Life in crime
The dialogue between the British and the Strasbourg courts works well, says Ben Newton
Anyone who agreed with David Cameron's criticisms of the European Court of Human Rights in January should the read court's decision in Al-Khawaja and Tahery v UK (see 'Strasbourg court extends olive branch to UK over hearsay', solicitorsjournal.com, 15 December 2011).
The case draws a vital line in the sand as to where the admission of an absent witness' evidence will make a trial unfair irrespective of the directions a judge might give the jury. Equally revealing is the compelling narrative of the proceedings.
The joined cases were first argued before the fourth section of the court in January 2008. On 20 January 2009 it was held that there had been a breach of article 6(1) and (3)(d), based on the admission in each case of sole or decisive hearsay evidence under section 116 of the Criminal Justice Act 2003.
The Court of Appeal declined to follow this decision in R v Horncastle  EWCA Crim 964. The Supreme Court concurred ( UKSC 14), finding that it was impractical to expect courts to decide whether a particular statement was sole or decisive, and paradoxical to ask them to refuse to admit the evidence if it was. Lord Phillips concluded the judgment in Horncastle with an invitation: 'I have taken careful account of the Strasbourg jurisprudence. I hope in due course the Strasbourg court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.'
That invitation was accepted, and on 15 December 2011 the Grand Chamber responded in detail to the Supreme Court's judgment. They rejected the majority of the arguments adopted by the Supreme Court justices but agreed with the conclusion that the rule against sole or decisive evidence should not be an inflexible rule and that in some cases such evidence might properly be admitted. That disputed evidence is sole or decisive remains highly relevant in determining admissibility, however. Any application should be subjected to the most searching scrutiny and its admission should only ever be a measure of last resort. The question should be whether there are sufficient counterbalancing factors and safeguards to compensate for the difficulties arising; that is, measures that will permit a fair and proper assessment of the reliability of the disputed evidence.
Particularly interesting, given the prime minister's recently expressed views in the wake of the Abu Qatada case, was the separate concurring opinion of Sir Nicholas Bratza. 'The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European court,' he said. 'While, as is apparent from the judgment, the court has not been able to accept all the criticisms of the test, it has addressed what appears to be one of the central problems identified by the Supreme Court, namely the inflexible application of the test or rule.'
Don't fix what ain't broke Mr Cameron.