Published: Wed, 07 Mar 2018
Case Summary of R v Horncastle and others  UKSC 14 (SC)
R v Horncastle and others1 was an English legal case concerning the rules on hearsay evidence. The appellants claimed that English law on hearsay evidence violated Article 6 of the European Convention on Human Rights (ECHR) according to decisions of the European Court of Human Rights (ECtHR). The UK’s Supreme Court dismissed the appeal. Subsequent UK cases have followed the Supreme Court’s approach rather than the ECtHR. Therefore, this tension remains unresolved.
Article 6 ECHR states that everyone is entitled to a fair and public hearing by an independent tribunal2, and anyone charged with criminal offences has the right to be informed of the nature of the allegations, have adequate facilities to prepare his defence, and examine any witnesses against him3.
Hearsay evidence is ‘any statement…. other than one made…. by a witness in the course of oral testimony’4. This includes evidence given by someone who does not attend the trial and cannot be examined in person. Therefore, this potentially breaches Article 6 ECHR.
In R v Horncastle, the appellants had been convicted after hearsay evidence was used in their trials. They relied upon Al-Khawaja and Tahery v United Kingdom5, where the ECtHR held that that hearsay evidence would breach Article 6 ECHR if it was the ‘sole or decisive reason for conviction.’
Under English law, hearsay evidence is generally inadmissible evidence in court6. However, hearsay evidence may be used where the witness is unavailable and any condition in s.116 Criminal Justice Act 2003 (CJA) is satisfied. These are that the witness is dead or too ill to attend court, they are abroad or cannot be found, or they are in fear and the court regards that this will not unduly create unfairness to any party. There is also a general power under s.114 to admit hearsay evidence if a court thinks this would be in the interests of justice. Consequently, UK law conflicted with the ECtHR ruling.
Under s.2 Human Rights Act 1998 (HRA), UK courts must take into account prior decisions of the ECtHR. However, courts had differed over what ‘take into account’ actually meant7. The House of Lords had said that UK courts should follow ‘clear and constant’ decisions of the ECtHR8, yet the Lords also agreed that the HRA did not change the rules of precedent in the UK9. Therefore, how far UK courts should follow the ECtHR was a ‘hot topic’10.
R v Horncastle concerned several linked appeals. In the first appeal, the defendants were convicted of wounding with intent11. The victim gave a witness statement to the police but died before the trial. The judge allowed the evidence to be admitted under s.116 CJA. In the second appeal the defendants were convicted of kidnapping. The victim gave a statement to the police but did not attend the trial due to fears over her safety. Again, the judge admitted her evidence under s.116 CJA.
The defendants appealed on the basis that hearsay evidence had been the ‘sole or decisive’ reason behind their conviction and that this violated Article 6. The Court of Appeal dismissed the appeal. They then appealed to the Supreme Court.
On 9th December 2009 the Supreme Court delivered its judgment. Lord Phillips stated that although s.2 Human Rights Act 1998 normally required courts to take into account ECtHR decisions, there would be rare occasions where this would not happen12.
Lord Phillips said that the ‘sole or decisive’ test had been introduced by the ECtHR in Doorson v The Netherlands13 without any explanation of its underlying principles14. He stated that English law already had safeguards in place to protect the innocent and to ensure hearsay evidence was only admitted when it was fair to do so15.
Lord Phillips added that the ‘sole or decisive’ rule would create practical difficulties in English law in that any piece of evidence might be capable of being ‘decisive’16. Therefore, the appeals were dismissed and the Court declined to follow Al-Khawaja.
R v Horncastle confirms that ECtHR cases are only persuasive and not binding upon UK courts. However, the Supreme Court did not absolutely reject the authority of Strasbourg17. Instead, it suggested UK courts enter into a dialogue with the ECtHR where it had not taken into account an aspect of UK law18. Critics say this is consistent with s.2 HRA 199819. However, consequently there exist at present two conflicting approaches to dealing with hearsay. Some academics call this ‘frustrating’20.
