The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence. On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK’s relationship with the Strasbourg court.
On the face of it, the issue looks simple enough. One clue to its importance, though, is that we have had to wait more than 18 months for the court’s final appeal chamber to come up with a ruling. Perhaps the judges have found it a difficult decision to reach.
Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness’s evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention.
What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them. Imad Al-Khawaja, 55, was a consultant physician working in rehabilitative medicine at Brighton general hospital when he was convicted of indecently assaulting two female patients under hypnosis. One of the women, who had multiple sclerosis, killed herself before the trial in 2004 and her written statement was read to the jury. Khawaja was sentenced to 27 months’ imprisonment.
The other case was brought by Ali Tahery, 36, an Iranian living in London. He was sentenced to nine years’ imprisonment for stabbing another man in a fight. The main witness, another Iranian, said he was too frightened to give oral evidence at the trial and his statement was also read to the jury in his absence.
In January 2009, a chamber of the human rights court decided that the written statement had been “the sole or, at least, the decisive basis” for each man’s conviction. Both had been denied their right under article 6(3)(d) of the human rights convention to question witnesses who gave evidence against them. They were each awarded compensation of around £5,000.
Six months later, the same issue was raised in two other cases heard by the UK’s highest court. Michael Horncastle and another man were appealing against their convictions for causing grievous bodily harm to Peter Rice, who was attacked at his flat in Birkenhead in 2005. Rice died more than a year later from alcoholism. His statement was read at Horncastle’s trial, which did not take place until 2007.
In the second case, two men were convicted of kidnapping a young woman who said she was too frightened to give evidence and ran away just before their trial. Again, her statement was read to the jury.
In both cases, the appellants’ lawyers argued that courts in the UK were required by section 2 of the Human Rights Act to “take into account” the Khawaja ruling. The English courts could no longer rely on hearsay evidence and should allow their appeals.
Giving judgment in December 2009, the supreme court declined to follow the Strasbourg case. Dismissing the appeals, Lord Phillips, the president, said that exceptions to the hearsay rule had been approved by parliament.
The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this court applying principles that are clearly established by the Strasbourg court,
Phillips acknowledged.
There will, however, be rare occasions where this 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 this court to decline to follow the Strasbourg decision, giving reasons for adopting this course.
This is likely to give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court. This is such a case.
And that’s just what happened. The UK lodged what amounts to an appeal against the Khawaja judgment and the case was heard by the grand chamber in May last year.
David Perry QC, for the government, complained that the Strasbourg judges had laid down a “hard-edged, inflexible rule” which contradicted their own previous rulings. He argued the trials of Khawaja and Tahery had been fair and complied with article 6 of the convention.
Hearsay evidence was an option of last resort, Perry told the grand chamber. Any potential unfairness to the accused was eliminated but, where a fair trial was impossible, the evidence would not be admitted by the court.
This must be right. The old hearsay rules modified by the Criminal Justice Act 2003 were unfair to victims of crime and weighted too heavily in favour of criminals. We should not be forced by Strasbourg to bring them back.
If that was what the court were to decide on Thursday, there could well be another standoff between Strasbourg and London – as there now is on prisoners’ voting. On this occasion, though, the government would have the support of parliament and all the senior judges.
So the wiser decision for the human rights judges would be to join the dialogue initiated by Lord Phillips and to modify their previous decision in Khawaja. If they show respect for decisions of the UK courts now, perhaps the UK government will show more respect for their rulings in future.
This article originally appeared on guardian.co.uk/law and is reproduced with permission as part of the Guardian Legal Network.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Thursday’s decision goes well beyond the exceptions to the rule against hearsay under the 2003 Act. It will have a massive effect on the provisions in the Coroners and Justice Act 2009 that make it permissible for courts to receive anonymous witness evidence.
Much depends on how Strasbourg look at the ‘sole or decisive’ test. The trap Lord Phillips fell into in R v Horncastle was to equate ‘decisiveness’ with reliability. Surely, the more decisive the evidence, the greater the need, for the purposes of Art 6(3)(d), to give the defence a proper opportunity to test it?
[...] I Crown Office Row in their UK Human Rights blog considers: Strasbourg’s ruling on hearsay evidence could change its relationship with UK – Joshua Rozenbe… [...]
JR’s item in The Guardian is attracting some interesting comments. i think that, in principle, these seem about right:
“If the statement of a deceased witness is sufficiently reliable then there is no good reason not to have it in evidence and let the jury make what they wish of it taking into account the guidance of the judge. I suspect that Strasbourg will go along with this. The problem arises when such a statement is the only or the principal evidence against the defendant. In such a situation there will be little other supporting evidence and it does not seem right to convict someone given our “beyond a reasonable doubt” standard of proof in a criminal case. Strasbourg will probably stick to this.”
and
“I agree with the above comment as to disposal of the appeal. The wider question is precisely how our Courts should ‘take into account’ the Strasbourg jurisprudence . Does it mean we should “take it on board as one of a number of persuasive but not necessarily decisive factors OR does it mean that our Courts are bound by Europe ?”
The Criminal Justice Act 2003 sets out a new “code” relating to hearsay in criminal trials. (The enactment was not exactly as proposed by the Law Commission but the Law Com 245:1997 is the basis for the new code).
I would think that “take into account” does not necessarily mean “shall follow.” Had Parliament wished, it could have said the latter. It must mean something along the lines of follow it unless there are sound reasons for not doing so. That seems to me to have been the basic approach of the Supreme Court in Horncastle.
The idea of the “dialogue” between national courts and Strasbourg is a good one – especially in controversial areas where the way forward is not necessarily all that clear.
I would reject Mr Rozenberg’s last statement – “If they show respect for decisions of the UK courts now, perhaps the UK government will show more respect for their rulings in future.” The application of human rights must not become an approach along the lines of “if you scratch my back, I’ll scratch yours.”
And yet hearsay evidence and non sequitur have been key components of the Family Division of the High Court in England and Wales for years now.
Indeed those components often comprise an entire case presented by a Local Authority against parents, often not legally represented, in an effort to perform a ‘forced adoption’ – that is an adoption of a child or children without the consent of their parents/carers.
So the discrepency between the so-called limited use of hearsay evidence and the Human Rights Act has been established and is in practice for yonks now (it’s just that the human right’s lobby has chosen to ignore it).
As with many other elements of the Family Court system – the secret environment has become a ‘testing ground’ for new concepts, then later introduced into the sphere of wider civil law and then the criminal system. The unwillingness of the UK human rights lobby to engage with those opposed to the curent family court regime and instead side with its apologists ensures that uses of hearsay evidence and other concepts that don’t sit easily with modern ideas of justice, are sure to expand.