DPP v Barton 2024


B2 made an allegation of domestic assault against B1. The allegations were made in a 999 call and repeated to attending officers, being recorded on body worn video and B1 was charged with assault contrary to section 39 of the Criminal Justice Act 1988. 

Despite making the original complaint, a statement was not taken from B2. Months later, B2 retracted her complaint and expressed her wishes for the prosecution to stop via a letter to CPS. The matter proceeded to trial, but B2 was informed that she would not be called as a prosecution witness. 

An application was made by the defence to stay proceedings, arguing they constituted an abuse of process. As B2 was not called as a witness, the prosecution had introduced evidence relating to the initial complaint of B2 as res gestea evidence constituting an exception to the rule against hearsay evidence. In further support of a stay, the defence also took issue with disclosure of the prosecution namely, the fact they were unaware of any correspondence between B2 and CPS demonstrating her wishes for the prosecution to stop. It was submitted that this demonstrated that there had not been full and complete disclosure by the prosecution. Should the court not grant the stay, in the alternative, the defence sought to exclude the evidence pursuant to section 78 of PACE. 

The judge concluded that the prosecution had failed to comply with disclosure obligations and additionally could have called B2 as a witness, given that she had provided numerous inconsistent statements within her correspondence to CPS that had subsequently not been disclosed. The conclusions resulted in the stay of proceedings based on them being an abuse of process. 

The DPP appealed against the decision of the court by way of case stated, arguing that the trial judge had erred in law by imposing the stay. The main issue at appeal related to the res gestae hearsay statements specifically, those made by B2 given the prosecution never intended to call them as a witness, the complainant (in this case B2) had retracted her complaint and the prosecution had declined the trial judge’s invitation to call her as a witness for trial. 

The question put to the Divisional Court was whether the decision made to stay the case had been unreasonable where the prosecution sought to rely on res gestae statements of B2 but were unprepared to call her as a witness. 
 

Held


Appeal allowed and case remitted for re-trial. 

The case had been deficient for numerous reasons including the fact that the trial judge had failed to summarise the res gestae evidence. Additionally, the court took issue with the fact that the judge failed to fully summarise the disclosure failings, along with the exact grounds on which proceedings were rendered an abuse of process. 

Despite the criticisms of the judge in respect of their dealings regarding abuse of process, rarely would the court be justified in staying a prosecution on the grounds that they had done so. Should a stay have been justified, the judge was required to state the basis on which the decision had been made but here the judge had failed to do so. A stay relating to non-disclosure would require the failure to amount to misconduct that would undermine confidence in the criminal justice system. The prosecution failure to disclose the letter was simply nowhere near the sort of grave prosecutorial misconduct that would render it unfair to try the respondent and was required for the purposes of abuse of process. Any suggestion that the judge had been bound to exclude the res gestae evidence under section 78 of PACE also had to be rejected.

Furthermore, whilst the prosecution didn’t call B2 to give evidence at trial, they were not under any obligation to do so. They had not served a statement made by B2 within evidence to the defence due to unwillingness to support the prosecution. 

Where witness evidence was incapable of belief, the prosecution would not be under any obligation to take a witness statement for use in evidence and in this case, the prosecution had disclosed all the unused material as part of the relevant disclosure process. In this case, the defence had been notified of the unused material relating to B2 and had they wished to call her as a witness, they had sufficient time to do so before commencement of the trial. Even though that had not taken place, an abuse of process had not occurred. The prosecution had discretion as to whether they wanting to choose a particular witness or not too. There had not been sufficient justification for the judge to stay proceedings.

Due to all the above, the judge had erred in law in staying the proceedings meaning the appeal had to be allowed and remitted for trial.  

View the full DPP v Barton 2024 case document here, with links to related legislation and similar cases.