The decision of the Supreme Court in R v Horncastle [2009] UKSC 14 is potentially of great importance for two reasons.  First, it considers the implications for the contemporary law of hearsay in England and Wales, as encapsulated in the Criminal Justice Act 2003, of Article 6(3)(d) of the European Convention on Human Rights, which guarantees everyone charged with a criminal offence the right “to examine or have examined witnesses against him”.  Secondly, it considers the obligation placed on courts by section 2(1) of the Human Rights Act 1998 to “take into account” jurisprudence of the European Court of Human Rights “so far as, in the opinion of the court …, it is relevant to the proceedings”.  The UKSC was required to resolve an apparent direct conflict between the judgment of the European Court of Human Rights in Al-Khawaja and Tahery v UK (2009) 49 EHRR 1 and the decision of the Court of Appeal from which the appeal was brought, R v Horncastle [2009] EWCA Crim 964.

In Al-Khawaja, the European Court of Human Rights appeared to propound a rule whereby the introduction in evidence of a hearsay statement which constituted the sole or decisive evidence against the defendant would breach article 6(3)(d) and the general right to a fair trial under article 6, unless the defendant had had an opportunity at some stage to cross-examine the maker of the statement, or unless the maker of the statement was kept from giving evidence through fear induced by the defendant.  The Court of Appeal in Horncastle considered, however, that, “provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d), if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003. … Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected … and the trial is fair” ([2009] EWCA Crim 964, [79]).

The appellants in Horncastle had been convicted of serious criminal offences, the prosecution evidence including evidence of statements of the victims of the alleged offences that was admitted under section 116 of the 2003 Act.  In one case the witness had died before the trial, and in the other the witness had run away the day before the trial because she was too frightened to give evidence.  The appeals against conviction were dismissed by the Court of Appeal.

The Supreme Court unanimously dismissed the appellants’ appeals, Lord Phillips delivering a judgment with which the other six members of the Court – Lady Hale, Lord Brown, Lord Mance, Lord Neuberger, Lord Kerr and Lord Judge – agreed.  Lord Phillips noted ([2009] UKSC 14, [11]) that “[t]he requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court”.  The present case, however, represented one of the “rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process.  In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.” 

Among the reasons put forward in support of this conclusion were the following.

First, Lord Phillips was prepared to accept that the provisions of the 2003 Act, which “contain[ed] a crafted code intended to ensure that evidence is admitted only when it is fair that it should be” (at [36]), were being applied cautiously by the courts (at [39]).  While “the justification for the sole or decisive test would appear to be that the risk of an unsafe conviction based solely or decisively on anonymous or hearsay evidence is so great that such a conviction can never be permitted”, the provisions of the 2003 Act represented a “less draconian” way of protecting against the risk of an unsafe conviction (at [92]). 

Secondly, a rule excluding hearsay evidence that constituted the sole or decisive evidence against the defendant did not exist in Canada, Australia or New Zealand (at [41], referring to the analysis of the position in these jurisdictions presented in Annexe 1). 

Thirdly, the criminal procedure of England and Wales differed from that which was traditionally to be found in civil law jurisdictions:  “In this jurisdiction there is no judicial investigation, in the course of which a confrontation can take place between witnesses and the suspect.  The investigation into a crime is carried out by the police, who do not act as judicial officers” (at [62]). 

Fourthly, it might be difficult to determine in a particular case whether hearsay evidence constitutes the “decisive” evidence against the defendant:  “The judge will have to rule inadmissible any witness statement capable of proving ‘decisive’.  This will be no easy task … If ‘decisive’ means capable of making the difference between a finding of guilt and innocence, then all hearsay evidence will have to be excluded” (at [90]). 

Fifthly, an analysis of Strasbourg cases in which violations of article 6(3)(d) had been found (presented in Annexe 4) revealed that, if the law of England and Wales had been applied in these cases, the relevant evidence would have been declared inadmissible, and the defendant would not have been convicted, in almost all of them.  This was taken to “suggest that in general our rules of admissibility provide the defendant with at least equal protection to that provided under the continental system” (at [93]).

Lord Phillips did not shy away from using emotive language to support his rejection of a sole or decisive test: 

“If applied rigorously it will in some cases result in the acquittal, or failure to prosecute, defendants where there is cogent evidence of their guilt. This will be to the detriment of their victims and will result in defendants being left free to add to the number of those victims” (at [105]). 

The following hypothetical was considered to provide a clear illustration of the inappropriateness of adopting such a test (at [91]):

“A visitor to London witnesses a hit and run road accident in which a cyclist is killed.  He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard.  He then returns to his own country, where he is himself killed in a road accident.  The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard.  The owner declines to answer questions as to his whereabouts at the time of the accident.  It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test.”

Three brief comments may be made about the decision of the Supreme Court in Horncastle.  First, it places considerable faith in the ability of a proper application of the provisions of the 2003 Act to ensure that hearsay evidence introduced at trial is reliable.  One might question whether such a degree of faith is warranted.  Secondly, discussion of a somewhat larger issue of principle is avoided.  This is the issue of whether the sole concern of article 6(3)(d) should be with ensuring the reliability of evidence, or whether a face-to-face cross-examination of one’s accuser may be thought to have intrinsic value regardless of considerations relating to the reliability of evidence.  Thirdly, it is of interest that, while noting that the US Supreme Court had taken a distinct and more robust approach to the interpretation of the “right of confrontation” in the Sixth Amendment to the US Constitution, Lord Phillips did not then go on to consider whether there were any lessons to be learnt from such an approach.

Lord Phillips, having “taken careful account of the Strasbourg jurisprudence”, expressed the “hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case” (at [108]).  Indeed, a decision is currently awaited from Strasbourg on whether to accept the United Kingdom’s request for Al-Khawaja to be referred to the Grand Chamber of the European Court of Human Rights, such a decision having been postponed pending the Supreme Court’s decision in Horncastle.  Any future discussion of Horncastle by the Strasbourg Court will certainly be awaited with interest.