenda Gibb, made a series of three emergency 999 calls to the emergency services. An officer, DC Pym, prepared an edited transcript of what was said. In the first call, at 6.33 am, Ms Gibb whispered “I can’t really talk; I’ve just been attacked by my boyfriend.” During the second call she said “Um my boyfriend’s just strangled me; I can’t really talk”. She told the operator that she was at her home address on the Lanuthnoe Estate, St Erth, Cornwall. She indicated that the appellant had just strangled her and was about to leave the property to go to Cambourne. She refused to give her name, saying “I’m just so scared because he’s just strangled me”. The complainant said the person responsible was the appellant, Lee Barnaby, and that he had “done this before”. In the course of the third telephone call, she repeated that her boyfriend had just left the premises and that he had assaulted her.  She expressed concern that the police should not tell the appellant she had reported the incident. She gave her name during this last call. She was clearly upset: indeed, she was sobbing. The last of these telephone calls was at 6.49 am. 
4.	 The police arrived at the premises about 6 minutes later. Ms Gibb was agitated and upset, and became angry when she was told the appellant had not been apprehended. The officers noted a distinctive reddening in a band about 3 inches wide that extended round the entire front of Ms Gibb's throat. There was also a crescent shaped mark, like an inverted upright "C", on her left cheek.
5.	 Her account at this stage as to what had occurred was that although the appellant had been sleeping downstairs on the sofa in the lounge she “woke up and found him strangling me. Bit my cheek whilst strangling me and called me bitch and cunt … he strangle me with his hands". She gave the appellant's name: Lee Barnaby. She refused to give a statement or to sign an entry in an officer's pocket book because she said he "beat me up" on the last occasion she provided a statement.
6.	 Whilst Ms Gibb was speaking with the police, she showed the officers examples of text messages that the appellant was currently sending to her, such as "I am sorry for what I did. Glad I know how you really feel now". She told the police that he had been taking cocaine and steroids. 
7.	PS Ross described Ms Gibb's state as follows: 

Throughout Ms Gibbs was agitated and upset, anxious that we arrest Barnaby and fearful of what he would do if we didn't arrest him and he returned to the address but equally fearful of what Barnaby would do if we did arrest him and he was released from police custody and he discovered she had called the police. Her fear was clearly causing her confusion and agitation and she was genuinely anxious about her safety and the possibility that Barnaby might seriously harm or even kill her and re-stated her reluctance to give a statement as she was concerned this might increase the risk of harm to herself and her son in the future.

8.	DC Pym seized the appellant’s telephone and he looked at some of the stored text messages. One sent to a former partner of the appellant, Gemma Barron, at 12.25 on 11 April 2014 set out “Did u check dates? Strangled and bit Glenda this morning. Lost plot.”
9.	It seems that at some stage during these events the appellant told the police that the appellant had a large bag of drugs in his possession. However, no drugs were found when he was detained some miles from Ms Gibb’s address much later that day. 
10.	The appellant declined to answer any questions in interview. At trial, he denied that he had slept overnight at Ms Gibb’s home and he denied the allegation of assault. He said that he had simply gone to her address to collect his belongings and that they had argued. 

The Procedural History
11.	The appellant was charged, on 12 April 2014, with an assault on Glenda Gibb by beating her, contrary to section 39 CJA 1988. 
12.	On 28 April 2014 the appellant's solicitors were sent the evidence on which the prosecution relied; these included the statements and exhibits encompassing the history rehearsed above, save for the transcript of the 999 telephone calls. 
13.	There was an interim case management hearing on 6 May 2014, when a Case Management Form was submitted in which it was indicated that the real issue in the case was that "[…] there was no assault. There was no contact between the defendant and the complainant."
14.	The appellant's representatives stated on the Form that objection was taken to the prosecution relying on hearsay evidence, and an order was sought that the case should be listed before a bench that was not due to hear the trial in order to resolve any outstanding issues as to the use of hearsay evidence by the prosecution. However, a preliminary hearing for this purpose did not take place.  
15.	The trial was listed in the Magistrates' Court for 5 June 2014, the day before the custody time limit expired. 

