Res gestae remains admissible despite a proven lie: the test stays whether concoction or distortion can be disregarded

1. Introduction

In R v Shiel [2026] EWCA Crim 386, the Court of Appeal (Criminal Division) considered a focused but important evidential question: whether hearsay admitted under the res gestae exception may properly be received where the declarant (the complainant) did not testify and where her near-contemporaneous accounts included a demonstrable deliberate lie about a collateral matter (the whereabouts/presence of her baby).

The appellant was convicted of unlawful wounding contrary to section 20 of the Offences Against the Person Act 1861. The prosecution case was that, during a domestic argument, the appellant punched the complainant causing a cut and bruising. The defence case was accident: the complainant allegedly jumped onto a bed and struck her head on a bedside cabinet.

Two sets of statements were pivotal:

  • a telephone statement to the complainant’s aunt during/around the incident (“I think he has broken my jaw”); and
  • an account given to a responding officer recorded on body-worn video roughly minutes later, followed by signed pocket-notebook entries.

The complainant later emailed the CPS indicating she wished to withdraw the pocket notes and that they were “not entirely accurate”, and she was not called at trial. The trial judge admitted the aunt-call statement and the body-worn-video account as res gestae, and declined to exclude under section 78. The Court of Appeal dismissed the appeal, holding the conviction safe.

2. Summary of the Judgment

The Court of Appeal upheld the trial judge’s rulings that:

  • the challenged statements were admissible as res gestae preserved by section 118(4) of the Criminal Justice Act 2003; and
  • their admission did not render the proceedings unfair so as to require exclusion under section 78 of the Police and Criminal Evidence Act.

Crucially, the court rejected the appellant’s submission that a proven lie within a near-contemporaneous statement automatically defeats res gestae admissibility. There is no such rule; the question remains whether, in all the circumstances, the possibility of concoction or distortion can be disregarded. On the facts, the judge was entitled to conclude it could be.

3. Analysis

3.1 Precedents Cited

R v Andrews [1987] AC 281

The decision is firmly anchored in Lord Ackner’s classic formulation in R v Andrews [1987] AC 281, which the Court of Appeal set out at length and treated as the governing framework. The key elements applied were:

  1. The primary question: can the possibility of concoction or distortion be disregarded?
  2. Dominating event: was the event so startling/dramatic as to dominate the declarant’s thoughts, leaving no real opportunity for reasoned reflection?
  3. Approximate contemporaneity: not exact, but close enough that the “trigger mechanism” was still operative.
  4. Special features: e.g., motive, malice, intoxication, identification difficulties—anything making concoction, distortion, or error realistically possible.
  5. Weight vs admissibility: ordinary fallibility is for the jury, unless special features make error a realistic concern at the admissibility stage.

R v Andrews also emphasises appellate restraint: where the judge correctly directs themself and has material to support the conclusion, an appeal court will not interfere. That principle of deference materially shaped the outcome here.

Director of Public Prosecutions v Barton [2024] EWHC 1350 (Admin)

Two points from Director of Public Prosecutions v Barton [2024] EWHC 1350 (Admin) were used:

  • No requirement to call the declarant:
  • Context of domestic abuse retractions:

3.2 Legal Reasoning

(a) Approximate contemporaneity and spontaneity

The Court of Appeal agreed that the aunt-call statement was made while the incident was in progress. The police-account statement followed shortly (about 10–20 minutes), and the complainant’s injury was still bleeding. These features supported a finding of approximate contemporaneity in the sense required by R v Andrews.

The appellant argued there was a “break” allowing reflection and invention. The court found that argument particularly weak regarding the aunt call (no break), and unpersuasive regarding the police account given the short timescale and the complainant’s intervening conduct (notably urgently moving the baby to a neighbour).

(b) The proven lie: why it did not automatically defeat admissibility

The central appellate submission was essentially categorical: because the complainant demonstrably lied about the baby, she could not have been “emotionally overpowered”; therefore res gestae could not apply. The Court of Appeal rejected this as a matter of principle and fact:

  • No rule of exclusion:there is no rule of law preventing a statement being admitted as res gestae merely because it contains a deliberate lie.
  • Fact-sensitive assessment remains:R v Andrews test still governs—whether the possibility of concoction/distortion about the inculpatory account can be disregarded in all the circumstances.
  • Collateral lie vs core allegation:
  • Motivated lie may be consistent with spontaneity about assault:less likely that the complainant used the limited interval to fabricate an assault allegation: her immediate priority appeared to be managing the baby/police arrival, not constructing a false narrative.

(c) “Special features”: alleged motive/malice and later email

The appellant advanced two main “special feature” points:

  • Motive/malice from jealousy/infidelity:
  • Later CPS email (“retraction”):Barton), relevant to weight and jury assessment rather than a bar to admissibility.

(d) Section 78: fairness and the inability to cross-examine

The trial judge addressed section 78 (the judgment refers to the “Police and Criminal Evidence Act 1978”; in practice section 78 is found in the Police and Criminal Evidence Act 1984), and also used section 114(2) of the Criminal Justice Act 2003 as a framework for assessing hearsay reliability/fairness factors. The Court of Appeal upheld the discretionary refusal to exclude, emphasising:

  • inconsistencies and lies were available for the defence to deploy before the jury;
  • there was no prosecutorial duty identified to call the complainant;
  • any disadvantage from lack of cross-examination was mitigated by the defence’s ability (in principle) to call her, and its choice not to.

Finally, consistent with R v Andrews, the court noted the need for appropriate jury directions on the risks of concoction/distortion/malice. No complaint was made about the summing up, and the court indicated directions were appropriate.

3.3 Impact

The decision strengthens and clarifies several practical points for criminal trials, especially in domestic-abuse contexts:

  • Res gestae is not “purity-tested” statement-by-statement:
  • Collateral lies may be explicable and compartmentalised:
  • Domestic-abuse retraction dynamics:Barton, later withdrawal/ambiguity does not necessarily undermine reliability of near-contemporaneous accounts; it commonly becomes a jury-weight issue rather than an admissibility bar.
  • Appellate deference:R v Andrews and gives reasoned findings, the Court of Appeal will be slow to interfere.

4. Complex Concepts Simplified

  • Res gestae:CJA 2003, s118) allowing certain out-of-court statements to be admitted because they were made under the immediate pressure of a startling event, leaving no real chance to fabricate.
  • “Emotionally overpowered”:
  • “Approximate contemporaneity”:
  • Section 78 exclusion:
  • Weight vs admissibility:

5. Conclusion

[2026] EWCA Crim 386 confirms that res gestae admissibility remains governed by the flexible, fact-sensitive test in R v Andrews. A near-contemporaneous statement is not automatically inadmissible because it contains a proven lie; the decisive question is whether, in all the circumstances, the judge can properly conclude that the possibility of concoction or distortion of the inculpatory account can be disregarded.

The judgment is likely to be cited where defendants argue that any detected untruth in a complainant’s immediate account should bar res gestae. The Court of Appeal’s answer is clear: lies matter, but they do not create a categorical exclusion; they are one factor within a structured Andrews analysis, with fairness backstopped by section 78 and careful jury directions.