R v Danilowski [2025] EWCA Crim 1279: Body‑worn video res gestae may be the primary evidence in domestic abuse prosecutions even where the complainant is not called

R v Danilowski [2025] EWCA Crim 1279: Body‑worn video res gestae may be the primary evidence in domestic abuse prosecutions even where the complainant is not called

Introduction

This appeal from the Crown Court at Kingston upon Thames concerned the admissibility and sufficiency of body‑worn video (BWV) evidence capturing a domestic abuse complainant’s immediate account. The appellant had been convicted of intentional strangulation contrary to section 75A of the Serious Crime Act 2015. He challenged:

  • the admission of BWV statements under the res gestae exception to hearsay (Criminal Justice Act 2003, section 118(1), para 4(a));
  • the refusal to exclude the BWV under section 78 of the Police and Criminal Evidence Act 1984 (PACE); and
  • the rejection of a submission of no case to answer.

The Court of Appeal (Criminal Division) dismissed the appeal, holding that the BWV statements were not merely admissible as res gestae but “obviously so,” that exclusion under section 78 was unwarranted on the facts, and that the prosecution case was sufficient to be left to the jury. Importantly, the Court expressly endorsed the Divisional Court’s approach in DPP v Barton [2024] EWHC 1350 (Admin), clarifying the robust role of recorded res gestae in domestic abuse prosecutions even where the complainant is not called and is not acting out of fear.

Summary of the Judgment

The Court of Appeal confirmed:

  • The complainant’s statements and gestures captured on BWV in the immediate aftermath of the incident were admissible under the res gestae doctrine preserved by section 118(1), para 4(a) CJA 2003, applying R v Andrews [1987] AC 281.
  • There was no unfairness warranting exclusion under PACE section 78; the recording allowed the jury to see and evaluate the complainant’s demeanour, and the defence could challenge reliability and call evidence (including the complainant) if they wished.
  • There was plainly a case to answer: the BWV depiction of the complainant’s state, her demonstration and confirmation that she had been strangled “with two hands,” visible redness near the collarbone, and the scene’s disarray provided sufficient evidence for a jury to convict of intentional strangulation.
  • Endorsing Barton, the Court emphasised the public interest in admitting recorded res gestae in domestic abuse cases and clarified that its value extends beyond situations of fear or hostility; it also applies where complainants are unwilling or unable to testify for other reasons.

Factual context (concise)

Police responding to a 999 call arrived to find the complainant climbing out of a ground‑floor window at night, barefoot and wearing only a bra on her upper body. She appeared distressed and breathless. On BWV she identified her partner as the assailant and, when asked, indicated he had hurt her. She demonstrated, and then confirmed, that he had strangled her “with two hands.” Redness near the collarbone was visible on camera and confirmed by an officer; the house showed signs of recent disturbance. The appellant accepted there had been an argument and a physical altercation in a prepared statement but denied strangulation.

Analysis

Precedents Cited

1) Criminal Justice Act 2003, section 118(1) para 4(a) (res gestae). The statute preserves the common law exception admitting hearsay where a statement is made by a person so emotionally overborne by an event that the possibility of concoction or distortion can be disregarded.

2) R v Andrews [1987] AC 281. Lord Ackner’s canonical formulation guides admissibility: the central inquiry is whether the circumstances eliminate the possibility of concoction or distortion; factors include the spontaneity of the utterance, temporal proximity to the event, the declarant’s emotional state, and whether there was opportunity for reasoned reflection. Answering questions does not per se defeat res gestae if the response remains an instinctive reaction to the event.

3) DPP v Barton [2024] EWHC 1350 (Admin). The Divisional Court approved admission of BWV res gestae in a domestic abuse case where the complainant was not called. The President of the King’s Bench Division observed that, in the specific context of domestic abuse, allowing the prosecution to adduce a complainant’s recorded res gestae without calling them will often not be unfair even in the absence of fear, and that the public interest may demand such use “particularly [of] recorded evidence.” In Danilowski the Court of Appeal expressly endorsed those observations and affirmed that they are not confined to Barton’s precise facts.

4) Archbold principles on res gestae. The Court noted Barton’s statement that the District Judge’s admissibility ruling there was “plainly correct” and consistent with Archbold’s summary, underscoring how settled the res gestae principles are in this area.

