The essay below was written by Jack Torbet, one of our two runners up in the UKSC Blog essay competition. Jack’s essay was written in response to the question ‘What has been the most important Supreme Court case to date and why?’
There are few cases in the repertoire of the Supreme Court as important as R v Horncastle. Many characterise it as a zealous defence of English criminal law against European affront, but I see it as an affirmation of the role that the Supreme Court was always empowered to fulfil. The case highlights the pertinence and value of inter-court dialogue, specifically in the context of the European Court of Human Rights. Below I detail why I consider Horncastle the most significant case of the UK Supreme Court to date.
Horncastle was the first opportunity for the Supreme Court to comment on the judgment of the ECtHR in Al-Khawaja and Tahery v United Kingdom. The ECtHR held that the admission of untested hearsay evidence in a criminal trial, where that evidence could not be cross-examined and was sole or decisive in conviction, amounted to a violation of the right to a fair trial as guaranteed by the European Convention of Human Rights. Horncastle addressed the same legal questions as Al-Khawaja. However, rather than apply the Strasbourg judgment, the Supreme Court in Horncastle set about a detailed explanation of the Criminal Justice Act 2003, under which the evidence in both Al-Khawaja and Horncastle was admitted, and encouraged the Grand Chamber of the ECtHR to reconsider its position.
And sure enough, as is evident from the Grand Chamber’s judgment of Al-Khawaja, Strasbourg listened.
The ECtHR scrutinised the provisions of English criminal law and following consideration of the Supreme Court’s judgment, found that the safeguards present in the 2003 Act and relevant common law were sufficient and that a violation of the right to a fair trial would not automatically occur, should untested hearsay evidence be admitted.The Grand Chamber accordingly found that no violation had occurred in the case of Mr Al-Khawaja, but that one had occurred in the joined case of Mr Tahery.
The Importance of Horncastle
What is remarkable about Supreme Court’s judgment in Horncastle is not that it changed the course of the Grand Chamber judgment or indeed, the outcome of either case, but that it demonstrates an important role of the European human rights system: a forum for discussion and improvement of law.
Horncastle and the subsequent reconsideration by the Grand Chamber say something crucial about subsidiarity. Subsidiarity remains a key feature in international law and its execution at the national level. Domestic courts are almost always better placed to apply and analyse domestic law. As such, it is fundamental that domestic courts have a central role in the development of international jurisprudence where its application will be domestic. The dialogue in Horncastle between the Supreme Court and Strasbourg shows such an interaction. It is an assertion by the Supreme Court of the role it must play in the advancement and application of law.
Throughout the Horncastle judgment, it is clear that the judgment is meant to engage the judges in Strasbourg. Lord Philips sets out nine separate conclusions through which he highlights the advantages of the English system, and where he believes the jurisprudence of Strasbourg is unclear [Para 14]. His language and reasoning throughout invite the Grand Chamber to reconsider.[Paras 117 & 118]
This approach and its reception by Strasbourg clearly intimate a collaborative and thus, more informed, approach to assessment of domestic law. Without going so far as to have too many jurists spoiling the human rights broth, this can only be seen as beneficial for the clarity of law, validity of judgments and the interests of justice.
Dialogue between the Supreme Court and Strasbourg holds notable political value too. The Horncastle judgment generated the opportunity to work together in rigorous assessment of the treatment of human rights in domestic law. The United Kingdom has, especially in recent years, had a tempestuous relationship with the ECtHR, and while it might not have received as much press as Hirst, Greens and M.T. (prisoner voting) or Othman (deportation of foreign criminals), the initial Al-Khawaja judgment was considered by some as meddlesome European interference.
Mutual respect from both courts goes some way to remedy the image of a haughty, uninformed European bureaucracy painted of the Strasbourg court by little-Englander media. The Supreme Court also benefits. It appears assertive, confident, and a viable international actor. While some childishly consider Horncastle a triumph over Strasbourg, I believe such judicial cooperation ultimately strengthens the position of both courts and ameliorates the political reception of their decisions.
Sir Nicholas Bratza noted in his separate concurring Grand Chamber judgment in Al-Khawaja:
“The Horncastle case was decided by the Supreme Court . . . to enable the criticisms of that judgment [Al-Khawaja] to be examined . . . ” [Para 2 of the Concurring Opinion of Judge Bratza]
Horncastle does not undermine the knowledge of European judges or their ability to rule on domestic matters, nor should it have done so. To do that, would be to jeopardise a crucial element in human rights protection. Rather, it serves to buttress the ECtHR’s ultimate judgement both legally and politically. The Supreme Court has the unique power to validate and contribute to international decisions. In Horncastle it did so and the juridical process has consequently benefitted. Personally, I hope that Horncastle marks the dawn of a new, more collaborative and deliberative approach to judicial reasoning. As such, the value of R v Horncastle is clear; I consider it the most important case of the Supreme Court to date.