R v Michael Shiel

This is an appeal against the appellant’s conviction on a single count of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861 . The issue is whether the judge was wrong to admit, as part of the res gestae , evidence of two oral statements made by the alleged victim, who did not give evidence, in circumstances where what she said in those statements included a demonstrable lie.

The appellant is Michael Shiel, now aged 34. On 27 th January 2025 in the Crown Court at Newcastle upon Tyne before Her Honour Judge Scott, he was convicted of unlawful wounding, for which he was later sentenced to 15 months imprisonment.

At the conclusion of the hearing we announced our decision that the appeal would be dismissed. These are our reasons.

The appellant and Lauren Allison were in a relationship, although they did not live together, and had a baby son. On the evening of 26 th July 2024 they were together at Lauren Allison’s home address when an argument took place between them. The prosecution case was that in the course of that argument, the appellant put his arm around her neck and punched her to the face at least once, causing a cut above and bruising around her left eye.

While this was occurring, Lauren Alison telephoned her aunt, Lisa Renton. Lisa Renton’s evidence was that Lauren said to her, “auntie Lisa, I think he has broken my jaw”. Lisa Renton said that Lauren sounded terrified and panicked. She could hear the appellant, who was known to her, shouting in the background of the call. She could also hear the baby crying.

Lisa Renton told Lauren that she was going to call the police and did so. The 999 call was at 8:42 pm. It was made on Lisa Renton’s landline while she was still using the loudspeaker on her mobile phone to talk to Lauren Allison. It is clear from the recording of the 999 call that Lisa Renton was still on the telephone to Lauren Alison and the sound of an argument between Lauren Allison and the appellant can be heard in the background.

CCTV footage shows that the appellant left Lauren Allison’s address at 8:44 pm. As he drove away, Lauren Allison left the address, carrying the baby and with a phone to her ear. Her face was bleeding and she looked distressed. She handed the baby to a neighbour who had come out of his house to meet her, apparently without speaking to him. She then went back inside her home. She was evidently in such a rush to hand over the baby that she went out in her night clothes without even getting dressed.

PC Heather Hall arrived at 8:54 pm. What happened next was recorded on her body worn video camera. Other officers were already there. It is apparent that Lauren Allison was known to PC Hall, as was the fact that she had a baby. PC Hall’s first question was to ask where the baby was, to which Lauren Allison replied that he was staying out. PC Hall knew that this was not true and said so, asking again where the baby was. Lauren Allison said that the baby had not been there when the incident happened. When PC Hall said that the police had information that the baby had been there, Lauren Allison repeated that the baby was not there now, adding “you’re not taking my baby”. PC Hall reassured Lauren Allison that the police were not taking the baby, and impressed upon her the need to be honest:

“you’ve got to be honest with us about where the baby’s been when this has happened. I’m not gonna take your baby but if you lie you’re gonna get yourself in more trouble, that is what I am saying to you. So just be honest with us.”

Lauren Allison then said that the baby was in the house, but not in the same room, when the incident had happened, and that the baby was now with her friend down the street. In fact she was later to tell a doctor at the hospital that the argument had taken place “in front of the baby”.

Having established that the baby was safe, PC Hall asked what had happened. Lauren Allison said that the appellant had been in the next room and that when she had gone in, she asked who the appellant had been texting because she had looked at his phone. He said that he had been texting his cousin, to which she had responded that she did not know who this cousin was. She said that the appellant had flipped, and had done what she called his “macho macho”. She had gone back into her bedroom and the appellant had followed. He demanded to see her phone and started saying horrible things about her, that she was a slag and a prostitute, which she was not. She said that he had his hand around her throat and had punched her, she could not remember how many times. She said that the appellant had said that if she told the police, the baby would be taken away and the appellant would go to prison.

Lauren Allison signed an entry in PC Hall’s pocket notebook as follows:

“He had punched me multiple times and I cannot remember much else, he pinned me down on the bed on top of me and used his arm to choke me he continued to punch me causing instant pain and bleeding to my face and jaw. I went blurry and dizzy I could not see much it was just stars.”

In addition she signed entries in the pocket notebook of another officer present, DC Cherstine Scholtz, as follows:

“Michael got on top of me when I was lying on the bed. He put his left forearm across my neck and pushed down on my throat to restrain me. I could still breathe. Michael then used his right hand to punch my face using his fist. I remember Michael punching me once to my right cheek and three times to my left cheek and eye.

Another officer, PC Jack Weldon, who was also present, heard Lauren Allison say that the appellant had grabbed her by the throat and pinned her to the floor before repeatedly punching her causing injuries.

On the following day Lauren Allison attended the Accident and Emergency Department of South Tyneside District Hospital and was found to have bruising around the left eye and a small laceration to her left eyelid.

