Section 116: an identified maker who is unavailable

Unavailable-witness hearsayGlossary termUnavailable-witness hearsay under s 116 requires three things: the maker's oral evidence of the matter would be admissible; the maker is identified to the court's satisfaction; and one of the five statutory conditions is established. This route is about an identified person who cannot give the relevant evidence in one of the specified ways, not the convenience of reading a statement.

The party relying on the statement must prove the necessary unavailability condition. The prosecution must prove it beyond reasonable doubt; the defence on the balance of probabilities. The former means the court must be sure; the latter means more likely than not. Do not transfer the balance-of-probabilities rule for disputed capability under s 123 to the prosecution's s 116 unavailability case. The Supreme Court describes the prosecution safeguard in R v Horncastle [2009] UKSC 14, [38](ii); the distinct standards are also stated in the CPS's hearsay guidance under “S.116 Unavailable Witnesses”.

“Unfit” concerns giving evidence, not merely reaching the courthouse. Medical evidence should explain the actual impairment and relevant prospects of giving evidence. For a person abroad, investigate realistic attendance and lawful remote-evidence arrangements. For a missing person, record the tracing steps, dates, leads and results. Reasonable practicability is fact-sensitive: neither an unlimited search obligation nor an administrative assertion of difficulty is the test.

Section 116(5) prevents manufactured unavailability. A condition is treated as unsatisfied where the party for whose case the statement is tendered, or someone acting on that party's behalf, caused it in order to prevent the maker giving the relevant oral evidence. That intent is important. Do not turn this into a rule that every innocent act connected with a later absence defeats admission. Equally, a party cannot deliberately arrange the witness's departure to avoid testimony and then rely on it as the reason the witness is abroad.

Fear under section 116(2)(e)

Fear is construed broadly by s 116(3). It includes fear for another person's life or safety and fear of financial loss. It need not be confined to fear of physical injury to the witness, and proof that the defendant personally made a threat is not a statutory prerequisite to this gateway. What must be established is the causal connection between fear and the failure to give or continue relevant oral evidence.

The court's leave, meaning permission, is a separate safeguard. Under s 116(4), admission must be in the interests of justice, with particular regard to the statement's contents, unfairness to any party, the difficulty of challenging the account without oral evidence, the possibility of special measures, and all other relevant circumstances. A proved fear condition is not itself the leave decision.

The judge must rigorously test the evidence of fear and investigate realistic ways of obtaining oral evidence. Screens, a live link or appropriate arrangements for questioning may enable a fearful person to testify. A ground-rules hearing settles how questioning will work; it is not itself a hearsay gateway. Explain why proposed measures would or would not address this witness's difficulties. A witness's refusal is evidence to investigate, not a legal conclusion the judge must accept.

After a s 116 route is established, s 123 capability at the time of making, s 124 credibility, notice, the exclusion powers and Article 6 remain relevant. A deceased maker does not face the particular leave test for fear; the court nevertheless has to decide whether the evidence can be admitted and used fairly.