You are here

Supreme Court throws down gauntlet to Strasbourg on hearsay evidence

9 December 2009

The Supreme Court has unanimously upheld existing rules on hearsay evidence in criminal trials and warned the European Court of Human Rights that overturning them would leave criminals free to add to their victims.

The issues raised by R v Horncastle and others [2009] UKSC 14 were regarded as so important that the case was heard by six justices, joined by the Lord Chief Justice, Lord Judge.

Horncastle and another man were convicted of GBH with intent, but the victim died of other causes before the trial. The victim’s witness statement was regarded by the Court of Appeal as decisive in convicting the men.

In a linked case, R v Marquis and Graham, two men were convicting of kidnapping a woman. The day before the trial, the woman ran away, too frightened to give evidence. Her statement was also read out in court, though it was not regarded as decisive.

The defendants argued that their rights to a fair trial under article 6 had been breached because ECtHR case law, and particularly the ruling in Al-Khawaja and Tahery v UK (case no. 26766/05) in January this year, had made it clear that convictions could not be based “solely or to a decisive extent” on hearsay.

A five-judge Court of Appeal unanimously dismissed the two appeals this summer and ruled that the balance struck by the Criminal Justice Act 2003 was legitimate and consistent with the Convention.

Giving the leading judgment at the Supreme Court, Lord Phillips said that if the ECtHR’s “sole or decisive” test was applied rigorously, it “would in some cases result in the acquittal, or failure to prosecute, defendants where there is cogent evidence of their guilt.

“This will be to the detriment of their victims and will result in defendants being left free to add to the number of those victims.”

Lord Phillips said that Strasbourg case law appeared to have developed without consideration of the safeguards against an unfair trial that existed under the common law.

“Nor, I suspect, can the Strasbourg court have given detailed consideration to the English law of admissibility of evidence, and the changes made to that law, after consideration by the Law Commission, intended to ensure that English law complies with the requirements of article 6(1) and (3)(d),” he said.

“In these circumstances, I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning.

“I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.”

Lord Brown said that the appeals were of the utmost importance and that if the Strasbourg court established an “inflexible, unqualified principal” then the “whole domestic scheme” for ensuring fair trials could not stand and many guilty defendants would have to go free.

Lord Brown mentioned both the Criminal Justice Act 2003 and the Criminal Evidence (Witness Anonymity) Act 2008, now part of the Coroners and Justice Act 2009.

He agreed with Lord Phillips, Lords Mance, Neuberger, Kerr, Judge and Lady Hale that the appeals should be dismissed.

Lord Brown added that he hoped the Grand Chamber of the ECtHR would “clarify the law on hearsay evidence and recognise that our domestic legislation is compatible with article 6”.

Categorised in:

Discrimination Tribunals & Courts Procedures Vulnerable Clients