R v Horncastle
Encyclopedia
R v Horncastle & Others [2009] UKSC 14 was a significant judgment of the Supreme Court of the United Kingdom
regarding hearsay evidence and the compatibility of UK hearsay law with the right to a fair trial under Article 6 of the European Convention on Human Rights
(ECHR). The case represents another stage in the judicial dialogue between the European Court of Human Rights
(ECtHR) and the higher courts of the United Kingdom about whether it is acceptable to base convictions "solely or to a decisive extent" on evidence made by a witness who is identified but does not appear in court (for example, in a witness statement made to the police).
A panel of 7 judges sat in the case, including the President of the Supreme Court, Lord Phillips, the Lord Chief Justice, Lord Judge and the Master of the Rolls
, Lord Neuberger. The court unanimously affirmed the decision of the Court of Appeal and dismissed the appeals of several defendants who were convicted on the basis of statements of absent witnesses.
The case can be viewed as a direct response to the European Court of Human Rights ruling in Al-Khawaja v United Kingdom (2009) 1 EHRR 49 in which the facts were legally very similar. In this case the ECtHR ruled against the state and found that while it was justifiable to allow hearsay evidence in some circumstances, it was likely never permissible for a conviction to be based solely or decisively on such evidence. Al-Khawaja is currently being appealed by the United Kingdom and a decision by the Grand Chamber (a larger panel of judges which could overturn the initial decision) is expected in future.
Previous cases in the European Court of Human Rights such as Lucà v Italy and Kostovski v Netherlands concerned trials in which either the testimony of anonymous witnesses or witness statements made by witnesses who were not called in court were accepted as evidence. The European Court accepted that while allowing this sort of evidence did prima facie
breach a defendants rights under Article 6(3)(d), this was acceptable so long as sufficient counter-balances were present. The court maintained the caveat that although this sort of evidence was normally acceptable, it was never appropriate for a conviction
to be based solely or decisively on this sort of untested evidence.
In Al-Khawaja v United Kingdom (2009) 49 EHRR 1, two applications to the ECtHR were made by men who had been convicted on criminal charges on the basis of untested hearsay statements. In one case a defendant was convicted of indecent assault on the basis of the statement of a woman who had subsequently committed suicide, in the other a defendant was convicted of wounding with intent (contrary to section 18 of the Offences against the Person Act 1861
) on the basis of a statement made by the victim, who had been unwilling to testify in court. The ECtHR found that in both cases the state was in breach of Article 6 by allowing convictions to be based "solely or decisively" on hearsay evidence.
with intent. Their convictions were based "to a decisive extent" on a statement made by the victim of the alleged offence, who had later died (the cause of his death was "not attributable to the injuries" he suffered). The other appellants were convicted of kidnapping
, in this case their conviction was found to have been based "to a decisive extent" on a statement made by the victim who had not attended the trial due to fear.
Under the Criminal Justice Act 2003
, it was permissible for the trial judges in each case to allow this evidence to be presented in this way. The Act provided for a general presumption that hearsay evidence should not be allowed in criminal trials but this presumption could be defeated when witnesses were unavailable due to one of a number of prescribed reasons (including the witness having died before the trial under section 116(2)(a) or the witness being unavailable for trial due to fear under section 116(2)(e).
The Act also provided a number of safeguards and exceptions which allowed judges to exclude unsafe or unfair hearsay evidence, permitted opposing counsel additional grounds to attack the credibility of absent witnesses and gave the judge a discretionary power to stop the case if the prosecution's case was based to any extent on hearsay evidence and was not convincing. The Act did not make any mention of the evidence of absent witnesses which was the "sole or decisive" basis of a conviction, (although this rule is one of the criteria which must be considered by a judge when determining if a witness should be allowed anonymity).
In the Court of Appeal (Criminal Division)
an augmented panel of five judges unanimously affirmed the convictions of the appellants, declining to follow the "sole or decisive" rule found in the ECtHR cases and expressing support for the code of statutory provisions on hearsay contained within sections 114 to 136 of the Criminal Justice Act 2003. Their reasons were often similar to those in the Supreme Court, and in his judgment Lord Phillips expressed approval of the Court of Appeal's reasoning and stated that the two rulings were best read as a whole.
between the 7th and 9th July 2009. Senior Counsel were Tim Owen
QC and Shaun Smith QC for the two sets of appellants and David Perry
QC for the Crown in response. An extended panel of 7 Justices heard the case, which is common practice when a case raises important human rights issues.
On 9th December 2009, the Court ruled unanimously in favour of the crown and dismissed the appeals. The Court's President Lord Phillips gave the leading judgment, with which the rest of the court agreed, although Lord Brown
added some brief comments and Lord Mance prepared an annex detailing the history of similar cases in the ECtHR.
The court began by asserting that it was not bound by the ECtHR precedent. It confirmed that under section 2 of the Human Rights Act 1998
it was required to "take into account" Strasbourg cases and this meant that on rare occasions, they did not need to be followed.
