Lee Stewart Barnaby v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Fulford,Mr Justice Jay |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 232 (Admin) |
| Docket Number | Case No: 4289/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 February 2015 |
[2015] EWHC 232 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Fulford
The Honourable Mr Justice Jay
Case No: 4289/2014
Mr Brian Fitzherbert (instructed by Howell Hilton) for the Appellant
Mr Simon Heptonstall (instructed by The CPS Appeals Unit) for the Respondent
Hearing dates: 28th January 2015
Introduction
Lee Stuart Barnaby appeals by way of case stated against the decision of the Bodmin Magistrates' Court on 6 June 2014 when the justices convicted him of a single charge of assault by beating on 11 April 2014. He was sentenced to 16 weeks' imprisonment.
The two questions formulated by the justices concern the introduction of hearsay evidence, as follows:
i) Were we correct in admitting the out of court statements of Glenda Gibb?
ii) Were we correct in admitting the evidence of the 999 calls?
The Facts
During the early hours of Friday 11 April 2014, the complainant, Glenda Gibb, made a series of three emergency 999 calls to the emergency services. An officer, DC Pym, prepared an edited transcript of what was said. In the first call, at 6.33 am, Ms Gibb whispered " I can't really talk; I've just been attacked by my boyfriend." During the second call she said " Um my boyfriend's just strangled me; I can't really talk". She told the operator that she was at her home address on the Lanuthnoe Estate, St Erth, Cornwall. She indicated that the appellant had just strangled her and was about to leave the property to go to Cambourne. She refused to give her name, saying " I'm just so scared because he's just strangled me". The complainant said the person responsible was the appellant, Lee Barnaby, and that he had "done this before". In the course of the third telephone call, she repeated that her boyfriend had just left the premises and that he had assaulted her. She expressed concern that the police should not tell the appellant she had reported the incident. She gave her name during this last call. She was clearly upset: indeed, she was sobbing. The last of these telephone calls was at 6.49 am.
The police arrived at the premises about 6 minutes later. Ms Gibb was agitated and upset, and became angry when she was told the appellant had not been apprehended. The officers noted a distinctive reddening in a band about 3 inches wide that extended round the entire front of Ms Gibb's throat. There was also a crescent shaped mark, like an inverted upright "C", on her left cheek.
Her account at this stage as to what had occurred was that although the appellant had been sleeping downstairs on the sofa in the lounge she "woke up and found him strangling me. Bit my cheek whilst strangling me and called me bitch and cunt … he strangle me with his hands". She gave the appellant's name: Lee Barnaby. She refused to give a statement or to sign an entry in an officer's pocket book because she said he " beat me up" on the last occasion she provided a statement.
Whilst Ms Gibb was speaking with the police, she showed the officers examples of text messages that the appellant was currently sending to her, such as " I am sorry for what I did. Glad I know how you really feel now". She told the police that he had been taking cocaine and steroids.
PS Ross described Ms Gibb's state as follows:
Throughout Ms Gibbs was agitated and upset, anxious that we arrest Barnaby and fearful of what he would do if we didn't arrest him and he returned to the address but equally fearful of what Barnaby would do if we did arrest him and he was released from police custody and he discovered she had called the police. Her fear was clearly causing her confusion and agitation and she was genuinely anxious about her safety and the possibility that Barnaby might seriously harm or even kill her and re-stated her reluctance to give a statement as she was concerned this might increase the risk of harm to herself and her son in the future.
DC Pym seized the appellant's telephone and he looked at some of the stored text messages. One sent to a former partner of the appellant, Gemma Barron, at 12.25 on 11 April 2014 set out " Did u check dates? Strangled and bit Glenda this morning. Lost plot."
It seems that at some stage during these events the appellant told the police that the appellant had a large bag of drugs in his possession. However, no drugs were found when he was detained some miles from Ms Gibb's address much later that day.
The appellant declined to answer any questions in interview. At trial, he denied that he had slept overnight at Ms Gibb's home and he denied the allegation of assault. He said that he had simply gone to her address to collect his belongings and that they had argued.
The Procedural History
The appellant was charged, on 12 April 2014, with an assault on Glenda Gibb by beating her, contrary to section 39 CJA 1988.
On 28 April 2014 the appellant's solicitors were sent the evidence on which the prosecution relied; these included the statements and exhibits encompassing the history rehearsed above, save for the transcript of the 999 telephone calls.
There was an interim case management hearing on 6 May 2014, when a Case Management Form was submitted in which it was indicated that the real issue in the case was that "[…] there was no assault. There was no contact between the defendant and the complainant."
The appellant's representatives stated on the Form that objection was taken to the prosecution relying on hearsay evidence, and an order was sought that the case should be listed before a bench that was not due to hear the trial in order to resolve any outstanding issues as to the use of hearsay evidence by the prosecution. However, a preliminary hearing for this purpose did not take place.
The trial was listed in the Magistrates' Court for 5 June 2014, the day before the custody time limit expired.
The Hearsay Evidence
At the outset of the trial, the bench was informed that the admissibility of hearsay evidence that the prosecution suggested came within the res gestae principle, together with the continuity of some of that evidence, required resolution. It appears that the advocates agreed that this should be dealt with as a preliminary issue. A ruling was given on 5 June 2014 and the trial proceeded on 6 June 2014. Although the complainant, Glenda Gibb, attended court on 5 June 2014, neither party sought to call her to give evidence.
On 5 June 2014 the prosecution sought to rely on the transcript of the 999 calls and the account given by Ms Gibb when she saw the police officers at the premises, as summarised above.
The prosecution relied on sections 114 (1) (b) and 118 (1) (4) (a) Criminal Justice Act 2003. Given one of the arguments taken by the appellant it is convenient to set out section 114 (1) and (2) in full:
Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.
[…]
Additionally, section 118 (1) (4) provides:
118
Preservation of certain common law categories of admissibility
(1) The following rules of law are preserved.
[…]
Res gestae
4. Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,
[…]
I note at this stage that there is no need to serve a notice to introduce hearsay evidence that is admitted under section 118 (1) (4) pursuant to Criminal Procedure Rules 2014 (see Rule 34.2 which sets out the categories of hearsay evidence for which a notice is necessary).
The appellant emphasised before the justices that Ms Gibb had not made a statement in support of this allegation, she had convictions and it was suggested that the telephone calls were " planned rather than spontaneous". She had previously made a complaint to the police which was not...
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