R v McNair [2025] EWCA Crim 1376: Testing the Reliability of Deceased Complainant ABE Hearsay Under s116 CJA 2003 Despite Loss of Supporting Witnesses

Introduction

This decision of the England and Wales Court of Appeal (Criminal Division) addresses a recurring and sensitive problem in sexual offence trials: how to ensure fairness when the complainant has died and the Crown’s case depends substantially on the complainant’s recorded hearsay accounts. In McNair, the appellant challenged his conviction for rape on three grounds centering on the admission and use of hearsay evidence—namely, the complainant’s body-worn-video (BWC) complaint to police and her Achieving Best Evidence (ABE) interview—admitted under section 116 of the Criminal Justice Act 2003 (CJA 2003).

The case arose from events in a house in multiple occupation. The complainant, an alcohol-dependent woman in her sixties who later died of non-trial-related causes, accused the appellant (then living in the same property) of raping her in her room shortly after he had asked his partner for sex and, on her refusal, made a remark about being able to get sex for £10. The defence case was that no sexual contact occurred at all and that the appellant’s state of undress was explained by broken shorts/belt.

The key appellate issues were:

• Whether the judge erred in admitting the deceased complainant’s hearsay evidence (s116 CJA 2003) and in declining to exclude it under s126 CJA 2003 or s78 Police and Criminal Evidence Act 1984 (PACE).
• Whether the trial judge should have revisited and reversed the hearsay ruling when three supporting prosecution witnesses ultimately did not give evidence.
• Whether the judge should have stopped the case under s125 CJA 2003 on the basis that any conviction would be unsafe given the weight of untested hearsay.

Summary of the Judgment

The Court of Appeal dismissed the appeal. It held that:

• The complainant’s BWC and ABE accounts were properly admitted under s116 CJA 2003 due to her death. Exclusion under s126 CJA 2003 or s78 PACE was not warranted.
• The later unavailability of three witnesses (anticipated at the time of the original hearsay ruling) did not fatally alter the fairness balance. Their evidence would have been peripheral to the core issue (penetration) and likely supportive of the complainant’s account rather than the defence; their absence did not undermine the admissibility decision.
• The reliability of the complainant’s hearsay was “capable of proper testing and assessment” through surrounding circumstances, internal consistency checks across accounts, contemporaneous BWC material, the appellant’s own evidence, and careful jury directions. Neutral forensic findings did not render the hearsay unconvincing.
• Section 125 CJA 2003 was properly refused. This was not a case where the hearsay was so unconvincing that a conviction would be unsafe.

Analysis

Precedents Cited and Their Influence

• R v Horncastle and others [2010] 2 AC 373:

  The Supreme Court recognised the robustness of the domestic hearsay regime under the CJA 2003, emphasising safeguards such as judicial gatekeeping, reliability assessments, and appropriate jury directions. McNair leans on this framework, reaffirming that hearsay can be admitted and relied upon where counterbalancing measures adequately protect fairness.

• Al-Khawaja and Tahery v UK (2011) 54 EHRR 23:

  The Strasbourg Grand Chamber moved away from a rigid “sole or decisive” prohibition, focusing instead on whether the conviction is sufficiently counterbalanced by strong procedural safeguards where a witness is absent. McNair implicitly adopts this approach: the court assessed whether the inability to cross-examine was mitigated by other testing mechanisms (BWC, surrounding circumstances, and directions).

• R v Riat [2012] EWCA Crim 1509:

  Provides practical guidance for admitting hearsay under the CJA 2003, including the need to evaluate reliability and the availability of testing means. McNair follows Riat’s structured balancing, holding that the complainant’s ABE and BWC statements were reliably testable in context.

• R v Ibrahim [2012] EWCA Crim 837:

  Stresses judicial vigilance where hearsay is untested; the key question is whether the hearsay is reliable in the light of all other evidence. McNair applies this by emphasising the coherent ABE account, contemporaneous complaint, and contextual features (states of undress; defendant’s prior request for sex) which permitted meaningful assessment by the jury.

