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In 1948, when George Orwell wrote his novel, “1984”, he had a vision of the world where Big Brother was watching everybody. The world now has cameras from Big Brother. There are numerous dash cams, doorbell cams, CCTV cameras, bicycle helmet cameras and everybody is walking around with a high-quality smart phone video camera in their pocket. So, we are all now potentially being recorded by a series of little brothers and little sisters.

It looked bleak for our client when he was recorded by his next-door neighbour’s camera muttering some nasty abuse. The neighbour sent the footage to the police and our client was interviewed under caution.

He arranged for our Public Order Act and pub quiz expert, Jim Buckley, to advise him at interview. Taking legal advice at the police station is the most important way a suspect can protect themself. Suspects who are unrepresented can cause themselves real difficulties with injudicious comments made in interview. Our client was advised to remain silent in his interview.

He was later prosecuted for intentionally causing distress to his neighbour by using abusive or insulting words to her camera.

However, at trial was argued on his behalf that it could not be proved that he knew that the camera was a genuine article and not a dummy. The police argued that there was a sign next to it saying that it was recording live footage, but we could argue that nobody installing a dummy camera would put up a sign saying “don’t worry burglars, this is only a dummy camera”!

Because it could not be proved that he knew the camera was real or that it had a microphone attached, or that anyone was listening to the device at the time, our client was acquitted.

If the police want to speak to you, always get a solicitor. If you are ever prosecuted, get a solicitor who will consider all the possible defences.

You can contact Jim Buckley at our Nottingham office on 0115 959 9550.

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VHS Fletchers Solicitors have 5 offices across the Midlands, staffed with specialists in the field of criminal defence work. Whilst it will come as no surprise that these locations are situated close to local police stations and courts, the team at VHS Fletchers will happily travel much further to represent clients accused of criminal acts.

Within the last few months staff from the Chesterfield office at VHS Fletchers Solicitors have had many early mornings and late nights travelling the length and breadth of the country to provide our clients expert legal advice.

Those places recently visited by the staff at our Chesterfield office include:

• York Police Station
• York Magistrates Court
• Lincoln Police Station
• Lincoln Magistrates Court
• Scarborough Police Station
• Huddersfield Police Station
• Leeds Youth Court
• Sheffield Magistrates Court
• Highbury Corner Magistrates Court (London)
• Margate Magistrates Court (Kent)

All of our clients involved in these cases had links to the Chesterfield area and didn’t want a solicitor or legal advisor who they didn’t trust. As such they asked our Criminal Team to travel and provide expert legal advice which we gladly undertook for offences such as possession of a knife, conspiracy to supply drugs, driving whilst disqualified, breach of Restraining Order, Public Order offences and possession of counterfeit currency.

If you require the assistance of a firm of Solicitors who have expertise in Criminal Law, and who go that extra mile (or in this case hundreds of extra miles) please contact our Chesterfield Office on 01246 387999 or email them at chesterfield@vhsfletchers.co.uk

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Controlling and coercive behaviour in an intimate or family relationship is an offence created under Section 76 Serious Crime Act 2015 which has a maximum penalty of five years imprisonment.  As this offence falls under the domestic abuse umbrella, the Code for Crown Prosecutions states “given the seriousness of Domestic Abuse offending, a prosecution will normally be required when the evidential requirements under the Code are met.”

Indeed, our client Mr B was charged with the offence of controlling and coercive behaviour for which he denied.  Unfortunately, despite our best efforts, Mr B was remanded into custody pending his trial at the Crown Court.

However, the matter did not reach the trial stage due to the expertise and persistency from our Solicitor Advocate Denney Lau and our Trainee Solicitor Chloe Wright.

Chloe attended the prison to obtain meticulous detailed instruction from Mr B, including the whole history of the relationship, his detailed account of what happened and details of defence witnesses.  Her attention to detail then drawn onto the fact that Mr B had been receiving mail from a relative which did not make sense. After further investigation it transpired that the complainant was the author of the letters, and the false name was used in order to bypass the prison checks.

