The past few years have seen much media attention paid to the so-called tension between decisions of the European Court of Human Rights and the laws of the United Kingdom. Included in this has been the debate, or dialogue, between the Supreme Court and the Strasbourg Court, over hearsay evidence, and the extent to which the opportunity to examine witnesses is integral to a fair trial under Article 6(3)(d) of the European Convention on Human Rights (“ECHR”). This commentary analyses the outcome of recent case law in both courts to determine what the future might hold for the UK’s hearsay provisions.
The Criminal Justice Act 2003 introduced a new statutory framework for the admissibility of hearsay evidence in criminal trials. This narrowed the scope of the exclusionary rule and, most significantly, introduced a discretion, under s. 114(1)(d), for hearsay evidence to be adduced if it is in the interests of justice to do so.1 The particular aspect that came before the Supreme Court and Strasbourg, which has caused the subject debate, is the extent to which hearsay evidence can be the base of the prosecution’s case. Strasbourg’s position was that, for the UK statutory framework to be compatible with Article 6, there had to be a ‘sole or decisive’ rule.2 This meant that, where the hearsay evidence, which is purported to be relied upon, is the sole or decisive evidence upon which a conviction is intended to be based, such a rule would be applied so that the evidence would be inadmissible. Note the language of an exclusionary rule, not a discretion, and so there is no scope for such evidence to be adduced once established that it is indeed hearsay and is the sole or decisive evidence against the defendant. This was the basis of the Strasbourg decision in condemning the UK framework in Al-Khawaja and Tahery3 in 2009.
Since this case there has been a distinct tempering of the courts’ inclination to allow hearsay evidence under s. 114(1)(d) and other provisions.4 This is despite the Supreme Court’s robust defence of the UK’s hearsay provisions in Horncastle5, where the leading judgment by Lord Phillips went so far as to politely tell Strasbourg that it had got it wrong. The main reason for this defence was that there are numerous safeguards in place to ensure a fair trial for the defendant, even where the sole or decisive evidence against him is hearsay and can therefore not be tested in cross-examination. Amongst these safeguards are the s. 125 duty to stop proceedings where such evidence is unpersuasive or unreliable, the s. 126 exclusionary discretion, s. 78 PACE, and the judge’s direction to the jury.6
The Grand Chamber in Strasbourg has recently reconsidered the Al-Khawaja and Tahery7 applications in light of Horncastle. The judgment has shown a fresh reconsideration of the UK framework, which has taken into account the Supreme Court’s decision in accepting that there does not categorically have to be a ‘sole or decisive’ rule. This has been welcomed as a shrewd judgment8 in light of the tensions surrounding the UK’s relationship, both politically and legally, with Strasbourg and the ECHR. In terms of legal principle also, the decision has been praised as it recognises the need to look at the domestic provisions of a signatory State with proper regard.9 The result of the tussle between the Supreme Court and Strasbourg is therefore that hearsay evidence can represent the foundation, or even the entirety, of the case against the accused in a criminal trial; provided that the trial as a whole is fair.
This result however, means that a defendant can be convicted of a criminal offence in circumstances where he has no opportunity to challenge the evidence against him. In the absence of any other substantial evidence against the defendant, it is hard to conceive how the trial can be fair enough to be Article 6 compliant; no matter what safeguards are in place. In giving its judgment though, Strasbourg found that there had actually been a breach of Article 6 in the case of Mr Tahery, and as such condemned the UK courts on the facts of that application.10 Mr Tahery had been accused by a fellow participant in a street fight of being the one who had stabbed a man to death. The witness refused to give evidence, claiming fear, and the trial judge allowed his witness statement to be adduced as hearsay evidence. What the case makes abundantly clear therefore is that:
“a court which applies the hearsay provisions of the Criminal Justice Act 2003 in such a way as to permit a defendant to be convicted on the basis of a piece of hearsay evidence which stands alone, and which emanated from a witness who might well have lied or been honestly mistaken, and whose lies or honest errors— had there been any—would probably have been exposed in cross-examination, should be aware that a successful application to Strasbourg could well be the result.”11
This warning was perhaps persuasive in the recent Court of Appeal case of Ibrahim,12 where a conviction was quashed on the basis that the judge should have stopped the case under s.125. It was held in that case that it is a pre-condition that the hearsay evidence is determined to be potentially safely reliable for it to be allowed to go before the jury. The trial judge had made a mistake “in stating that the evaluation of the untested hearsay evidence of [the accuser] was a matter for the jury”13 and hence the conviction was unsafe. This is perhaps a good example of how the courts will approach hearsay applications in the future, with a much more careful weighing up of the counterbalancing measures in order to ensure a fair trial for the defendant.
In conclusion, it seems the hearsay provisions will remain to be held to be in compliance with the ECHR after Al-Khawaja and Tahery. At the same time though, the UK courts have effectively been given a warning that the safeguards must be seriously considered before allowing hearsay evidence to form the ‘sole or decisive’ evidence in a case. It is likely that there will be a restricted approach by the courts to ensure more successful applications, such as Mr Tahery, do not find their way to Strasbourg. This can be brought about by either being less willing to allow hearsay evidence in the first place, or being more vigilant and exercising the duty to stop a case where the hearsay evidence is unconvincing, or giving robust and clear directions to the jury of the dangers of relying too heavily on untested evidence.
Elliot-Kelly, J. ‘Case Comment: Al-Khawaja and Tahery v United Kingdom’ European Human Rights Law Review, E.H.R.L.R. 2012, 1, 81-87
Emson, R. Evidence (4th Edition, Palgrave Macmillan, 2008)
Keane, A. & McKeown, P. The Modern Law of Evidence (9th Edition, OUP, 2012)
Murphy, P. & Glover, R. Murphy on Evidence (12th Edition, OUP, 2011)
Smith, R. ‘Shrewd Judgment’, Law Society’s Gazette, LSG 2012, 109(3) 7
Spencer, J. ‘Hearsay Evidence at Strasbourg: a Further Skirmish, or the Final Round? A Comment on Al-Khawaja and Tahery v UK in the Grand Chamber’ Archbold Review, Arch. Rev. 2012, 1, 5-8
Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1
Al-Khawaja and Tahery v United Kingdom (26766/05)  2 Costs L.O. 139 (ECHR (Grand Chamber))
R v Horncastle  2 AC 373
R v Ibrahim  EWCA Crim 837