The Hearsay Evidence
16.	At the outset of the trial, the bench was informed that the admissibility of hearsay evidence that the prosecution suggested came within the res gestae principle, together with the continuity of some of that evidence, required resolution. It appears that the advocates agreed that this should be dealt with as a preliminary issue. A ruling was given on 5 June 2014 and the trial proceeded on 6 June 2014. Although the complainant, Glenda Gibb, attended court on 5 June 2014, neither party sought to call her to give evidence.
17.	On 5 June 2014 the prosecution sought to rely on the transcript of the 999 calls and the account given by Ms Gibb when she saw the police officers at the premises, as summarised above.  
18.	The prosecution relied on sections 114 (1) (b) and 118 (1) (4) (a) Criminal Justice Act 2003. Given one of the arguments taken by the appellant it is convenient to set out section 114 (1) and (2) in full:

Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

[…]

19.	Additionally, section 118 (1) (4) provides: 

118
Preservation of certain common law categories of admissibility
(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,

[…]

20.	I note at this stage that there is no need to serve a notice to introduce hearsay evidence that is admitted under section 118 (1) (4) pursuant to Criminal Procedure Rules 2014 (see Rule 34.2 which sets out the categories of hearsay evidence for which a notice is necessary). 
21.	The appellant emphasised before the justices that Ms Gibb had not made a statement in support of this allegation, she had convictions and it was suggested that the telephone calls were “planned rather than spontaneous”. She had previously made a complaint to the police which was not pursued arising out of an incident in the car park at Tesco’s in Redruth on 16 January 2014 when the appellant was alleged to have grabbed Ms Gibbs by the throat. An eyewitness and Ms Gibb were not prepared to provide witness statements, and no further action was taken. Finally, it was argued that there was no “continuity” evidence for the telephone calls to the emergency services. In all the circumstances, it was asserted that this evidence was inadmissible. 
22.	In admitting the evidence of the 999 telephone call, the justices ruled as follows:

We do regard the telephone calls from Glenda Gibb to the police via the 999 system to form part of the res gestae and therefore admissible as hearsay under the previous evidential rules.  We do not believe there was any possibility of concoction or distortion because she was emotionally overpowered by the event and clearly scared of the consequences of reporting the matter to the police in this way.  She was not tendered to the defence as she did not make a statement.  However she refused to sign the officers notebook because she says 'last time I made a statement he beat me up'.  The defence could still call Glenda as a defence witness.  It is very unfortunate that the prosecution have not complied with their disclosure obligations until today.  Evidence that the continuity statement was made (relating to the tape) was produced today and closes the gap- we do not believe it would be appropriate to exclude that evidence because it is not a major issue in determining guilt or innocence and the defendant can still get a fair trial.  Our displeasure can be reflected in any award of costs.   
 
23.	The justices did not provide separate reasons for admitting the out-of-court statements of Ms Gibb to the officers. 

Submissions
24.	We are reminded by counsel for the appellant that res gestae evidence should only be admitted if the statutory test is met, namely the “statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded” (section 118(4)(a)). It is acknowledged that PS Ross had described Ms Gibb when they arrived as being “agitated and upset, smoking a cigarette” and PC Woolley suggested that Miss Gibb was “very frustrated by Police response and suggested that Lee would just get away with it like before … she said that she was not going to provide a statement as she did last time and he got away with it”. It is argued that the court was unable to assess whether the account given by Ms Gibb, starting with the 999 telephone calls, was sufficiently contemporaneous to discount the possibility of concoction or distortion. It is suggested that she may have delayed contacting the police in order to invent the allegation, and we are urged not to place undue reliance on her statement to the 999 operator that her attacker had just assaulted her. It is contended that her expression of concern that the appellant should not be told that she had contacted the police indicates that these were not spontaneous remarks. Put otherwise, there had been time for reasoned reflection. 
25.	As set out above, she had reported that the appellant, who had a number of convictions for dishonesty and violence, was in possession of a large bag of drugs, but it is highlighted that no such illegal item was found. DC Pym recorded when he saw Ms Gibb on 11 April 2014 to take a statement that “she told me that Barnaby had tried to strangle her before and that he had gone to prison for a number of years as a result of the attack”. The MG5 Police Report served in support of the prosecution case contained the suggestion that “she explained that Barnaby had served over two years in prison for a similar incident in 2006 where he had strangled her to the point of her blacking out and that she was too afraid to make a complaint on this occasion”.  It is noted that although the appellant was sentenced in June 2006 for an offence of assault occasioning actual bodily harm, this conviction did not relate to Glenda Gibb. Instead the victim was the complainant’s sister, Wendy Gibb. In all the circumstances, it is argued that Ms Gibb had clearly lied to DC Pym and it is suggested there is evidence of enduring hostility between the appellant and the victim which may have led to the latter providing an unreliable account. 
26.	Turning to the 999 telephone call, it is contended that the prosecution failed to establish the provenance or the accuracy of the transcript. It is observed that these telephone conversations were introduced without supporting material that sufficiently demonstrated the source or the integrity of this evidence. This is usually described as a lack of continuity. DC Pym gave evidence that he had secured a continuity statement for the 999 evidence but he accepted that it had not been disclosed to the defence in advance of the trial and that it had not been served formally as evidence in support of the prosecution case. 
27.	It is submitted that the respondent should have made an application to adduce the 999 call and the out-of-court statements by Ms Gibb to the officers under section 114(1)(d) as opposed to section 118(1)(4)(a). In those circumstances, the court would have been required to consider the various factors set out in section 114(2)(a) – (i) and in particular whether Ms Gibb was reliable, the prejudice to the appellant that was likely to have been occasioned by the introduction of this evidence and the reasons for the prosecution’s failure to call Ms Gibb. 
28.	It is argued, therefore, that the appellant did not receive a fair trial because of the lack of a hearsay application and because the prosecution circumvented the provisions of section 114(2)(a) – (i).

