On appeal from: [2009] EWCA Crim 964

The appellants complained that their convictions were based “soley or to a decisive extent” on the statements of witnesses admitted pursuant to the Criminal Justice Act 2003, s 116, that they had had no chance to cross-examine. They argued that this infringed their right to a fair trial guaranteed by ECHR, art 6(1), (3).

The Supreme Court unanimously dismissed the appeal. The questions before the Court were whether the statutory regime in relation to the admission of evidence of an absent witness at a criminal trial would result in an unfair trial, and, if not, whether ECtHR case law nonetheless required the court to apply that regime in a manner contrary to the intention of Parliament. There would be rare occasions where the Court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such instances, the Supreme Court could decline to follow the Strasbourg decision, giving its reasons. The appellants’ trials were fair – notwithstanding Al-Khawaja & Anor v UK (2009) 49 EHRR 1. The common law hearsay rule addressed the aspect of a fair trial covered by art 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime that contained safeguards that rendered the ‘sole or decisive’ rule unnecessary. The Strasbourg Court had introduced the ‘sole or decisive’ rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions. The rule would create severe practical difficulties if applied to English criminal procedure.  

For judgment, please download: [2009] UKSC 14
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

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