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Absent minded

David Rhodes examines a decision by the Court of Appeal to reject a judgment of the European Court of Human Rights on the admissibility of hearsay evidence

9 June 2009

“Did they really say that?” In Horncastle [2009] EWCA Crim 964 (Solicitors Journal, 153/21, 2 June 2009), a special five-member Court of Appeal fundamentally reviewed the landscape of hearsay evidence under the Criminal Justice Act (‘CJA’) 2003. In so doing, controversially, they declined to follow the judgment of the European Court of Human Rights in Al-Khawaja and Tahery v UK [2009] ECHR 26766/05.

A violation of Art.6

In Al-Khawaja, the Strasbourg court held that Art.6(1) and Art.6(3)(d) would be violated where the use of hearsay evidence, particularly by anonymous witnesses, was the sole or decisive basis for conviction. It said that “the court doubts whether any counterbalancing factors would be sufficient to justify” such untested evidence. The effect of that judgment was to drive a coach and horses through the scheme of counterbalancing considerations set out in the CJA 2003.

The Court of ...

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