Horncastle & Ors v R.

Article 6(3)(d) does not impose an absolute prohibition on a conviction based wholly or decisively on hearsay from an identified but absent witness. Where the safeguards in the Criminal Justice Act 2003 are rigorously applied, the decisive questions are whether absence is justified and whether the evidence is sufficiently reliable, or capable of proper testing and assessment, for the trial to be fair.

The statutory safeguard requiring a judge to stop a case based on unconvincing hearsay operates by reference to safety, not a mechanical sole-or-decisive rule. A witness may be unavailable through fear even where that fear was not induced by the defendant. A document admitted solely to explain police conduct must be clearly confined by the jury direction to that non-hearsay purpose.

Five appellants advanced three conjoined appeals from Crown Court convictions concerning hearsay evidence under the Criminal Justice Act 2003.

• Horncastle and Blackmore were convicted at Liverpool of causing grievous bodily harm with intent after the deceased victim’s written statement was admitted.
• Marquis and Graham were convicted at Nottingham of kidnapping after the complainant’s statements were admitted because she was too frightened to attend.
• Carter was convicted at Reading of distributing indecent photographs of children. The jury received an AOL memorandum which identified him as the account holder, although the Crown said it was tendered only to explain the police search.

The common issue was whether Article 6, particularly Article 6(3)(d), made convictions unsafe where hearsay was the sole or decisive evidence, notwithstanding the statutory safeguards.

1. Disposition. The court dismissed the conviction appeals of Horncastle, Blackmore, Marquis and Graham. It allowed Carter’s appeal because his conviction was unsafe. It refused leave to appeal against sentence for Horncastle and Blackmore.
2. Article 6 and hearsay. The court held that Al-Khawaja and Tahery v UK [2009] ECHR 26766/05 did not require it to exclude identified absent-witness hearsay merely because it was sole or decisive. Article 6(3)(d) has independent content, but it does not confer an absolute right to confront every prosecution witness. A trial remains compatible with Article 6 where the absence is justified and the safeguards in the Criminal Justice Act 2003 allow the reliability of the evidence to be properly assessed and the defence rights to be respected.
3. Statutory safeguards. Reliability and importance are distinct. Decisive hearsay may be compelling and safely testable; less important hearsay may be unreliable. Under section 125, the trial judge must stop a case which depends wholly or partly on hearsay if the hearsay is unconvincing and a conviction would be unsafe. That assessment should ordinarily follow all the evidence and must address the hearsay’s reliability, importance and place in the case as a whole. Hearsay nevertheless requires cautious handling at the admissibility stage.
4. Fear. Section 116 does not require a fearful witness’s fear to have been caused by the defendant or associates. Fear arising from a wider climate of intimidation may justify absence, provided all practicable steps have been taken to secure attendance, alternative protective measures have been considered, and admission is in the interests of justice.
5. Application to the first two appeals. The deceased victim’s statement was properly admitted. Its reliability could be tested against admissions, forensic evidence and other circumstances, and the jury received full warnings. The complainant’s fearful-witness statement was also properly admitted; other evidence independently supported both the kidnapping and the appellants’ involvement. The refusal to admit Gary Price’s statement was justified because he was not absent through fear and the defence sought to deploy only a misleading part of it.
6. Carter. Although the AOL memorandum was tendered only to explain why police searched Carter’s home, the judge failed to tell the jury that it was not evidence identifying him as the account holder. It could therefore have been used adversely. The omission was a material misdirection, so the conviction was unsafe.

• Court of Appeal (Criminal Division). The court dismissed the conviction appeals of Horncastle, Blackmore, Marquis and Graham, allowed Carter’s conviction appeal, and refused Horncastle and Blackmore leave to appeal against sentence.
• Crown Court at Liverpool. Horncastle and Blackmore were convicted on 29 November 2007 of causing grievous bodily harm with intent.
• Crown Court at Nottingham. Marquis and Graham were convicted on 12 May 2008 of kidnapping.
• Crown Court at Reading. Carter was convicted on 22 October 2008 of ten counts of distributing indecent photographs of children.