On 14 November 2024, some 3 ½ months after the incident, Lauren Allison sent an email to the Crown Prosecution Service as follows:

“I am writing to give an update on a case relating to Michael Shiel.

She did not provide a statement and was not called to give oral evidence at the trial.

The appellant’s case was that Lauren Allison had sustained the injury after jumping on a bed and hitting her head on a bedside cabinet.

He gave evidence that they had been in a relationship since January 2023, but did not live together. They had a young son together and she had a daughter from a previous relationship. On the day in question they had been drinking and he went to lie down in her daughter’s bedroom. She came in and accused him of messaging someone, implying that he was cheating on her. He told her to pass him his phone. She ran off and he followed her into her bedroom. She jumped a long jump onto the bed and hit her head on the top of a bedside cabinet. She sat up and there was blood dripping down her face. He walked around the bed and picked up his phone from the floor. She was crying. The baby was crying. He was cuddling the baby. She was on the phone to her aunt. He said that she was an idiot for jumping on the bed. He left the property as it was the only way to calm down the situation.

The prosecution applied for Lauren Allison’s initial account, as captured on PC Hall’s body worn video footage, to be admitted under the principle of res gestae . That application was made in writing. An application was also made orally for the statement made by Lauren Allison to Lisa Renton that the appellant had hit her and she thought he had broken her jaw to be admitted under the same principle.

The prosecution acknowledged that what Lauren Allison had said about the whereabouts of the baby was a deliberate lie, but submitted that she was clearly motivated to lie by a fear that her child would be removed from her care, that this was something which the jury could consider when assessing the reliability of her account, that it did not affect the reliability of what she had said about the appellant having assaulted her, and that there was no scope for her to have fabricated her account of that assault.

The defence submitted that the possibility of concoction or distortion could not be disregarded. Six matters in particular were relied on:

(1) There was no reliable evidence of approximate contemporaneity;

The Court could not be satisfied she was emotionally overpowered by the incident as opposed to by her concerns about her baby;

There was a clear gap between the event and the complainant inculpating the appellant, during which time she was calm and had an opportunity for reasoned reflection;

She took her opportunity for reasoned reflection to tell lies; her lies go directly to the possibility of concoction;

The statements made about the appellant were not excited and unprompted utterances; they were responses to questions from an officer who had warned her about “getting into trouble”; and

The complainant subsequently emailed the CPS to “retract” the comments she made in the police officer’s notebook, which were in essence the same as those made to PC Hall.

In the alternative the defence submitted that the evidence should be excluded pursuant to section 78 of the Police and Criminal Evidence Act 1978 because, having regard to all the circumstances, including the circumstances in which the evidence was obtained, its omission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

It has not been suggested, either in the court below or on appeal that the prosecution was obliged to take a statement from Lauren Allison or to call her as a witness. Nor is there any principle that res gestae evidence is only admissible, or must necessarily be excluded under section 78, when the maker of the statement is not to be called as a witness at the trial ( Director of Public Prosecutions v Barton [2024] EWHC 1350 (Admin) ).

The judge ruled that the evidence would be admitted.

Following the judge’s ruling, the defence agreed to the admission of other evidence, including the audio recording of the 999 call made by Lisa Renton, the police pocket notebook entries, evidence of what Lauren Allison had said at the hospital, and the retraction email to the CPS.

Section 118 of the Criminal Justice Act 2003 preserves various rules of law, including:

“4. Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—

the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded …”

The relevant rule of law, known as the res gestae principle, was explained by Lord Ackner in R v Andrews [1987] AC 281 :

“1. The primary question which the judge must ask himself is – can the possibility of concoction or distortion be disregarded?

To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantaged of the accused.

As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.”

Lord Ackner went on to say that:

“Where the trial judge has properly directed himself as to the correct approach to the evidence and there is material to entitle him to reach the conclusions which he did reach, then his decision is final, in the sense that it will not be interfered with on appeal. Of course, having ruled the statement admissible the judge must, as the Common Serjeant most certainly did, make it clear to the jury that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them. Further, they must be satisfied that the declarant did not concoct or distort to his advantage or the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will. Further, where there are special features that bear on the possibility of mistake then the jury’s attention must be invited to those matters.”

