Res gestae – when does one lie?

At first glance, the common law principle of Res Gestae – often referred to as hearsay evidence – seems intuitive. This classic exception to the exclusionary rule on hearsay evidence remains preserved under s.118(1)4 of the Criminal Justice Act 2003 (CJA):

We set out here how

• The expanding scope of case law involving the use of res gestae to adduce hearsay evidence.
• Outlinesincreasing suitability of the Criminal Justice Act 2003 (CJA) in guiding the court towards a clearer procedure to determine the admissibility of hearsay evidence.
• The psychological premises on which res gestae is based as routinely adopted in criminal proceedings.

At first glance, the continuing common law principle of res gestae seems intuitive.

Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

1. the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
2. the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or
3. the statement relates to a physical sensation or a mental state (such as intention or emotion).

This first of these exceptions to the exclusion of hearsay evidence has been utilised long before its incorporation into statute, and emerges commonly in the context of domestic abuse cases. But the task of delineating what is acceptable res gestae has become an unnecessary challenge for the courts to take. Through the CJA 2003, there are now better equipped gateways available for evidence of a similar nature to be admitted, with tightly knit safeguards that accommodate for the uncertain cases where res gestae is precariously brought into the fold.

Almost 150 years have passed since the principles of spontaneity and contemporaneity were sown in R v Bedingfield [1879], the first of few cases that laid the foundations for restricting the scope of what is deemed admissible hearsay under res gestae. It was subsequently restrained to spontaneous utterances where ‘the possibility of concoction, distortion or error can be disregarded’ as outlined by Lord Ackner in R v Andrews [1987] AC 281. The utterance must be shown as an “instinctive reaction” and with “no real opportunity for reasoned reflection”. The decisions of the court have since been moulded to the consideration of the proximity of the words spoken to the event, determining their reliability, and therefore admissibility. But despite the attempts to outline its applicability, its seemingly common-sense approach has paved the way for repeated cases which call its prudence into question.

In R (Ibrahim) v CPS [2016] EWHC 1750 (Admin), a lapse of time of 89 minutes ensued between the incident and the 999 call, yet the evidence given was deemed admissible through res gestae. The distress of the complainant subsisted into them giving their account to the police, their state at the time being the determining factor as to its reliability. The contemporaneity took a back-seat role.

In Morgan v DPP [2016] EWHC 3414 (Admin), the witnesses’ evidence was recorded on body-worn footage of attending officers following allegations of domestic violence. The defence sought to exclude both using s.78 PACE, due to the delay between the incident and arrival of the officers. In rejecting their appeal and alluding to the interval in Ibrahim, the court stated that the time factor was simply one amongst many for consideration, and that it was clear, from their analysis of the complainant’s condition, that the possibility of concoction or distortion could safely be disregarded despite this delay.

Contrary to the cases above, in Regina v Brown [2019] EWCA Crim 1143, the complainant was stabbed on a busy street, before the perpetrator fled in a vehicle. The event was witnesses by a bus passenger who noted the number plate of the departing vehicle, quoting it to the police using the mobile phone of a second passenger, whose identity could not be ascertained. Although it was introduced as evidence through s.114(1)(d) CJA 2003 (interests of justice for its admission), the Court of Appeal understood it to also be admissible as res gestae. Without the need to question the witnesses’ honesty, or genuine reaction at the scene, their utterance clearly involved reflection and consideration. It was reliable – not because of their overwhelming emotion – but because as a bystander they had no reason to lie. The admission of this evidence was accepted, in large part due to its contemporaneity, and with less emphasis on the emotional element.

There exist further exceptional cases which illustrate the confusing applicability of res gestae. In anticipating its potential for exploitation, Lord Ackner once said that one should “strongly deprecate any attempt in criminal prosecutions to use [res gestae] as a device to avoid calling, when he is available, the maker of the statement.”

Yet, the recent cases of Vilhete v CPS [2024] and DPP v Joseph Barton [2024] involving allegations of domestic violence have extended the precedent for the CPS to rely on res gestae through body-worn footage and emergency calls without the need to call the witness. In Barton, the High Court stated that Lord Ackner’s observations “are certainly not apt, we would suggest, to cover cases of domestic violence, where the person concerned may have a range of reasons for either not wanting to give evidence or might want to give evidence which the prosecution properly regards as being unworthy of belief when compared to res gestae statements.”

Cases of this nature should require a sharper legal test to determine the admissibility of hearsay evidence and balance the rights of both parties, without utilizing the blunt tool that is res gestae. A test that largely focuses why the witnesses’ testimony is not being questioned in court in the first place, and that sets out the clearest and fairest way of dealing with this challenging issue.

In fact, this legal mechanism has been in place for over 20 years. The CJA accommodates for a variety of situations where the witness is unavailable through s.116 (cases where a witness is unavailable), and the potential admission of hearsay through the interests of justice gateway, under s.114(1)(d), the ‘safety valve provision’, as pre-conceived by the Law Commission in their 1995 Consultation paper. Contrary to the catchall nature of res gestae, the net of which is so large that its holes are difficult to keep track, the CJA explicitly details the conditions set out in s.116(2) that provide precent for exception to the exclusionary rule, so longer as the speaker can be identified. These include:

(a) that the relevant person is dead;

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Additionally, the non-exhaustive factors supplementary to the ‘safety valve’ provision in s.114(2) provide broad scope for determining the admission of hearsay in pursuit of the interests of justice. These expansive provisions have allowed the court to explain their decisions with confidence, without reliance on the outdated and convoluted principle that is res gestae. As highlighted by the Law Commission, “If the term ‘res gestae’ were restricted to spontaneous exclamations where ‘the possibility of concoction, distortion or error [can] be disregarded’, (Andrews) then the exception would be workable, but the term has been used to encompass associated exceptions to the point where it obscures rather than clarifies the extent and rationale of the exception.” This is in contrast to the mechanisms set out in statute, which are suitably detailed and can untangle complications that often arise in domestic abuse cases with higher precision.

Yet, the lack of clarity surrounding res gestae may reflect the heart of the problem. Why does a statement made by somebody so emotionally overpowered by an event mean that the statement is more reliable? This psychological truth is taken as self-evident, but it should be questioned.

In research, the jury is still out as to the infallibility of the truth-teller following an emotionally overpowering incident. Baicker-McKee states in The Excited Utterance Paradox that following a startling event, people will vary in their potential to lie, or even that lying can be a well-practiced protective behaviour in response to a threatening situation.1 As put by Ruth Coffey in Fight, flight, freeze…or lie?, “If there is no universal lack of capacity to fabricate or significantly reduced likelihood of fabrication if an event is sufficiently overpowering, there can be no assurance of emotionally overpowered statements/excited utterances’ reliability in any specific instance.” For such a commonly used exception to hearsay, its simply formulated premises have not received the adequate logical or scientific interrogation for the rule to be decisive in the case of a person’s liberty.

As res gestae is being tailored for use in a plethora of situations involving the unavailability of witnesses due to fear, why not instead rely on the law which accommodate for this directly? This age-old Latin phrase cannot compete, much less carry the weight of the factual breadth of cases in which it is now being applied. Which is emblematic of the problem surrounding concoction or distortion – when does one lie? We should say goodbye to res gestae and move on.

• Bella M. DePaulo et al., Serious Lies, 26 BASIC & APPLIED SOC. PSYCHOL.147, 147–67 (2004).