R v Horncastle and others [2009] UKSC 14; [2010] 2 AC 373
Summary: Hearsay evidence and Article 6 of the European Convention on Human Rights (ECHR).
Introduction
R v Horncastle and others1 was an English legal case concerning the rules on hearsay evidence. The appellants claimed that English law on hearsay evidence violated Article 6 of the European Convention on Human Rights (ECHR) according to decisions of the European Court of Human Rights (ECtHR). The UK’s Supreme Court dismissed the appeal.
Issues
Article 6 ECHR states that everyone is entitled to a fair and public hearing by an independent tribunal2, and anyone charged with criminal offences has the right to be informed of the nature of the allegations, have adequate facilities to prepare his defence, and examine any witnesses against him3.
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The hearsay issue arose because statements made by absent witnesses were used as evidence of the facts they described4. The defence could not cross-examine the makers at trial. Therefore, this potentially breaches Article 6 ECHR.
In R v Horncastle, the appellants had been convicted after hearsay evidence was used in their trials. They relied upon Al-Khawaja and Tahery v United Kingdom5, where the ECtHR held that hearsay evidence would breach Article 6 ECHR if it was the ‘sole or decisive reason for conviction.’
Under English criminal law, hearsay evidence is generally inadmissible6. However, hearsay evidence may be used where the witness is unavailable and the statutory requirements in s.116 Criminal Justice Act 2003 (CJA) are satisfied. These include death, medical unfitness, being outside the United Kingdom where attendance cannot reasonably practicably be secured, or being untraceable despite reasonably practicable steps. Where the witness does not give evidence through fear, the court must give leave and consider the interests of justice, including the risk of unfairness and possible special measures. There is also a general power under s.114 to admit hearsay evidence if a court thinks this would be in the interests of justice. Consequently, UK law conflicted with the ECtHR ruling.
Under s.2 Human Rights Act 1998 (HRA), UK courts must take into account prior decisions of the ECtHR. However, courts had differed over what ‘take into account’ actually meant7. The House of Lords had said that UK courts should follow ‘clear and constant’ decisions of the ECtHR8, yet the Lords also agreed that the HRA did not change the rules of precedent in the UK9. Therefore, how far UK courts should follow the ECtHR was a ‘hot topic’10.
Facts
R v Horncastle concerned several linked appeals. In the first appeal, the defendants were convicted of wounding with intent11. The victim gave a witness statement to the police but died before the trial. The judge allowed the evidence to be admitted under s.116 CJA. In the second appeal the defendants were convicted of kidnapping. The victim gave a statement to the police but did not attend the trial due to fears over her safety. Again, the judge admitted her evidence under s.116 CJA.
The defendants appealed on the basis that hearsay evidence had been the ‘sole or decisive’ reason behind their conviction and that this violated Article 6. The Court of Appeal dismissed the appeal. They then appealed to the Supreme Court.
Decision
On 9th December 2009 the Supreme Court delivered its judgment. Lord Phillips explained that s.2 Human Rights Act 1998 required Strasbourg decisions to be taken into account. On rare occasions the Supreme Court could nevertheless decline to follow a decision, giving reasons, where it did not sufficiently appreciate or accommodate domestic procedure12.
Lord Phillips said that the ‘sole or decisive’ test had been introduced by the ECtHR in Doorson v The Netherlands13 without any explanation of its underlying principles14. He stated that English law already had safeguards in place to protect the innocent and to ensure hearsay evidence was only admitted when it was fair to do so15.
Lord Phillips added that the ‘sole or decisive’ rule would create practical difficulties in English law in that any piece of evidence might be capable of being ‘decisive’16. Therefore, the appeals were dismissed and the Court declined to follow Al-Khawaja.
Impact and later commentary (2012–2015)
R v Horncastle shows that s.2 HRA does not require the Supreme Court to follow every ECtHR ruling. However, the Supreme Court did not absolutely reject the authority of Strasbourg17. Instead, it suggested UK courts enter into a dialogue with the ECtHR where it had not taken into account an aspect of UK law18. Critics say this is consistent with s.2 HRA 199819. The relationship between the approaches attracted academic criticism, including the description ‘frustrating’20.
