Carlos Vilhete v Crown Prosecution Service
[2024] EWHC 2171 (Admin)
Director of Public Prosecutions v Joseph Barton
7 June 2024
[2024] EWHC 1350 (Admin)
High Court
A husband was accused of assault by his wife, who later changed her story. The prosecutor used her initial statements (recorded right after the incident) as evidence without calling her to testify. The judge stopped the case, but a higher court said the prosecutor had the right to use the initial statements and the case should proceed.
Key Facts
- •Joseph Barton was charged with assault after his wife, Georgia Barton, called 999 and reported the assault. Her statements were recorded on a 999 call and police bodycam footage.
- •Mrs. Barton later retracted her allegations in a letter to the court, and did not wish to support the prosecution.
- •The prosecution intended to rely on Mrs. Barton's initial res gestae statements (made at the time of the incident) without calling her as a witness.
- •The District Judge stayed the proceedings, finding it an abuse of process because Mr. Barton couldn't fairly cross-examine his wife on her retracted statement.
- •The District Judge also cited a failure by the prosecution to disclose Mrs. Barton's retraction letter promptly.
Legal Principles
Abuse of process can occur when a fair trial is impossible or when the court's sense of justice is offended.
Maxwell [2010] UKSC 48
The prosecution has discretion in choosing witnesses but must act in the interests of justice to ensure a fair trial. They should normally call witnesses who give direct evidence of primary facts unless their evidence is considered unworthy of belief.
R v Russell-Jones [1995] 1 Cr. App. R. 538
If the prosecution improperly fails to call a witness, the court can invite the prosecutor to call them, or call them itself.
R v Wellingborough Justices, Ex p. Francois (1994)
The prosecution is not obliged to call a witness if their evidence is reasonably anticipated to be untruthful.
R v Oliva [1965] 1 WLR 1028
Non-disclosure must reach the level of grave executive misconduct to constitute abuse of process.
R v Ahmed (Nazir) and others [2022] 1 W.L.R. 3543
Res gestae evidence can be admitted even if the maker of the statement is available, but the court must consider whether excluding it under s.78 PACE is necessary for fairness.
Attorney General's Reference (No. 1 of 2003) [2003] EWCA Crim 1286
Outcomes
The High Court allowed the DPP's appeal.
The District Judge erred in principle by staying the proceedings. The prosecution's decision not to call Mrs. Barton was a legitimate exercise of discretion, not an abuse of process. The non-disclosure issue was insufficiently serious to justify a stay.
The case was remitted to be tried by a differently constituted court.
The High Court found the initial decision to stay the proceedings was incorrect.