In R v Ibrahim (Dahir)21the Court of Appeal considered these two approaches but denied there was any difference between them22. The Court held that the ‘interests of justice’ test in s.114 CJA would help judges decide whether hearsay evidence was ‘sole or decisive’. However, s.114 by itself does not resolve the conflict between R v Horncastle and Al-Khawaja23. In R v Riat24 the Court of Appeal confirmed that, where there was a conflict between the Supreme Court and the ECtHR, UK courts should follow the Supreme Court. Therefore, the conflict of laws still exists.
Ormerod says that English law contains enough safeguards to prevent hearsay evidence violating Article 6 ECHR. Section 116 CJA states that hearsay may only be used if it is not reasonably practicable to bring the witness before the court either in person or by video link.25. The provisions for witnesses who are in ‘fear’ include that the court must consider it is in the interests of justice to admit hearsay26. This aims to ensure that any trial is fair and the conviction safe27. When considering if hearsay is in the interests of justice, courts must look at factors listed in s.114(2). Therefore, this is not a blanket power to admit hearsay28.
In Riat the Court quashed one of the convictions where there were inadequate efforts to get fearful witnesses to court29. Also, under s.78 Police and Criminal Evidence Act 1984 courts may refuse to admit evidence that is unfairly obtained. This further guards against the unfair use of hearsay evidence30.
In R v Horncastle the Supreme Court refused to follow the ECtHR, despite s.2 HRA 1998, over the issue of when hearsay evidence should be used. The UK Court pointed out the lack of clarity and practical difficulties in the European approach. Therefore, two alternative approaches exist. However, it is submitted that UK law contains enough safeguards to ensure that the use of hearsay does not violate Article 6 ECHR.
1 2009 UKSC 14 (SC).
2 Article 6(1) ECHR 1950.
3 Ibid, Art 6(3).
4 R v Horncastle para 21 per Lord Phillips.
5 (26766/05) 2009 49 EHRR 1 (ECtHR).
6 D Ormerod, ‘Case Comment: R v Riat: hearsay – guidance – Horncastle – Al-Khawaja and Tahery Court of Appeal (Criminal Division): Hughes L.J., Dobbs J. D.B.E. and Globe J.: July 11, 2012; 2012 EWCA Crim 1509″ 2013 1 Crim LR 61.
7C De Than and E Shorts, Human Rights Law (3rd edn, Pearson Education, Harlow 2014) 7.
8 R (on the application of Holding & Barnes Plc) v Secretary of State for the Environment 2001 UKHL 23 (HL).
9 Kay v Lambeth LBC 2006 UKHL 10 (HL).
10 De Than and Shorts (n7) 8.
11 Offences Against the Person Act 1861, s.18.
12 R v Horncastle and others 2009 UKSC 14 (SC) para 21 per Lord Phillips.
13 Ibid, para 38.
14 Ibid, para 86.
16 Ibid, para 90.
17 I Loveland, Constitutional, Law, Administrative Law and Human Rights: A Critical Introduction (7th edn, Oxford University Press, Oxford 2015) 676.
18 R v Horncastle and others 2009 UKSC 14 (SC) para 11 per Lord Phillips.
19 Loveland (n17) 676.
20 F Stark, ‘Reconciling the irreconcilable?’ 2012 71(3) CLJ 476.
21 2012 EWCA Crim 837 (CA).
22 Ibid, para 88 per Aikens, LJ.
23 Stark (n20) 477.
24 2012 EWCA Crim 1509 (CA)
25 Ormerod (n6) 61.
26 CJA 2003, s.116(3) and (4).
27 Ormerod (n6) 61.
28 Ibid, 62.
29 R v Riat 2012 EWCA Crim 1509 (CA) at para 62 per Aiken LJ.
30 Ormerod (n6) 67.
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