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Our solicitors are often instructed in cases involving allegations of domestic violence.  The complainants in some of these cases do not support the prosecution.  This lack of support was indicated at a very early stage.  None of the witnesses made statements when the police were investigating the allegations.  The prosecution try to rely on hearsay res gestae evidence.

As a result, the prosecution has sought to rely entirely on hearsay evidence.  In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.

The test for admitting res gestae evidence

Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.

This principle has been developed in subsequent case law.  As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:

• Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
• The court will need to look at the particular circumstances in which the relevant statement has been made.
• It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness.
• Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
• The statement must be closely associated with the relevant event.  The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
• Does the case have particularly features which relate directly to the possibility of concoction or distortion.  This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.

Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.

There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.

What evidential matters will the court look at?

The issue of the timing of the statement will be key to any application.  These will include:

• when the victim called the police
• how soon after the incident the victim gave the account said to be res gestae

These are not the only factors that the Court should consider however.   The Court will also need to look at:

• whether there is any supporting evidence for example visible injuries
• the victim’s demeanour when first witnesses attend
• their subsequent words and behaviour
• is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
• where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
• if there has been more than one telephone call or electronic communication have been made by the same person?

Ultimately each case has to be considered on its own facts.

Should the prosecution give notice of an application?

The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles.  Any notice given very much depends on the prosecutor dealing with the particular case.  Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.

Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way.  The prosecution must still proved its case to the required standard.

Exclusion of hearsay evidence under section 78 PACE 1984

A defendant has an opportunity to apply to exclude evidence of res gestae.  If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984.  The court has a discretion to exclude evidence which would otherwise be admissible.

For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence.  This means that the defendant would be at liberty to call the witness.

Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.

An application to admit hearsay evidence should be an application of last resort.  In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.

In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.

Contact a specialist criminal defence solicitor

On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court.  Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.

A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.

If you face allegations before the court where the decisive evidence is that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor.  Alternatively you can use the form below.

Legal aid will often be available to ensure that the defence of your case will be free of charge to you.

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Mansfield motoring law solicitor Emma Cornell persuaded Magistrates to impose a sentence that dealt with the issues underlying her client’s offending.

An inevitable prison sentence?

Emma first met her client in the cells at Mansfield Magistrates’ Court.  He had been kept by the police for a remand into custody.  This was because he faced new charges of drink driving and driving whilst disqualified.

Unfortunately, these charges were his eighth relating to excess alcohol and third for driving whilst disqualified.  He had received prison sentences for all of his more recent offences.

The seriousness of these offences was aggravated by his history of offending and because he was driving in breach of a court order.

Breaking the cycle of offending?

Sometimes it is right for a court to try and break a cycle of offending.  In this particular case it was clear that Emma’s client had a problem with alcohol.  When in drink he made poor choices and this led to the offending that kept on bringing him back to court.

The maximum sentence that could be imposed in his case was one of six months imprisonment, even for the combination of offences.  As he had pleaded guilty at the first opportunity the sentence was likely to be less than the maximum, even bearing in mind his record.

This meant that he would serve less that 3 months in prison.  He would not receive any assistance while in custody to address his problems.  It seemed unlikely that any meaningful work would be done by probation under licence following his release.

An alcohol treatment requirement

The Magistrates were therefore presented with a stark choice.  Emma persuaded them that there was a better option than a simple prison sentence.  These sentences had failed to work in the past in terms of deterrence or rehabilitation.

After hearing Emma’s persuasive mitigation the Magistrates adopted the probation recommendation.  This was for a suspended sentence coupled with an alcohol treatment requirement.  The aim is to reduce or eliminate a person’s dependency upon alcohol.  This is made possible by the help of specialist agencies working in the community.

Positive client feedback

Emma’s client knew how close he had been to receiving a further prison sentence.  As a result he took the time to write a card and buy flowers to reflect the work Emma carried out on his behalf.  While such thanks is not expected, it is always gratefully received.

Contact Mansfield motoring law solicitor Emma Cornell

Whether you need advice on a police investigation or documentation that you have received from the court then you will wish to contact Mansfield motoring law solicitor Emma.

She will advise you on whether you have a potential defence or whether, for example, special reasons or exceptional exist to avoid a driving disqualification.

Please call her on 01623 675816 or use the contact form below.

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Nottingham crime solicitor Stacey Mighty ensured that her client’s concerns about his prosecution were followed up.  The result was that the charge of driving whilst disqualified was withdrawn.

Driving whilst disqualified

Stacey’s client faced an allegation of driving whilst disqualified.  This was said to have been during the currency of a driving disqualification until an extended re-test was passed.  He denied ever having been the subject of such a disqualification.

The disclosure received from the prosecution did not give a date for when the disqualification had been imposed.  The more detailed print out from the DVLA failed to shed any more light on the situation.

No driving ban

The only conviction that could have led to such an order being made was in 2015 where it appeared that our client had received a simple 6 month fixed term disqualification.