• R v BOB [2024] EWCA Crim 1494 (Edis LJ):

  The single judge’s grant of leave invoked BOB’s articulation that the question is whether hearsay is “capable of proper testing and assessment” (as distinct from being “demonstrably reliable”). The Court of Appeal in McNair endorsed that test and held it was met on the facts: the jury could test reliability through comparison across statements, objective contemporaneous material, and the defence evidence.

Legal Reasoning

The Court’s reasoning unfolds in four steps.

1. Statutory gateway (s116 CJA 2003):

   The complainant was deceased. Her BWC complaint and ABE interview clearly met the s116 condition for admissibility. The ABE was the principal account of the only eyewitness to penetration (other than the defendant), and the BWC captured an immediate complaint consistent with her ABE.

2. Exclusion balance (s126 CJA 2003; s78 PACE):

   The defence argued exclusion because cross-examination was impossible, the complainant was alcohol dependent (raising reliability concerns), and expected supporting witnesses had fallen away. The Court held that:

   • The judge did not overvalue the ability to “challenge through other witnesses.” Even after three witnesses were not called, the surrounding circumstances remained powerful contextual testing tools. The missing witnesses were not present for the core act (penetration) and were likely to have reinforced the Crown’s narrative.
   • Proper judicial directions could and did mitigate the prejudice from the absence of cross-examination.
   • Neutral forensic results did not undermine admissibility; the lack of injury or semen is not uncommon in sexual offence prosecutions and was a matter for jury evaluation, not a hurdle to admissibility.
3. Revisiting the hearsay ruling at trial:

   The trial judge reconsidered the Recorder’s pre-trial ruling in light of the reduced pool of witnesses. He concluded there was no material change justifying exclusion because: (i) the missing witnesses were peripheral to the central question; (ii) their anticipated evidence would likely have harmed, not helped, the defence; and (iii) any inconsistencies about pre- or post-incident events could be put before the jury via agreed facts or parts of statements. The Court of Appeal agreed that the fairness balance had not shifted against admission.

4. No-case submission (s125 CJA 2003):

   The defence sought to stop the case on the basis that a conviction would be unsafe if founded on untested hearsay of an alcohol-dependent complainant with inconsistent accounts and equivocal forensics. The Court rejected this, holding that the hearsay was neither unconvincing nor untestable:

   • The complainant’s BWC and ABE accounts were coherent and detailed; the ABE was delivered lucidly.
   • Contextual supports existed: the appellant had moments earlier sought sex from his partner; after refusal, he said he could “get sex for £10”; he was found in the complainant’s room, both were in states of undress; the complainant immediately accused him of rape; the appellant’s dismissive “So what?” reaction was heard; and the appellant’s own account could be weighed against these features.
   • Any inconsistencies about alcohol consumption or medication were classic jury points going to weight.

What McNair Clarifies

• The “capable of proper testing and assessment” requirement (per BOB) does not demand cross-examination of the hearsay maker; it can be satisfied by:
  • Internal consistency checks across the complainant’s BWC/ABE statements;
  • Objective contemporaneous indicators (states of undress; immediate complaint captured on video);
  • Surrounding circumstances (defendant’s prior requests/remarks about sex);
  • Cross-examination of other witnesses who observed the aftermath; and
  • The defendant’s own interview and oral evidence.
• The later unavailability of anticipated corroborative witnesses does not, without more, unravel a s116 hearsay ruling. The focus remains on whether the trial as conducted still offers adequate means to test reliability and adequately counterbalances the absence of cross-examination.
• Neutral forensic findings and the absence of injury are not determinative barriers to relying on hearsay in sexual offence cases; they are simply features for the jury.
• Proper hearsay directions are central. Where given, they can sufficiently mitigate prejudice arising from the deceased complainant’s absence.

Impact and Practical Implications

McNair will likely influence both judicial case management and advocacy in trials where the complainant cannot testify due to death or other qualifying reasons under s116.

