Hearsay, Fear and Domestic Abuse Bad Character
Your client, Daniel, is charged with assault occasioning actual bodily harm on his partner, Sarah. The prosecution case rests on a 999 call in which Sarah said, 'He's punching me, get here now', and a body-worn camera recording made 20 minutes later in which she gave a detailed account. Sarah has not attended court. She has sent Daniel a text saying, 'I'm not coming, I don't want to be a grass.' The prosecution has served a witness summons, but Sarah has not responded. The trial is in six weeks. The prosecution intends to adduce the 999 call and the bodycam statement as hearsay under the Criminal Justice Act 2003. Daniel has a conviction from 2022 for assaulting Sarah. He denies assault and says Sarah attacked him. The prosecution also wants to adduce the 2022 conviction. Your solicitor asks for advice on the hearsay and bad character applications.
1. Can the prosecution adduce the 999 call and bodycam statement? What objections can you make?
Read the worked answer
Prosecution route. The 999 call and bodycam recording are hearsay. The prosecution cannot simply read them. It must identify a gateway. The likely gateway is s.114(1)(d) CJA 2003 (interests of justice) and/or s.116(2)(e) (witness does not give evidence through fear). For s.116(2)(e), the court must be satisfied that Sarah is in fear. The text 'I don't want to be a grass' is ambiguous: it may show fear of reprisals, loyalty to Daniel, or a wish not to give evidence. The prosecution must prove the fear gateway; the text alone is thin.
Objections. Object under s.114(2): the statements are not oral evidence; the bodycam statement was made 20 minutes later and is more detailed; Sarah cannot be cross-examined; the jury cannot assess her demeanour. The 999 call is spontaneous and likely reliable, but the bodycam statement is a formal account and may have been influenced by the police. Also object under s.78 PACE if admitting the bodycam statement would be unfair.
Practical step. Apply for the witness summons to be enforced and ask the court to inquire into Sarah's non-attendance. If she is evading because of fear, the s.116(2)(e) gateway may be established; if she is simply refusing to attend, the position is harder for the prosecution. Consider agreeing the 999 call but objecting to the bodycam statement.
2. Advise on the bad character application.
Read the worked answer
Bad character. The 2022 conviction is bad character evidence. The prosecution will rely on s.101(1)(d) CJA 2003: it is relevant to an important matter in issue (whether Daniel assaulted Sarah) and s.103(1)(a) propensity to commit offences of the same description. Assault is the same description; the same victim strengthens the probative value. There is a presumption under s.103(2) that the conviction is admissible if it is for an offence of the same description, unless the court is satisfied it would be unjust.
Resistance. Apply to exclude under s.101(3) (admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it) and s.78 PACE. Argue: a single conviction from 2022 is not strong propensity evidence; the jury may convict because of the previous conviction rather than because they are sure of this allegation; the complainant's hearsay evidence is untested. If Daniel runs self-defence, the previous conviction is still prejudicial but may be admitted.
Tactics. If Daniel gives evidence and attacks Sarah's character, s.101(1)(g) may also apply. Advise him not to make gratuitous attacks. If he does not give evidence, the prosecution may still seek to admit the conviction, but the judge may exclude it as unnecessary. Prepare a written exclusion application before trial.