Discussion
29.	The first issue is whether this evidence was correctly admitted under the res gestae principle. The guiding authority in this area remains R v Andrews (D) [1987] AC 281, in which Lord Ackner (with whose speech the remainder of the House agreed) observed: 

My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as "hearsay 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. (page 300 H – 301G)

30.	We note that Lord Ackner strongly cautioned against attempting to use this doctrine as a device to avoid calling the maker of the statement when he is available (see page 302): 

Whatever may be the position in civil proceedings, I would, however, strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to avoid calling, when he is available, the maker of the statement. Thus to deprive the defence of the opportunity to cross-examine him, would not be consistent with the fundamental duty of the prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.

31.	In the present case, it appears that the first two 999 telephone calls were made whilst the appellant was still at the victim’s home, given she was whispering when speaking to the operator and she said that the appellant had “just” tried to strangle her. During the third call, she indicated the appellant had recently left the property. She was upset and repeatedly rang the emergency number. The police responded speedily following the last of the calls, given they arrived within 6 minutes. In that sense, Ms Gibb’s statements to the officers were a continuation of the earlier exchanges with the 999 operator. She was still agitated and upset, and the officers noted that the marks from the alleged assault were still visible on her neck. In my judgment, in the context of an incident in which there was clear evidence of recent attempted strangulation, and given Ms Gibb’s emotional state throughout the various conversations, the court was entitled to dismiss the possibility of concoction or distortion. To borrow the language of Lord Ackner, this would have been a startling and dramatic event that would have dominated the thoughts of Ms Gibb and her utterances would have been instinctive and spontaneous. In those circumstances, the court would have been entitled to discount any suggestion that the allegation had been concocted for the advantage of Ms Gibb or the disadvantage of the appellant. The possibility of error does not arise in this case: the choice was either that Ms Gibb was telling the truth or the entire incident had been made up and it is unsustainable to suppose that this was an event about which she could have made a mistake.
32.	In my judgment, it follows that the evidence of the telephone calls, together with the conversations with the police officers that occurred shortly afterwards, fell well within the res gestae principle. The only issue that has given me cause to hesitate is that the prosecution did not seek to call Ms Gibb to give evidence, nor did they attempt to tender her for cross-examination. As Lord Ackner observed, this is an important consideration and it will often be the case that if the prosecution are not prepared to tender an available witness for questioning by the defence, the court will more readily exercise its discretion against admitting the hearsay evidence (see, for instance, Att-Gen’s Reference (No. 1 of 2003) [2003] EWCA Crim 1286; [2003] 2 Cr App R 29). It is useful to set out part of the headnote to that report which provides a succinct summary of the relevant part of the judgment:

Once evidence was within the res gestae exception to the hearsay rule it was admissible. There was no rider that, as a matter of law, it was not to be admitted merely because the maker of the statement was available and could have given evidence. To the extent that the judge might have thought that there was a best evidence rule that excluded evidence of a lesser quality, that was wrong. If such a rule existed it applied only to documents. The correct procedure was for the judge to have accepted that the evidence was admissible but he should have been prepared to entertain an application by the defence under s.78 of the Police and Criminal Evidence Act 1984. If the purpose of the Crown was that the res gestae evidence should be given without any opportunity being given to the defence to cross-examine the maker of the statement, the court might well conclude that the admission of the evidence would have had an adverse effect on the fairness of the proceedings and refuse to admit it. As a general principle, it could not be right that the Crown should be permitted to rely only on such part of a victim's evidence as they considered reliable, without being prepared to tender the victim to the defence, so that the defence could challenge that part of the victim's evidence on which the Crown sought to rely and, if advised, elicit that part of her evidence on which the defence might seek to rely.

