The difficulty with domestic abuse cases in the criminal courts

Domestic abuse cases can be difficult cases to prosecute and defend in the criminal courts. The latest data issued by the Office for National Statistics indicates that although there have been a similar number of recorded domestic abuse-related crimes in England and Wales (excluding Devon and Cornwall Police) in the year ending March 2023 (889,918 compared to 889,311 in the year ending March 2022), the number of domestic abuse-related prosecutions in England and Wales decreased by 3.6% in the year ending March 2023 (51,288 compared to 53,207 in year ending March 2022).

Usually, the police are called at the height of an argument, when one party has been assaulted. However, when the matter comes before the criminal courts some months later, often the complainant has withdrawn their support for the prosecution, for a number of reasons. The Crown Prosecution Service (CPS) often has to rely on the initial 999 call and allegations picked up on body camera footage from police officers who attended the initial call as res gestae evidence. This is hearsay evidence (evidence made outside of Court, repeated in Court to prove the truth of the matter stated) which can be admissible because the statements/evidence contained within it were made when a person (in this case the complainant) was so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded. The initial 999 call and body-worn footage from the police in these cases is not automatically admissible in Court; the Prosecution have to convince the Court that it satisfies this requirement. This is because the complainant themselves will not be present in Court to answer questions about the allegations.

The recent case of Director of Public Prosecutions v Barton [2024] EWHC 1350 (Admin) concerned the fairness of a prosecution which relied upon res gestae statements made by a domestic violence complainant. It provides a useful reminder of the law surrounding this issue and how both the Prosecution and defence should approach such a case.

The facts

The respondent, Joseph Barton, had been charged with an allegation of assaulting his wife on 2 June 2021. Mrs Barton telephoned 999 immediately after the relevant events alleging that her husband had assaulted her. When the police arrived about 25 minutes later, she then repeated the allegation she had made over the phone to two separate officers. Both repetitions of the allegations were recorded on the police officers’ body-worn cameras.

The Prosecution had never relied upon the complainant as a witness and had never taken a formal statement from her as she had always been unwilling to do so. The Prosecution considered that any evidence she might have given at trial would be unworthy of belief. Instead, the Prosecution sought to rely on as res gestae evidence the 999 call and the complainant’s repetition of the allegations to the police on their body-worn cameras.

The Prosecution made the application to rely on the evidence as res gestae on 17 November 2021, which was granted. It was not disputed that this decision was correct.

On 17 February 2022, the complainant sent a letter to the Prosecution, although it was unclear whether this actually reached the reviewing lawyer. Within that letter, the complainant stated that she had told the police officer who attended her home that she had been drinking heavily and now was not sure what she had said to the police at the time was accurate. Having spoken to friends present that night, she stated she believed the injury caused to her had been caused accidentally by one of her friends when the friend was trying to take her away from Mr Barton.

On 31 October 2022, District Judge Sweet stayed criminal proceedings brought against Mr Barton. This was on the basis that the Prosecution’s failure to call the complainant as a witness despite her availability at trial was an abuse of the court’s process. The Judge held that this placed Mr Barton at a significant disadvantage as the defence would be unable to cross-examine the complainant on previous inconsistent statements, because if they had called her as their own witness, they would not be able to cross-examine her, instead only being allowed to ask her open-ended questions.

The Director of Public Prosecutions appealed against the Judge’s ruling by way of case stated to the High Court. The main issue raised by the appeal was the fairness of a prosecution which relies upon res gestae hearsay statements made by a domestic violence complainant in circumstances where: (i) the Prosecution never intended to call the complainant; (ii) the complainant retracted her complaints; and (iii) the Prosecution declined the Judge’s invitation to call her as a Prosecution witness despite her availability at trial.

The law

Abuse of process

The law on abuse of process is clear. There are two categories of case in which the Court has the power to stay proceedings for abuse of process: (1) where it will be impossible to give the accused a fair trial; and (2) where it offends the Court’s sense of justice and proprietary to be asked to try the accused in the particular circumstances of the case (Maxwell [2010] UKSC 28). It is rare for there to be grounds to stay proceedings for abuse of process under category 2 (Hamilton & Others v Post Office Ltd [2021] EWCA Crim 577).

It is also clear that the power to stay criminal proceedings as an abuse of process is an exceptional remedy, to be exercised with care and restraint. A stay of proceedings is the exception and a measure of last resort (R v Ng and others [2024] ECWA Crim 493 – see our blog here).

