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On Tuesday, Wednesday and Thursday 7 to 9 July 2009, a seven member Judicial Committee will consider the appeals of a number of defendants against the decision of a five judge Court of Appeal in relation to the admissibility of hearsay evidence in criminal cases. The House of Lords will have to consider whether or not a Strasbourg decision directly on the point should be following by the domestic criminal courts.

The appeals all concern hearsay evidence which was admitted in criminal trials under the provisions of the Criminal Justice Act 2003.  In the Hardcastle cases, the decisive witness had made a full written statement but had died before the trial.  The witness statement was put in evidence and the defendant was convicted of grievous bodily harm.

The Court of Appeal reviewed the domestic and the Strasbourg case law and dismissed the appeal ([2009] EWCA Crim 964).   In particular, it considered the decision of the Fourth Section of the Court of Human Rights in Al-Khawaja v United Kingdom, to the effect that where the hearsay evidence was the “sole and decisive evidence” then there was a breach of Article 6.  The crucial question was whether the right in Article 6(3)(d) – to examine or have examined witnesses against him – was an absolute right.  The Court of Appeal held, contrary to the approach in Al-Khawaja – that the rule was not absolute.  The United Kingdom has applied to take Al-Khawaja to the Grand Chamber but this application has been held over until the result of the appeal to the House of Lords in Horncastle is known.

The decision of the Court of Appeal appears to put the domestic courts into direct conflict with the Court of Human Rights.  It appears to be contrary to the well known Ullah line of cases (see R (Ullah) v Special Adjudicator [2004] 2 AC 323) – to the effect that the domestic courts should follow decisions of the Court of Human Rights.  The Court of Appeal considered that Al-Khawaja was not consistent with the previous case law.  The Court gave a number of reasons why the rule under the Criminal Justice Act 2003 was a proper and appropriate one and concluded that, despite Al-Khawaja, it should not depart from previous domestic case permitting the admission of hearsay evidence in criminal trials provided that rigorous conditions were fulfilled.

If the House of Lords follow this approach then it is likely that the matter will be referred to the Grand Chamber.  If, however, the House of Lords follow Al Khawaja then it is possible that the Grand Chamber will not take the case at all.  The seven member committee faces an acute dilemma.