In R v Ibrahim (Dahir)21 the Court of Appeal considered Horncastle alongside the Grand Chamber’s later decision in Al-Khawaja and Tahery. It identified a difference in approach, but suggested this might be more one of form than substance22. The Grand Chamber retained the sole-or-decisive test while accepting that such evidence did not automatically make a trial unfair; adequate counterbalancing safeguards mattered. Academic commentary examined the relationship between the approaches23. In R v Riat24 the Court of Appeal confirmed that domestic courts must follow Horncastle if any difference remained. It also explained that neither Strasbourg nor English law imposed an overarching rule automatically excluding hearsay simply because it was sole or decisive.
Ormerod says that English law contains enough safeguards to prevent hearsay evidence violating Article 6 ECHR. Section 116 CJA imposes conditions for the admission of statements from unavailable witnesses, and possible ways of securing their evidence must be considered.25 The provisions for witnesses who are in ‘fear’ include that the court must consider it is in the interests of justice to admit hearsay26. This aims to ensure that any trial is fair and the conviction safe27. When considering if hearsay is in the interests of justice, courts must look at factors listed in s.114(2). Therefore, this is not a blanket power to admit hearsay28.
In Riat the Court quashed Wilson’s conviction: the finding of fear was not soundly based, and the hearsay could not sufficiently be tested and assessed29. Also, under s.78 Police and Criminal Evidence Act 1984 courts may exclude prosecution evidence where its admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. This further guards against the unfair use of hearsay evidence30.
Conclusion
In R v Horncastle the Supreme Court declined to apply an overriding sole-or-decisive rule after taking the Strasbourg jurisprudence into account under s.2 HRA 1998. The UK Court pointed out the lack of clarity and practical difficulties in the European approach. Its decision rested on the safeguards in the domestic statutory regime. However, it is submitted that UK law contains enough safeguards to ensure that the use of hearsay does not violate Article 6 ECHR.
Footnotes
1 [2009] UKSC 14 (SC).
2 Article 6(1) ECHR 1950.
3 Ibid, Art 6(3).
4 R v Horncastle, paras 1–5, per Lord Phillips.
5 (26766/05) [2009] 49 EHRR 1 (ECtHR).
6 D Ormerod, ‘Case Comment: R v Riat: hearsay – guidance – Horncastle – Al-Khawaja and Tahery Court of Appeal (Criminal Division): Hughes L.J., Dobbs J. D.B.E. and Globe J.: July 11, 2012; [2012] EWCA Crim 1509’ [2013] Crim LR 61.
7C De Than and E Shorts, Human Rights Law (3rd edn, Pearson Education, Harlow 2014) 7.
8 R (on the application of Holding & Barnes Plc) v Secretary of State for the Environment [2001] UKHL 23 (HL).
9 Kay v Lambeth LBC [2006] UKHL 10 (HL).
10 De Than and Shorts (n7) 8.
11 Offences Against the Person Act 1861, s.18.
12 R v Horncastle and others [2009] UKSC 14 (SC) para 11 per Lord Phillips.
13 Ibid, para 76.
14 Ibid, para 86.
15 R v Horncastle [2009] UKSC 14, paras 32–38.
16 Ibid, para 90.
17 I Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (7th edn, Oxford University Press, Oxford 2015) 676.
18 R v Horncastle and others [2009] UKSC 14 (SC) para 11 per Lord Phillips.
19 Loveland (n17) 676.
20 F Stark, ‘Reconciling the irreconcilable?’ (2012) 71(3) CLJ 476.
21 [2012] EWCA Crim 837 (CA).
22 Ibid, paras 85–90, per Aikens LJ.
23 Stark (n20) 477.
24 [2012] EWCA Crim 1509 (CA)
25 Ormerod (n6) 61.
26 CJA 2003, s.116(3) and (4).
27 Ormerod (n6) 61.
28 Ibid, 62.
29 R v Riat [2012] EWCA Crim 1509 (CA) at paras 54–62, per Hughes LJ.
30 Ormerod (n6) 67.
