Parsons, Simon

English

Solent Electronic Archive

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‘Through the grapevine’ a follow up article on hearsay evidence and human rights Chartered 
Institute of Legal Executives Journal, October 2012. 
By Simon Parsons, 
Senior Lecturer, Southampton Solent University. 
Readers to the Journal will recall that in December 2010 in ‘Strasbourg rebuff’ there was a discussion 
on the disagreement between the European Court of Human Rights, Fourth Section, and the UK 
Supreme Court on whether basing a criminal conviction solely or decisively on hearsay evidence 
violated articles 6(1) and 6 (3) (d) of the European Convention on Human Rights (ECHR). In Al-
Khawaja and Tahery v UK (2009) 49 E.H.R.R. 1 the Fourth Section unanimously found a violation of 
both articles in such circumstances even if counterbalancing measures are taken at the trial such as 
the trial judge warning a jury that the defence had been deprived of the opportunity to cross-
examine the maker of the hearsay statement. The judgment created great difficulties for English 
courts as it represented a significant rebuff to the liberalisation of hearsay evidence contained 
section 114 (1) (d) and in section 116 of the Criminal Justice Act 2003 (CJA) because trials would not 
be able to continue where the only or principal evidence is that of a witness who is unavailable. 
Subsequently, the UK Supreme Court considered the approach of the Strasbourg court in Horncastle 
[2009] UKSC 14. The Supreme Court held that there could be a fair trial for the purposes of article 6 
(1) and article 6 (3) (d) even though a conviction was based solely or decisively on hearsay evidence. 
The real issue was whether the hearsay was reliable and convincing evidence in itself and it was in 
the interests of justice to admit it.  Lord Phillips gives an example of such convincing evidence: “A 
visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the 
number of the car, and makes a statement to the police in which he includes not merely the number, 
but the make and colour of the car and the fact that the driver was a man with a beard. He … is then 
himself killed in a road accident. The police find that the car with the registration number that he 
provided is the make and colour that he reported and that it is owned by a man with a beard. The 
owner declines to answer questions as to his whereabouts at the time of the accident. It seems hard 
to justify a rule that would preclude the conviction of the owner of the car on the basis of the 
statement of the deceased witness, yet that is the effect of the sole or decisive test”. Thus decision 
in Horncastle was very robust in its rejection of the Fourth Section approach and must have sent a 
shock-wave around Strasbourg. The UK Government referred Al-Khawaja to the Grand Chamber of 
the Strasbourg Court and we now have its decision in Al-Khawaja & Tahery v UK [2011] ECHR 2127. 
The Grand Chamber states the sole or decisive rule should be applied flexibly and that the question 
in each case is whether there are sufficient counterbalancing factors in place such as the presence of 
corroborative evidence which would permit a conviction to be based decisively on hearsay evidence 
because the corroborative evidence would show the hearsay to be reliable.  
Ostensibly this is a victory for the Supreme Court because if the Grand Chamber had agreed with the 
Fourth Section this would have had a profound effect on cases involving hearsay and the Supreme 
Court would have had to face a difficult question as to whether to accept such a decision. Also 
Parliament would have been obliged to amend the Criminal Justice Act 2003. However, this victory 
for the Supreme Court stance should be viewed with caution for a number of reasons. First, whilst 
Al-Khawaja’s trial was held to be fair Tahery’s trial was held to be unfair. In Tahery T was convicted 
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of wounding with intent and attempting to pervert the course of justice. One witness made a 
statement identifying T, but refused to give evidence because of fear of reprisals. The fearful 
witness’s statement was the only eyewitness evidence of the stabbing and was not supported by 
corroborative evidence that T was the attacker. The Grand Chamber considered the fact that T was 
able to give denial evidence and that the trial judge had carefully warned the jury about the risks in 
relying on untested evidence but held that these were insufficient to counterbalance the fact T was 
unable to cross examine the fearful witness. The implication is that trial judges should not be too 
free in allowing prosecution hearsay evidence to be admitted in ‘the interests of justice’ under 
sections 114 (1) (d) or 116 (4) of the CJA without corroboration. Second, the Grand Chamber 
requires trial judges to be satisfied that the absent witness has a good reason for non-attendance 
regardless of whether or not that witness’s evidence is sole or decisive. Third, trial judges need to 
make sure that that the lack of cross-examination of the absent witness is compensated in a 
proportionate way. This must require corroborative evidence which means that hearsay evidence 
cannot be solely the basis for conviction. However, hearsay evidence will be decisive where the 
corroborative evidence affirms the statement of the absence witness identifying the defendant, for 
