Hearsay from a Deceased Witness May Be Admitted Despite Credibility Attacks, but “Mere Presence” (Including Blocking a Doorway Momentarily) Is Insufficient for Joint Enterprise Secondary Liability

1) Introduction

In McLeary & Anor, R. v (Rev1) [2026] EWCA Crim 903, the Court of Appeal (Criminal Division) considered two connected murder conviction appeals arising from a fatal stabbing during a drug-fuelled overnight gathering in a Nottingham flat.

The first appellant (the admitted stabber) challenged his conviction primarily on the basis that the trial judge wrongly admitted, under the Criminal Justice Act 2003, a deceased witness’s hearsay statement describing an apparently unprovoked attack. The second appellant (tried as a secondary party) raised the same hearsay complaint, but also argued (i) that there was no case to answer on joint enterprise principles and (ii) that the prosecution closing invited impermissible speculation.

The key evidential controversy was a late witness statement from K. Intress, who had earlier given a more limited account, then died before trial. Her second statement was the only account describing the immediate lead-up to the fatal stabbing and included a brief assertion that the second appellant tried to stop her leaving the room by putting an arm out in the doorway.

2) Summary of the Judgment

  • Hearsay admission upheld: The Court held that the trial judge was entitled to admit K. Intress’s second statement under section 116(2)(a) Criminal Justice Act 2003 (death of the maker), and to refuse exclusion under section 78 PACE and section 126 CJA 2003. Prior inconsistent statements and credibility concerns did not automatically prevent admissibility; they were matters for the jury’s assessment with section 124 CJA 2003 safeguards.
  • First appellant’s conviction affirmed: The first appellant’s appeal was dismissed; the conviction was not unsafe.
  • Second appellant’s conviction quashed on “no case to answer”: Applying joint enterprise principles, the Court concluded the evidence (even taken at its highest) showed little more than presence. The case against the second appellant should have been withdrawn from the jury; his conviction was unsafe and was quashed.
  • Prosecution closing comments criticised (obiter): The Court indicated the prosecutor’s suggestion that the second appellant stayed with the dying victim to prevent disclosure was speculation not rooted in evidence, though this was not determinative given success on ground 2.

3) Analysis

A) Precedents Cited

i) R v Riat [2012] EWCA Crim 1509; [2013] Cr App R 2

The Court treated R v Riat as the organising framework for hearsay decision-making under the CJA 2003, including: identifying a gateway; identifying material to test hearsay (section 124); considering exclusion (section 126 and/or section 78 PACE); and the post-admission safety valve (section 125).

A key Riat proposition reiterated was that there is no absolute rule barring hearsay merely because it is “sole or decisive”, though its importance intensifies the scrutiny required.

ii) R v Cole and Keet [2007] EWCA Crim 1924

The appellants relied on R v Cole and Keet to emphasise that fairness considerations in section 114(2) (interests of justice) inform the approach to exclusion under section 126 and section 78 PACE, with Article 6 ECHR providing the overarching constraint.

iii) R v Ibrahim [2012] EWCA Crim 837

The appellants invoked R v Ibrahim, particularly the requirement that hearsay must be “potentially safely reliable” at the admission stage. The Court accepted the proposition but stressed the significance of the word “potentially”: the existence of credibility attacks (including inconsistent statements) does not, without more, make a statement incapable of being safely relied upon.

iv) R v BOB [2024] EWCA Crim 1494

Although decided after the trial, R v BOB was treated as a restatement, not a development, of the relevant law. The Court relied on BOB to underline the purpose of section 124 CJA 2003: if credibility-undermining material or inconsistency automatically required exclusion, section 124 would be redundant.

The Court also drew on BOB concerning the importance of the section 125 duty to stop a case if hearsay is “so unconvincing” that a conviction would be unsafe. Here, although the trial judge did not undertake a separate, explicit section 125 exercise, the Court held the substance had been sufficiently considered in context.

v) Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8, UKPC 7

The decisive authority on the second appellant’s appeal was Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8, UKPC 7. The Court emphasised Jogee’s warning against “guilt by association” and its two core questions in secondary liability: (1) was the defendant a participant who assisted or encouraged? (2) did the defendant intend to assist or encourage with the mental element required?

B) Legal Reasoning

i) Admissibility of the deceased witness statement (sections 116, 124, 126 CJA 2003; section 78 PACE; Article 6)

The Court accepted that K. Intress presented “multi-faceted” credibility concerns: drug dependency, mental health difficulties, convictions, and—most importantly—two accounts where the later statement explicitly claimed she saw the stabbing and described the first appellant as the aggressor.

However, the Court held that these very concerns were precisely what section 124 CJA 2003 is designed to address: the jury can be provided with material that undermines reliability (including inconsistent statements) so they can evaluate weight and safety, despite the absence of cross-examination.