Chloe then contacted the defence witness who provided her with screenshots of messages that confirmed the origin of the letter and that the complainant had also transferred money into Mr B’s prison account.  Chloe obtained a defence witness statement confirming this.

Denney and Chloe then made strong representations to the Crown Prosecution Service regarding the credibility of the complainant and successfully persuaded the Crown Prosecution Service that, in light of this revelation, there was no longer a realistic prospect of conviction.

As a result, the case was brought forward and the Crown Prosecution Service offered no evidence against Mr B and the Judge returned a Not Guilty verdict.

For expert advice and representation on all offences relating to relationships, CLICK HERE to contact one of our solicitors today.

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Circumstantial evidence is widely misunderstood.  Many people cannot understand how a case can be advanced without primary evidence of wrongdoing.

To illustrate this, we can use two examples relating to burglary.

Burglary can be committed in quite a few different ways, but the most common allegation is that a person entered a building as a trespasser and stole something that did not belong to them.

circumstantial evidence

Scenario 1:

David breaks into a home.  He is seen by a neighbour who calls the police. When the police arrive they arrest David inside the house, he has jewellery in his bag and was intent on stealing more valuables.

This is a classic case of burglary, with direct evidence of David being in the property and having stolen something.

Scenario 2:

A neighbour hears a house alarm and goes to investigate. Upon seeing a man, David, acting suspiciously further down the street.  The neighbour apprehends the man. When the police arrive, they discover that David has jewellery which is traced back to a local house that has been burgled.

In this case, there is no direct evidence that David entered the property, which is a vital element of the offence of burglary. However, his presence in the vicinity and possession of the stolen property (referred to as ‘recent possession’ in law) is strong circumstantial evidence of David having entered the property. How otherwise did he come into possession of the jewellery?  There may be other reasons, but that will be something for David to explain when interviewed by the police).

In law, circumstantial evidence can be explained in this way:

“A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities”.

The prosecution seeks to prove separate events and circumstances which can be explained rationally only by the guilt of the defendant.

Those circumstances can include opportunity, proximity to the critical events, communications between participants, scientific evidence and motive.

The subsequent conduct of the defendant may also furnish evidence of guilt, for example evidence of flight, fabrication or suppression of evidence, telling lies or unexplained possession of recently stolen property.

The question for the jury is whether the facts as they find them to be drive them to the conclusion, so that they are sure, that the defendant is guilty (McGreevy v DPP [1973] 1 WLR 276).

Some degree of caution must however be exercised. It has been held that circumstantial evidence must always be:

 “…narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. …It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

(Teper [1952] UKPC 15).

Teper and McGreevy were considered in Kelly [2015] EWCA Crim 817 in which Pitchford LJ said:

“The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.

However, as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”


As can be seen from the above analysis, circumstantial evidence can be powerful and compelling evidence against a person accused of criminal activity, but it must always be analysed with the utmost care.

As experts in criminal law, we are acutely aware of the dangers of circumstantial evidence and take care to ensure its relevance is appropriately understood and not overestimated.

Instruct an expert in criminal law

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the evidence in a case fits together.

If you are arrested or know that the police wish to speak to you about any criminal allegation make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

VHS Fletchers solicitors offices
VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.



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The forensic Testing Scandal – Is My Conviction Safe?

New details have emerged about forensic testing deficiencies at two of the country’s leading laboratories. The police are currently investigating the circumstances.  As a result of this investigation a number of people have been arrested.  People will be asking themselves ‘Is my conviction safe?’

is my conviction safeRandox Testing Services (RTS) and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases.  As a result the accuracy of the tests are of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.

Home Office Minister Nick Hurd told parliament:

‘Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.’

It is believed that the results from as many as 10,000 tests could be under review.

Is Your Conviction Safe?