example the alleged victim of the offence is punctual in making a complaint to the police affirming 
the identification. But if the corroborative evidence is strong and independent, for example DNA 
evidence then that would mean the hearsay evidence would not be decisive. In any case it appears 
that corroborative evidence is required before hearsay can be admitted and to ignore this 
requirement is to risk a violation of article 6.  So this is a pyrrhic victory for the Supreme Court and 
for the UK Government but the decision of the Grand Chamber should be welcomed because it 
supports the common law tradition of orality and the importance of cross-examination. So there 
appears to potential for further disagreement between the Supreme Court and Strasbourg as to how 
much hearsay should be admitted in criminal trials. The Grand Chamber in Al-Khawaja & Tahery v UK 
continues to take an exclusionary approach which is in contrast to the inclusionary approach of the 
Supreme Court in Horncastle.      
For many in the Conservative party decisions such as Al-Khawaja & Tahery v UK support the 
contention that the Strasbourg court is in need of reform and such a view appears to be supported 
by the Prime Minister David Cameron who in a speech in January this year said that “the Court has 
got to be able to fully protect itself against spurious cases when they have been dealt with at the 
national level”. This is also the view of the Justice Secretary Ken Clarke. An opportunity to start on 
that reform presented itself at the Council of Europe Ministerial Conference in Brighton which was 
chaired Ken Clarke on behalf of the UK. The result of the conference was the Brighton Declaration of 
20thApril 2012 which could have significant impact on the role and working practices of the European 
Court of Human Rights (ECtHR) in a number of ways. First, paragraph 12 of the Declaration 
encourages the ECtHR to give greater prominence to the principle of subsidiarity and to the margin 
of appreciation doctrine. These have been developed by the ECtHR itself and require the court to 
give the benefit of the doubt on human rights issues to national legislatures and to domestic courts 
unless they have gone too far. Paragraph 12 also calls for the principle and the doctrine to be 
included in the preamble to the ECHR. This should remind the ECtHR that the states, over which the 
court has jurisdiction, want to see that jurisdiction kept within reasonable limits. Second, paragraph 
15 supports paragraph 12 by affirming that an application to the ECtHR should be regarded as 
manifestly ill –founded and therefore in admissible where it raises a complaint that has duly 
considered by a domestic court unless it raises a serious question affecting the ECHR. The ECtHR is 
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encouraged to take a strict and consistent approach to declaring such applications inadmissible. 
Third, paragraph 15 also will enable the ECtHR to reject applications where the applicant has not 
suffered a significant disadvantage even where such an application has not been considered by a 
domestic court. Fourth, the paragraph 15 also states that the time limit to apply to the ECtHR should 
be reduced from six months to four. This a reduction of one-third and may lead to a reduction in the 
number of knee-jerk applications to the ECtHR such as the recent application of Abu Qatada but the 
danger is this change may prevent genuine applications from proceeding. Fifth, paragraph 12 also 
aims to introduce new momentum to ECtHR’s rarely used advisory jurisdiction which would enable 
the highest domestic courts to obtain advisory opinions on the interpretation of the ECHR just as 
domestic courts can obtain preliminary references from the European Court of Justice on issues of 
EU law. The UK wanted to encourage this momentum because it supports principle of subsidiarity 
and the margin of appreciation doctrine and encourages “institutionalised dialogue” (paragraph 4) 
between domestic courts and the ECtHR. The question that remains unanswered is whether an 
advisory opinion mechanism will be introduced on a basis which limits the right to individual petition 
to ECtHR. Many in the Conservative Party would support that change.  
    
Conclusion. 
For those who believe in the importance of oral testimony and cross-examination the decision in Al-
Khawaja & Tahery v UK [2011] ECHR 2127 is to be welcomed. This writer welcomes it and the 
positive influence of the ECtHR on European Human Rights Law. That influence is acknowledged in 
the Brighton Declaration where paragraph 2 states “the Court has made an extraordinary 
contribution to the protection of human rights in Europe for over 50 years”. In addition it should be 
noted that the Declaration is just that a declaration it has no legal effect as the Council of Europe 
institutions (in particular the Committee of Ministers) have to give effect to the Declaration. It is 
hoped that its effect will be modest in that it leads to an improvement in the working of the ECtHR 
such preventing a reoccurrence of the current backlog of applications rather than limiting the 
Strasbourg court’s positive influence on European Human Rights Law.   


‘Through the grapevine’ a follow up article on hearsay evidence and human rights

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