Criminal Justice Act 2003, section 116

Cases where a witness is unavailable

Part 11 Evidence

(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a)oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b)the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c)any of the five conditions mentioned in subsection (2) is satisfied.

(2)The conditions are—

(a)that the relevant person is dead;

(b)that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c)that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d)that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e)that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4)Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a)to the statement’s contents,

(b)to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c)in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d)to any other relevant circumstances.

(5)A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a)by the person in support of whose case it is sought to give the statement in evidence, or

(b)by a person acting on his behalf,

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

Definitions used in section 116 3

criminal proceedings

“criminal proceedings” means criminal proceedings in relation to which the strict rules of evidence apply;

Defined in s.134(1) · see it in the full Act
oral evidence

“oral evidence” includes evidence which, by reason of any disability, disorder or other impairment, a person called as a witness gives in writing or by signs or by way of any device;

Defined in s.134(1) · see it in the full Act
the court

(2) In relation to such an application or reference, any reference to “the court” in section 269(2) to (5) and Schedule 21 is to be read as a reference to the High Court.

Defined in Sch.22 para.11(2) · see it in the full Act

Cases considering section 116 128

R v Horncastle and others (on appeal from the Court of Appeal Criminal Division)

[2009] UKSC 14 · 9 December 2009Limits

An absent witness's statement is admissible only if it would have been admissible as oral evidence and the witness is identified to the court's satisfaction (see paras [33]-[34]). The subsection permitted admission of the identified deceased witness's statement, subject to the statutory conditions and safeguards. The Court upheld its use in the first appeals (see paras [4]; [32]-[38]; [109]-[111]). The subsection permitted admission of an identified witness's statement where fear prevented testimony, but only after the additional interests-of-justice assessment. The Court upheld its use in the second appeals (see paras [4]; [32]-[38]; [109]-[111]). Fear is construed broadly and can include fear of death or injury to another person or fear of financial loss (see para [32]).

R v Courtney McLeary & Anor

[2026] EWCA Crim 903 · 15 July 2026

The court applied the hearsay gateway to the deceased maker’s written statement and held that the statutory conditions for admitting it were met. (see paras [20]; [44]) The maker’s death was treated as satisfying the relevant statutory condition for using the hearsay gateway; no issue about that condition affected the appeal. (see para [20])

R v Josh Craig Hawthorn & Anor

[2026] EWCA Crim 1058 · 25 June 2026

Confirms, in summary, that the section 116 conditions were satisfied and that the hearsay evidence was admissible. (see para [27]) Confirms that the unavailability condition was met because the source witness had died. Together with the other statutory conditions, this supported admission of the hearsay evidence. (see paras [20]-[21]; [27]) Applies the hearsay gateway relied on for the earlier assault. The source was dead and the statutory requirements were treated as satisfied, so the evidence was admissible. (see paras [19]-[21]; [27]) Confirms that the further statutory conditions for admitting the hearsay evidence were met, including clear identification of the source and admissibility of his evidence on the relevant subjects. (see paras [20]-[21]; [27])

108 more judgments, and what each says about section 116, are in the case-law panel in the full Act.

Explanatory note

403.This section sets out a series of categories under which first-hand hearsay evidence, whether oral or documentary, will be admissible, provided that the witness is unavailable to testify for a specified reason. The new provisions will be available to the prosecution and the defence.

404.A statement will be admissible under this section (subject to the additional conditions explained below) if the person who made it is:

  • Dead (subsection (2)(a));

  • Ill (subsection (2)(b));

  • Absent abroad (subsection (2)(c));

  • Disappeared (subsection (2)(d)); or

  • In fear (subsection (2)(e)).

405.Subsections (2)(e) and (4) make specific provision for the admissibility, with leave of the court, of statements of witnesses who are too frightened to testify (or to continue testifying) provided the interests of justice do not dictate otherwise. In considering the interests of justice, the court should have regard to what was said in the statement; any risk of unfairness to other parties in the case; to the fact that special measures directions may be made in relation to a witness under Part II of the Youth Justice and Criminal Evidence Act 1999; and to any other relevant circumstances (subsection (4)). Subsection (3) provides that "fear" must be widely construed.

406.There are a number of other conditions which apply to the admissibility of evidence under Section 116. A statement can only be adduced as truth of any matter stated if:

  • the witness's oral evidence would have been admissible itself (subsection (1)(a)); and

  • the person who made the statement is identified to the court's satisfaction (subsection (1)(b)). This will enable the opposing party to challenge the absent witness’s credibility under section 124.

407.Additionally, even if all the relevant conditions mentioned above are satisfied, the evidence will not be allowed if a party, or someone acting on his behalf, causes the unavailability of the declarant (subsection (5)). This is intended to focus attention on cases where a party acts with the intention of preventing a witness from giving evidence. It is up to the party opposing admission to prove this to the court.

All the explanatory notes for the Act

Amendments and notes

1 notes from legislation.gov.uk

Commencement

  1. I71S. 116 wholly in force at 4.4.2005, see s. 336(3) and S.I. 2005/950, art. 2(1), Sch. 1 para. 6 (subject to art. 2(2), Sch. 2)