Legal Reasoning

The Court scrutinised both the admissibility and the fairness of the BWV.

  • Res gestae: Applying Andrews, the Court agreed with the Recorder that the complainant was “so emotionally overpowered” by the events that concoction or distortion could be disregarded. Key features were:
    • immediate and contemporaneous setting: the complainant had just climbed out of a window at night, barefoot, in a state of undress;
    • observable distress and breathlessness on camera in the first minutes of the footage;
    • visible red marks near the collarbone corroborating the account;
    • the house in disarray, consistent with a recent violent argument, which the appellant admitted had occurred.
  • “Suggestion” versus confirmation: The defence argued the officer suggested “strangling.” The Court, having viewed the footage, found the officer used the word to confirm what the complainant had already demonstrated physically; the complainant then confirmed and added the “two hands” detail. That sequence did not undermine spontaneity or create a risk of false suggestion; it fit squarely within Andrews as instinctive reaction in response to clarificatory, not leading, questioning.
  • Intoxication and language: Although the officer had assessed the complainant as intoxicated on the night, the Court found that, on the footage, she appeared lucid and able to communicate in English with meaningful gestures and answers. Intoxication and a language barrier are relevant to weight but do not defeat admissibility where the overall circumstances show reliability.
  • PACE section 78: The Recorder was entitled to find that admission did not have such an adverse effect on the fairness of proceedings that it ought to be excluded. The BWV gave the jury an unfiltered view of the complainant’s demeanour, timing, and the contextual features of the scene. The defence could challenge reliability; they could call the complainant or the appellant could give evidence (he chose not to). In line with Barton, fairness does not require the prosecution to call the complainant in every case, particularly where public‑interest considerations favour the use of recorded res gestae.
  • No case to answer: The Recorder rightly rejected the submission. Taking the Crown’s evidence at its highest, the combination of the complainant’s recorded demonstration and confirmation of strangulation with two hands, the visible injuries, and the contemporaneous circumstances provided a case on intentional strangulation for the jury. Questions of reliability were quintessentially for the jury. BWV res gestae can, in appropriate cases, be sufficient on its own to meet the threshold to go to the jury and to convict.

What Danilowski adds and clarifies

  • Express appellate endorsement of Barton’s domestic abuse‑specific analysis: in such cases, admitting recorded res gestae without calling the complainant will often be fair, even absent fear.
  • Extension beyond hostility or retraction: the value of BWV res gestae is “just as” strong where a complainant is unwilling or unable to testify for reasons other than fear.
  • Confirmatory questioning is compatible with res gestae: the mere use of a label (“strangling”) to confirm what the complainant has already demonstrated does not disqualify the evidence.
  • Intoxication and language difficulties are generally matters of weight, not admissibility, where the recording shows lucidity and spontaneity.
  • BWV res gestae can, in principle and on appropriate facts, found a conviction for intentional strangulation.

Impact and practical implications

1) Prosecution strategy in domestic abuse cases:

  • Danilowski, building on Barton, signals continued judicial support for reliance on BWV res gestae where complainants do not give evidence. Prosecutors can fairly proceed without calling the complainant if the recording is probative and the overall circumstances indicate reliability.
  • Recorded contemporaneity and visual context are powerful: visible injuries, demeanour, and scene condition materially assist admissibility and weight.
  • Section 78 exclusion arguments will generally fail where the jury can see and assess the recording and the defence had procedural means to challenge (including calling the complainant or the defendant).

2) Defence considerations:

  • Expect BWV res gestae to be central. Challenges should focus on: timing (any delay), the extent and character of police questioning (leading beyond confirmation), coherence and lucidity on the recording, language comprehension, intoxication, and any inconsistencies (including injuries not attributable to the incident).
  • Be prepared to decide whether to call the complainant or the defendant. The Court’s reasoning treats defence ability to call as a key fairness safeguard.
  • “Suggestion” arguments are less likely to succeed where the recording shows prior gestures/demonstrations and the officer’s words are merely confirmatory.

3) Police and investigative practice:

  • Activate BWV promptly upon arrival; capture the scene and injuries. Ask short, non‑leading, clarificatory questions to allow the complainant’s spontaneous account. Record any demonstrations and the complainant’s own words.
  • Note the complainant’s physical and emotional state (distress, breathlessness) and any contemporaneous observations (e.g., disarray, injuries, locked doors/windows). These features underpin res gestae admissibility.
  • Where a language barrier exists, the recording of gestures and simple confirmations can still be admissible; but use of interpreters where feasible remains good practice for later stages.