On behalf of the appellant, Mr Matthew Hopkins submitted that Lauren Allison had lied about the whereabouts of the baby, not only to PC Hall as recorded on the body worn video, but also during the telephone call to her aunt, Lisa Renton, in which she can be heard saying in the background to the 999 call that “the baby’s not here”. He submitted that this alone demonstrates that the possibility of concoction or distortion cannot be disregarded. Lauren Allison was clearly capable of lying because she had demonstrably lied and therefore could not have been so emotionally overpowered that what she said must have been true. It was impossible to say that her mind was so overpowered that she was incapable of telling a lie because she had done so. Nor was her mind dominated by the alleged assault upon her. Rather, it was dominated by the fear of losing her baby. The fact that she appeared in the video footage to be emotionally overpowered was irrelevant because she appeared equally overpowered when lying about the whereabouts of the baby. Mr Hopkins submitted also that she had a motive to lie, in that the argument had begun with her accusing the appellant of texting another woman and, by implication, of cheating on her. That provided a motive to lie in order maliciously to incriminate the appellant. The retraction email to the CPS was also a special feature of the case as the appellant had accepted that she could not piece together a true version of events.

In her careful and thorough ruling, the judge directed herself by reference to the passage from Lord Ackner’s speech in Andrews which we have set out. She considered all of the matters relied on by Mr Hopkins, which were the same matters as he relies on before us, and was satisfied that, despite the lies as to the baby’s whereabouts, the possibility of concoction or distortion by Lauren Allison as to how the injuries had been inflicted on her could be disregarded.

We take in turn the matters on which Mr Hopkins relies.

First, the judge concluded that there was reliable evidence that the statements were contemporaneous or approximately contemporaneous with the incident. The telephone call to Lisa Renton was made while the incident was in progress. Lisa Renton’s evidence was that Lauren sounded panicked and terrified on the phone and that the very angry voice of a man recognised to be the appellant could be heard in the background on the 999 call. The account to PC Hall was made about 10 minutes, or at most 20 minutes, after the 999 call was made. The judge regarded this as reliable evidence of approximate contemporaneity. We agree. Indeed, as Mr Lee Fish for the prosecution pointed out, Lauren Allison’s wound was still bleeding as she was speaking to PC Hall.

Second, Mr Hopkins submitted that Lauren Allison was not emotionally overpowered by the incident with the appellant, but rather was concerned about the questions being asked about her baby and the possibility that the baby would be removed from her. The judge accepted that this was Lauren Allison’s initial focus, but said that this matter was dealt with in a matter of seconds and that it was clear that the alleged assault dominated her thoughts thereafter. The judge did not accept Mr Hopkins’ submission that Lauren Allison was calm. She was not hysterical, but she could not be described as calm. She was upset and so emotionally overpowered about the incident with the appellant that it dominated her thoughts. The judge had viewed the footage, as have we, and in our view she was entitled to reach this conclusion. Indeed, we agree with it.

Third, Mr Hopkins submitted that there was a clear break between the event and the statement incriminating the appellant. The judge did not accept that, saying that the overall time period was somewhere in the region of 20 minutes. Again, that conclusion was open to her. We agree with it and would add that in the case of the statement made to Lisa Renton, there was no break at all. It is far-fetched to think that, if Lauren Allison had indeed injured herself accidentally on the bedside cabinet in the manner alleged by the appellant, she would immediately have telephoned her aunt in order to claim that the appellant had hit her while the argument with the appellant was still continuing. Moreover, whatever the precise lapse of time between the incident and the account given to PC Hall, it is evident from the CCTV footage that for part of that time Lauren Allison was focused on arranging to hand her baby over to a neighbour, in a somewhat distraught frame of mind which would have given her little or no time to invent a story incriminating the appellant. Indeed, if her injury had been caused accidentally as alleged by the appellant, as distinct from her realising that the baby had been present during an incident of domestic violence, it is hard to see why she would have thought it necessary to remove the baby from the premises with such urgency. On the other hand, if her account was correct and the appellant had indeed said that if the police were involved the baby would be taken from her, it would not be in the least surprising if she panicked about this, rushed to get the baby out of the house and told lies about whether it had been there when the violence happened.

Fourth, Mr Hopkins submitted that Lauren Allison took her opportunity for reasoned reflection to tell provable lies. The judge did not accept that this was what had happened. Although she had told a lie about the whereabouts of the child, this did not mean that her account of the incident had been concocted or distorted. There was no opportunity for reasoned reflection when Lauren Allison’s first and immediate priority was to get the baby out of the house.

Fifth, Mr Hopkins submitted that the statements made about the appellant were not excited and unprompted, but were responses to questions after PC Hall had warned her about getting into trouble if she told lies. However, the judge pointed out that this warning related to the whereabouts of the baby. Once that was resolved, there was no further warning. On the contrary, the account given by Lauren Allison was in response to an open question, simply asking what had happened.

