R v Horncastle and others (on appeal from the Court of Appeal Criminal Division)

Articles 6(1) and 6(3)(d) of the European Convention on Human Rights do not impose an inflexible rule that a conviction is unfair whenever it rests solely or decisively on evidence from an absent witness whom the accused could not examine. The governing question is whether the proceedings as a whole were fair.

The carefully defined admissibility conditions and safeguards in the Criminal Justice Act 2003 protect that fairness. They permit reliable hearsay evidence where justice requires it, even when the evidence is decisive. A domestic court may exceptionally decline to follow Strasbourg jurisprudence where it does not sufficiently accommodate a material feature of domestic procedure, provided the court gives reasons.

Four appellants challenged convictions for serious offences after statements made by victims who did not testify were read to their juries. The first victim had died. The second was absent through fear. Their statements were admitted under section 116 of the Criminal Justice Act 2003.

The Court of Appeal dismissed the appeals in [2009] EWCA Crim 964, holding that the statutory hearsay regime produced fair trials. The appellants appealed to the Supreme Court.

The principal issue was whether articles 6(1) and 6(3)(d) necessarily make a trial unfair when a conviction is based solely or to a decisive extent on the statement of a witness whom the accused had no opportunity to examine.

1. The appeals were dismissed unanimously. Lord Phillips delivered the judgment with which every member of the Court agreed. Lord Brown added concurring reasons.

2. Section 2(1) of the Human Rights Act 1998 requires domestic courts to take Strasbourg judgments into account. It will normally lead the Supreme Court to apply clearly established Strasbourg principles. Exceptionally, however, the Court may decline to follow a Strasbourg decision where it has concerns that the decision does not sufficiently appreciate or accommodate an aspect of domestic procedure. It must explain its reasons, thereby permitting judicial dialogue.

3. The Chamber decision in Al-Khawaja and Tahery v United Kingdom did not require the domestic courts to apply an inflexible “sole or decisive” rule. That rule was absent from the text of article 6(3)(d), had entered the Strasbourg authorities without adequate explanation, and had developed without full consideration of common-law safeguards. Its rigid application would also create serious practical problems, particularly in jury trials.

4. The essential inquiry under articles 6(1) and 6(3)(d) is the fairness of the proceedings as a whole. Justice may require the admission of a statement where a witness is dead, untraceable or unavailable through fear. The importance of the evidence increases the need for careful scrutiny of its reliability and of the available safeguards, but does not create an automatic prohibition.

5. The Criminal Justice Act 2003 establishes a carefully constructed code. Hearsay is admissible only within defined categories. The judge acts as gatekeeper, the absent witness's credibility may be challenged, and section 125 requires the judge to stop a case where the hearsay is so unconvincing that a conviction would be unsafe. Sections 126 and 78 of the Police and Criminal Evidence Act 1984 preserve powers to exclude evidence whose admission would impair fairness. Appropriate jury directions and appellate review provide further protection.

6. The statutory scheme therefore strikes a proper balance between the imperative of a fair trial and the interests of victims and society in the conviction of offenders on demonstrably reliable evidence. The relevant statements in both sets of appeals were properly admitted. The Court found no basis for differing from the Court of Appeal's rejection of the separate challenges to their reliability and admission.

1. United Kingdom Supreme Court: The Court unanimously dismissed the appeals in [2009] UKSC 14 and upheld the Court of Appeal's conclusions on fairness and admissibility.
2. Court of Appeal (Criminal Division): In [2009] EWCA Crim 964, a five-judge court dismissed the appeals against conviction. It held that the statutory hearsay regime produced fair trials and did not have to be modified by an inflexible sole-or-decisive rule.
3. Crown Court trials: Horncastle and Blackmore were convicted of causing grievous bodily harm with intent. Marquis and Graham were convicted of kidnapping.