If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice immediately.

While the Crown Prosecution Service will be carrying out a review into criminal cases this will take a considerable period of time.  Some reports are mentioning a three year time frame.  Many will be is my conviction safe?questioning in any event whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.

Criticisms of the laboratories have previously been raised over the years, but it appears that the police and the prosecution continued to be content with the results produced.

Those who might be affected by an analysis by these laboratories will, therefore, wish to consider whether any further forensic testing ought to take place, and even whether or not there are grounds to appeal. All convictions involving these laboratories will need to be considered on a case by case basis.

Even if your cases did not involve the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and may call into doubt results from other forensic testing providers.

How we can assist with an unsafe conviction?

Regardless of whether VHS Fletchers handled your case initially our experienced team of criminal defence lawyers has the expertise to ensure the safety of your conviction is beyond question.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted (and that includes pleading guilty to an offence), please contact your nearest office to speak to one of our expert criminal lawyers.

is my conviction safe
Vhs Fletchers offices across the East Midlands

Alternatively you can use the contact form below to request a call back.  We can help answer your question ‘Is my conviction safe?’


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Closure of Newark Custody Suite

Response to Consultation

This is the response of VHS Fletchers to the consultation paper released by the Legal Aid Agency (LAA) following the notification on 25 October 2017 of the closure of Newark custody suite with effect from 6 November 2017.

All Newark arrests from that date will be taken to and processed at Mansfield Custody Suite.  The residents of Newark have already lost one public resource, that being the ability of the police station to process prisoners.  There is a very real risk that they will lose another – detainees receiving advice from solicitors local to Newark.

The consultation document invites responses to three alternative revisions to the Newark and Mansfield Police Station Duty Solicitor Schemes. Only one of those appears to put the needs of those from Newark who are arrested first.

Since the consultation document was published there have been two important indications from the police which impact upon the proposals:

  • Cases that are identified as Newark cases will continue to be charged and either bailed or held to appear at Nottingham Magistrates’ Court rather than Mansfield Magistrates’ Court.
  • The police will continue to contact the Newark Duty Solicitor Scheme in cases which are identified as “Newark arrests” and will ensure that the Duty Solicitor Call Centre (“DSCC”) is informed in all cases where the detainee was arrested for an offence committed in Newark.

It follows from these indications that Mansfield custody suite is able to and intends to identify cases that have historically been dealt with at Newark police station.  As a result, they should be able to direct those who seek the advice of a duty solicitor to a firm local to Newark.

The proposed options for changes to the scheme can be summarised as follows:

  1. That the Newark Police Station Duty Scheme is merged with the Mansfield Police Station Duty Scheme with effect from 1 January 2018 with members of an extended Mansfield scheme covering both Mansfield and Newark police stations.
  2. That the Newark Police Station Scheme is retained as a separate scheme and Duty Solicitors on the Newark rota will be directed by the DSCC to attend at Mansfield police station.
  3. Newark Police Station Scheme retained as a separate scheme and firms post 1 January 2018 can elect to join either the Mansfield police station duty rota or standalone Newark scheme (if retained under option 2)

The LAA have helpfully indicated that they prefer option 1. The reason given is that options 2 and 3 are reliant upon the police being able to identify to the DSCC “Newark cases”.  A more cynical view might be that the LAA and DSCC would have one less scheme to administer under option 1, resulting in an inevitable reduction in administration costs.

Fortunately, since the consultation document was published, the police have set out their intention to continue to identify Newark cases at the point of arrest and charge.

As a result, there appears to be no requirement for option 1 to be adopted unless there are ulterior motives on behalf of the LAA.

VHS Fletchers supports Option 2 for the following reasons:

This firm’s investment in Newark

closure of newark custody suite
Newark crime solicitor Ian Carter

When new legal aid contracts were to be awarded this firm chose to apply for a contract for a new Newark office.  The closure of Newark custody suite was not anticipated.  The office is staffed with two crime solicitors local to Newark – Ian Carter and Barbara McDonnell.  We have since recruited a further Newark based lawyer – Legal Executive Advocate Nikki Carlisle – signalling a clear indication to continue to develop our business there.

