R v Michael Shiel

Res gestae evidence is not automatically inadmissible because the declarant deliberately lied about a different matter. Under section 118 of the Criminal Justice Act 2003, the judge must assess all the circumstances, including timing, emotional domination, opportunity for reflection, responses to questions, and features suggesting concoction, distortion or error. Approximate contemporaneity remains important, but no single factor is conclusive. Where the trial judge directs himself correctly and has material supporting the conclusion, the ruling will not be disturbed on appeal. Once admitted, exclusion under section 78 of the Police and Criminal Evidence Act 1978 is discretionary and turns on fairness. The appeal was dismissed.

Michael Shiel was convicted at the Crown Court at Newcastle upon Tyne of unlawful wounding and sentenced to 15 months’ imprisonment. The prosecution relied on statements made by Lauren Allison to her aunt and to a police officer shortly after an alleged assault. She did not give evidence and later sought to retract the police notes.

The trial judge admitted the statements as res gestae evidence and refused exclusion under section 78 of the Police and Criminal Evidence Act 1978. The appeal concerned whether Allison’s deliberate lies about the whereabouts of her baby meant that the possibility of concoction or distortion could not be disregarded, and whether admission of the evidence was unfair.

Appeal dismissed. The conviction was safe.

1. Section 118 of the Criminal Justice Act 2003 preserves the common-law res gestae principle. Applying the approach explained in R v Andrews [1987] AC 281, the judge must decide whether, in all the circumstances, the possibility of concoction or distortion can be disregarded. Relevant matters include approximate contemporaneity, whether the event dominated the declarant’s thoughts, whether the event remained operative, responses to questions, opportunity for reflection, and special features bearing on fabrication, distortion or error.
2. A deliberate lie about one matter does not create a rule barring admission of a contemporaneous or near-contemporaneous account about another matter. Its significance is fact-sensitive. Here, the statements were made during or shortly after the incident, Allison remained distressed, and the evidence did not show a sufficient opportunity to invent an account. Her lies about the baby were understandable in the circumstances and did not demonstrate that the account of the assault had been concocted. The retraction email and alleged motive arising from infidelity did not require exclusion.
3. Where the trial judge has directed herself correctly and there is material supporting the conclusion reached, the admissibility ruling will not be interfered with on appeal. The judge’s ruling was reasoned and supported by the evidence.
4. The court noted, following Director of Public Prosecutions v Barton [2024] EWHC 1350 (Admin), that admissibility does not depend on the maker of a res gestae statement being called as a witness. Once the evidence was admissible, refusal under section 78 of the Police and Criminal Evidence Act 1978 involved a discretionary assessment of fairness. The judge was entitled to consider the retraction, lies and inconsistencies, the defence’s ability to challenge them before the jury, and the fact that the defence could have called Allison.
5. When such evidence is admitted, the jury must receive appropriate directions concerning mistake, concoction, distortion and malice. There was no complaint about the summing-up, and appropriate directions had been given.

• Court of Appeal (Criminal Division): [2026] EWCA Crim 386; appeal dismissed.
• Crown Court at Newcastle upon Tyne: Before Her Honour Judge Scott, Michael Shiel was convicted on 27 January 2025 and later sentenced to 15 months’ imprisonment.