Tuesday, 20 April 2010

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.


  1. Here is how police will act in future trials.

    1. Get the incriminating statement they want from a witness

    2. Tell said witness that the defendants are very dangerous people who may kill them.

    3. Have incriminating statement admitted into the trial on the grounds that the witness is absent through fear.

  2. Some perspective is needed.

    It may be disgusting to see a person you are convinced is guilty of a heinous crime go free, on account of such a technicality as the inadmissibility of hearsay evidence.

    However it is not a threat to the fabric of society, or to law and order. At worst it affects a handful of cases at the margin. Yet 20% of murders do not result in a conviction. If we can live with that we can live with 20.1% to preserve the right of a suspect to challenge the evidence which put them in the dock.

    This example is, not incidentally, a great argument for a Bill of Rights, which parliament may not change without clearing a high hurdle, such as a supermajority in a referendum.

  3. Even with above said,i feel that some scenario's which arise in a british courtroom(against an accused)are untenable and should be looked into in great detail as i have seen first hand on a personal level how dirty and downright bias uk(namely scots) law can be used against an accused in high court trial in an allegedly fair trial,and afterward every male in the courtroom stated that what happened is frightening and absurd as every male mid twenties plus could find themself jailed and life ruined by person's willing to use the law as a tool of income/revenge.The matter iam referring to is historical sex case's where every item submitted as crown evidence can change in court,date's and year's with leeway of two years!! either way of said date of offence,also if witnesses claim they were of a certain age ie under 13,as per the law an accused can offer NO evidence whatsoever,even if they werent in the country!!!! and witnesse's for the crown can change statement every week if they wish to do so!! As the law stands,given an opportunity and motive for an accuser then any man in this country can be jailed no question asked even if they are 100 percent innocent of the alleged crime,as no defence can be given even if the accuser/accuser's are now middle aged(and not under 13 as at the time of offence they alleged) and able to be crossexamined in detail being adult now.The scale's of the crown v accused in this type of crime is and must be the most galling breach of human rights in any case!! as it is 90 percent to ten in the favour of the crown.After just sitting through a high court case on the above i would like to state as the law stands ANY uk male could find themself in jail easily,for a long time if persons are devious and cute enough to use the laws as they stand to theyre advantage! It is truly frightening to think,but i have seen first hand this in a uk courtroom from start to end, and no rights/evidence for an accused in certain circumstance can be inferred as the laws stance to no right to a defence must surely contravene most human rights to a fair trial of bonafide innocent people accused of these crimes!!! The most glaring abuse in law of railroading anyone to jail come what may,innocent or guilty!! I for one never saw a fair trial on the above and was actually astounded how easy it is for the law to be manipulated. A citizen who now has no faith in the british law system as hearsay is fact,trials where no evidence can be offered by law,no forensic evidence,no factual evidence,Accuser's mental history cannot be disclosed,No accuser's previous record can be used even if they have numerous fraud convictions and severe mental health issue's.On this note if accuser's concoct a story(in untrue allegation's)and stick to it then uk law convict's an accused every time!! A great way to get people convicted and life shattered, and effectively over if convicted.All by person's if they have the motive/financial incentive to do so and believe me,only this year i have witnessed this happen and as the law stands is totally absurd,and as for a fair trial and human rights in these case's is a total folly and innocent men jailed on a story of hearsay.Is that proper? Lawful? Civilised? Fair trial? Human right's? If you are ever unlucky enough to be in this position and innocent then wave goodbye to all stated as you Will be guilty and doing serious time as soon as that trial end's!!!!!

  4. Ed (not Bystander)18 November 2010 at 00:37

    Illiterate Convicted Sex Offender Raves!

    Film at 11.