Hi Richard,
I dealt with just this issue during a recent trial where Def was accused of stabbing his partner.
The short answer is that such BWV 'statements' will often satisfy the Res Gestae test (can possibility of concoction/distortion be disregarded) especially where supported by evidence of injury. This was the conclusion reached by the Recorder in my case - where no written statement was made and complainant not willing to support prosecution...
...but Recorder agreed to exclude the BWV under s78 on the basis that the pros could and should witness summons rather than depriving D of XX.
Of course if Crown do then summons C and successfully apply to treat C as hostile, BWV will most likely be admissible as previous inconsistent statement under s119. Difficult to conceive a successful s78 argument in that scenario.
There is case law which goes further, where High Court have endorsed admission of BWV without calling C, when he/she is in fear.
I have been considering writing a quick blog on this and some other issues which I have come across re BWF, will try to get round to it(!)
Tim Nutley
4 Breams Buildings
The Crown increasingly rely on body worn video evidence in domestic violence trials often when the complainant has withdrawn.
Should this evidence be allowed as the police do not tell the complainant when they are recording that they are contemplating using the evidence in criminal proceedings? Shouldn't the complainant know before being recorded the importance of what they are about to say? Section 78 point?
I have also noticed leading questions from police at scene.
Richard
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