Stacey recognised that her client’s time was precious to him.  She could have asked for the case to be adjourned to another day.  Instead Stacey ensured that the original court file for that date was brought into court.  This confirmed that there had been a driving disqualification without an requirement for an extended re-test.

As a result, the prosecution withdrew the allegation of driving whilst disqualified at this first hearing.

Contact a criminal law specialist

Police, court and prosecution records might be wrong.  The prosecution might not be able to prove an essential element of an offence.  As a result, you will wish to take early advice from a criminal law specialist such as Stacey in order to ensure that your case is properly prepared and presented.

Please call Derby criminal solicitor Stacey Mighty on 01332 546818 to discuss your case.  Alternatively use the enquiry form below.

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Nottingham crime solicitor Stacey Mighty recently avoided a Newton Hearing for her client before the Magistrates’ Court.  A Newton Hearing is a trial of the factual issues in a case.

This allows the court to decide how to sentence a person once they have entered a guilty plea.  They arise where there is a difference between the prosecution and defence version of events that would make a difference to sentence.

An unsuccessful Newton Hearing from a defendant’s point of view can have unfortunate consequences.  Not only will they be sentenced on facts that are more serious, the defendant will also lose credit for having argued an unsuccessful point.

Different accounts in assault allegation

Stacey’s client faced an allegation of assault.  While he accepted that he had committed an assault, he maintained that he had shoved the victim rather than punched them.

The victim of the assault was no longer cooperating with the prosecution, but there remained an independent witness who maintained that they had seen a punch rather than a push.  The prosecution argued that this difference in account would in turn make a difference to how our client was sentenced.

Newton hearing avoided

Stacey argued, however, that the version of events were not dissimilar and the issue of whether there was a punch or a push would make no real difference to sentence.  The Magistrates agreed and as a result Stacey’s client obtained the following benefits:

• he was sentenced on the basis of a push rather than a punch, and
• he kept all of the credit provided by his guilty plea

As a result, Stacey mitigated and persuaded the Magistrates’ that the case was not serious enough for a community penalty.  Instead her client was fined and ordered to pay compensation.

Contact Nottingham crime solicitor Stacey Mighty

Whether you face a police investigation or court proceedings then you will want to instruct a solicitor with expertise in the criminal law such as Stacey.

Please call her on 0115 9599550 or use the enquiry form below.

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Although only qualified as a solicitor for a year, and more recently qualified as a duty solicitor, Chesterfield crime solicitor Serena Simpson already has secured a number of outstanding results for her clients.

Some examples of recent successful cases are below:

R v B

Our client  had a long history of drug related burglaries over a number of years.  He was before the court for two admitted commercial burglaries and a theft described as a ‘spree’ by the sentencing judge.

Despite this, Serena was able to persuade the District Judge at Chesterfield Magistrates’ Court to impose a suspended sentence.  The intention was to give her a ‘last chance’ to rehabilitate in the community

R v T

In this case our client disputed that he was responsible for causing criminal damage.  The cross-examination of the prosecution witness showed that there were obvious inconsistencies between her accounts.

In the end, the witness admitted that she had lied in her police statement and a not guilty verdict followed.

The case of H

As well as providing representation to clients at court, Serena also provides advice and representation to clients who are under suspicion of having committed an offence.

This case involved a long and drawn out police investigation.  Our client was a school teacher who was accused of a string of sexual offences by her daughter. These were denied and in the end no formal statement was provided by the alleged victim.

After plenty of argument and correspondence with the police, it was agreed that there was no evidence to support a conviction and the case was taken no further.

R v R

Our client pleaded guilty to outraging public decency.  The offence does not feature in the Magistrates’ sentencing guidelines.  It is, however, a case that can be dealt with in either the Magistrates Court or the Crown Court.

Serena researched sentencing cases similar to the one that her client faced.  The Magistrates’ accepted jurisdiction and imposed a low level community order.

This result was secured as a result of Serena’s hard work and careful mitigation.

R v M

Our client faced trial for criminal damage.  Her defence was that it was a malicious complaint by her ex-partner and his new girlfriend.  Serena successfully applied for the complainant’s bad character to be before the Magistrates.  This related to previous incidents of domestic violence directed towards our client.

Under careful cross-examination the complainant was unable to give a consistent account.  His girlfriend gave a completely different account.   These inconsistencies in combination with clear evidence from our client meant that the District Judge did not require a closing from Serena.

The not guilty verdict followed.

Instruct a Chesterfield crime solicitor

Whether you face questions from the police or proceedings before the Magistrates’ or Crown Court you will want to instruct an expert criminal lawyer to fight your case on your behalf.

We offer free 24 hour emergency advice and representation in police interview under the legal aid scheme.

We will also provide you with advice on your entitlement to legal aid to ensure representation at court.  Alternatively, we aim to provide you with a fee estimate that will make sure that your representation is affordable.

Please contact one of our solicitors on 01246 283000 or use the enquiry from below if you wish to discuss a case or instruct us to represent you.