Prosecution duty to call witnesses: The law

The general principles to be applied when deciding which witnesses the Prosecution must call are well-established. As was summarised in R v Russell-Jones [1995] 1 Cr. App. R. 538:-

1. Generally speaking, the Prosecution must ensure that all those witnesses whose statements have been served as witnesses on whom the Prosecution relies are at Court if the defence wants those witnesses to attend. The Prosecution has an unfettered discretion in deciding which statements to serve, but must normally disclose material statements not served.
2. The Prosecution has a discretion whether to call, or tender, any witness it requires to attend, but the discretion is not unfettered. The discretion is limited as follows:
   1. The discretion must be exercised in the interests of justice, so as to promote a fair trial.
   2. The Prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, the prosecutor regards a witness’s evidence as unworthy of belief. The prosecutor is the primary judge of whether or not a witness to the material events is unworthy of belief and they have a wide discretion in deciding whether or not the witness’s anticipated evidence is capable of belief.

If the Prosecution acts improperly in not calling a witness, the Court can invite the prosecutor to tender the witness and, if he refuses, call the witness itself for cross-examination by the defence (R v Wellingborough Justices, ex parte Francois (1994) 158 J.P. 813). The caselaw is clear in that the Court should prefer to call the witness itself in preference to dismissing the case as an abuse of process. This is a power that should be exercised sparingly and only if there is no alternative (R v Haringey Justices, ex parte DPP [1996] QB 351).

The Court’s decision

The Administrative Court found that the District Judge’s approach was wrong in principle and contrary to previous cases.

It stated that the starting point is that the Prosecution is only obliged to call those witnesses whose statements it has served as witnesses on whom it intends to rely. This is because in doing so, the Prosecution has impliedly undertaken to have that witness in Court so that they can be examined. If the defence wanted that witness to be examined, they need not do anything to secure their attendance. In this case, this did not happen as the complainant never provided a witness statement and expressed her unwillingness to give evidence against her husband from the outset. The Prosecution never took (nor served) a statement from her, so did not undertake to ensure she was at Court to give evidence.

Further, the Prosecution is not obliged to call a witness where it is anticipated, with good reason, that their evidence will be untruthful. This is different to the position where the witness’s evidence is capable of belief; in that case, the Prosecution is obliged to still call the witness. The Prosecution has a wide discretion in deciding whether a witness is capable of belief. In this case, the Prosecution rightly decided that in the circumstances, the complainant’s evidence would be unworthy of belief.

The Court decided it was not unfair for the Prosecution to decline the Judge’s invitation to take a witness statement from the complainant. This is because it was open to the defence to call her as a witness, particularly given that it was clear what evidence she would likely give, based on the previous letter she had written to the Prosecution. She had also been present at Court at the trial listings, available and willing to give evidence if required. For these reasons, the Prosecution was not obliged to take a statement from her and was not guilty of malpractice for refusing to do so.

Further, the Court concluded that it would not have placed the defence at a disadvantage had it been prevented from cross-examining the complainant (which it would have been had it called her as its own witness). Indeed, it was likely that she would give evidence in favour of her husband, which is consistent with the general rule of practice that a witness is to be called by the party who wishes to adduce their evidence. It was not clear why it was necessary for the defence to cross-examine the complainant to elicit evidence that could not be done through ordinary questioning.

Finally, if there was some unfairness in the Prosecution not calling the complainant as a witness (which the Court did not consider there was), it was open to the Judge to call the witness himself, allowing both the Prosecution and defence to cross-examine her.

In conclusion, the Court decided that it was not an abuse of process for the Prosecution not to call the complainant. This decision was not an improper tactic or manipulation of the Court’s process, but a legitimate exercise of the Prosecution’s well-established discretion to choose which witnesses it calls. The Court therefore allowed the appeal and remitted the case back to the Magistrates’ Court to be tried by a differently constituted Court.

Comment

It is clear from both this decision and previous decisions before it that the Prosecution has a discretion as to which witnesses to call, although if it chooses not to call a witness who gives direct evidence of the primary facts of the case, this must be for a good reason, essentially being that the prosecutor regards a witness’s evidence as unworthy of belief. If the Prosecution does decide not to call the complainant of domestic abuse allegations as a witness, not only is it entitled to do so, but it is also not an example of malpractice if it chooses not to for a good reason. This is likely to be the case where the complainant retracts their allegations, refuses to assist the Prosecution and/or states they will give evidence favourable to the defendant. A Court is not entitled to stay proceedings as an abuse of process where such a witness has not been called by the Prosecution. This is because it is open to the defence and even the Court to call the witness itself if it is considered they are required for the purposes of the proceedings.

The CPS has produced guidance on prosecuting domestic abuse cases, which makes it clear that this is a priority and the Prosecution strategy should, from the outset, consider the possibility of proceeding without the complainant’s support. It is clear therefore that even if a complainant does not support a prosecution, it is likely that one will proceed in any event provided there is sufficient evidence to provide a realistic prospect of conviction. It is therefore important that defence practitioners should consider the possibility of calling a complainant to give evidence for the defence (if they are showing a willingness to support the defendant) or asking the Court to call the complainant as a witness. An application to stay proceedings for abuse of process will almost certainly be unsuccessful, except in very exceptional circumstances.

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