Of course, we are in business.  The rationale behind the investment that we make in training and recruitment of duty solicitors is that they provide access to new work through the duty solicitor rotas. Option 3 supports those firms who, like us, have chosen to locate their offices in Newark in order to provide legal aid services to that particular community.

Newark deserves its own duty solicitor rota

closure of newark custody suite
Newark legal executive advocate Nikki Carlisle

Newark-on-Trent is the largest urban area within the Newark and Sherwood District.  It has a population of just over 37 000 residents. Of the three firms in Newark that currently undertaking criminal Legal Aid work, only our firm has office both in Mansfield and Newark.

Should Option 1 be adopted, Newark residents who are detained at Mansfield police station may very well be represented by a duty solicitor from a firm who only has an office in Mansfield.  It is understandable that suspects will usually choose to have continuity of representation.  This might be either whilst they remain on police bail, under investigation or following charge when the matter appears at court.

Prohibitive journey times

However, in seeking continuity, such clients would face a journey of 20 miles simply to see their solicitor to give instructions and take advice. By car that journey takes between 40 and 50 minutes.  By public transport this time rises to 1 hour and 30 minutes for a single journey.

The same situation will of course arise in relation to residents of Mansfield who are represented by a duty solicitor who only has an office in Newark.  It is true that many of those that require the services of criminal legal aid solicitors are vulnerable themselves and on a low income that would make such a journey very difficult.

It is our view that it is both unreasonable and unconscionable to expect those being investigated for criminal offences to have a return journey of three hours simply to see their solicitor.  This stress and expense would be imposed on top of the emotional burden that the investigation of proceedings impose on any individual.

Local legal aid solicitors should be supported

closure of newark custody suite
Newark crime solicitor Barbara McDonnell

Option 2 supports those criminal legal aid firms who have chosen to locate their offices in Newark.  This is in order to provide legal aid services to that community. It would mean that the arrangements within Option 2 could commence immediately following the closure of the Newark Custody Suite.  Newark based firms would not have to suffer the inevitable financial hardship of not having access to Duty Solicitor work for a period of two months.

Such a decision would be seen as supportive of a legal aid provider base that it is acknowledged is financially fragile.

Perverse consequences of merging two duty schemes

The perverse consequences of Option 1 would be to permit automatic access to Newark residents requesting the duty solicitor  to firms solely based in Mansfield.  Access to such Mansfield residents would be granted to firms solely based in Newark.

Whilst some firms may see there is a financial advantage in having a place on a merged duty scheme following the closure of Newark custody suite, this would be to ignore the needs of local Newark residents.   Financial advantage should never be allowed to outweigh the impact on those we represent and assist who are often ill-equipped to represent themselves.

On this basis, Options 2 and 3 would be unattractive and unacceptable to clients where the duty solicitor may or may not be based geographically convenient to them.

An increase in LAA costs?

The LAA will have to budget for increased travel claims from Newark firms to Mansfield custody suite following the closure of Newark custody suite.  An additional consequence is likely to be that the LAA has to fund more instances of advice and assistance in the police station.  It seems likely that clients, once they discover where their duty solicitor is based, will want to transfer to a local firm.  Where the duty solicitor has been instructed a second fee may be properly claimable by the second local firm nearer to a suspects home address

Clients to choose for themselves

Following the closure of Newark custody suite, if clients wish to choose a geographically distant firm then that must be a matter for them. To have a geographically distant firm inflicted upon them is a separate matter that should be avoided where possible.  The risk of a reduction in access to justice must be apparent to all who consider the issue.  The problem would be avoided by the adoption of Option 2.

