By Michael Ruddick, Pupil Barrister, Crown Prosecution Service
The right to a fair trial has been endlessly commented on by everyone, from the wisest judge to the most enthusiastic journalist. Everyone has their own view of what makes a fair trial. That’s natural, of course – a fair trial is quite possibly the single most important right we have as citizens in England and Wales.
The list of things which make a trial fair is virtually endless. Taking just one point, many people would argue that a fair trial must allow the defendant the chance to face his accuser and challenge them in court. In other words, to cross-examine them.
So, the response from the legal profession to the case of DPP v Barton[1] is unsurprising. Res gestae (literally ‘things done’ in Latin) has been used in domestic abuse cases since at least 2007 when the Court of Appeal addressed the issue in R v C[2] but Barton has shone a spotlight on the practice when the court endorsed the use of res gestae to tackle the withdrawals of complainants.
Many practitioners are understandably alarmed by the course res gestae is taking, which it could be argued virtually guarantees victimless prosecutions in the right circumstances (namely, a reliable video recorded first account, for example). Questions of fairness abound.
There have already been many articles and comments involving the effect of Barton. I want to take a different approach to lift the lid on domestic abuse cases to examine why res gestae is being used as it is and to work out where the fairness lies in these kinds of cases. After that, I will provide a quick ‘cheat sheet’ reminder for things to look out for whilst prosecuting domestic abuse cases.
The challenges of prosecuting domestic abuse
So why is res gestae being used so frequently in domestic abuse cases? In essence, it is because these cases are particularly difficult and complex, due to the intimate relationship between the parties. Moses LJ described it best when he said that victims of domestic abuse are in ‘a peculiarly unhappy position, namely of being required to give evidence against someone with whom perhaps she is still living but certainly for whom she still has feelings of affection.’[3]
This unhappy position is borne out in the statistics. In the 2023-2024 CPS data summary, 49.8% of non-convictions were because complainants withdrew,[4] which is startling. It’s unlikely that all of these withdrawals are because the complainant is lying each time. And in fact, 74.6% of cases which do go to court result in a conviction[5].
To reiterate the point – just shy of 50% of non-convictions are not due to insufficient evidence. If we assume that those withdrawals were roughly equivalent to the number of convictions, it means that more than half of those withdrawals were genuine victims who withdrew due to a complex multitude of factors, many of which I would argue arise directly from the relationship itself.
All criminal practitioners are aware that domestic abuse is often not a single incident in time. There is normally a whole history between the parties before a complaint finally reaches court and as Moses LJ said, it is indeed an unhappy position to be in for the complainant. It is understandable that it can take a lot to break that link between victim and abuser. In addition, the cases often occur in private, so the complainant is the only prosecution witness.
In summary, domestic abuse cases typically involve a lone witness who is particularly vulnerable and prone to withdrawal. To use a colloquialism, there may be many abusers ‘getting away with it’ due to the hold they have over the victim. They can use the latent affection the victim has for them to encourage them not to give evidence and in many cases they need not even do that; the victim’s conflicting loyalties mean often they do not want to give evidence after their initial emotional reaction to the abuse has subsided.
So, res gestae is being used to address the difficulties associated with that conflicted loyalty by removing the need to rely on the complainant attending trial despite their internal conflicts.
The fairness of res gestae
The reasons for using res gestae are clear – there is a balancing act in play here where the prosecution is working to bring defendants to trial so the allegations can be decided upon by a tribunal. Without the use of res gestae, the allegations often never reach that stage.
But the question being asked by many is whether the High Court’s endorsement of res gestae has gone too far and whether unfair trials are now the result.
Critics argue that defendants will not have the chance to challenge the complainant in the traditional manner. Cross-examination is rightly lauded as an effective means of exposing the liars and the inaccurate witnesses – with the use of res gestae, that chance is stripped away.
But that does not mean the whole system has been upended. The prosecution still has to prove the case against the defendant. The court did not give carte blanche to the use of res gestae evidence in every case of domestic abuse; the test laid down in R v Andrews[6] must be met first. In cases where the prosecution is not suggesting the witness is incapable of belief, they would also need to demonstrate the steps taken to obtain their attendance.
