R Ibrahim v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 18 May 2016 |
| Neutral Citation | [2016] EWHC 1750 (Admin) |
| Docket Number | CO/43/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 May 2016 |
[2016] EWHC 1750 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/43/2016
Ms Laura Herbert (instructed by Guney, Clark & Ryan) appeared on behalf of the Appellant
Mr Leslie Chinweze (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
Olalekan Ibrahim, the appellant, appeals by way of case stated under Section 111 of the Magistrates' Court Act 1980 against a decision of District Judge Clark ("the District Judge"), sitting at Stratford Magistrates' Court, on 10 August 2015. The District Judge convicted the appellant of one allegation of assault on Tessa Ayiobe by beating her, contrary to Section 39 of the Criminal Justice Act 1988. The judge allowed in evidence of an emergency 999 call which Ms Ayiobe made.
The question that the District Judge poses to the court is:
"Was my decision to admit the evidence of the phone call as res gestae so unreasonable that no reasonable judge could have reached it?"
The facts are set out in case stated as follows. On 4 June the appellant and Ms Ayiobe were living together as husband and wife at a flat in Hackney, London with three young children of the family. In the evening of 4 June 2015 the appellant left home to visit the barbers and returned after 9 pm. On his account she was cold towards him and asked where he had been for such a long time. An argument developed in the front room about his repeated staying out late. She started yelling at him so he went into the office at the flat. His evidence was that he decided to leave in the car. She grabbed his hand, tried to get the car keys, and he then left the house. His evidence was that when he had returned at 9 pm the victim had not suffered any injury and the house was not in disarray. So on his account the injuries must have been caused, says the case stated, after he left. There was an emergency 999 call from Ms Ayiobe at 10.25 pm in which, as the case stated puts it, "my partner has attacked me".
At the outset of the hearing Ms Herbert, for the appellant, submitted that the transcript of the telephone call should be admitted as evidence in this court, indeed, that the court should listen to the recording of that call. As I pointed out in argument, the procedure with a case stated is that the court relies on the facts stated there. If an appellant wishes for further material to be incorporated that should be effected at an early stage. Nonetheless, for completeness, I include in this judgment a short extract from the transcript which Ms Herbert has produced:
"O[perator]: ( Inaudible) emergency services can I help you?
W[itness]: Please I need the police but…
O: All right, tell me where you are.
W: I need to say anonymous because my partner beat me up but you can't say that I called.
O: All right, okay, let's slow this down. Is your partner still with you?
W: Nah, he's not but my parents will kill me if they know that I called."
The case stated proceeds that when the tape was played the district judge "noted the hysterical tone of voice used by Ms Ayiobe and inferred that her complaint was recent". In the case stated the District Judge continues that at 10.35 pm Police Constable Vickram and Police Constable Goodwin received a call from the operator to go to the address. They responded, and arrived at 10.45 pm. Ms Ayiobe answered the door:
"g. …She was very upset, distressed, shaking and crying. The police noticed bruising to her face and swelling around the right eye and cheekbone.
h. The office in the house was in disarray and it looked as if a disturbance had taken place there."
The case stated notes that the latter was based on police evidence and photographs. It continues:
"i. While the police were there, Ms Ayiobe received a call from her mother who was shouting at her for calling the police. She told PC Vickram that she was scared and felt she had no support. Although she signed the officer's notebook, she declined an ambulance. She initially allowed the police to take photographs of her injuries but when they were 'coming out' and more apparent she refused to have any more taken."
The District Judge says:
"I inferred that as the injuries were developing in the sight of the police they must have been recent."
The case stated adds that Ms Ayiobe then received a call that the appellant was returning and asked the police to leave. They advised her to move to a place of safety with the children and left. No one else had entered the premises or left. There was no evidence that anyone else was in the house apart from the children.
Before driving off the police saw that the appellant was returning home. They went back to the house fearing for Ms Ayiobe's safety and that of the children. She was reluctant to allow the police in and they had to force past her. The appellant was out on the bedroom balcony. He was angry with the police and would not follow or comply with requests. A decision was made to handcuff him. He resisted, leading to a struggle on the bed. He was told he was being arrested at 5 minutes to 11.
The Hearsay Evidence
Ms Ayiobe did not make a statement or give evidence. The District Judge explains in the case stated that she became uncooperative with the police. He —
"8 …came to the conclusion that on all the evidence it was clear that Ms Ayiobe was not willing to make a statement or give evidence against the defendant because she was in fear of him."
The District Judge then sets out that he admitted the 999 call under the res gestae principle. He was referred to R v Andrews [1987] AC 281 and to passages in Archbold Magistrates' Courts Practice 2015 (pages 599 to 600, paragraphs 10–62 to 10–64). The District Judge states that he was not referred to Barnaby v Director of Public Prosecutions [2015] EWHC 232 Admin, [2015] 2 Cr App R 4.
The District Judge then notes as follows:
I directed myself that I had to primarily satisfy myself that the possibility of concoction or distortion could be disregarded.
I directed myself that the time lapse between the event and the call is not the only relevant factor and there were other factors which negated the possibility of concoction. I referred to these in my judgment. They were:
• The injuries to Ms Ayiobe were very recent and still developing.
• The disturbance in the flat was evident to police and must have been so recent it had not been cleared up.
• Her distress.
• The timescale of events showed that the assault must have been recent as described above.
• The very disturbed tone of voice on the phone.
• The defendant's aggression.
• The absence of any other candidate apart from self-inflicted injuries which I was entitled to dispel.
• The clear inference that she had made the call once alone after her partner had left home having assaulted her.
• I also remind myself that the weight to be attached to the call as evidence was affected by the fact that there was no opportunity to cross-examine the maker or to put his case to her."
Legal Framework
Section 114 of the Criminal Justice Act 2003 provides for the admissibility of hearsay evidence. It reads in its relevant parts:
"(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 —
…..
(b) any rule of law preserved by section 118 makes it admissible."
Section 118 (1) of the 2003 Act preserves, amongst other rules of law —
"(1) …..
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."
In R v Andrews, Lord Ackner, with whom the other Law Lords agreed, said (at pages 300 to 301) that to answer the question of whether the possibility of concoction or distortion could be disregarded, the judge had first to consider the circumstances in which the particular statement was made to satisfy himself that the event was so unusual or startling or traumatic as to dominate the victim's thoughts so that her utterance —
"(ii) …was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion provided that the statement was made in conditions of approximate but not exact contemporaneity.
(iii) In order for the statement to be sufficiently spontaneous it must so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the victim is still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
(iv) Quite apart from the time factor, there may be special features in the case which relate to the possibility of concoction or distortion…
(v) As to the possibility of error in the facts in the statement, if only the ordinary vulnerability of human recollection is relied upon this goes to the weight to be attached to it and not to the admissibility of the statement and is therefore for the jury."
Lord Ackner went on to deprecate...
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