tag:blogger.com,1999:blog-6110794854146484721.post3530709304625626044..comments2024-03-29T08:05:56.264+00:00Comments on Law and Lawyers: A further bout with Strasbourg coming up? Compensation for miscarriage of justice and Cornish Pasties.ObiterJhttp://www.blogger.com/profile/04544226917595022902noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-6110794854146484721.post-22941466990714297502011-02-24T10:37:03.400+00:002011-02-24T10:37:03.400+00:00A letter in The Times (23/2/11 by Iain MacMaster -...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:<br /><br /><em>"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."</em><br /><br />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.<br /><br />Macmaster's letter makes the additional point that, in passing the CJA 2003, there was <em>"no material regard to the preseumption of innocence, or the overriding importance of avoiding conviction of the innocent."</em>ObiterJhttps://www.blogger.com/profile/04544226917595022902noreply@blogger.comtag:blogger.com,1999:blog-6110794854146484721.post-65975944759534182232011-02-22T18:48:27.484+00:002011-02-22T18:48:27.484+00:00Many thanks Peat Worrier. In Horncastle, Lord Bro...Many thanks Peat Worrier. In Horncastle, Lord Brown said:<br /><br />"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."<br /><br />There is much force in his view. See the judgment at para. 112 et seq.<br /><br />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.ObiterJhttps://www.blogger.com/profile/04544226917595022902noreply@blogger.comtag:blogger.com,1999:blog-6110794854146484721.post-45908862136049722692011-02-22T17:40:51.720+00:002011-02-22T17:40:51.720+00:00UK Supreme Court Justice Lord Brown mentioned Horn...UK Supreme Court Justice Lord Brown mentioned <i>Horncastle</i> 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.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.com