• For judges:
  • When revisiting pre-trial hearsay rulings, the test is not whether cross-examination of the complainant is possible (it is not), but whether adequate testing remains available in the overall trial architecture. A mere reduction in the number of live witnesses is not a trump card; the question is material change in fairness.
  • Robust, tailored hearsay directions remain critical counterbalancing measures.
• For prosecutors:
  • Body-worn video capturing immediate complaint is powerful context that can satisfy the “testing” requirement where the complainant has died.
  • Where anticipated witnesses fall away, consider how their anticipated evidence can still be placed before the jury (agreed facts or read statements) and whether their absence actually reduces risk to the defence (McNair warns that cross-examining such witnesses might entrench harmful evidence to the defence).
• For the defence:
  • Challenges should focus on demonstrating that the remaining trial matrix no longer permits meaningful testing (e.g., no contemporaneous material, no objective supports, significant internal inconsistency). McNair shows that pointing to missing witnesses, neutral forensics, or intoxication alone will often be insufficient.
  • Where a witness has admitted lying on a collateral point, articulate persuasively why that lie undermines reliability on core issues, not just credibility generally.
• On section 28 pre-recorded cross-examination:
  • The defence argued that but for charging delay the complainant might have been cross-examined under s28 YJCEA 1999 before her death. While noted, the Court did not treat the absence of s28 as rendering s116 admission unfair. McNair therefore signals that lack of s28 does not, without more, bar admission of hearsay under s116.

Complex Concepts Simplified

• Hearsay:

  Evidence of a statement made by someone who does not give oral evidence in court, adduced to prove the truth of what it asserts. It is generally inadmissible unless a statutory or common-law exception applies.

• Section 116 CJA 2003:

  Allows hearsay statements to be admitted if the maker is unavailable for specified reasons (including death). The court must still consider fairness and reliability safeguards.

• Section 126 CJA 2003:

  Gives the court a discretion to exclude otherwise admissible hearsay where the case for exclusion (e.g., unfairness, undue waste of time) outweighs the case for admission.

• Section 78 PACE 1984:

  A general fairness exclusion: the court may refuse evidence if its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.

• Section 125 CJA 2003:

  Requires the judge to stop a case based wholly or partly on unconvincing hearsay if a conviction would be unsafe. The threshold is not met simply because the hearsay cannot be cross-examined; it must be “unconvincing.”

• Res gestae:

  A common-law exception to hearsay permitting spontaneous statements made contemporaneously with (or immediately after) an event, where the circumstances reduce the likelihood of fabrication.

• ABE interview:

  A recorded investigative interview conducted to best practice standards intended to preserve the complainant’s account accurately and fairly for use in criminal proceedings.

• “Capable of proper testing and assessment”:

  A practical reliability yardstick derived from recent case law (e.g., BOB). Even if cross-examination is impossible, the statement can be admitted where surrounding circumstances, internal consistency, other witnesses, and the defendant’s evidence enable the jury to evaluate its truthfulness fairly.

Conclusion

McNair affirms and clarifies the modern hearsay regime in sexual offence trials involving deceased complainants. The case’s principal contribution is to sharpen the focus on whether the reliability of the absent witness’s ABE/BWC statements remains “capable of proper testing and assessment” in the overall evidential matrix at trial. The Court rejects a formalistic view that missing corroborative witnesses or neutral forensics automatically tip the fairness balance against admission, and it endorses careful judicial directions, contextual corroboration, and comparison across multiple accounts as effective counterbalances to the lack of cross-examination.

Practically, McNair will embolden trial courts to admit deceased complainants’ ABE interviews under s116 CJA 2003, even where some expected supporting witnesses fall away, provided there is sufficient surrounding material to allow the jury to evaluate reliability and the judge gives appropriate hearsay directions. It also underscores the high threshold for s125 “no case” applications in hearsay-heavy prosecutions: unavailability and intoxication-related credibility points go to weight for the jury, not automatic stoppage. In the broader legal landscape, McNair consolidates the interplay between Horncastle, Al‑Khawaja/Tahery, Riat, Ibrahim and BOB, and provides a clear, fact-sensitive template for future courts assessing the admissibility and sufficiency of hearsay where the complainant cannot be called.