Law and Rights

Convicting solely or decisively on hearsay evidence: Strasbourg and London lock horns.

In The Guardian 7th April, Afua Hirsch looked at a speech made by the Lord Chief Justice (Lord Judge) at a Judicial Studies Board event. Lord Judge made many interesting observations. The speech prompted Hirsch to observe that the European Court of Human Rights exists exclusively to protect the Convention rights of persons. and that we are losing sight of this important point. She then refers to a situation in which the English judiciary and Strasbourg have "locked horns."

In English criminal procedure, the admissibility of hearsay evidence is now based on the Criminal Justice Act 2003 which is regarded as a complete code on the topic

Should a person be convicted of a criminal offence where the conviction is based "solely or decisively" on evidence which is hearsay? In such cases, the defendant will be denied an opportunity to challenge the evidence in court - e.g. by cross-examination. This is a very difficult issue since witnesses may not be able to testify for a number of reasons - e.g. the maker of a statement is deceased or afraid to attend a trial. If the "out-of-court" (i.e. hearsay) statements of such witnesses could not be used then a guilty person might escape a merited criminal conviction perhaps for some very serious offence. However, defendants have a right to a fair trial and the use of such evidence might contravene that right. The English judiciary and the European Court of Human Rights have differed markedly on this subject. Is the European Convention to be a trump card in such situations?

In Al-Khawaja and Tahery v UK (January 2009) a Chamber of the European Court held that convictions based "solely or decisively" on hearsay evidence breached the right to a fair trial (Article 6 of the Convention). In R v Horncastle, Marquis, Graham and Carter [2009] EWCA Crim 964 the English Court of Appeal upheld some convictions even though they were based mainly on hearsay and rejected the decision in Al-Khawaja. The Supreme Court of the U.K. subsequently agreed with the Court of Appeal - see judgment. The English judiciary considers that the 2003 Act scheme contains adequate safeguards for the accused so that a "sole of decisive" rule is not needed.

Meanwhile, in April 2009, the British government had requested the European Court to refer the case of Al-Khawaja to the Grand Chamber and, in June 2009, the Panel of the Grand chamber decided to defer consideration of the case until the U.K. Supreme Court had given judgment. Consequently, the Grand Chamber will hear the case in May 2010.

In some quarters this disagreement is being presented as a clash between English common law and European justice. I think that view is a misrepresentation given that, traditionally, English common law leaned against hearsay evidence and placed considerable emphasis on cross-examination as the best method of testing the evidence of a witness. However, hearsay has come to be used increasingly as a result of statute law - (now the CJA 2003) - and the move away from basic common law principles has accelerated. Also, there is now greater emphasis on securing convictions. The phrase - (attributed to Blackstone) - "... it is better that ten guilty persons escape than that one innocent suffer ..." - carries little weight today.

The Supreme Court's judgment is a detailed analysis of the Strasbourg case law and they give cogent reasons why a "sole or decisive" test is problematic for English criminal trials - (see paragraphs 89-91 of the Supreme Court judgment). Also, the Human Rights Act 1998 s.2 requires the English courts to "take into account" Strasbourg case law but does not insist that it be followed even if it normally is.

Perhaps the real clash here is nothing to do with the common law as such. It is a clash between the British trend to rebalance the criminal justice system against the offender and the basic principles of a fair trial set out in the European Convention. The eventual outcome of this "clash" will be interesting.

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