The judgement and allowed application of hearsay evidence in criminal trials places considerable

faith in the ability of a proper application of the provisions of the 2003 Act to ensure that hearsay

evidence introduced at trial is reliable. Ensuring reliability in witness testimony is laced with

difficulties. Psychological research has shown that anxiety and stress associated with a violent crime

have a negative impact on efficiency of memory recall.

otherwise made to produce results that can lead to an incorrect reconstruction of the crime

The decision of the Supreme Court in R v Horncastle [2009] UKSC 14 is potentially of great

importance for two reasons. First, it considers the implications for the contemporary law of hearsay

in England and Wales, as encapsulated in the Criminal Justice Act 2003, of Article 6(3)(d) of the

European Convention on Human Rights, which guarantees everyone charged with a criminal offence

the right to examine or have examined witnesses against him. Secondly, it considers the

obligation placed on courts by section 2(1) of the Human Rights Act 1998 to take into account

jurisprudence of the European Court of Human Rights so far as, in the opinion of the court , it is

relevant to the proceedings. The UKSC was required to resolve an apparent direct conflict between

the judgment of the European Court of Human Rights in Al-Khawaja and Tahery v UK (2009) 49 EHRR

1 and the decision of the Court of Appeal from which the appeal was brought, R v Horncastle [2009]

EWCA Crim 964.

In Al-Khawaja, the European Court of Human Rights appeared to propound a rule whereby the

introduction in evidence of a hearsay statement which constituted the sole or decisive evidence

against the defendant would breach article 6(3)(d) and the general right to a fair trial under article 6,

unless the defendant had had an opportunity at some stage to cross-examine the maker of the

statement, or unless the maker of the statement was kept from giving evidence through fear

induced by the defendant. The Court of Appeal in Horncastle considered, however, that, provided

the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article

6(3)(d), if the conviction is based solely or to a decisive degree on hearsay evidence admitted under

the CJA 2003. Where the hearsay evidence is demonstrably reliable, or its reliability can properly

be tested and assessed, the rights of the defence are respected and the trial is fair ([2009] EWCA

Crim 964, [79]).

The appellants in Horncastle had been convicted of serious criminal offences, the prosecution

evidence including evidence of statements of the victims of the alleged offences that was admitted

under section 116 of the 2003 Act. In one case the witness had died before the trial, and in the

other the witness had run away the day before the trial because she was too frightened to give

evidence. The appeals against conviction were dismissed by the Court of Appeal.

The Supreme Court unanimously dismissed the appellants appeals, Lord Phillips delivering a

judgment with which the other six members of the Court Lady Hale, Lord Brown, Lord Mance, Lord

Neuberger, Lord Kerr and Lord Judge agreed. Lord Phillips noted ([2009] UKSC 14, [11]) that [t]he

requirement to take into account the Strasbourg jurisprudence will normally result in this Court

applying principles that are clearly established by the Strasbourg Court. The present case, however,

represented one of the rare occasions where this court has concerns as to whether a decision of

the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic

process. In such circumstances it is open to this court to decline to follow the Strasbourg decision,

giving reasons for adopting this course.

Among the reasons put forward in support of this conclusion were the following.

First, Lord Phillips was prepared to accept that the provisions of the 2003 Act, which contain[ed] a

crafted code intended to ensure that evidence is admitted only when it is fair that it should be (at

[36]), were being applied cautiously by the courts (at [39]). While the justification for the sole or

decisive test would appear to be that the risk of an unsafe conviction based solely or decisively on

anonymous or hearsay evidence is so great that such a conviction can never be permitted, the

provisions of the 2003 Act represented a less draconian way of protecting against the risk of an

unsafe conviction (at [92]).

Secondly, a rule excluding hearsay evidence that constituted the sole or decisive evidence against

the defendant did not exist in Canada, Australia or New Zealand (at [41], referring to the analysis of

the position in these jurisdictions presented in Annexe 1).

Thirdly, the criminal procedure of England and Wales differed from that which was traditionally to

be found in civil law jurisdictions: In this jurisdiction there is no judicial investigation, in the course

of which a confrontation can take place between witnesses and the suspect. The investigation into a

crime is carried out by the police, who do not act as judicial officers (at [62]).

Fourthly, it might be difficult to determine in a particular case whether hearsay evidence constitutes

the decisive evidence against the defendant: The judge will have to rule inadmissible any witness

statement capable of proving decisive. This will be no easy task If decisive means capable of

making the difference between a finding of guilt and innocence, then all hearsay evidence will have

to be excluded (at [90]).

Fifthly, an analysis of Strasbourg cases in which violations of article 6(3)(d) had been found

(presented in Annexe 4) revealed that, if the law of England and Wales had been applied in these

cases, the relevant evidence would have been declared inadmissible, and the defendant would not

have been convicted, in almost all of them. This was taken to suggest that in general our rules of

admissibility provide the defendant with at least equal protection to that provided under the

continental system (at [93]).

Lord Phillips did not shy away from using emotive language to support his rejection of a sole or

decisive test:

If applied rigorously it will 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 (at [105]).

The following hypothetical was considered to provide a clear illustration of the inappropriateness of

adopting such a test (at [91]):

A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises

the number of the car, and makes a statement to the police in which he includes not merely the

number, but the make and colour of the car and the fact that the driver was a man with a beard. He

then returns to his own country, where he is himself killed in a road accident. The police find that

the car with the registration number that he provided is the make and colour that he reported and

that it is owned by a man with a beard. The owner declines to answer questions as to his

whereabouts at the time of the accident. It seems hard to justify a rule that would preclude the

conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is

the effect of the sole or decisive test.

Three brief comments may be made about the decision of the Supreme Court in Horncastle. First, it

places considerable faith in the ability of a proper application of the provisions of the 2003 Act to

ensure that hearsay evidence introduced at trial is reliable. One might question whether such a

degree of faith is warranted. Secondly, discussion of a somewhat larger issue of principle is avoided.

This is the issue of whether the sole concern of article 6(3)(d) should be with ensuring the reliability

of evidence, or whether a face-to-face cross-examination of ones accuser may be thought to have

intrinsic value regardless of considerations relating to the reliability of evidence. Thirdly, it is of

interest that, while noting that the US Supreme Court had taken a distinct and more robust

approach to the interpretation of the right of confrontation in the Sixth Amendment to the US

Constitution, Lord Phillips did not then go on to consider whether there were any lessons to be

learnt from such an approach.

Lord Phillips, having taken careful account of the Strasbourg jurisprudence, expressed the hope

that 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 (at [108]). Indeed, a decision is currently awaited from

Strasbourg on whether to accept the United Kingdoms request for Al-Khawaja to be referred to the

Grand Chamber of the European Court of Human Rights, such a decision having been postponed

pending the Supreme Courts decision in Horncastle. Any future discussion of Horncastle by the

Strasbourg Court will certainly be awaited with interest.