On fairness and exclusion, the Court endorsed the trial judge’s assessment that:

  • there was “ample” material enabling challenge to reliability;
  • appropriate jury directions could manage the disadvantage caused by inability to cross-examine;
  • the prejudicial impact did not reach the threshold requiring exclusion under section 78 PACE or section 126 CJA 2003.

The Court also noted the practical reality of the setting: where serious violence occurs in a milieu of drug use and chaotic lifestyles, witnesses may often be imperfect; that does not make their accounts automatically inadmissible or necessarily false.

ii) “No case to answer” and joint enterprise (second appellant)

The Court restated the orthodox test: whether the evidence, taken at its highest, is sufficient for a properly directed jury to convict.

Even including K. Intress’s second statement, the Court found the second appellant’s alleged conduct at the critical moment—standing in the doorway and briefly putting an arm out as she tried to pass—was insufficient to establish participation by assistance or encouragement. The Court treated the evidence as amounting to little more than presence at a gathering where violence erupted suddenly.

Importantly, the Court rejected the proposition that the “force of numbers” concept in Jogee was satisfied on these facts: a fleeting obstruction in a doorway, in an incident described as happening “so quick”, could not rationally ground an inference of intentional encouragement or assistance in the stabbing.

Accordingly, the trial judge should have upheld the submission of no case to answer; the second appellant’s conviction was quashed with no retrial ordered.

iii) Closing speech speculation (third ground; non-determinative)

While not deciding the appeal on this basis, the Court criticised the prosecution invitation to the jury to infer that the second appellant stayed with the dying victim to stop him speaking to rescuers. The Court regarded that as speculation beyond the evidential case as opened and advanced. It reiterated the importance of addressing such issues immediately with the trial judge so that curative directions can be given.

C) Impact

  • Hearsay practice: The decision reinforces that serious credibility attacks and inconsistency do not automatically bar admission of hearsay under section 116 where the maker is deceased; the statutory scheme expects those attacks to be aired via section 124 material and managed through directions, provided the statement is potentially safely reliable and exclusion is not required for fairness.
  • Section 125 vigilance: The judgment aligns with R v BOB in stressing the importance of the section 125 safeguard, while indicating appellate tolerance where the trial judge has addressed the substance even if not by a formal, stand-alone section 125 ruling.
  • Secondary liability boundaries: The quashing of the second appellant’s conviction provides a practical application of Jogee: mere presence, and minimal ambiguous conduct at the scene, will not suffice to characterise a defendant as a participant in a murder.
  • Advocacy limits: The Court’s remarks on closing speeches are a cautionary note against inviting juries to speculate as to motives or unseen evidence, particularly where the point was not part of the prosecution case until closing.

4) Complex Concepts Simplified

Hearsay “gateway” (section 116 CJA 2003)
A statutory route allowing an out-of-court statement to be used in evidence when the maker cannot testify (here, because the maker had died).
Testing hearsay (section 124 CJA 2003)
A mechanism enabling the defence to put before the jury material that undermines the maker’s credibility (including inconsistent statements), compensating—imperfectly—for the lack of cross-examination.
Excluding despite admissibility (section 126 CJA 2003; section 78 PACE)
Even if evidence fits a gateway, the court can exclude it if its admission would damage fairness (PACE) or where the case for admitting it is outweighed by the risk of undue waste of time or other prejudicial effects (section 126).
Stopping the case (section 125 CJA 2003)
After the prosecution closes, if the case depends wholly or partly on hearsay that is “so unconvincing” that a conviction would be unsafe, the judge must stop the case (acquit or discharge for retrial).
Joint enterprise after Jogee
Secondary liability requires proof that the alleged accessory assisted or encouraged the principal, and intended to do so with the required mental element. Being present is not enough.
No case to answer
A submission that the prosecution evidence is insufficient in law for any reasonable jury to convict, requiring the judge to withdraw the case from the jury.

5) Conclusion

The Court of Appeal upheld the admission of a deceased witness’s hearsay statement despite substantial credibility challenges, reaffirming that the CJA 2003 scheme generally entrusts reliability and weight to the jury where there is sufficient material to test the statement and fairness is protected by directions and exclusionary discretions.

At the same time, the Court drew a clear line on secondary liability: applying Jogee and Ruddock v The Queen (Jamaica) [2016] UKSC 8, UKPC 7, it quashed the second appellant’s conviction because the evidence showed no more than presence and equivocal, minimal conduct insufficient to establish participation by assistance or encouragement. The combined effect is a judgment that is both permissive on hearsay admissibility (with safeguards) and restrictive on joint enterprise inferences from association.