Tuesday, 22 February 2011

A further bout with Strasbourg coming up? Compensation for miscarriage of justice and Cornish Pasties.

Argentoratum locutum, iudicium finitum

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.


  1. UK Supreme Court Justice Lord Brown mentioned Horncastle in a recent speech on the ECtHR at the University of Oxford. Compared to the rhetorical fireworks primed and loosed by some of his colleagues in the past, however, it was a peaceable enough address on the Court and Convention. He did give the impression, however, that he anticipates that Strasbourg will not follow the Supreme Court's reasoning.

  2. Many thanks Peat Worrier. In Horncastle, Lord Brown said:

    "These appeals are of the utmost importance. If the Strasbourg case law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme for ensuring fair trials – the scheme now enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 – cannot stand and many guilty defendants will have to go free. It is difficult to suppose that the Strasbourg Court has in fact laid down so absolute a principle as this and, indeed, one exception to it, at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a witness absent as a result of the defendant's own intimidation. But if this is recognised (and, as others have pointed out, this exception itself involves difficulties of proof) why not recognise other exceptions too provided only and always that the procedures honour the ultimate imperative of a fair trial? That, after all, is the overarching principle for which the great bulk of Strasbourg jurisprudence on article 6 stands."

    There is much force in his view. See the judgment at para. 112 et seq.

    Furthermore, the various judgments show how the "sole or decisive" test would work injustice in many cases. The more cogent the evidence, the less likely it would be that it could be admitted.

  3. A letter in The Times (23/2/11 by Iain MacMaster - London) makes this pertinent point in relation to a conviction based solely or mainly on hearsay:

    "If a prosecution cannot succeed without the admission of such evidence, the strength of any other evidence must be sufficiently questionable to render any conviction unsafe."

    The CJA 2003 allows the admission of certain hearsay with judicial leave and certain factors have to be considered. Once the evidence is "in" then a conviction could be based on it. The European Court of Human Rights approach has been that a conviction must not be based solely or mainly on such evidence. The British judges consider that the CJA 2003 contains sufficient safeguards for the defendant.

    Macmaster's letter makes the additional point that, in passing the CJA 2003, there was "no material regard to the preseumption of innocence, or the overriding importance of avoiding conviction of the innocent."