Admitting the statement of a witness too frightened to testify (CJA 2003 ss.114 and 116(2)(e))

Section 114(1)(a) of the Criminal Justice Act 2003 admits hearsay where a provision of the Act makes it admissible, and s.116 is one such provision. Under s.116(1) and (2)(e), the statement of an identified person, whose oral evidence would have been admissible, may be admitted where through fear that person does not give oral evidence, and the court gives leave. Section 116(3) requires 'fear' to be widely construed, expressly including fear of the death or injury of another person, so fear for her brother counts. Unlike the other four conditions, the fear condition requires leave. Under s.116(4), leave may be given only if the court considers the statement ought to be admitted in the interests of justice, having regard to its contents, any risk of unfairness (in particular the difficulty of challenging it), whether a special measures direction could be made, and any other relevant circumstances.

Why A is wrong: Leave of the court is required for the fear condition in s.116(2)(e), unlike the other unavailability conditions.

Why B is wrong: Section 116(3) says fear is to be widely construed and includes fear of the death or injury of another person.

Why D is wrong: Agreement under s.114(1)(c) is only one route; s.116 is a separate statutory route under s.114(1)(a).

Why E is wrong: Who caused the fear does not matter, save that s.116(5) bars the party (or its agent) who caused it from relying on it.