Al-Khawaja and Tahery v. The United Kingdom [2009] ECHR 110The European court of Human Rights has ruled that the evidence of an absent witness should not ordinarily be read under the hearsay provisions where it is the ‘sole or decisive’ evidence in the case.This ruling from the European Court of Human Rights will have an immediate impact on the law of England and Wales in relation to the reading of witness statements where the witness cannot, or will not, give evidence. Where such evidence is the ‘sole or decisive evidence’ on a particular charge that evidence cannot now be admitted as hearsay, except under the rare circumstances where the fear felt by the witness can be traced to the defendant himself.In the trial of Al-Khawaja a statement by a deceased witness was admitted under the hearsay provisions to prove a charge of indecent assault. In Tahery a witness statement was read to support a charge of wounding with intent. The witness was afraid of giving evidence due to the possibility of community repercussions, rather than any fear induced by the defendant. In the former case the statement was admitted under the old scheme of s.23 of the Criminal Justice Act 1988, whilst in the latter s.116 of the Criminal Justice Act 2003, the current law, was used. The issue in both cases was whether the “interests of justice” test had been properly considered given the guidance laid out in European case law.In the Al-Khawaja trial the deceased witness’ statement was of such importance to the case that the Judge commented: “putting it bluntly, no statement, no count one.” In Tahery the absent witness was the sole eye witness to the crime. In both cases the appeal therefore proceeded on the basis that the untested statement complained of had been the ‘sole and decisive’ evidence against the defendant. The Court of Appeal upheld the convictions in both cases, and leave to the House of Lords being refused both defendants appealed to the European Court of Human Rights.Held,The provisions of Article 6(3), including the subsection (d) right for a defendant to “examine or have examined witnesses against him” are express guarantees and cannot be read as mere illustrations of matters to be taken into account when considering whether a fair trial has been held. Even once the individual requirements of Article 6 have been upheld the overall fairness of the trial still falls to be considered. That later exercise does not displace the need to guarantee the individual rights enumerated in Article 6 however.This is directly contrary to the approach adopted by the courts of England and Wales in R v Sellick [2005] EWCA Crim 651 where the Court of Appeal sought to cast Article 6(3)(d) as a mere “illustration of matters to be taken into account in considering whether a fair trial has been held.”The rule laid down in Luca v Italy, no. 33354/96, ECHR 2001 II, that convictions cannot be based on the unexamined testimony of absent witnesses where this forms the “sole or decisive evidence” in the case is therefore re-affirmed since where such evidence is admitted: “the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6.” The view of the Court of Appeal that an exception can be made so long as the rights of the defence are protected in other ways – such as by judicial direction, or the defendant giving evidence – is disapproved.The exception found on the particular facts of Sellick is recognised, but is limited to just the sort of situation that pertained in that case. Namely, where the witness is identified to the defence (is not anonymous), but the witness’ absence was induced by fear caused by the defendant himself, then the witness statement can be read.Other jurisdictions will be able to cure the prejudice of a witness not being available for questioning at trial by the questioning of that witness at the direction of the defence during the investigative stage. This is so because Article 6(3)(d) guarantees the defence right to ‘examine or have examined’ a witness. So in S.N. v Sweden, no. 34209/96, ECHR 2002 V, where a complainant was asked questions through a police officer at the direction of the defence there was no prejudice. Although the European Court does not take particular note it, clearly such a cure is not (yet) possible in England and Wales.Breaches of Article 6 were found in relation to both defendants’ trials. Prejudice was not cured by the Judge’s direction (and no direction is capable of curing the prejudice), nor by the opportunity of the defendant to testify, nor by the ability of the defence to point to inconsistencies between the witness statement read and other witnesses, nor by the ability of the defence to call other witnesses. The oversight of the Court of Appeal was not a sufficient cure where the question was whether the Court of Appeal had also failed to properly apply European case law. The only way for there to be a fair trial, and the prejudice to the defence alleviated, was for the relevant witness statement not to be admitted.Note that different facts will produce different results: if the evidence is not sole or decisive then there is no bar to its admission as one plank of the case. It will be a matter for the trial Court whether evidence is truly sole or decisive and this language implies a high test.CommentThis judgment places pressure on the prosecution not to proceed where the ‘sole or decisive’ evidence is based on hearsay. However, assuming that the domestic courts try to resist this judgment a likely outcome is that the Judiciary will simply refrain from finding that hearsay evidence is the sole or decisive evidence – certainly there will be fewer comments such as “no statement, no count one” from the bench.There will be clear cut cases where evidence is the sole evidence in the case, and in those circumstances the prosecution cannot proceed without persuading the witness to testify. The question of what is decisive evidence will almost certainly produce a high test, since if the Court can point to any other evidence in the case which is at least arguably decisive without the hearsay evidence then this provides a means to admit the hearsay evidence alongside other evidence in the case.The decisions may also provide an impetus to consider allowing the defence questioning of witnesses during the investigatory stage at least where it is expected that those witnesses will later be absent or anonymous. This would be a radical change however, and although mooted is not likely any time soon.