4) Judicial case management:

  • Underscore Andrews factors in written rulings; where appropriate, view the BWV to assess spontaneity and demeanour directly.
  • When fairness is disputed, consider that defence can call the complainant or the defendant; a judicial power to call a witness (as discussed in Barton) remains part of the toolkit if necessary to protect fairness.
  • Jury directions should explain the nature of hearsay, the absence of cross‑examination, and how to evaluate the BWV cautiously but fairly.

5) Specific to intentional strangulation (Serious Crime Act 2015, section 75A):

  • Given the private setting of such offending and frequent reluctance of complainants to testify, Danilowski confirms that immediate recorded gestures and confirmations, coupled with visible markings and circumstantial features, can be sufficient proof of the core actus reus and mens rea.
  • Meticulous documentation of the complainant’s breathing, neck/chest markings, and the complainant’s demonstration of “two hands” at the neck significantly strengthens sufficiency of evidence.

Complex Concepts Simplified

  • Res gestae: A hearsay exception for statements made in the heat of the moment. If a person is so affected by an event that they speak or gesture spontaneously, the law treats the risk of concoction as negligible. The key is spontaneity tied to the event itself.
  • Section 118(1) CJA 2003: Preserves certain common law hearsay exceptions, including res gestae. It does not create a new test; it retains the well‑established criteria from cases like Andrews.
  • PACE section 78: Even if evidence is admissible, a court can exclude it if admitting it would make the trial unfair. The judge weighs probative value against potential prejudice and considers whether safeguards allow a fair evaluation.
  • “No case to answer”: If, taking the prosecution evidence at its highest, a properly directed jury could not convict, the judge must stop the case. If the evidence is capable of supporting a conviction and credibility is genuinely for the jury, the case proceeds.
  • Body‑worn video (BWV): Police‑captured footage at the scene. Its strength is contemporaneity and context: it lets the jury see and hear events closely in time to the alleged offence, including demeanour and physical surroundings.
  • Intentional strangulation (section 75A SCA 2015): A relatively recent standalone offence targeting non‑fatal strangulation/suffocation in domestic and other contexts. It focuses on the intentional application of pressure to the neck/throat; proof does not depend on the presence of serious injury.

Observations on the Court’s handling of disputed points

  • “Leading” concern: The Court distinguished impermissible suggestion from permissible confirmation. Because the complainant’s gestures preceded the officer’s use of the word “strangling,” the officer’s language did not contaminate the content of the evidence.
  • Intoxication: The Court treated intoxication as relevant to weight, not an automatic bar. The decisive features were how the complainant actually appeared and communicated on the recording (lucidity, responsiveness, coherent gestures/answers).
  • Absence of the complainant: The Court reiterated that fairness does not invariably require the prosecution to call the complainant where cogent BWV res gestae exists. Defence options—to call the complainant or the defendant—mitigate Article 6 fairness concerns; the recorded nature of the evidence further supports fairness.

Conclusion

Danilowski is a significant appellate reaffirmation—now from the Court of Appeal—of the central role that body‑worn video res gestae plays in domestic abuse prosecutions. It goes beyond mere approval of Barton by:

  • expressly endorsing Barton’s domestic abuse‑specific fairness analysis,
  • confirming that recorded res gestae may be used as primary evidence even when the complainant is not called and is not fearful,
  • clarifying that confirmatory questioning does not defeat spontaneity where the complainant’s gestures already communicate the substance, and
  • holding that such evidence can, on appropriate facts, be sufficient to found a conviction for intentional strangulation.

For investigators, prosecutors, and courts, the message is clear: secure, preserve, and fairly deploy immediate BWV evidence. For the defence, meaningful challenges will focus on the actual content of the footage—timing, demeanour, clarity, injuries, and any suggestive questioning—while recognising that the absence of the complainant no longer, of itself, undermines fairness or sufficiency. The judgment consolidates a practical, principled approach to hearsay in the uniquely challenging arena of domestic abuse, aligning evidential doctrine with public‑interest imperatives without sacrificing trial fairness.

Case Details

Year: 2025
Court: England and Wales Court of Appeal (Criminal Division)

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