The Evidence of ‘Unavailable’ Witnesses under the Criminal Justice Act 2003

Abstract

Section 116 of the Criminal Justice Act 2003 extends the circumstances in which statements made by witnesses who are unavailable to give evidence at court can be received. Such statements are no longer limited to those made in writing, and now also encompass those that constitute multiple hearsay. Additionally, for most first-hand hearsay statements, there is no longer a general discretion to prevent adduction, unlike the equivalent provision in s. 23 of the Criminal Justice Act 1988. Although some safeguards have been put in place—such as a need to identify the maker of such statements before they can be admitted—there is uncertainty as to how these will operate and how effectively they will prevent the fabrication of evidence as well as excessive delay in the trial process.