R v Courtney McLeary & Anor

For hearsay admitted under the Criminal Justice Act 2003, a statement need only be potentially safely reliable at the admission stage. Previous inconsistent accounts, drug use, mental-health difficulties, convictions and inability to cross-examine the maker do not automatically require exclusion. The court must assess the statutory safeguards, the importance of the evidence, available material for testing reliability and trial fairness. Reliability and weight remain primarily matters for the jury, subject to the duty to stop a case where admitted hearsay is so unconvincing that a conviction would be unsafe. In a joint-enterprise case, presence alone is insufficient: there must be evidence of assistance or encouragement and the required intention. Counsel must not invite a jury to speculate about evidence not given.

After a trial at Nottingham Crown Court, McLeary was convicted unanimously of murdering Davices Anderson and Francis was convicted by a 10–2 majority. Both received life sentences. The prosecution relied in part on a written statement by Katrina Intress, who had died and could not be cross-examined; the judge admitted it under the hearsay provisions of the Criminal Justice Act 2003. McLeary appealed solely against admission. Francis challenged admission, the refusal to uphold a no-case submission, and closing submissions inviting inferences not advanced in evidence. The central issues were whether the hearsay was admissible and whether the evidence, taken at its highest, could support Francis’s liability as a secondary participant.

Disposition. McLeary’s appeal was dismissed. Francis’s first ground was dismissed, but his second ground succeeded. His conviction was unsafe and was quashed. No retrial or consequential directions were required.

Hearsay evidence

1. The court applied the successive-stage framework in R v Riat [2012] EWCA Crim 1509, as restated without substantive change in R v BOB [2024] EWCA Crim 1494. The trial judge had considered the statutory gateway, material capable of testing reliability, exclusion for unfairness under the PACE 1984 and the Criminal Justice Act 2003, and the post-admission safety safeguard. Failure to recite every step expressly did not show a failure to apply the substance of the test.
2. The threshold was that the statement had to be potentially safely reliable. Under section 124, previous inconsistent statements and other material undermining credibility were admissible so that the jury could assess reliability. They did not automatically make the later statement inadmissible. The court relied on R v Ibrahim [2012] EWCA Crim 837 and BOB in reaching that conclusion.
3. Reliability and weight were classic questions for the jury. A troubled background, drug and alcohol addiction, mental-health difficulties, previous convictions and the absence of cross-examination did not, without more, establish that the witness could not be telling the truth. The available material and directions made the prejudice manageable and the trial fair.
4. The importance of the hearsay did not create a rule excluding sole or decisive hearsay. Section 125 remained an important safeguard, but its substance had been considered and the statement was not so unconvincing that a conviction would be unsafe.

Francis

1. On a no-case submission, the evidence had to be taken at its highest and considered as a whole. The question was whether it was sufficient for a properly directed jury to convict.
2. Applying Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8 and UKPC 7, the court held that joint enterprise requires evidence of participation by assistance or encouragement, together with the necessary intention. Guilt by association or mere presence is insufficient.
3. Francis’s position in the doorway, with his arm across it, did not show participation, assistance or encouragement in a confrontation that erupted suddenly. The evidence amounted to little more than presence. The trial judge should therefore have upheld the no-case submission.
4. The court additionally observed that counsel must not invite juries to speculate about evidence they had not heard. Where such comments are made in closing, the proper course is for the trial judge to address them immediately and direct the jury to disregard them. That observation was not determinative of the appeal.

1. Court of Appeal (Criminal Division): In [2026] EWCA Crim 903 , McLeary’s appeal was dismissed. Francis’s first ground was dismissed, his second ground was allowed, and his conviction was quashed. His third ground was not determined.
2. Nottingham Crown Court: McLeary was convicted unanimously of murder and Francis by a 10–2 majority on 20 April 2024. On 29 April 2024, both were sentenced to life imprisonment.