Finally, the judge did not accept that there were special features in the case which meant that the possibility of concoction or distortion could not be disregarded. As to the retraction email, the judge pointed out that the email did not say that what had been said to PC Hall was wrong, and only referred to the signed pocket notebook entries, saying that this was “not entirely accurate”. Nor did it say that the injuries had been caused by her striking her head against a bedside cabinet. We would add that it is not uncommon in cases of domestic violence for allegations made at the time to be retracted later (see e.g. Barton at paras 64 to 69).

As to the suggestion that Lauren Allison’s account was malicious because she believed the appellant was cheating on her, the judge did not accept that this was a special feature requiring the statements to be excluded. If that were so, it would be so in every case where there was an allegation of cheating or infidelity.

For these reasons the judge concluded that the evidence of Lisa Renton and the body worn video footage of PC Hall were admissible as res gestae evidence.

The judge then turned to the application to exclude the evidence under section 78. She accepted that the prosecution was not obliged to call Lauren Allison as a witness, having a wide discretion in deciding whether a witness was capable of belief. Although the retraction email had not been served as early as it should have been, it had been served in sufficient time for the defence to contact Lauren Allison to see whether she would be willing to give evidence for the appellant and it was the defence’s choice not to call her as a witness, as counsel had confirmed.

The judge considered the factors listed in section 114(2) of the Criminal Justice Act 2003 which provides a framework for considering the admissibility of hearsay evidence. She concluded that the retraction email did not inherently make Lauren Allison’s account to the police and to Lisa Renton unreliable. There were lies told about the baby’s whereabouts and inconsistencies in Lauren Allison’s account, for example as to whether she had been rendered unconscious, whether she was assaulted on the floor or on the bed and about whether or how she had been choked. However, it was common in criminal trials for witnesses to give accounts to different people which were not identical and, in the judge’s view, these were not so significant as to have an adverse effect on the fairness of the proceedings such that the evidence should not be admitted. The defence would be able to point out to the jury the lies about the baby’s whereabouts and the inconsistencies in the account of the assault.

Any unfairness arising from the defence’s inability to cross examine Lauren Allison was balanced by the fact that she could have been called as a witness for the defence, but the defence had chosen not to do this.

For these reasons the judge rejected the defence application to exclude the evidence under section 78.

Before us Mr Hopkins has essentially repeated the submissions which he made to the judge.

As to whether the evidence was admissible as res gestae , we can discern no error in the judge’s approach. She directed herself correctly as to the approach to be followed, considered carefully each of the matters said to render the evidence unreliable, and reached a reasoned conclusion why the possibility of concoction or distortion could be disregarded in circumstances where there was ample material entitling her to reach that conclusion.

The fact that Lauren Allison told lies, both to her aunt and to PC Hall, as to the whereabouts of the baby did not in itself mean that there was any real possibility that her account of the violence inflicted on her by the appellant had been concocted. Whether such a lie does have this effect is a question of fact which must depend on the particular circumstances of the case. It will always be a matter needing careful consideration by the trial judge, but it received that consideration in this case and the judge explained convincingly why the lies told about the baby’s whereabouts did not affect the reliability of the account given as to how Lauren Allison’s injuries had been caused. There is no rule of law that a contemporaneous or near-contemporaneous statement cannot be admissible as “ res gestae ” if it is shown that what is said includes a deliberate lie. The test remains whether in all the circumstances the possibility of concoction or distortion can be disregarded. That is the test which the judge applied.

In the present case it was entirely understandable that Lauren Allison should have panicked at the possibility of losing her baby and told lies as a result. The fact that her first thought was to get the baby out of the house for when the police arrived, and that she was prepared to lie about this, makes it less rather than more likely that she was spending the short interval between the 999 call and the arrival of the police concocting a false story to incriminate the appellant. In any event, that was a conclusion which was open to the judge and in due course to the jury, and which they evidently reached.

Accordingly the judge was entitled, and in our judgment was right, to conclude that the evidence was admissible. In our view her ruling was impeccable.

Having concluded that the evidence was admissible as part of the res gestae , the judge was entitled to refuse the application that it should be excluded under section 78. This was a matter for the exercise of her discretion and she was well placed to decide whether admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. As it was, the defence were well able to impress upon the jury the retraction email, the lies told by Lauren Allison as to the baby’s whereabouts, and the inconsistencies in her account of the incident. These were matters for the jury to consider.

Finally, as Lord Ackner pointed out in Andrews , when evidence of this nature is admitted it is necessary for the judge, in summing up, to make clear to the jury that they must be satisfied that the evidence in question has not been concocted or distorted and is not activated by malice. However, there is in this case no complaint as to the judge’s summing up. The judge gave appropriate directions in the summing up as to how the jury should approach this evidence.

For these reasons we had no doubt that the conviction is safe and dismissed the appeal.