Commentary on Sections Part 11 - Evidence Chapter 2: Hearsay evidence Section 116: Cases where a witness is unavailable
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.