Charlene Dempsey, associate solicitor at Higgins Hollywood Deazley Solicitors in Belfast, writes on a recent court decision concerning a prosecution based on police body camera footage in which no statement of complaint was ever filed.

In November 2016 the PSNI spent £700,000 on Police Body Worn Cameras - the third highest outlay of all UK forces. It has a total of 2,100 cameras, according to research by Big Brother Watch.

In the unreported Belfast Magistrates’ Court decision of R v Nesbitt (January 2018), HHD Solicitors were instructed on behalf of the defendant charged with the offence of common assault. The prosecution sought to rely on body cam footage recorded by the officer who attended the scene of a domestic incident. The defence were served with body cam footage showing the female complainant describing to the officer how she had allegedly been assaulted by the defendant only minutes before. The complainant makes it clear to the officer that she does not wish to provide a written statement of complaint even if the police were to make contact with her over the following days. The defence were also served with a recording of the 999 call made by the complainant requesting police assistance and outlining the fact that the defendant whom she named, had just assaulted her.

The complainant in this case never provided a statement of complaint to police nor any statement indicating why she was unwilling to do so or in fact unwilling to attend court i.e through fear. The prosecution sought to rely solely on the body cam footage, the 999 audio recording and evidence of the police officers who attended the scene noting injuries to the complainant.

This was a highly unusual case in that no Statement of Complaint had ever been provided. The defendant therefore, could have been convicted solely on the basis of hearsay evidence in circumstances where the complainant had, from the outset, indicated her unwillingness to co-operate with the criminal process.

The prosecution applied to admit the hearsay evidence under article 22 of the Criminal Justice (Evidence) (NI) Order 2004 (the Res Gestae exception). The prosecution relied upon article 22 4 (a) that “the statement was made by a person so emotionally over-powered by an event that the possibility of concoction or distortion can be disregarded”.

The Northern Ireland decision of Gerard McGuinness v The PPS (2017) NICA 30 provided useful guidance on the admissibility of Res Gestae evidence. However, the distinction could be made between the McGuinness Case (and those referred to therein) and the present case in that statements of complaint had been provided but subsequently withdrawn and the reasons for the withdrawal notified to the Defence.

We lodged an objection to the prosecution application to adduce the hearsay evidence. We submitted that there were ‘special features’ in the case which related to the possibility of concoction and or distortion. The Court was referred to the fact that the complainant was noted to be intoxicated during her dealings with the PSNI and the telephone call to the PSNI operator. The Court was asked to consider how reliable her account might therefore be.

During oral submissions, the Court was referred to Article 18 (2) of the 2004 order which essentially acts as a legislative ‘check list’ for the Court when deciding whether a hearsay statement should be admitted. This check list can be summarised as follows:

It was noted that during the body cam account the complainant alleged she was “hit” and “punched”. During the 999 recording, the account differed to an allegation of being “pushed”.

The Court ultimately decided that the hearsay evidence did meet the criteria for admission under the Res Gestae exception. The Court was then obliged to consider whether the evidence might be excluded under the following:

Ultimately, the Court decided that the evidence should be excluded due to the unfairness faced by the defendant in challenging the following:

There appears to be ample case law in England and Wales regarding the admissibility of body cam footage. In Northern Ireland, the admissibility of body cam evidence was upheld by the High Court in the case stated decision of McGuinness. These cases show that the prosecution will pursue prosecutions in circumstances where a complainant has made a statement of complaint but subsequently withdraws it. What was unique in his case was that the prosecution were willing to go further, and pursue a prosecution based solely on hearsay evidence even when no statement of complaint had ever been made.

In Nesbitt the District Judge considered whether it might have been open for the prosecution to apply to admit the body cam footage under article 20 (e) of the 2004 Order on the basis that the witness was in ‘fear’. However, in those circumstances the prosecution would have to adduce evidence from the witness (or some other third party) of the fear as well as demonstrate that the provision of special measures (e.g screens/video link) would not address the victim’s fears with respect to giving evidence. The complainant in this case was not co-operating and this is therefore likely to be the reason this avenue was not explored further by the prosecution.

This case of course raises concerns regarding the unfairness the admission this type of evidence can have upon a defendant accused of a criminal offence and who is then unable to cross-examine their accuser in court.

Of further concern is the potential for “re-victimisation”. For example, a victim of domestic violence may contact police to have the offender removed from their home. The victim may make it clear to the police at the time that they do not wish to pursue a formal criminal complaint nor co-operate with any court proceedings. It appears that the views of such victims are likely to be ignored by prosecutors who proceed to have the victims discussions with police admitted as a statement at a subsequent trial. In this particular case, no evidence was put before the Court regarding the victim’s wishes or how she felt about the case proceeding, albeit in her absence. The concern is that victims will be reluctant to call police to have a violent partner removed for fear that a prosecution process will continue without their input. The legislation regarding the admissibility of this evidence does not demand that the Court consider these public interest issues.

On the basis that the evidence was excluded, the defendant was acquitted of the offence of common assault.