R v John McNair

Recorded evidence from a deceased complainant may be admitted as hearsay under the Criminal Justice Act 2003. The absence of cross-examination does not, by itself, make a trial unfair. The central inquiry is whether the evidence is capable of proper testing and assessment. This may occur through the defendant’s account, other evidence, exposed inconsistencies and appropriate jury directions. The later unavailability of supporting witnesses does not require a hearsay ruling to be revisited unless it creates a fundamental change in the evidential position. Alcohol consumption, inconsistencies, neutral forensic evidence and an admitted lie on one matter are ordinarily matters for the jury. They do not, without more, make the hearsay inherently unreliable or render a conviction unsafe.

The appellant was convicted of rape at the Crown Court at Isleworth, before HHJ Edward Connell, by a majority of 10-1 and sentenced to eight years’ imprisonment. The complainant subsequently died. The prosecution relied on her recorded police complaint and ABE interview, which were admitted under section 116 of the Criminal Justice Act 2003.

The Recorder admitted the evidence and the trial judge maintained that ruling after several expected supporting witnesses became unavailable or were not called. The trial judge also refused an application under section 125 of the Criminal Justice Act 2003 to stop the case. The appeal challenged the original hearsay ruling, the refusal to revisit it, and the refusal to dismiss the case. The central issue was whether the complainant’s reliability was capable of proper testing and assessment so that the trial remained fair and the conviction safe.

The appeal against conviction was dismissed.

1. Admission of hearsay. The complainant’s recorded accounts were admissible under section 116 of the Criminal Justice Act 2003 because she had died. The court found no error in refusing exclusion under section 126 of that Act, section 78 of PACE 1984, or the interests of justice. The court had not placed undue weight on the possibility of testing the evidence or given insufficient weight to prejudice. Appropriate directions addressed the inability to cross-examine the complainant.
2. Reliability and fairness. The relevant question was whether the hearsay was capable of proper testing and assessment. The defendant gave his own account and the jury could examine inconsistencies, the circumstances before and after the alleged penetration, the complainant’s contemporaneous complaint, and the evidence of the remaining witness. The forensic evidence was neutral. These matters enabled the jury to assess reliability.
3. Unavailable witnesses. The absence of the other expected witnesses did not produce a fundamental change in the evidential position. They had not witnessed the alleged penetration and their evidence would probably have supported the complainant and damaged the defence. The suggestion that cross-examination would uncover helpful inconsistencies was speculative and could have entrenched adverse evidence.
4. Section 125 application. Inconsistencies concerning alcohol, the complainant’s medication and drinking, and the remaining witness’s admitted lie were matters for the jury. They did not make the complainant inherently unreliable or render the evidence unconvincing. The hearsay direction was appropriate and there was no basis for finding the conviction unsafe.

1. Court of Appeal (Criminal Division): On 3 October 2025, dismissed the appeal against conviction in [2025] EWCA Crim 1376.
2. Crown Court at Isleworth: On 2 October 2024, HHJ Edward Connell convicted the appellant of rape by a majority of 10-1 and sentenced him to eight years’ imprisonment. The proceedings were identified as [U20230676].