Tuesday, 23 December 2014

Strasbourg decides FOR the UK government

The Criminal Justice Act 2003 Part 11 Chapter 2 (CJA) enacted major changes to the law relating to the admissibility in criminal trials of hearsay evidence.  The changes were based on Law Commission proposals though Parliament did not completely follow the Commission's scheme.  Since they came into force, the CJA provisions have been the subject of extensive case law.  In an article in The Guardian 17th December, Joshua Rozenberg looked at certain cases where the CJA provisions were examined at the European Court of Human Rights - ECHR cases won by UK government show flexibility of the human rights system

With the General election looming in 2015, voters would do well to ask candidates what they or their party plan to do about human rights protection.  I will leave it to a later post to look more closely at just what the various parties are proposing.

As Rozenberg says: - "  ..... no parliament can overturn the decisions of the court’s grand chamber – but the European court, like any other institution, is capable of getting things wrong. And, when it is persuaded that it has made a mistake, it is not too grand to think again.

Crucially, it was persuaded to do so in this case by the careful reasoning of the court of appeal and the supreme court. That’s what the court would lose if the UK pulled out of the human rights convention.

And just in case the message is not clear, the court has just refused to reopen the vexed question of prisoners voting. Its decision in August refusing damages or even costs to disenfranchised prisoners (though confirming a rights violation) is now final. So this issue has been parked until after the general election. Though prisoners will not have a say, Strasbourg will be watching the voting with interest."

The cases:

Al-Khawaja and Tahery v UK, a chamber of the court ruled that article 6 would be breached if a conviction had been based solely or decisively on statements that a defendant had received no opportunity of challenging.  English judges did not agree with this decision and the matter reached the UK Supreme Court in December 2009 - supreme court decision.  In December 2011, the E Ct HR grand chamber modified its earlier ruling so that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of article 6. However, there would still a breach of the defendant’s rights unless there were counterbalancing factors, including strong procedural safeguards, to compensate for the difficulties caused to the defence and the dangers of relying on hearsay evidence.

See the recent Strasbourg decision in Horncastle and others v UKtrasbourg chamber decision. 



  1. Dear ObiterJ. Every post this year very well worth reading. Thanks for bringing so many important issues to the fore. Compliments of the season to you.

    1. Thanks and Greetings of the Season to you also.