Building a domestic violence prosecution featuring an absent victim
Rules governing the use of hearsay evidence, as outlined in the Criminal Justice Act 2003, offers the prosecution team the opportunity to deliver justice to some of the most vulnerable victims of domestic violence who provide accounts of incidents to police but are, for one of a number of specified reasons, unable to attend court to provide live evidence. A statement admitted under the hearsay provisions can be read or played to the court.
What are the various forms of victim ‘statement’ that could be admitted under the hearsay provisions?
Officers should always seek to obtain a formal signed section 9 statement from a victim but there are other less formal types of statement that are potentially admissible under the hearsay provisions. Examples include:
a) An account of an incident provided by the victim to a call handler during the course of a 999 call
b) An account of an incident as recorded on ‘body cam’ footage
c) A signed or unsigned pocket note book entry detailing an account provided by the victim to an officer
d) An account of events provided by a victim to a civilian witness which is recorded in a section 9 statement provided by the civilian witness
In the case of R v Clarke the victim’s account of assault recorded on ‘body cam’ represented the victim’s statement in the case
In the case of R v Gibbins the 3 year old victim’s verbal account of sexual assault to her mother and the OIC (recorded in section 9 statements from mother and OIC) was treated by the court as the victim’s statement in the case
In the case of R v Woodman the victim’s account of assault recorded in a signed PNB entry represented the victim’s statement
The statutory hearsay gateways – Section 116 Criminal Justice Act 2003
Section 116 outlines five different scenarios where the prosecution can potentially apply to read a statement of a witness is unable to give live evidence at court.
1. The witness is dead (116 2 a)
2. The witness is unfit to attend court due to bodily/mental condition (116 2 b)
3. The witness is outside the United Kingdom and it is not reasonably practicable to secure his/her attendance at court (116 2 c)
4. The witness cannot be found although such steps as it is reasonably practicable to take to find him have been taken (116 2 d)
5. Through fear the witness cannot give oral evidence (116 2 e)
Guidance on the key statutory gateways:
1. Through fear the witness cannot give oral evidence (116 2 e)
This gateway has particular relevance to cases of domestic violence where we know it is commonplace for victims to be in fear of repercussions arising from giving evidence against an abusive partner. Fear is widely construed by the courts and can include fear of the death or injury of another person and even fear of financial loss but it cannot relate to the general unpleasantness of giving evidence at court.
Evidencing a victim’s fear as part of the police investigation
If fear is a live issue officers must gather as much evidence as they can to support its existence. Options include:
a) The victim outlining their fears in a section 9 statement
b) Attending officers recording relevant comments or behaviour at the scene in a pocket note book
c) Obtaining statements from third parties that have direct knowledge of a victim’s fears (e.g friends/parents/neighbours/support workers)
d) Securing bad character evidence which might reveal a significant background of domestic violence
In the case of R v Woodman the attending officer noted in her PNB that when the suspect was being led away the victim made desperate attempts to demonstrate to the defendant that she was not cooperating with the police including repeatedly shouting “I haven’t told them anything”. This proved to be crucial in proving that the victim was genuinely in fear of the defendant.
Will special measures address the victim’s fears?
As per section 116(4) CJA 2003 a hearsay application will only be successful under this gateway if the prosecution can demonstrate that the provision of special measures (e.g screens, videolink) will not address the victim’s fears with respect to giving evidence. Officers should therefore seek to clarify this issue with the victim. As victims of domestic violence are often in fear of repercussions it is unlikely that the provision of special measures will adequately address their fears.
Leave of the court and the ‘interests of justice’ test
As per Section 116(4) a court will only admit a statement under the ‘fear’ gateway if it is in the interests of justice to do so. Case law has confirmed that this requires the court to look at the factors as outlined in Section 114(2) CJA 2003 which include:
a) How significant the statement is with regard to the issues in the case (a statement from a victim of domestic violence will always be significant)
b) The reliability of the victim who made the statement (officers must provide any information to a prosecutor which might impact on a credibility assessment e.g whether victim intoxicated at time, previous convictions/previous false complaints)
c) The reliability of the person who recorded the victim’s statement (a police officer is regarded as a professional in evidence gathering which often assists)
d) Whether there is any evidence to prove that the defendant caused the fear through intimidation
2. The witness cannot be found (116 2 d)
The police must ensure that “reasonably practicable” steps have been taken to locate the witness.
The Court of Appeal recognises that police resources are limited.
In the Court of Appeal case of R v C [2007] EWCA Crim 2996 the prosecution was permitted to read the statement of an absent witness when the police had visited all known addresses in an attempt to locate the witness.
In the Court of Appeal case of R v Kamuhuza [2008] EWCA Crim 3060 a forensic scientist could not be located. The police and prosecution were criticised for making insufficient enquiries to locate the witness. The judge indicated that he would expect that a former civil servant could be identified via his continued pension claims.
The Court of Appeal recognises that police resources are limited but is essential that officers document in statement form the various efforts they have made to locate the witness.
In the case of R v Sawyers the OIC obtained statements from PCSOs who had visited all known addresses connected with the ‘lost’ victim and a statement from a vice liaison officer. The allocated witness care officer documented all efforts she had made to contact the witness using different numbers and letters. The Crown was permitted to read the ‘lost’ victim’s section 9 statement at trial.
