Barton – res gestae gone rogue? Adam Furze considers the recent judgment of DPP v Barton

Drystone Chambers third-six pupil, Adam Furze, discusses the recent judgment of DPP v Barton [2024] EWHC 1350 (Admin). In his article, Adam considers the key aspects of the judgment, including the often-misunderstood duties on prosecutors when calling witnesses. The judgment is a must read for practitioners prosecuting and defending cases involving res gestae evidence.

The judgment of DPP v Barton [2024] EWHC 1350 (Admin) has divided opinions in robing rooms across the UK. Joey Barton was recently convicted of assaulting his wife, who, before his first trial, wrote to the court retracting her allegations as she had been heavily drinking at the time and her head injury could have been caused accidentally by one of her friends. She never provided a statement and the Crown sought to rely upon a recording of the 999 call she made to the police and her subsequent disclosures captured on body worn footage by attending officers.

Before his first trial, proceedings were stayed as an abuse of process and the DPP appealed that decision. In summary, the answer to the dilemma faced by the Crown and the Court lies in the fundamental, and well-established principles of the prosecution deciding which witnesses to call, regardless of whether their evidence will be capable of belief.

[37]-[38] of the judgment recites the principles from R v Russell-Jones [1995] 1 Cr. App. R. 538 at page 544C-545D and  R v Wellingborough Justices, Ex p. Francois (1994) 158 J.P. 813 at pages 4 to outlining the general obligations on prosecutors calling witnesses.

[39] cites R v Haringey Justices, ex p DPP [1996] QB 351 which states that the prosecution has a duty to tender or call a witness who’s statement has been served providing that at the time of the trial, those witnesses remain capable of belief. If the Crown do not call said witness, the defence can. However, this can often engage evidence of bad character which the defence will seek to avoid. The Court can rule that it is unfair for the defence for a witness to not be called, but the court cannot compel the Crown to call that witness. The court can call that witness if it is not appropriate for the defence, although it is a power to be used sparingly.

At [55] the Court concluded that the judge erred in principle staying the proceedings and it was not an abuse of process not to call Mrs Barton. Neither was it an “improper tactic or manipulation of the court’s process but a legitimate exercise of the prosecution’s well-established discretion to choose which witnesses it calls.”

From [56] it was rejected that case law establishes a wide-ranging general principle that apart from cases where the complainant is “in fear” of attending court, their account cannot be relied upon as res gestae without calling the complainant.

The Court’s response to this notion is cited below:

“[64] In the sensitive and specific context of domestic abuse, the position, in our opinion, is very different …. It is that it will often not be unfair to allow the prosecution to adduce the res gestae evidence of a complainant where they are not called as a witness, and there is an absence of fear. As is now well understood, it is not uncommon in such cases for there to be sufficient evidence to prosecute the alleged perpetrator of the abuse even where the complainant does not to support the prosecution. In our opinion, in such cases, the public interest may often demand the use of res gestae evidence, particularly recorded evidence, regardless of the cooperation of the complainant.”

The judgment will inevitably lead to an increase in the number of prosecutions solely with res gestae evidence. Practitioners need to be aware of the duties on prosecutors when calling witnesses and a tread a fine line between fairness to complainants of domestic abuse and defendants being precluded from challenging allegations they face.  

So, Barton- is it res gestae gone rogue, or a restatement of well established authorities outlining the duties upon the Crown when considering calling witnesses whose testimony may be unworthy of belief?

About the author

Adam Furze joined Chambers as a third-six pupil in November 2024. He practices primarily on the Western Circuit and both prosecutes and defends.

To instruct Adam, please contact the clerks on 020 7404 1881 or via email here.