Good Essay On Legal Features Of Hearsay
THE ADMISSIBILITY OF HEARSAY AS EVIDENCE IN UK COURTS: A CRITICAL REVIEW OF R V HORNCASTLE IN THE CONTEXT OF UK LAW AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Hearsay refers to statements made by third parties out of court, which can potentially be presented in a court hearing as evidence without the third party being present in court to substantiate the claims. Due to the nature of Article 6 of the European Convention on Human Rights, the use of hearsay as a basis for the conviction of an individual is against an accused person’s right to a fair trial. This is because all forms of evidence presented for a fair trial must be verifiable and it must be presented to the court for cross-examination and further enquiries. In recent times, two cases have proven to be contradictory on how the UK’s laws and the European Convention on Human Rights work to achieve justice through the use of hearsay as evidence. They are the cases of Al-Khawaja and Tahery V the United Kingdom and R V Horncastle & Others.
The purpose of this paper is to critically examine the extent of the decision of the Supreme Court in R V Horncastle and how this relates to the UK’s obligations to provide fair trials in its courts under Article 6 of the European Convention on Human Rights.
The traditional Common Law position is that hearsay is “an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted”. This is illustrated as a process through which a witness in court attempt to provide evidence on the basis of what other people told him. The English legal system in its quest to provide fairness and justice, has had to eliminate hearsays from court proceedings. This is because it is apparent that people could just call would-be witnesses before they testify and tell them what they know about a case. Hence, a witness would just go to court and provide evidence based on what s/he has heard.
Therefore, it is not practical for hearsays to be admitted in a court of competent judicature. This is because hearsay is not a reliable means of gathering evidence. This is because it could open the floodgate for the fabrication of evidence by people to frame accused persons in the society.
However, in some situations and contexts, hearsay might be the only way through which evidence can be gathered to prosecute persons. A classical case is where there is a whistleblower or a citizen in the society who reported a dangerous criminal and whose identity ought to be kept confidential. The Criminal Justice Act, 2003 provided a revolutionary view of the situations and the contexts within which hearsay might be admissible evidence in criminal prosecutions in the UK to ensure fairness. This includes the following events:
Where the best interest of the public and justice requires that the hearsay evidence is admitted;
In cases where there is logical grounds that the witness in question cannot attend the hearing, for example death, incapacity and/or travel outside the UK;
Where evidence is documented and can be presented as certified and authentic;
In a situation of multiple hearsays where there are many people who are making the same assertion on a given fact;
Hearsay and Unfair Trials, Article 6 of ECHR
The European Convention on Human Rights is a body of rules that Britain internalised into its legal system after instituting the Human Rights Act, 1998. Article 6 of the European Convention on Human rights makes it inherent for citizen of the UK to be presumed innocent until proven guilty through a fair trial. This includes the guarantee of a series of minimum rights to protect them from a partial trial that will be against their fundamental human rights.
Subsection 3 of Article 6 of the European Convention on Human Rights provides that anyone accused of a crime and is to go through a trial will have a number of minimum rights that are outlined as follows:
It is obvious form the above that Article 6(3)(d) provides an obvious need for the courts to summon all witnesses to the trial to provide evidence that can be examined by the witness and the prosecution before the trial can be considered fair. This is a fundamental right that is protected by the ECHR and where it is breached, an individual has the right to appeal to the European Court on Human Rights against the Member State to achieve justice.
The nature of Article 6(3)(d) conflicts with the Criminal Justice Act 2003 (Sections 114 – 121) which makes provisions for cases to be presented to court without the presence of witnesses. This provides a situation where the UK Supreme Court could potentially conflict with the European Court of Human Rights. This conflict and its resolution can be viewed from two of the main cases that came with potentially different conclusions and the precedents they set in current UK Law.
Sole Reliance on Hearsay/ Reliance to a Decisive Extent
In the case of Al-Khwaja, he allegedly had indecent contact with his female patient when she was under hypnosis. The patient made a documented claim of the facts and confided in two friends before the trial. However, she committed suicide before the trial was scheduled to be completed. Therefore, her claim and the information she gave to her two friends were used as basis for her trial. It was held that Al-Khawaja had acted maliciously and he was convicted on the basis of the claims which did not include any other witnesses’ accounts of events.