Lord Phillips then set out his reasons for dismissing the appeal. His reasoning centred around the ECtHR's perceived failure to accommodate UK law, both in terms of a failure to appreciate the strengths of the common law
tradition with regard to criminal evidence and those of the current law which "render the sole or decisive rule unnecessary".
The court felt that it was significant that it was significant that UK law had long incorporated safeguards against untested, hearsay evidence and this had ensured that the rights encompassed by article 6(3)(d) had long been protected by English law. The system in the UK was compared to the that of France at the time of the Convention's creation. In this system, and other continental criminal procedures, a formal inquisitorial process was conducted by a judge before the trial itself, which lacked, according to Lord Phillips, many of the constituent rights attached to the concept of a fair trial, for example a lack of rules of evidence and the interrogation of witnesses in the absence of the defendant. It was suggested that the purpose of the rights codified in article 6 was to prevent this type of conduct, and was not designed to have a major effect on common law systems.
The current statutory regime enacted by the Criminal Justice Act 2003 was also praised as a "crafted code" which ensured that hearsay evidence was properly admitted. It was noted that the current system was heavily influenced by the Law Commission
and by consultation with experts. It was suggested that to introduce the "sole or decisive rule" without discussion or consideration would damage this code.
The court also noted that the rule would create practical difficulties in the criminal system, and that it was virtually always the case that UK law did exclude evidence that fell within the "sole or decisive rule".
Another observation made was that the rule is paradoxical; it results in spurious or weak hearsay evidence which would not result in a conviction alone being admitted, while stronger, damning evidence which is likely to achieve a conviction even in the absence of further evidence being excluded. It was suggested that this approach did not make sense, and that good systems tend to exclude weak, not strong evidence.
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
regarding hearsay evidence and the compatibility of UK hearsay law with the right to a fair trial under Article 6 of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(ECHR). The case represents another stage in the judicial dialogue between the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
(ECtHR) and the higher courts of the United Kingdom about whether it is acceptable to base convictions "solely or to a decisive extent" on evidence made by a witness who is identified but does not appear in court (for example, in a witness statement made to the police).
A panel of 7 judges sat in the case, including the President of the Supreme Court, Lord Phillips, the Lord Chief Justice, Lord Judge and the Master of the Rolls
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the second most senior judge in England and Wales, after the Lord Chief Justice. The Master of the Rolls is the presiding officer of the Civil Division of the Court of Appeal...
, Lord Neuberger. The court unanimously affirmed the decision of the Court of Appeal and dismissed the appeals of several defendants who were convicted on the basis of statements of absent witnesses.
The case can be viewed as a direct response to the European Court of Human Rights ruling in Al-Khawaja v United Kingdom (2009) 1 EHRR 49 in which the facts were legally very similar. In this case the ECtHR ruled against the state and found that while it was justifiable to allow hearsay evidence in some circumstances, it was likely never permissible for a conviction to be based solely or decisively on such evidence. Al-Khawaja is currently being appealed by the United Kingdom and a decision by the Grand Chamber (a larger panel of judges which could overturn the initial decision) is expected in future.
Background
Article 6 of the European Convention on Human Rights guarantees a fair trial to anybody charged with a criminal offence. As a subset of this general right, accused persons are entitled to benefit from a number of "minimum rights", one of which under Article 6(3)(d) is the right to cross-examine prosecution witnesses.Previous cases in the European Court of Human Rights such as Lucà v Italy and Kostovski v Netherlands concerned trials in which either the testimony of anonymous witnesses or witness statements made by witnesses who were not called in court were accepted as evidence. The European Court accepted that while allowing this sort of evidence did prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
breach a defendants rights under Article 6(3)(d), this was acceptable so long as sufficient counter-balances were present. The court maintained the caveat that although this sort of evidence was normally acceptable, it was never appropriate for a conviction
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
to be based solely or decisively on this sort of untested evidence.
In Al-Khawaja v United Kingdom (2009) 49 EHRR 1, two applications to the ECtHR were made by men who had been convicted on criminal charges on the basis of untested hearsay statements. In one case a defendant was convicted of indecent assault on the basis of the statement of a woman who had subsequently committed suicide, in the other a defendant was convicted of wounding with intent (contrary to section 18 of the Offences against the Person Act 1861
Offences Against The Person Act 1861
The Offences against the Person Act 1861 is an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to offences against the person from a number of earlier statutes into a single Act...
) on the basis of a statement made by the victim, who had been unwilling to testify in court. The ECtHR found that in both cases the state was in breach of Article 6 by allowing convictions to be based "solely or decisively" on hearsay evidence.
Facts
Two of the Appellants had been convicted of committing grievous bodily harmGrievous bodily harm
Grievous bodily harm is a term of art used in English criminal law which has become synonymous with the offences that are created by sections 18 and 20 of the Offences against the Person Act 1861....
with intent. Their convictions were based "to a decisive extent" on a statement made by the victim of the alleged offence, who had later died (the cause of his death was "not attributable to the injuries" he suffered). The other appellants were convicted of kidnapping
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
, in this case their conviction was found to have been based "to a decisive extent" on a statement made by the victim who had not attended the trial due to fear.
