LEGAL UPDATE 

CASE UPDATE Hearsay – Court of Appeal’s response to the ECtHR’s ruling on absent witnesses Horncastle & Ors [2009] EWCA Crim 964; [2009] WLR (D) 173
CA: Thomas, Hughes LJJ, Penry-Davey, Irwin, Wyn Williams JJ: 22 May 2009 Summary 

The appellants in this conjoined appeal sought to apply the European Court of Human Rights’ (ECtHR) decision in Al-Khawaja and Tahery v. The United Kingdon [2009] ECHR 110 to the domestic law of England and Wales governing the admission of hearsay.

 

The appellants submitted that there had been a breach of their Article 6(3) rights by the admission of hearsay evidence in that they had been denied the opportunity to question a witness against them.

 

In Al-Khawaja it had been held that hearsay evidence could not be admitted where it represented the ‘sole or decisive’ evidence against the defendant. A single exception was mooted for those cases where it was demonstrated that the defendant himself was responsible for keeping the witness away by fear.

 

However the Court of Appeal in this case held that Al-Khawaja was wrongly decided by the ECtHR – as a matter of case law, principle and practicality. The statutory code governing the admission of hearsay in the Criminal Justice Act 2003 would therefore continue to be applied in England and Wales and would provide defendants with a fair trial. The Court of Appeal refused to provide any further safeguard to defendants against the admission of hearsay beyond those already in place.

 In detail 

The appellants in each case submitted that their Article 6(3) rights had been breached by the admission of hearsay which was the ‘sole or decisive’ evidence against them. Two remedies were sought in the alternative.

 

Firstly it was submitted that the exercise of the trial Court’s discretion under s.78 should be routinely exercised in the defendant’s favour where the evidence sought to be admitted was the ‘sole or decisive’ evidence.

 

Alternatively the appellants contended that s.116 should be read so as to include qualifying language to the effect that “such evidence shall not be admissible if the conviction of the accused would be founded upon it as the sole or decisive evidence”.

 

The Court held that the principal question is whether Article 6(3)(d) creates an absolute right or a qualified right:

 

Article 6

(3) Everyone charged with a criminal offence has the following minimum rights: …

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

 

The Court of Appeal concluded that Article 6(3)(d) could not confer an absolute right. If it did so then this would represent a bar to the admission of all hearsay evidence, under any circumstances.

 

The Court supported this conclusion by analysing the ECtHR case law prior to Al-Khawaja. Reviewing the cases relied upon by the ECtHR in its decision the Court of Appeal reached the opposite conclusion: namely that there was nothing in the case law that necessitated the development of a ‘sole or decisive’ test.

 

It was concluded that no ECtHR case had dealt with the case of an identified but absent witness, absent for good reason, whose evidence could be assessed as sufficiently reliable to be admitted or otherwise tested in a way that respects the defendant’s rights.

 

The Court went on to say that as a matter of legal principle there should not be a sole or decisive test. The Court of Appeal held that the principled difficulty with the judgment in Al-Khawaja is that it makes two assumptions. The first is that all critical hearsay evidence is potentially unreliable if it has not been tested in open court. The second is that the jury cannot be trusted to assess such evidence.

 

On the first of these points the Court of Appeal said that the question of how reliable particular evidence is does not depend on the importance of that evidence.

 

Four hypothetical examples were given in support of this contention. The most compelling is the murder victim who calls the Police naming her attacker just as the fatal assault begins. Her evidence is hearsay, and it may be the sole or decisive evidence against a defendant. But, the Court of Appeal said, we would not seek to exclude such evidence merely because it is sole or decisive since it is plainly reliable evidence.

 

On the second point as to trusting the jury to make an assessment the Court of Appeal stated that where a jury has heard other oral evidence, and where s.124 CJA 2003 has been used to allow the defence to attack the reliability of the hearsay evidence, then the jury can be trusted to make a proper assessment of how reliable the evidence is – no matter how vital a part of the case against the defendant.

 

Finally the Court of Appeal turned to practical difficulties in applying any proposed exclusionary rule which rested on evidence being ‘sole or decisive’.