 SENTENCING UPDATEBURGLARY – New Sentencing GuidelinesR v Saw [2009] EWCA Crim 1The Court of Appeal has set down new comprehensive guidelines in relation to dwelling burglaries setting out particular aggravating and mitigating features to be considered.The guidelines apply to for domestic burglary, charged without the presence of other serious offences. The guidance is relevant to crimes tried on indictment, but the aggravating and mitigating features laid out in the judgment must now be considered by the Magistrates Courts in both committal proceedings and in sentencing.The Court held that in considering the features of a case there were two questions to be considered in sentencing: What is the true culpability of the offender? What was the true impact on the victim?For both questions the sentencing Court should consider all the relevant circumstances without being bound by the list of common aggravating and mitigating features in this judgment. The question to be answered in considering either the offender’s culpability or the impact on the victim is where a particular aggravating or mitigating feature came on the scale. The division into medium level and high level features provided in McInnery [2002] EWCA Crim 3003 should therefore no longer be followed.What is the offender’s culpability?The offender’s culpability is adversely affected by his record (more than in any other category of crime), and the Courts should have regard to other offences of dishonesty, and especially those which involved some intrusion into the home. This means that offences of swindling the elderly will be particularly relevant.Frequently occurring aggravating features include: evidence of planning, of carrying tools for breaking in, the targeting of the particularly vulnerable such as the elderly and the disabled, the vandalism of premises and the carrying out of multiple offences. Evidence of planning can arise simply from burglars working as a group, whilst careful planning will be inferred where property of high value is taken and not recovered since this shows the receivers were already in place.Common mitigating features will include evidence that the defendant played a minor role in the offence, or that his involvement was coerced, where this falls short of duress. However, a note of caution, these two features should only be credited where there is evidence to support sentencing on such a basis: they cannot merely be asserted.For an example of the offender’s record being used in the way described the conjoined appeal of Colin McPhee is illustrative. The defendant was, on paper, a first time burglar. However, he had previously served 15 months for defrauding elderly people by promises of gardening work which went undone once money was handed over, and had been sentenced to 18 months in respect of two counts of theft. A third offence of theft had somehow attracted only a conditional discharge one month prior to this offence. A sentence of five years was passed and upheld, justified by reference to stamping out offences against the elderly. The case also had serious aggravating features in relation to victim impact as the victim was confined to his bed and forced to watch the offender rifling through his belongings.What is the true impact on the victim?Victim impact is now a full half of the sentencing exercise. It should be noted that the loss of emotionally significant objects is therefore to be considered of as much relevance as the loss of significantly valuable property. Therefore an irreplaceable photograph of deceased parents would be a very significant emotional loss for the victim, despite being of minimal economic value, and this should be reflected in the sentence.The vulnerability of the victim is an aggravating feature, as is the presence of the victim at home, whether during the night or day, and especially where the victim confronts the burglar. The impact the burglary has on the victim is therefore relevant to sentence: a greater impact, a greater sentence.How such considerations will work can be seen in the particular appeal of Rebecca Saw: the victims were a young couple of whom the female partner was already somewhat prone to depression. Though the burglary passed off without confrontation the victims eventually moved out of their home due to the trauma of the crime, which included the loss of photographs of their young child. After a prompt guilty plea and with substantial personal mitigation a sentence of two years was upheld, despite being described as “severe”, as it was justified by “the impact which this burglary had on its victims”.SentencingThe Court laid out a straightforward scheme. The ‘standard’ domestic burglary which reflects any of the aggravating features, and in the absence of especially strong mitigation, should normally attract a custodial sentence. Where the offender’s culpability or the impact on the victim are only somewhat aggravated then there will ordinarily be a custodial sentence in the range of 9 to 18 months. Where either the culpability or the impact are seriously raised – by particular features, or a combination of features – then the starting point will be a custodial sentence in the range of 2 years and upwards. A single offence will attract a sentence of 18 months to 4 years. Sentences will be beyond that range where the culpability or impact is at an “extreme level”, with longer sentences being appropriate for a record of relevant offending or where the facts demonstrate professional criminality.A community penalty could be appropriate if the offender is a person of previous good character, the crime lacks any of the commonly listed aggravating features (and surely by implication, any other relevant aggravating feature), and where rehabilitation would serve the public interest. A second situation would be where the defendant has reached a point at which there can be a “genuine attempt to break the cycle” of offending. However, in order to qualify there is still the need for the offence to have lacked significant aggravating features.For offences with serious aggravating features a community disposal will be extremely rare. Conclusion and commentThe Court has given helpful guidance, identifying sentencing ranges in an area where offences can be very diverse. It is also to be welcomed that the Court is supporting the discretion of sentencers and encouraging a full consideration of all relevant circumstances in reaching the appropriate sentence.Sentences remain at a deterrent level and community penalties will continue to be rare, but the Court has at least provided examples of the sort of language needed to justify efforts at rehabilitation, and expressly noted that it can be appropriate to try to “break the cycle” even for defendants with a criminal record. Though, as the case of Rebecca Saw makes clear, a defendant will have to be especially sympathetic to qualify, perhaps improbably so given the chaotic lifestyles of most offenders.Looking at the increased focus on the impact of the offence on the victim this guidance will plainly mean that victim impact statements will have a renewed importance in sentencing. The Court may yet be faced with attendant problems of inconsistency in sentencing: victims who are more articulate about the trauma caused, or the loss suffered will presumably now generate more punitive sentences. Moreover, the analogy drawn between high value economic goods and emotionally high value items is a difficult one. We commonly describe emotionally significant items as beyond value: are items taken perhaps unwittingly or unthinkingly by the offender to result in serious unforeseen consequences during sentence?Sentencing depending so greatly on consequences that are both unforeseen and risked by all burglars, materialising only for some, is an approach to sentencing that punishes the offender significantly for his or her ‘bad luck’ in disturbing especially vulnerable victims. However, this new sentencing regime seems well-geared towards surviving tabloid scrutiny: a concern that is evident from Lord Judge’s opening remarks where he keeps a wary eye on previous headlines describing sentencing guidance as a ‘charter for burglars’.