Case Facts
The Supreme Court heard two conjoined appeals arising from criminal trials in which the prosecution relied on hearsay evidence admitted pursuant to s 116 Criminal Justice Act 2003, the witnesses in question having been unavailable to give oral evidence at trial.
In the first appeal, the defendants (Horncastle and another) were charged with causing grievous bodily harm with intent. The victim had made a witness statement to the police but died before the trial could take place. His statement was admitted at trial pursuant to s 116(1) and (2)(a) Criminal Justice Act 2003, which provides for the admission of a hearsay statement where the relevant person is dead.
In the second appeal, the defendants (Marquis and another) were charged with kidnap. The day before trial, the victim ran away because she was too frightened to give evidence. Her statement was admitted pursuant to s 116(1) and (2)(e) Criminal Justice Act 2003, which permits admission where the witness does not give evidence through fear. In both cases, the defendants argued that the trial judges ought to have refused to admit the statements, either by reading down the relevant provisions of the Criminal Justice Act 2003 so as to preclude the admission of hearsay evidence in such circumstances, or by exercising the discretion to exclude evidence under s 78 Police and Criminal Evidence Act 1984.
Both defendants were convicted. The Court of Appeal (Criminal Division) dismissed their appeals, holding that the European Court of Human Rights Chamber judgment in Al-Khawaja and Tahery v United Kingdom [2009]) was not determinative of the results and that the defendants had received fair trials. The matter then came before the Supreme Court. Following delivery of the Court of Appeal's judgment, the United Kingdom requested referral of the ECtHR Chamber decision in Al-Khawaja and Tahery to the Grand Chamber. In June 2009, the Grand Chamber Panel adjourned consideration of that request pending the final judgment in the present case, illustrating the significance of the anticipated dialogue between the two courts.
The principal issue before the Supreme Court was whether a conviction based solely or to a decisive extent on the statement of a witness whom the defendant had had no opportunity to cross-examine necessarily infringed the defendant's right to a fair trial under Article 6(1) and Article 6(3)(d) of the European Convention on Human Rights.
Held
The Supreme Court dismissed both appeals. The Court held that convictions based solely or to a decisive extent on untested hearsay statements do not necessarily breach Article 6(1) and Article 6(3)(d) of the European Convention on Human Rights. The Court declined to follow the "sole or decisive rule" as applied by the ECtHR Chamber in Al-Khawaja and Tahery v United Kingdom.
The Court affirmed the Court of Appeal's conclusion that the defendants had received fair trials. It held that the regime enacted by Parliament in Part 11, Chapter 2 of the Criminal Justice Act 2003 contained sufficient safeguards to protect defendants' rights to a fair trial, rendering the sole or decisive rule unnecessary in the domestic context. English criminal procedure had, long before the Convention came into force in 1953, addressed the aspect of fair trial that Article 6(3)(d) was designed to ensure through the common law hearsay rule and its accompanying exceptions.
Ratio Decidendi
The ratio of the case rests on two connected propositions.
First, the "sole or decisive rule" established by the ECtHR — which holds that a conviction must not be based solely or to a decisive extent on the statement of a witness whom the defendant had no opportunity to cross-examine — does not represent an absolute principle that must be applied in domestic proceedings. The rule had been introduced into Strasbourg jurisprudence without adequate discussion of the principle underlying it and without full consideration of whether there was justification for imposing it as an overriding principle applicable equally to continental and common law jurisdictions. Its application to English criminal procedure would create severe practical difficulties.
Second, s 2(1) Human Rights Act 1998 requires domestic courts to "take into account" any judgment of the ECtHR in determining any question to which such judgment is relevant. This obligation normally results in the Supreme Court applying principles clearly established by Strasbourg. However, on rare occasions, where the Supreme Court has concerns that an ECtHR decision has failed sufficiently to appreciate or accommodate particular aspects of the domestic trial process, it is open to the Court to decline to follow the Strasbourg decision, giving reasons, so as to enable a valuable dialogue between the two courts.
The Court found that although English law did not incorporate the sole or decisive rule, it would in almost all cases have reached the same practical result as cases in which the ECtHR had invoked that rule. The comprehensive safeguards within the Criminal Justice Act 2003 regime — governing both the conditions under which hearsay may be admitted and the procedural protections available to defendants — were sufficient to ensure compliance with Article 6(1) and Article 6(3)(d) of the Convention without the imposition of an absolute exclusionary rule.
Obiter Dicta
The Court observed that the process of dialogue between the Supreme Court and the ECtHR was of constitutional significance. The adjournment by the Grand Chamber Panel of the referral request in Al-Khawaja and Tahery v United Kingdom, pending the outcome in this case, demonstrated that such dialogue was a recognised and valued mechanism by which the ECtHR could take account of particular features of domestic legal systems before confirming or refining its jurisprudence.
This observation proved prescient. Following the Supreme Court's judgment, the ECtHR Grand Chamber reconsidered Al-Khawaja and Tahery v United Kingdom [2009] and delivered its Grand Chamber judgment in 2011, modifying the sole or decisive rule in light of the dialogue with the UK Supreme Court. The Grand Chamber confirmed that the rule is not absolute where sufficient counterbalancing safeguards exist within the domestic system — a conclusion directly influenced by the reasoning in this case.