33.	I note that in that case the prosecution did not wish to call the principal witness because it was believed she would give untruthful evidence in order to exculpate her son. Instead, the Crown sought to adduce evidence from other witnesses as to what she had said at the time of the incident. There is no indication from the judgment that the witness was liable to be untruthful because she was in fear of further harm from the perpetrator.  
34.	Immediately after the present incident, Ms Gibb expressed her fears as to the likely consequences if the appellant discovered that she had cooperated with the police, and particularly that she had provided information against him. Although the court has a cardinal responsibility to ensure that a defendant receives a fair trial, careful decisions need to be taken in situations of this kind if there is a real risk that a victim of domestic abuse may suffer further harm following her cooperation with the prosecuting authorities. Here, the prosecution was aware from the outset that Ms Gibb was frightened that providing a witness statement might provoke a violent reaction from the appellant. This was not a situation in which the prosecution was seeking to resort to unfair tactics in order to avoid introducing evidence that was potentially inconsistent with the case against the defendant, or because it simply anticipated that there was a risk the witness might give an untruthful account. The Crown’s stance was a seemingly sensible recognition of the potentially dangerous position in which Ms Gibb had been placed. Given these facts, it was appropriate to admit this res gestae evidence notwithstanding, in a strict sense, Ms Gibb was available as a witness, for instance if the court had issued a witness summons.
35.	As to the continuity issue, in my view, the court below correctly identified that it was very unfortunate that the prosecution had failed to provide the relevant information in advance of the trial. There had been an undoubted breach of the Crown’s obligations as regards the timely service of evidence. However, on the day of the trial evidence was provided by the officer who listened to the tape and compiled the edited transcript. This “closed the evidential gap”, as the court put it. Moreover, the following factors are clear from the face of the record of these 999 telephone calls. First, the caller used the same mobile telephone number ending 3766 on each occasion. Second, given the subject matter of the telephone calls (an attack on the caller by her boyfriend) and the fact that the calls occurred within a very short timeframe (16 minutes), it was open to the bench to conclude that the caller was the same person on each occasion. Third, the caller gave the appellant’s name as the attacker and her own name as the victim, and it was therefore open to the bench to conclude that the victim was speaking about a recent attack on her by the appellant. In all the circumstances, the court was entitled to decide that the provenance of this res gestae evidence had been established beyond doubt, and that it was a near-contemporaneous record of Ms Gibb describing an assault on her by the appellant. 
36.	Finally, the argument that the prosecution should have applied to introduce this evidence under section 114 (1)(d) CJA 2003 is without any sustainable foundation. If the evidence was properly admissible under the res gestae principle, the Crown was not obliged instead to rely on section 114 (1)(d) in order to trigger consideration of some or all of the factors set out in section 114(2)(a) – (i) CJA 2003. No authority or established legal principle has been advanced in support of this contention and it has not been demonstrated that it was unfair for the prosecution to avail itself of this clear route to admissibility. Indeed, in Riat [2012] EWCA Crim 1509; [2013] 1 Cr App R 2 at [20] it was stressed that “This court emphasised in R. v D(E) [2010] EWCA Crim 1213 that s.114(1)(d) cannot be used routinely to avoid the statutory conditions for the admission of evidence which properly falls to be considered under ss.116–118. ” There was no application under section 78 Police and Criminal Evidence Act 1984 to exclude this evidence. If such an application had been made, as Hughes LJ indicated in Riat “ […] the non-exhaustive considerations listed in s.114(2) as directly applicable to an application made under s.114(1)(d) are useful aides memoire for any judge considering the admissibility of hearsay evidence, whether under that subsection or under s.78 of PACE , or otherwise” [22]. That consideration did not arise. 
37.	Although the justices did not provide separate reasons as regards the conversations with the police officers at the scene, this evidence was correctly admitted as res gestae hearsay. The same considerations apply to both the 999 calls and what Ms Gibb said to the officers. I would answer “yes” to both questions posed by the justices and dismiss this appeal.

Mr Justice Jay
38.	 I agree.