Tahery, R. v

Where hearsay evidence is central to proving guilt, the court must assess its reliability cumulatively. It must consider the evidence’s importance, any objective reasons to doubt it, supporting evidence, the defendant’s practical ability to challenge or rebut it, and whether directions can enable a proper jury assessment.

If the jury has no effective means of assessing a crucial and potentially unreliable statement, the statement should not be admitted. A general warning about the absence of cross-examination will not cure the resulting unfairness where the directions fail to identify the evidence’s critical and unsupported character or the particular obstacles to testing it.

The appellant was convicted at the Crown Court at Blackfriars of wounding with intent after a jury heard the statement of a witness who was too frightened to give evidence. The statement identified the appellant as the person who stabbed the complainant. It was admitted under the hearsay provisions of the Criminal Justice Act 2003.

An earlier Court of Appeal refused leave to appeal against conviction, but reduced the sentence. The European Court of Human Rights subsequently found a violation of Article 6 arising from the admission of the statement. Following a reference by the Criminal Cases Review Commission, the Court of Appeal had to decide whether the conviction was safe in light of R v Horncastle [2009] UKSC 14.

1. Appeal allowed; conviction quashed. The court held that the conviction was unsafe.

2. The court was bound to apply the principles in R v Horncastle [2009] UKSC 14. Any difference between those principles and the approach of the Grand Chamber in Al-Khawja and Tahery v UK was immaterial on the facts. The practical approach was sufficiently stated in R v Riat [2012] EWCA Crim 1509.

3. The relevant question was whether the jury could fairly assess and test the reliability of the absent witness’s statement. No individual consideration was decisive; their cumulative effect had to be assessed. The statement was effectively the only evidence identifying the appellant as the stabber. It was unsupported, the witness had apparent animosity towards the appellant, and his initial account to police was contradictory.

4. There was in reality no evidence available to rebut the statement. The appellant could not effectively call other witnesses from the close-knit community. The directions did warn the jury of the absence of cross-examination, but did not identify the statement as critical and unsupported, explain the value of cross-examination in exposing weaknesses, or address the risk that the police statement did not accurately reflect the witness’s intended evidence.

5. In those circumstances, the jury had no sufficient means of assessing the statement’s reliability. It should not have been admitted; and the directions given could not in any event remedy the disadvantage.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission, allowed the appeal and quashed the conviction: [2013] EWCA Crim 1053.
• European Court of Human Rights, Grand Chamber: Held that admission of the absent witness’s statement violated Article 6: Al-Khawja and Tahery v UK (2012) 54 EHHR 23.
• European Court of Human Rights, Fourth Section: Declared the application admissible and found a breach of Article 6: Al-Khawja and Tahery v UK (2009) 49 EHHR 1.
• Court of Appeal (Criminal Division): On 24 January 2006, refused leave to appeal against conviction, but reduced the sentence from nine to seven years.
• Crown Court at Blackfriars: On 29 April 2005, convicted the appellant of wounding with intent and imposed a sentence of nine years’ imprisonment.