Defence Success in Serious Sword Attack — A timely reminder of the limits of Res Gestae 

A significant defence victory was achieved at Inner London Crown Court last month in the case of R v M. The prosecution had alleged that the defendant attacked the complainant with a short sword or large hunting knife, stabbing him three times in the right leg and causing life-threatening blood loss and lasting injury. Emergency services arrived within minutes, and the complainant was later treated in hospital by HEMS doctors and surgeons.

The Evidential Problem

From the outset, the complainant refused to provide a formal witness statement or attend court. In the absence of any direct evidence, the Crown sought to rely on statements made to two police officers, while the complainant was in hospital. On body-worn video recorded at 3:51 a.m., the complainant named the defendant as his attacker and gave a short account of an argument over cannabis. The prosecution contended that these statements were spontaneous declarations forming part of the res gestae, and therefore admissible under section 118(1)(4) of the Criminal Justice Act 2003.

The Crown’s Case

The prosecution relied heavily on R v McKenzie-Pryce (Jordan) [2025] EWCA Crim 148, arguing that modern body-worn video technology expands the  contemporaneous scope of res gestae. In that case, the Court of Appeal upheld the admission of a victim’s account recorded roughly an hour after a shooting, holding that the declarant’s mind was still dominated by the event. The Crown argued that the approximate two-hour delay in M did not break that chain, as the complainant had been continuously under medical care, in pain, and in a state of emotional intensity that precluded reflection or fabrication.

The Defence Argument

For the defence, it was submitted that the statement was neither contemporaneous nor spontaneous, and therefore did not satisfy the principles in Andrews [1987] AC 281. Lord Ackner’s formulation in Andrews—which remains the governing test—requires the judge to be satisfied that the possibility of concoction or distortion can be disregarded. To reach that conclusion, the court must consider whether the event was so startling or dramatic as to dominate the declarant’s thoughts, whether the statement was made in conditions of approximate contemporaneity, whether the declarant’s mind was still dominated by the event leaving no real opportunity for reasoned reflection, and whether there were any special features such as malice, intoxication, or confusion that might undermine reliability.

The defence emphasised that around two hours had passed since the incident, during which the complainant had received medication. The body-worn footage depicted him as calm, largely coherent and in no particular distress. His earlier statements to paramedics—saying that he did not know how the event had come about—were arguably inconsistent with his later naming of the defendant. Which showed that he had had the opportunity for reflection and had made a deliberate decision to implicate M.

The Court’s Ruling

In a careful and detailed ruling, the judge held that the res gestae exception did not apply. While the stabbing was clearly dramatic and startling, the subsequent hospital interview was not the product of the same emotional pressure. By the time the complainant spoke to the officers, he had undergone medical treatment and had moved from a state of crisis to one of relative stability. The time lapse and intervening circumstances, including sedation and care, created a real opportunity for reflection. His earlier statements to ambulance staff further suggested that his recollection and motive may have changed.

Applying the principles from Andrews, the court found that the possibility of concoction or distortion could not be disregarded. The statements were not spontaneous, were not made under the domination of the event, and could not properly be regarded as part of the res gestae. The prosecution’s application to admit the evidence under section 118(1)(4) of the 2003 Act was therefore refused.

The Outcome

With the identification evidence excluded, the Crown’s case collapsed. The prosecution accepted that the res gestae material was sole and decisive, and—rather than proceed to empanel a jury—formally offered no evidence. The defendant was acquitted on the court’s direction.

Observations

It is notable that in recent years the CPS and Police have increasingly tried to admit body worn footage under the res gestae principle, especially in domestic violence cases, in order to get around the otherwise insurmountable problem of complainants who are unwilling to support a prosecution.  Although, as a first instance decision, this case does not provide any precedent for future cases, it is a helpful reminder of the limits of the res gestae exception. The court made clear that it remains a narrow and carefully confined doctrine, not a substitute for absent or unwilling witnesses. The decision also emphasises that body-worn video does not, by itself, establish contemporaneity or spontaneity. The Andrews test is rooted in psychology, not technology: it concerns whether the declarant’s mind was still dominated by the event, not merely whether a recording exists.

The judgment also underscores the importance of scrutinising the elapsed time, intervening events, and emotional state of the declarant. The “domination by the event” must be both temporal and cognitive. The ruling distinguishes McKenzie-Pryce, where statements were made within an hour of a shooting during an ongoing medical crisis, and confirms that each case must turn on its own facts. Finally, the decision highlights the continuing relevance of the safeguards set out in Horncastle and Riat, particularly where hearsay evidence is sole or decisive. Fairness and reliability remain the touchstones of admissibility.

The decision in M therefore demonstrates the principled boundaries of res gestae and reminds practitioners that the exception is designed to capture genuine spontaneity, not to rescue a case in which the witness will not testify. Body-worn video may record emotion, but it cannot create contemporaneity.