In the second case of Tahery, he allegedly stabbed another person in a gang fight. All the witnesses said they did not see him stabbing the victim. However, a person made a confidential submission that he saw Tahery stabbing the victim. Tahery was sent on trial and the judge instructed the jury on the basis of secret witness’ submission but the judge simply warned the jury against overreliance on the statement of the unknown witness who did not turn up for cross-examination due to the fear of his safety. On the basis of this anonymous claim, the jury asked for the conviction of the accused.
However, the lawyers of the two defendants argued that it is not possible to investigate to a full degree of credibility, the claims and submissions of an anonymous witness. On the basis of the fact that the evidence was not presented for thorough scrutiny by way of a cross-examination of the witnesses, the two appealed against the decision.
In a previous hearing by the European Court of Human Rights, it was apparent that they advocated for a blanket system against the admissibility of evidence made by absent or anonymous witnesses when they were the sole or decisive basis on which a conviction was based. The European Court on Human Rights therefore ruled that the two cases were based solely or decisively on hearsay. Hence, the British courts were advised to reverse the decision, which they did.
The “sole and decisive reliance” became a standardised test that was instituted in UK legal rules and systems. The case of R V Horncastle involved the review of the cases of grievous bodily harm and kidnapping. In the first case, the victim gave written evidence but later died of circumstances not relating to the act of the accused persons. Hence, they could not attend the trial and the trial decisively relied on the written evidence of the absent witness. The second case involved a victim who was to afraid to appear in the court.
The defendants appealed against the decision appealed and a court of five justices stated that they were not going to apply the sole and decisive reliance rule since that was not practical. The case was sent to the House of Lords and the justices held that the European Court on Human Rights sole and decisive rule was not relevant because the evidence presented was sufficient and could provide enough evidence to convict the people and the reason for non-appearance of the witnesses was justified. Other judges on the panel stated that the UK Common Law tradition had developed sufficient safeguards and the European Court of Human Rights’ apparent disregard for these safeguards rendered the principle in appropriate.
Therefore, the elements of the Criminal Justice Act, 2003 were upheld in the Horncastle case. This shows a high degree of inconsistency in the approach and views of the Grand Chamber. The Grand Chamber however accepted that there are areas where exceptions could be permitted in the use of hearsays. The first is the situation where there is a good reason for the witness to be absent and the second is where there is sufficient safeguard to prevent the miscarriage of justice.
It is identified that there is an obvious conflict between the UK’s local legal system and the need to protect the rights of accused person under Article 6 of the European Convention of Human Rights. The ECtHR asserts that where a decision to convict a person is solely or decisively based on reliance on such hearsay evidence, then the conviction could be overturned. However, in cases where there is a good reason for hearsays to be presented as the only form of protecting the public, the ECHR Article 6 could be disregarded. This provides some degree of ambiguity in the English legal system. However, it is recommended that there should be some kinds of reforms that will make it difficult for the conflicts of sole and decisive usage of hearsay and inadmissible evidence can be minimised.
Spencer John, Hearsay Evidence in Criminal Proceedings London: Bloomsbury Publishing, 2014
Anthony Gordon, 'Article 6 ECHR, Civil Rights, and the Enduring Role of the Common Law' (2013) 19 European Public Law, Issue 1, pp. 75–96
Bird James, “Article 6 in the Supreme Court: Conflicting Views on the Right of Confrontation” Plymouth Law and Criminal Justice Review (2014) Issue 1 pp107-126
Ormerod, D., Choo, A., Easter, R., ‘Coroners and Justice Act 2009: the ‘witness anonymity’ and ‘investigation anonymity’ provisions’, Criminal Law Review (2010), 368-388
Al-Khawaja and Tahery V the United Kingdom  49 EHRR 1
Luca v Italy  36 EHRR 807
R V Horncastle & Others  UKSC 14;  2 AC 373
Criminal Justice Act, 2003
European Convention on Human Rights, Article 6