Instruct a Newark crime solicitor

closure of newark custody suite
VHS Fletchers criminal solicitors – Newark office

Despite the closure of Newark custody suite, the best way to ensure that you instruct a solicitor local to you if you are a Newark resident is to make sure you ask for VHS Fletchers if you are arrested and detained by the police.  We offer free and independent legal advice on 01636 614013, 24 hours a day, 7 days a week, 52 weeks of the year.

If you know the police want to speak to you, contact us and we will be able to make the necessary arrangements for you to be interviewed.

Should you face proceedings at either the Magistrates’ or Crown Court then we will see you at our Newark office to take your instructions and give you expert advice.

Please use the contact form below if you wish to email your enquiry.



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A worrying increase in the reports of noise nuisance from students

Local news often reports unfavourably on parties held by university students which often cause a number of complaints from local residents about noise nuisance. You can read one such story here.

The latest warning from the Nottingham City Council can be found here.

There is always likely to be issue arising when an area has a high number of students living in private rented accommodation within a residential area.

Very few students deliberately set out to annoy their neighbours. Problems with noise nuisance seem likely to result from a combination of alcohol and a genuine lack of thought.

Complaints to the police and the council are on the rise. If you are a student and live in a residential area then you are always likely to be at risk of a complaint if you or your household make excessive noise after 11pm.

What are the consequences of a complaint against you for excessive noise?

The  position may depend on whether or not you are in a university owned accommodation or not.

student halls of residence noise nuisanceMost universities publish codes of conduct that students must sign up to when enrolling. Whilst every university code will differ in some way they tend to follow the same format.  There is likely to be a provision permitting a student to be disciplined for excessive noise in university owned accommodation.

The discipline procedure for excessive noise nuisance is likely to involve a report to a designated university officer.  The officer will have the power to issue you with a reprimand or a fine.

Repeated and persistent breaches or other serious offences can result in you being removed from your university accommodation.  You could also be reported to the university senate disciplinary committee.  This would lead to a disciplinary hearing.   A wide range of penalties are available for serious, persistent offences.  Ultimately this can include exclusion from the university.

Private student accommodation

student private rented noise nuisanceEven if you live off campus in private student accommodation then you could still find yourself at the sharp end of the university disciplinary regulations. Many universities stipulate within their code of conduct that behaviour off campus that damages the reputation of the university is considered an offence under the disciplinary regulations.

For example, the University of Nottingham is quoted in the BBC news article as saying that students would be disciplined if their behaviour ‘compromised the safety of others’.

Statutory Nuisance

Additionally, it is not only the university that can instigate proceedings against a student for excessive noise.  Local Councils have the power to look into complaints about noise that could be categorised as a statutory noise nuisance.

For the noise to be a ‘statutory nuisance’, it must do one of the following:

  • Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
  • Injure health or be likely to injure health

Councils must serve an abatement noise on persons who cause a statutory nuisance. This means that whoever is responsible must stop the noise. If they do not then they can be issued with a fixed penalty notice giving them the opportunity to pay a fine of £110 within 14 days in order to avoid prosecution.

If you do not pay the notice or fail to pay it within the 14 days then you can be prosecuted. This means that you will be given a court date, and if guilty you could be fined up to £1000 and order to pay the costs of the prosecution.

Civil Injunctions for noise nuisance

Both a council and the police have the power to apply for a civil injunction in the county court against those that create excessive noise that is capable of causing nuisance or annoyance. Breach of the injunction can lead to a prison sentence.

Contact a specialist to discuss any aspect of noise nuisance

student accomodation noise nuisance
Education law specialist Clare Roberts

If you are a student and you have a concern about a complaint raised against you then please contact education law solicitor Clare Roberts on 0115 9599550.

Clare, and other members of our team, have experience in advising and representing students who face both university disciplinary matters or allegations that have been reported to the police.

Alternatively you can use the contact form below to seek confidential specialist advice.