 

The Court of Appeal held that any such test would be applicable only once the outcome of the trial was known, and that this would reduce the trial process to ‘shadow boxing’ without the certainty that the result would stand.

 

The Court held further that the phrase ‘decisive’ is especially problematic – the decisiveness or otherwise of a piece of evidence cannot be known until the decision making process is over. Moreover the ECtHR appeared to have set the bar very low for evidence which is ‘decisive’; referring only to evidence which advances the prospect of a conviction. The Court of Appeal noted that evidence which did not advance the Prosecution case would not usually be relevant evidence.

 The particular appeals 

The appeal itself was composed of three conjoined cases: Horncastle and Blackmore; Marquis and Graham; and Carter.

 

Interestingly, given that the judgment is dedicated to assessing the merits of the proposed ‘sole or decisive’ test, in none of these three cases was hearsay the ‘sole’ evidence against the appellant.

 

Only Horncastle was found to have been a case where the hearsay evidence admitted had been ‘decisive’. In this case the allegation was one of a serious assault. The defendants had both admitted presence at the scene but denied participation. The complainant’s witness statement to Police named both men as responsible. However the complainant died of an alcohol related illness prior to the trial. His evidence was admitted under s.116.

 

On the facts of the case the Court of Appeal stated that although the evidence was decisive it had been properly admitted: the defence had been able to challenge the evidence by putting before the jury information as to the complainant’s credibility, and by the calling of a defence witness. There was ample other evidence to support the convictions, including evidence which pointed to both men having been present after the assault began. The appeal of both defendants was refused.

 

In the case of Marquis the hearsay evidence was held not to have been decisive and to have been properly admitted. This case of kidnapping had a wealth of evidence against both defendants, including a vehicle used in the kidnap, mobile phone evidence, and the evidence of other witnesses. The complainant was kept away by fear, and her witness statement admitted as hearsay.

 

A peculiar detail of this case was that the complainant’s fear had been compounded (if not caused entirely) by a Police officer explaining to the complainant that she was in danger and then going on to discuss cases where witnesses had previously been relocated but later murdered. The Court of Appeal held that the source of the complainant’s fear was irrelevant; what mattered was that she was kept away by fear. The appeal of both defendants was refused.

 

The third case of Carter was simply a case of evidence being admitted without proper consideration as to the purpose to which it was being put and there being thereafter a misdirection by the trial Judge.

 

The evidence itself was information obtained from AOL as to the subscriber details of an email address. The address had been used to receive obscene images of children. The Crown sought to adduce this evidence only to explain why the Police raided the address they did. The defence argued that this was hearsay and that it did not meet the criteria for admission under s.117.

 

The Judge commented in the course of argument as to whether to admit it that this was on the face of it evidence within s.117. No formal ruling was given as to whether this was or was not hearsay but the evidence was nonetheless admitted. This error was compounded by omitting to warn the jury that the evidence was not to be used to conclude that Carter had access to the email address in question.

 

The Court held there had been a material misdirection and allowed the appeal.

 Further proceedings 

Leave to appeal to the House of Lords was granted and the appeal was heard at the start of July. Judgment in the case is forthcoming.

 

Until the outcome of that hearing is known the law has reverted to the position prior to Al-Khawaja; namely that the admission of hearsay is to be considered only under the statutory scheme and that the statute, when properly applied, provides a fair trial for defendants.

 

It is to be noted that whilst the appellants in Horncastle failed in their efforts to have the Courts of England and Wales adopt a ‘sole or decisive’ test the judgment itself provides strong language as to the importance of decisions on the admission of hearsay being taken properly and in accordance with statute.

 To that end the judgment has already been cited in support of a successful appeal in R v T (D) [2009] EWCA Crim 1213. The Court there held that hearsay had been wrongly admitted as there was insufficient evidence for a decision to be taken that a witness could not be found. The single Judge cited Horncastle where it was said that: the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the CJA 2003. 

Defence advocates can therefore take some comfort from the decision – there may be no new safeguard for the defendant against the admission of hearsay but the existing provisions should in future be rigorously applied.

 

[An update detailing the House of Lords decision will be circulated as soon as the Judgment has been published.]