Law and Rights
A further bout with Strasbourg coming up? Compensation for miscarriage of justice and Cornish Pasties.
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| Argentoratum locutum, iudicium finitum |
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According to The Times (22nd February) Britain's most senior judges have warned that the European Court of Human Rights has rejected fundamental rules of criminal evidence enacted by Parliament to ensure that criminals do not escape conviction in cases where the evidence in question is a "hearsay" statement or statements from witnesses who cannot be present at the trial either due to death or fear. Parliament enacted the Criminal Justice Act 2003 Part 11 Chapter 2 which reformed the law relating to the admissibility of hearsay in criminal cases. In particular, section 116 deals with cases where the witness is unavailable for various reasons set out in s.116(2). The trial judge must give leave to admit the statement of the witness. The intention of Parliament was to enact a new code for the admissibility of hearsay evidence and to provide within that code suitable safeguards for defendants.
In May 2010, the Grand Chamber of the European Court heard argument in
Al-Khawaja and Tahery v U.K. This concerned two factually distinct cases but both raised the same challenge to the 2003 Act since both had been convicted
either solely or mainly on hearsay evidence admitted under the 2003 Act. In January 2009, the European Court 4th section gave a judgment deciding that neither had received a fair trial as guaranteed by Article 6 - see the judgment here. The U.K. requested that the case be reconsidered by the Grand Chamber and judgment is expected in the near future.
A further case raising this issue is R v Horncastle. In 2009 the case came before a five judge Court of Appeal (Criminal Division) which decided that the 2003 Act was compatible with Article 6 - see R v Horncastle, Blackmore and others [2009] EWCA Crim 964. An appeal was heard
by a seven member Supreme Court in July 2009 and judgment handed down in December 2009 - see [2009] UKSC 14. The appeals were dismissed. The Supreme Court's judgment is extremely detailed but the court expressed the hope that the Grand Chamber would clarify the law upon hearsay and recognise that our domestic legislation is compatible with Art. 6.
The 2003 Act Code is based on the Law Commission's report "Evidence in Criminal Proceedings: Hearsay and related Topics": Cm 3670 - Law Com No 245 (1997).
An interesting article about these cases may be read on the Association of Commonwealth Criminal Lawyers website. Also, Solicitor's Journal 9th December 2009 - "Supreme Court throws down gauntlet to Strasbourg on hearsay evidence." Judgment against the U.K. in this matter is likely to spark even more fireworks in Westminster.
Coming up in the Supreme Court in the near future is R (Adams) v Secretary of State for Justice where the issue is compensation payable under the Criminal Justice Act 1988 s133 when a conviction is reversed (or person pardoned) on the ground that a new or newly discovered fact shows beyond a reasonable doubt that there has been a miscarriage of justice. An excellent preview written by Aidan O'Neill QC of this important case may be read on the Supreme Court blog - "When are the 'not guilty' not innocent?" This article is well worth reading in full.
Finally, I am delighted to note that genuine Cornish Pasties have won Protected Geographical Indication (PGI status) - see Solicitor's Journal 22nd February 2011. Make sure you get the Real McCoy in future. See "Cornish Pasties are no one's Patsies" - The Guardian 22nd February.
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Law and Rights
