R v Horncastle

This case concerns whether a conviction based "solely or to a decisive extent" on the statement of a witness whom the defendant had no opportunity to cross-examine necessarily breaches article 6(1) and article 6(3)(d) of the European Convention on Human Rights. The court analysed the statutory scheme in the Criminal Justice Act 2003 (notably sections 114–126 and section 116) and related domestic safeguards, the common‑law role of the trial judge as gatekeeper and the residual exclusionary power in section 78 of the Police and Criminal Evidence Act 1984. The court concluded that the CJA 2003 contains carefully drafted safeguards (including identification, the interests‑of‑justice test for fearful witnesses, section 125 stopping power and the section 126 exclusion power) which render a universal "sole or decisive" rule unnecessary in this jurisdiction.

Applying those principles, the Supreme Court endorsed the Court of Appeal’s conclusions and dismissed the appeals. The court declined to treat the Chamber judgment in Al‑Khawaja as determinative for the United Kingdom: it found the Strasbourg jurisprudence on the "sole or decisive" rule insufficiently attentive to common‑law safeguards and impractical for jury trials in England and Wales, and invited further consideration by the Grand Chamber.

Background and parties. Each appellant had been convicted on indictment and had their appeals dismissed by the Court of Appeal. Horncastle and Blackmore were convicted of causing grievous bodily harm where the alleged victim (Peter Rice) had died before trial; his police statement was read to the jury pursuant to section 116(1) and (2)(a) of the Criminal Justice Act 2003. Marquis and Graham were convicted of kidnapping where the complainant (Hannah Miles) absented herself through fear; her statement was admitted under section 116(1) and (2)(e) CJA 2003.

Procedural posture. The appeals to the Supreme Court were brought from the Court of Appeal (Criminal Division) [2009] EWCA Crim 964. The principal legal question was whether a conviction "solely or to a decisive extent" on the basis of hearsay or anonymous evidence that cannot be tested by cross‑examination necessarily breaches article 6(1) and 6(3)(d). The case was heard alongside consideration of the Chamber judgment in Al‑Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1, which had propounded a "sole or decisive" rule.

Issues framed by the court.

• Whether the statutory regime enacted by Parliament for admitting statements of unavailable witnesses produces an unfair trial in breach of article 6.
• Whether Strasbourg jurisprudence, especially the "sole or decisive" formulation in Al‑Khawaja, requires the United Kingdom courts to adopt an absolute or overriding rule contrary to Parliament’s scheme and domestic practice.

Reasoning and analysis. The court surveyed the common law and statutory exceptions to the hearsay rule, emphasising two features of the common‑law adversarial system: the jury as fact‑finder and the judge as gatekeeper. It summarised the CJA 2003 scheme: limited categories of admissible hearsay, special provisions for unavailable witnesses (section 116), business records (section 117), special stipulations applicable to hearsay (sections 121–126), a duty to stop a case under section 125 where a case depends wholly or partly on unconvincing hearsay, and preservation of the exclusion power in PACE section 78 (reflected in section 126 of the CJA 2003). The court found that the Law Commission’s considered code, Parliament’s amendments (including the Criminal Evidence (Witness Anonymity) Act 2008) and domestic safeguards together address the risks that the Strasbourg "sole or decisive" test sought to police.

The court examined Strasbourg authority and concluded that the "sole or decisive" formulation had been introduced without full consideration of common‑law safeguards and was of doubtful utility and practicality in jury trials in England and Wales. Applying those conclusions, the court held that Al‑Khawaja did not require this court to apply a categorical "sole or decisive" prohibition and that the CJA 2003 regime, properly applied, strikes the right balance between fairness to defendants and interests of victims and society. The court also considered, and rejected, subsidiary arguments that the particular statements in the appeals ought to have been excluded on unreliability or other discretionary grounds.

Relief sought and disposition. Each appellant sought to quash conviction(s) on article 6 grounds. The Supreme Court dismissed the appeals, upholding the Court of Appeal’s reasoning and conclusions and relying on the statutory safeguards and the judge’s residual powers to exclude evidence. The court invited the Strasbourg Grand Chamber to reconsider the Chamber’s approach in Al‑Khawaja in light of the domestic framework.

The appeals are dismissed. The Supreme Court held that the Criminal Justice Act 2003 and related domestic safeguards (including the judge’s gatekeeper role and the exclusionary power in section 78 PACE) provide adequate protection against unfairness and that an inflexible "sole or decisive" rule is unnecessary and impractical in the English adversarial system. The court therefore declined to treat the Chamber decision in Al‑Khawaja as determinative in this jurisdiction and found no basis to exclude the statements admitted in the separate appeals.

Appeal to the Supreme Court from the Court of Appeal (Criminal Division) [2009] EWCA Crim 964. The Court of Appeal had dismissed each appellant’s appeal against conviction; the Supreme Court heard the appeals and dismissed them on 9 December 2009. The judgment also addressed the then‑recent Chamber judgment in Al‑Khawaja and the UK request for referral to the Grand Chamber, which the Grand Chamber panel adjourned pending this decision.