3. Section 114 (1)(d) Criminal Justice Act 2003 – the ‘interests of justice’
This gateway allows the admission of hearsay evidence in circumstances where it is in the interests of justice to do so. It cannot be used by the prosecution simply where there is insufficient evidence to secure admission under one of the other statutory gateways in Section 116 CJA 2003. When considering the ‘interests of justice’ the Court will look at the factors outlined in Section 114(2) CJA 2003 as mentioned above.
Section 114(1)(d) CJA 2003 has been used to admit the accounts of witnesses who are too young to give a formal statement or to provide live evidence in court which emphasises the importance of officers recording significant comments made to them by children at the scene of a domestic violence incident.
In the Court of Appeal case of R v AC [2014] EWCA Crim 371 the verbal account of a 30 month old victim regarding a sexual assault (recorded in her mother’s section 9 statement) was admitted as evidence under the ‘interests of justice’ gateway. The young girl’s account was corroborated by other evidence (e.g medical evidence of injury) which helped to persuade the court that it should be admitted.
4. Section 116(2)(b) The witness is unfit to attend court due to bodily/mental condition
Unfitness must be proved to the criminal standard and so it is vital that officers obtain statements and reports from medical professionals who have first-hand knowledge of the witness’ unfitness and are able to reach a firm conclusion on the issue.
In the case of R v Harwich Magistrates [2006] EWHC 3336 the Court of Appeal stated that the police must ensure that the provision of special measures (e.g a video link to a separate location) will not make it possible for the witness to give evidence. It is therefore crucial that officers document all the enquiries that they have made with respect to special measures that might make it possible for the witness to give evidence.
If a witness has suffered a deterioration in their mental health since providing a statement and is no longer fit to give evidence seek evidence from a medical professional who can comment on the fitness of the witness at the time the statement was provided.
5. Section 116(2)(c) The witness is outside the UK and it is not reasonably practicable to secure their attendance
What is ‘reasonably practicable’ depends on the circumstances of the case. Cost is a relevant factor. It is vital that an investigating officer documents all the enquiries made in relation to securing the witness’ participation in a trial e.g the cost of flying the witness to the UK, the cost/viability of a video link to the location where the witness resides.
What about using ‘res gestae’ evidence and simply prosecuting a DV case via the 999 call?
‘Res gestae’ is the term given to statements made in circumstances where the statement maker was so emotionally overpowered by an event that that the possibility that the statement was concocted can be disregarded. A 999 call made by a victim to police in which he/she outlines an assault will often amount to ‘res gestae’ evidence and so officers regularly enquire as to whether a domestic violence case can be prosecuted by means of the 999 call alone. While ‘res gestae’ evidence is admissible under Section 114(1)(b) Criminal Justice Act 2003, officers need to be aware that courts have on occasions used their discretionary powers to exclude such evidence where they believe that it is being used as a device to get around calling an available but unwilling witness (Court of Appeal case of Attorney General’s Reference (No 1 of 2003) and R v C [2007] EWCA Crim 3463).
The case of Barnaby v DPP [2015] EWHC 232 (Admin) provides guidance as to the circumstances where res gestae evidence could be used as an alternative to calling an available witness. It confirmed that relying on res gestae evidence alone may be possible where there is a ‘real risk that a victim of domestic abuse may suffer further harm following her cooperation with the prosecuting authorities’. Where the victim is available to be called as a witness alongside res gestae evidence, but would potentially be placed at risk if required to give evidence, the investigating officer should seek to evidence the risk of harm to the victim if compelled to attend court.
The use of hearsay evidence delivers justice for vulnerable victims in Avon & Somerset
Devon Sawyers was sentenced to 20 weeks custody at Bristol Magistrates Court after a contested trial at which the victim (a prostitute and drug addict) did not attend because she could not be located by police and where an independent witness was too frightened to attend court.
Brian Woodman was sentenced to 30 weeks custody at Bristol Magistrates Court after a contested trial where the prosecution was permitted to read the oral account of a repeat domestic violence victim (recorded in an officer’s PNB) who was in fear of giving evidence.
Jediah Clarke was sentenced to six months custody at Bristol Crown Court for an assault on his 14 year old daughter after a contested trial where the prosecution was permitted to play body worn video footage containing an account of assault from the young witness who was in fear of giving evidence.
Brian Gibbins was sentenced to 3 years and 8 months imprisonment for sexual offences prosecuted on the basis of verbal accounts provided by the 3 year old victim to her mother and the officer in the case and recorded in their section 9 statements which were admissible under the interests of justice.
Andre Stewart-Francois was found guilty at Bristol Magistrates Court of assaulting his ex-partner and breaching a restraining order after the verbal account of his ex-partner and written statement of an independent witness were read to the court because both witnesses were in fear of giving evidence. He was sentenced to 24 weeks imprisonment suspended for 2 years
Aaron Horlock was found guilty at Bristol Magistrates Court of assaulting his wife after an officer’s signed pocket note book detailing his wife’s account of assault was read to the court. The court had previously ruled that the victim was unable to give evidence on account of her fear.
Rob Allen, Senior Crown Prosecutor, CPS East of England, August 2015
If you have any questions in relation to the contents of this document or prosecutions featuring ‘absent witnesses’ please contact me. E: