Credibility, exclusion, confrontation, weight and sufficiency

A gateway, notice, credibility challenge, exclusion decision and verdict answer different questions. Some safeguards must be resolved before admission; others operate when deciding whether an admitted statement may support conviction. Keep the sequence flexible enough to respond to new evidence, but do not postpone an admissibility defect on the assumption that the jury can sort everything out.

Maker capability and credibility

Capability under s 123 is gateway-specific. For ss 116, 119 and 120, the maker must have had the required capability when making the statement. For s 117, each person whose supply or receipt of information, or creation or receipt of the relevant document, is necessary to the statutory chain must have had capability at the relevant time. Where such a person is unidentified, it must be reasonable to assume capability; anonymity does not eliminate the question.

Required capability means being able to understand questions about the matters stated and give answers which can be understood. It is not a guarantee of honesty, perfect memory or accuracy. If capability is disputed, the party adducing the statement proves it on the balance of probabilities, even where that party is the prosecution. The issue is determined without the jury. Expert evidence and evidence from a person to whom the statement was made can be received. Resolve the relevant capability condition as part of admissibility, not merely as a later jury warning.

Credibility under s 124 concerns admitted hearsay where the maker does not give oral evidence about the subject matter. The opponent may introduce evidence bearing on the maker's credibility which would have been admissible had that person testified. With the court's leave, the opponent can also prove relevant matters which could have been put in cross-examination but could not otherwise have been independently proved. Under s 124(2)(c), evidence of an inconsistent statement can show that the maker contradicted themselves; that limb does not require the leave specified for the preceding category.

An inconsistent statement admitted under s 124(2)(c) also falls within s 119(2). It is admissible as evidence of any matter stated for which the maker's oral evidence would be admissible. For example, an absent witness first said “I was not there” and later claimed to have seen the attack. If the later account is admitted as hearsay, the first account can be introduced under s 124(2)(c) to show the contradiction. Section 119(2) also permits its use as evidence that the maker was absent, since the maker could give admissible oral evidence of that fact. Admissibility does not establish which account is true: the tribunal of fact must still assess weight. Distinguish this absent-maker route from s 119(1), which concerns a witness who gives oral evidence.

For a s 117 document, the necessary participants in the statutory chain are treated as makers for these purposes. If the challenge makes an allegation against a maker, the court may permit additional evidence to deny or answer it. Absence does not immunise either the original source or a necessary intermediary from scrutiny.

Practical preparation. Seek the earlier accounts, relevant recording, circumstances of making, material bearing on motive and perception, and permissible credibility evidence before the admission decision. Identify what can actually be put before the jury under s 124; do not claim that theoretical access to unspecified material compensates for lost cross-examination. Disclosure, discussed in the disclosure chapter, is therefore a prerequisite to a sound hearsay application and response, not merely a task after admission.

Exclusion and stopping powers

Section 126 permits refusal of hearsay where the case for exclusion, taking account of the danger of undue waste of time, substantially outweighs the case for admission, taking account of the evidence's value. It applies to prosecution and defence hearsay and preserves other exclusion powers. It is not an unrestricted preference to receive or reject a statement, or an automatic exclusion of evidence which takes time to investigate.

PACE s 78 concerns evidence on which the prosecution proposes to rely. The court considers all the circumstances, including how the evidence was obtained, and may refuse it where admission would have such an adverse effect on the fairness of the proceedings that it ought not be admitted. It is not a power to exclude evidence simply because a co-defendant relies on it. The distinct confession rules and their burdens belong in Confessions and Exclusion of Prosecution Evidence.

Section 125 is a later trial-safety duty. In a trial before a judge and jury, at any time after the prosecution case has closed, the court must act where the case is based wholly or partly on hearsay and that evidence is so unconvincing that, considering its importance, a conviction would be unsafe. The judge must direct an acquittal or, where a retrial is appropriate, discharge the jury. Section 125(2) addresses an alternative offence on which conviction might otherwise be possible; subsections (3)–(4) preserve the specified further applications and other stopping powers. This is not a substitute for scrutinising admissibility earlier.

General no-case-to-answer principles ask whether there is a legally sufficient prosecution case for a properly directed tribunal to convict; they are not identical to the s 125 concern about unconvincing hearsay. The ordinary principles also matter in non-jury trials, although s 125's particular statutory mechanism is framed for jury trials. The full timing and procedure belong in the trial procedure chapter.

A current worked authority: R v McLeary and Francis [2026] EWCA Crim 903. In murder appeals, the prosecution had relied on a deceased witness's account despite substantial credibility material and differing accounts. The Court of Appeal upheld the hearsay-admission decision: the judge had examined the relevant safeguards and the material available to test reliability, rather than treating death as conclusive. Nevertheless, Francis's conviction was quashed because his no-case submission should have succeeded; McLeary's appeal failed. The contrast demonstrates that lawful admission does not establish a sufficient case against every defendant. See [20]–[46], [60], [64]–[65]. Apply the lesson by separating a challenge to admitting an account from an argument that the resulting evidence still cannot prove the particular defendant's involvement.

A judge must assess whether the statement can safely be left for evaluation through the applicable legal safeguards. That does not mean deciding finally that it is true before admission. Equally, describing credibility as “for the jury” does not excuse failure to address reliability where a gateway, an exclusion power or fairness requires it.

Confrontation and Article 6

Article 6(1) and (3)(d) of the European Convention on Human Rights protect a fair trial and the opportunity to examine prosecution witnesses. Confrontation is not a freestanding guarantee that every earlier statement must be excluded unless its maker is cross-examined at trial. Nor is compliance with a domestic gateway conclusive proof that the trial is fair.

R v Horncastle [2009] UKSC 14 involved victims' statements admitted because one victim had died from unrelated causes and another was too frightened to testify. The Supreme Court dismissed the appeals and rejected an automatic domestic rule barring hearsay because it was the sole or decisive evidence. Its reasoning depended on the combined statutory and trial safeguards, not on the proposition that an absent witness's statement is as testable as live evidence: see [1]–[5], [34]–[38], [107]–[108].

Al-Khawaja and Tahery v United Kingdom, Grand Chamber, 15 December 2011, shows why the actual safeguards matter. In Al-Khawaja, a deceased complainant's decisive account of an indecent assault was supported by circumstances and witnesses whose evidence could be tested; the Grand Chamber found no Article 6 violation. In Tahery, the absent fearful witness provided the only direct identification of the stabber. A carefully phrased jury warning did not supply the missing ability to test that decisive allegation; there was a violation. See [147], [152]–[165]. The result was not “hearsay always admissible” or “decisive hearsay always excluded”.

Schatschaschwili v Germany, Grand Chamber, 15 December 2015, concerned two absent witnesses whose accounts were decisive in a robbery and extortion case. Neither the accused nor his lawyer had an opportunity to question them at any stage. Despite the trial court's efforts to obtain their evidence and its assessment of supporting material, the Grand Chamber found insufficient counterbalancing protection and a violation. The practical lesson is that good reasons for absence do not by themselves cure an inability to test a central accusation.

Apply three connected questions, developed in these authorities:

1. Why is the witness absent? Identify a good reason and the reasonable measures taken to secure evidence. Do not assume that failure to attend answers the question.
2. How important is the untested statement? It may be the only evidence, decisive evidence, or otherwise carry significant weight. Its importance affects the protection required.
3. What effectively counterbalances the lost opportunity to question? Assess the particular evidence and safeguards, not an abstract checklist.

Those questions concern overall fairness, not three slogans or an inflexible sequence. Relevant protection can include earlier questioning, a recording of the making of the statement, material disclosed about credibility, evidence admitted under s 124, the ability to question other witnesses and test surrounding facts, independent support or contradiction, careful judicial reasons, exclusion and stopping powers, and a tailored direction. Their adequacy depends on the actual disadvantage. A recording helps assess what was said and how; it does not let the defence ask questions which were never asked.

Weight and legal sufficiency

After admission, assess the maker's opportunity to perceive, memory, motive, spontaneity, consistency, the recording's accuracy and completeness, intermediaries, earlier questioning and supporting or contradictory evidence. Explain weaknesses specific to the account. A generic direction that hearsay “can be less reliable” may not address the risks of a central disputed identification from an absent witness.

The fact-finder may accept some parts and reject others. It must not treat admission as judicial endorsement of truth. Nor does the absence of live cross-examination invariably require rejection: the task is to evaluate the evidence which the law permits, with the appropriate safeguards.

Keep three conclusions separate:

The preliminary sufficiency question is not a direction to convict because prosecution evidence, taken at its highest, could prove guilt. At the verdict stage the tribunal evaluates the evidence rather than assuming it is true. The prosecution must prove guilt beyond reasonable doubt.

The advocate's completed answer. Identify the precise statement and proposed use, the maker and any chain, the gateway and proof, the timely application or response, the material which permits challenge, the requested ruling and the safeguards needed if it is admitted. Then explain what the evidence can and cannot prove. That is the difference between reciting hearsay exceptions and advising what the court and the parties must do.