Under the Criminal Justice Act 2003
Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
, it was permissible for the trial judges in each case to allow this evidence to be presented in this way. The Act provided for a general presumption that hearsay evidence should not be allowed in criminal trials but this presumption could be defeated when witnesses were unavailable due to one of a number of prescribed reasons (including the witness having died before the trial under section 116(2)(a) or the witness being unavailable for trial due to fear under section 116(2)(e).
The Act also provided a number of safeguards and exceptions which allowed judges to exclude unsafe or unfair hearsay evidence, permitted opposing counsel additional grounds to attack the credibility of absent witnesses and gave the judge a discretionary power to stop the case if the prosecution's case was based to any extent on hearsay evidence and was not convincing. The Act did not make any mention of the evidence of absent witnesses which was the "sole or decisive" basis of a conviction, (although this rule is one of the criteria which must be considered by a judge when determining if a witness should be allowed anonymity).
In the Court of Appeal (Criminal Division)
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
an augmented panel of five judges unanimously affirmed the convictions of the appellants, declining to follow the "sole or decisive" rule found in the ECtHR cases and expressing support for the code of statutory provisions on hearsay contained within sections 114 to 136 of the Criminal Justice Act 2003. Their reasons were often similar to those in the Supreme Court, and in his judgment Lord Phillips expressed approval of the Court of Appeal's reasoning and stated that the two rulings were best read as a whole.
Judgment
Arguments were made in the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
between the 7th and 9th July 2009. Senior Counsel were Tim Owen
Tim Owen
Timothy Francis "Tim" Owen AM MSS MP, is an Australian politician and a former deputy commander of the Australian forces. He is a member of the New South Wales Legislative Assembly representing the electoral district of Newcastle for the Liberal Party of Australia since the 2011 New South Wales...
QC and Shaun Smith QC for the two sets of appellants and David Perry
David Perry (barrister)
David Perry QC is a senior English criminal barrister.Perry was called to the bar in 1980 and took silk in 2006. He has built a reputation as a prosecutor in appeal courts, appearing in the House of Lords around 56 times before its abolition...
QC for the Crown in response. An extended panel of 7 Justices heard the case, which is common practice when a case raises important human rights issues.
On 9th December 2009, the Court ruled unanimously in favour of the crown and dismissed the appeals. The Court's President Lord Phillips gave the leading judgment, with which the rest of the court agreed, although Lord Brown
Simon Brown, Baron Brown of Eaton-under-Heywood
Simon Denis Brown, Baron Brown of Eaton-under-Heywood, PC, is a British lawyer and Justice of the Supreme Court of the United Kingdom.-Early life:...
added some brief comments and Lord Mance prepared an annex detailing the history of similar cases in the ECtHR.
The court began by asserting that it was not bound by the ECtHR precedent. It confirmed that under section 2 of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
it was required to "take into account" Strasbourg cases and this meant that on rare occasions, they did not need to be followed.
Lord Phillips then set out his reasons for dismissing the appeal. His reasoning centred around the ECtHR's perceived failure to accommodate UK law, both in terms of a failure to appreciate the strengths of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
tradition with regard to criminal evidence and those of the current law which "render the sole or decisive rule unnecessary".
The court felt that it was significant that it was significant that UK law had long incorporated safeguards against untested, hearsay evidence and this had ensured that the rights encompassed by article 6(3)(d) had long been protected by English law. The system in the UK was compared to the that of France at the time of the Convention's creation. In this system, and other continental criminal procedures, a formal inquisitorial process was conducted by a judge before the trial itself, which lacked, according to Lord Phillips, many of the constituent rights attached to the concept of a fair trial, for example a lack of rules of evidence and the interrogation of witnesses in the absence of the defendant. It was suggested that the purpose of the rights codified in article 6 was to prevent this type of conduct, and was not designed to have a major effect on common law systems.
The current statutory regime enacted by the Criminal Justice Act 2003 was also praised as a "crafted code" which ensured that hearsay evidence was properly admitted. It was noted that the current system was heavily influenced by the Law Commission
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
and by consultation with experts. It was suggested that to introduce the "sole or decisive rule" without discussion or consideration would damage this code.
The court also noted that the rule would create practical difficulties in the criminal system, and that it was virtually always the case that UK law did exclude evidence that fell within the "sole or decisive rule".
Another observation made was that the rule is paradoxical; it results in spurious or weak hearsay evidence which would not result in a conviction alone being admitted, while stronger, damning evidence which is likely to achieve a conviction even in the absence of further evidence being excluded. It was suggested that this approach did not make sense, and that good systems tend to exclude weak, not strong evidence.
See also
- 2009 Judgments of the Supreme Court of the United Kingdom2009 Judgments of the Supreme Court of the United KingdomThis is a complete list of the judgments given by the Supreme Court of the United Kingdom between the court's opening on 1 October 2009 and the end of that year. Most of the cases were heard in the House of Lords before judgments were given in the new Supreme Court...
- Hearsay in English LawHearsay in English LawThe hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005....
- Article 6 of the European Convention on Human Rights
- Supreme Court of the United KingdomSupreme Court of the United KingdomThe Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...