If all of this is met then it is true that the res gestae evidence would present a considerable challenge to any defendant – by its nature res gestae means the possibility of concoction or distortion can be disregarded, although in a criminal trial nothing is guaranteed. (There is always the possibility that later evidence undermines it and immune from concoction or distortion does not mean immune from mistaken belief.)
Ultimately though, domestic abuse demands a different approach to prosecution. The court in Barton recognised as much when they said that the public interest often demands the use of res gestae to effectively prosecute domestic abuse; without which, it may be impossible to properly overcome the challenges these cases present.
Is that unfair? In some ways, yes – the defendant does not get the chance to directly question the complainant. But a criminal trial is a forum for justice and it has to account for the many people involved, which includes the complainant. Defendants must be afforded greater protection in that process, as they have the most to lose, but it does not mean that we should ignore the fact that many complainants are genuine and in a truly dire situation where they have to choose between their partner and seeking redress. If we become overly zealous in our dislike of res gestae, we will end up denying justice to thousands of victims of abuse.
A short refresher on prosecuting domestic abuse
Regardless of what you think about Barton and res gestae, it is the law as it stands now. So instead, I propose to run over a quick ‘cheat sheet’ refresher on using res gestae in cases of domestic abuse.
- First, you need to establish whether your complainant has withdrawn (and why) or whether it is the case that the CPS believe they are unworthy of belief.
- If your complainant is unavailable or has withdrawn, Wills v CPS[7] must be considered – in essence, that case confirmed that steps must be taken to find out why a complainant is not attending court. Vilhete[8] recently said that if it was clearly established that the complainant would not attend the hearing regardless of attempts at further persuasion, then it is proper and reasonable to abandon further enquiries – Wills need not be followed.
- If it is the case that the CPS believe the witness is unworthy of belief (typically because the complainant has turned witness for the defence in contradiction of their earlier account), then Wills does not need to be followed. Barton confirmed that the prosecution do not need to call or tender the witness for cross-examination either, if that is the case.
- Res gestae was preserved in s.118(4) of the Criminal Justice Act 2003. Assuming the various hurdles are overcome, the next stage is to deal with the test for res gestae as set out in Andrews. The acquisition of body-worn footage from the scene which can act as a quasi-ABE interview is the strongest form of potential res gestae, so this should be acquired, if it exists, as a priority.
- Finally, the defence may apply to exclude the evidence under s.78. In Barton, the court said that they agreed with a Northern Irish court which said the use of res gestae is a decision relating to prosecution and it does not involve any improper motive or device or unfair tactics. The overall sense from Barton is that a s.78 argument would be difficult to make out on the basis that res gestae has been admitted, without something further to support the argument. Nonetheless, a prosecutor might find it sensible to remind the court that they have just found concoction to be unlikely and to highlight the defence’s opportunity to comment on the evidence in closing.
There is naturally a great deal more to it than that, but I hope it adequately provides the basic skeleton for what to expect and how to begin approaching the arguments which are likely to arise in court.
In summary, there is a difficult balancing act in play with the use of res gestae. Domestic abuse cases are challenging, and they require different methods of prosecution to bring cases to trial. But there are still various safeguards in place to protect the fairness of the trial process and in my view, res gestae is necessary to ensure tribunals can hear these cases and decide where the balance lies.
Michael Ruddick, Pupil Barrister, CPS
[1] [2024] EWHC 1350 (Admin) [2024] 2 Cr. App. R. 15. Barton concerned the requirement of the Crown to call certain witnesses, but in the course of the judgment, the court endorsed the use of res gestae to pursue victimless prosecutions in cases of domestic abuse.
[2] [2007] EWCA Crim 3463
[3] Ibid at [12].
[4] Crown Prosecution Service, ‘CPS data summary Quarter 4 2023-2024’ (CPS, 18 July 2024) <https://www.cps.gov.uk/publication/cps-data-summary-quarter-4-2023-2024> accessed 16 April 2025
[5] Crown Prosecution Service, ‘CPS data summary Quarter 2 2024-2025’ (CPS, 16 January 2025) < https://www.cps.gov.uk/publication/cps-data-summary-quarter-2-2024-2025> accessed 16 April 2025
[6] [1987] AC 281.
[7] [2016] EWHC 3779 (Admin)
[8] Vilhete v Crown Prosecution Service [2024] EWHC 2171 (Admin)