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Education law solicitor Clare Roberts

Education Law and Criminal Defence Solicitor Clare Roberts was welcomed by students at West Bridgford School on the afternoon of Monday 21 September.  Following an invitation she delivered a talk about ‘Routes into Law’ to sixth form students who are contemplating studying law at university.

The talk focused on university applications including what to do if you do not get your expected grades, as well as the proposed changes in the route to qualification as a result of the proposed scrapping of the Legal Practice Course in 2020.

Clare also spoke with students about ‘a day in the life of a solicitor’ so that they had a sense of what a day at court was like, including the unpredictable hours!  Further information about the unpredictable nature of the work can be found here.

The students who attended the talk had lots of questions to ask about studying law at university.  Clare was also able to help with how the training within a firm thereafter will work.

Clare was really impressed with how knowledgeable the students were about their career options but also impressed by the careers education scheme run by Caroline Nolan at the school, which sees a variety of different professionals give talks to sixth form students at the school over the next few months.

Positive feedback for Clare’s presentation

It appears that the students were equally impressed by Clare, who received some positive feedback.  We hope we will be able to assist this and other schools again in the future.

If you think your students might be helped by a presentation such as this one then please contact us using the form below.  It is likely that we will be able to provide a solicitor local to your school or college to assist with any information you might need.


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hearsay res gestae evidenceOur 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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Nottingham crime solicitor Lauren Fisher secured a not guilty verdict for her client following careful cross examination of a witness.  He faced an allegation of common assault.  He was said to have punched his partner once to the face when drunk.  She had visible injuries – bruising and swelling to her cheek bone.

Preparation of cross examination

In order to present your best case at trial, an experienced advocate will plan how best to ask the questions.  For example, in this case, Lauren would have to question the witness to suggest that she was not telling the truth.  If a witness’s truthfulness is challenged immediately, it might be unlikely that they help an advocate with other information that they could give.

As a result, Lauren questioned the witness first to establish that a third person had been present during the incident.  The witness, in answer to questions, confirmed that this person was a mutual friend who would not favour one party over another.  They had no reason to lie that the witness could think of.

This information was important as the third person was to be called as a witness for the defence.

Lauren then moved on to more contentious issues.  She cross-examined the witness on the important differences between the account she gave in her statement and the evidence she had given to the court.

At one point the witness conceded that she had “tried to contact the police to change my statement as I knew it did not make sense”.  This was an important concession by the witness.

Self-Defence raised

Our client’s defence was that he had been acting in self-defence but the injury was accidental.  He maintained that he was being hit by both the complainant and her friend.  Perhaps unsurprisingly, if this was true, her friend had not given a statement to the police.

A statement had been taken by Lauren from the mutual friend who had been present.  Unfortunately the police had failed to seek accounts from anybody else who had witnessed the incident.

Closing speech dealt with the detail

In closing, Lauren was able to outline all of the problems and inconsistencies with the account that the witness had given under cross examination.  She was able to point to the consistent account given by her client and the third party.

After due consideration, the Magistrates found her client not guilty.

cross examination by criminal legal aid solicitor vhs fletchers

Lauren’s client took the time to thank her for the work that she had put into his case.  He wrote:

“Hi Lauren, I’m very happy with what happened today.  You are a good solicitor.  The way you handled the whole situation was good. Thank you again for helping me”

Contact Nottingham crime solicitor Lauren Fisher

cross examination not guilty verdict nottingham solicitor
Nottingham crime solicitor Lauren Fisher

Whether you face a police investigation or proceedings before the Magistrates’ or Crown Court you will wish to instruct a solicitor who will spend the time preparing your case.  This might involve making sure that advice on the law is correct.  If could be giving careful advice on plea or sentence.  In this case it involved preparing a structure for cross examination of a witness to ensure Lauren’s client had the best opportunity for a not guilty verdict.

If you want to contact Lauren to discuss a case then please call her on 0115 9599550.  Alternatively you can use the contact form below.


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