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The decision in R v Horncastle ([2009] UKSC 14; [2010] 2 WLR 47) was one of the most discussed cases of the Supreme Court’s first term.  Many commentators, including Professor Andrew Choo on this blog, drew attention to the fact that the Court refused to follow a decision of the European Court of Human Rights.  However, perhaps the most interesting feature of the case is not the fact that the Supreme Court declined to follow the decision of the  Fourth Section in Al-Khawaja and Tahery v UK ((2009) 49 EHRR 1) but the extraordinary lengths to which it went to justify and explain this departure.

Section 2 of the Human Rights Act 1998, requires a court to “take into account” any judgment of the Court of Human Rights in determining any question to which such judgment is relevant.    This is clearly not a mandatory requirement: the Supreme Court is not, in any sense, “bound” by decisions of the Court of Human Rights. The Court of Human Rights is not a “Final Court of Appeal” in which decisions of the domestic courts can be challenged and whose determinations it is bound to follow.  As a result, when the Supreme Court is faced with a Court of Human Rights decision with which it does not agree it can decline to follow or apply it.  

The Court in Horncastle did, indeed, decline to follow the decision in Al-Khawaja.  Lord Phillips said that, although the requirement to “take into account” the Strasbourg jurisprudence would “normally result” in the domestic court applying principles that are clearly established by the Strasbourg Court

“There will, however, be rare occasions where the domestic 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 the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course” ([11])

The reasons given were very detailed.  They involved a full analysis by Lord Phillips of the Strasbourg jurisprudence prior to Al-Khawaja ([63]-[75]), of the “sole or decisive” rule in Strasbourg ([76]-[86]) and of the Al-Khawaja case itself ([95]-[108]).  This was supported by an Annexe analysing the “seeds of the sole or decisive rule” (Annexe 2), an Annexe analysing the cases dealing with the sole or decisive rule (Annexe 3) and 24 page Annexe prepared by the Lord Chief Justice, Lord Judge, analysing the way in which the domestic courts would have approached the Strasbourg cases in which the sole or decisive rule was applied (Annexe 4).   No one could accuse the Supreme Court of not taking the Court of Human Rights case law seriously. Indeed, it might be doubted whether the often “lightly reasoned” Strasbourg cases are able to stand up to this degree of scrutiny: it is often impossible to derive “principles” from the short, formulaic reasons which are given. 

The time and effort spent by the Court in explaining why Al-Khawaja should not be followed – despite the fact that it was contrary to the settled policy of Parliament and, as the Court demonstrates, the common law – shows how seriously the Strasbourg jurisprudence is now taken.  The fact this decision of the Fourth Section required such analytical firepower strongly suggests that the Supreme Court would feel constrained to follow a fully considered decision of the Grand Chamber which it believed to be fundamentally wrong.   This seems to be accepted by the Court. The point is most explicit in the sole concurring judgment in which, Lord Brown says 

“These appeals are of the utmost importance. If the Strasbourg case law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme for ensuring fair trials … cannot stand and many guilty defendants will have to go free” [113]

He goes on to say that, if contrary to his view, Strasbourg did, indeed, seek to lay down such an absolute principle, then the Supreme Court should decline to follow it and “in effect join with the United Kingdom Government in inviting the Grand Chamber to overrule it (the Grand Chamber panel having adjourned the UK’s request for such a reference until the pronouncement of our decision on these appeals)” [117].  He goes on to contrast the case with Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 where the House of Lords were faced with a definitive recent decision of the Grand Chamber on the very point in issue and felt that there was no alternative but to apply it.  He cites Lord Rodger’s startling summation of the position “Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.” [118]

Implicit in these comments (and, I suggest, in the whole approach taken by Lord Phillips) is the acceptance that if Al-Khawaja is upheld by the Grand Chamber then the English courts will be obliged to apply it.   This is a remarkable result: a committee of 17 judges (16 of which come from other Council of Europe countries, with different legal traditions) would be deciding whether or not policy decisions made by Parliament are allowed to stand.  It is not difficult to understand why the role of the Strasbourg court as, effectively, the highest court in our legal system causes disquiet.  The point was made, polemically, last week in the Spectator in relation to the decision in Gillan v UK.  It is not just “Euro sceptics” who express concern. The point was made by Lord Hoffmann in his March 2009 lecture “The Universality of Human Rights”.

 

The “mainstream” response to these concerns is to argue that the problem is more apparent than real.  Cases of direct conflict of the type threatened by Al-Khawaja and Horncastle are rare – the majority of commentators think that the Grand Chamber will take the Al-Khawaja case and will not follow the approach of the Fourth Section.  Most of the occasions on which the Strasbourg court has differed from the highest courts in the United Kingdom have been “borderline” cases where the policy choices made by domestic institutions are not clear cut.   Nevertheless, this is not always the case. The possibility of direct conflict is there and needs to be addressed.  

The Conservative Party’s answer to is to repeal the Human Rights Act (for which see our feature on  Rights, Responsibilities and the Repeal of the Human Rights Act).  However, they do not propose that the United Kingdom should renounce the Convention and no clear “alternative model” of the relationship between Strasbourg and the domestic courts has been advanced.  Conservative politicians do not seem to have taken up Lord Hoffmann’s apparent suggestion that the Convention itself should be recast removing the right of individual petition (see para 44 of his Lecture).  Although this is the most straightforward way of resolving the point it is not practical politics and is out of line with the trend to grant individual rights of petition under other international human rights instruments.

Another response would be to take section 2 of the Human Rights Act literally – simply “taking account” of Strasbourg decisions but refusing to follow them when they were inconsistent with “constitutional fundamentals” in the United Kingdom.  The acceptance by the Supreme Court (and the House of Lords before it) of the “binding nature” of certain kinds of Strasbourg decisions is a self-imposed limitation which it could decide to ignore.  It is noteworthy that in a widely reported judgment on 16 November 2009, the Italian Constitutional Court said that where the Italian Constitution conflicts with an “international norm” from Strasbourg, the Constitution must prevail.   Section 2 allows the Supreme Court to take the same course.  A Grand Chamber decision upholding Al-Khawaja would require it to confront this issue directly.  Where this would leave the United Kingdom in international law is a topic for another day.