The general rule in England and Wales is that hearsay statements are not admissible as they defeat any opportunity for the defence to cross-examine witnesses. Such a right is now enshrined in Articles 6(1) and 6(3)(d) of the European Convention on Human Rights. Under the Criminal Justice Act 2003, there are instances in which hearsay evidence can be admitted when the statement maker is not available to give evidence – for example, if they are dead or fearful of attendance in court. The admissibility of such evidence is a particularly thorny issue when such evidence is the sole or decisive evidence for conviction. After a series of case law in the domestic and European Courts, it is now settled that admitting hearsay evidence in such circumstances will not automatically result in a violation of the right to a fair trial. This approach is to be commended.
Hearsay is defined as any ‘oral or written statement, made by a person other than the maker, which is offered in evidence to prove the truth of the matter asserted’. So for example, in the recent case of R v Lam Hai Vo a text message reading ‘Want to meet you this evening. I intend to ask Uncle Lam to take me as last time’ was considered hearsay as the purpose of the message was to cause the recipient to believe that Lam would be his driver that evening. The default position under English and Welsh law is that hearsay evidence is not admissible. There are a number of justifications for the rule including the danger that hearsay evidence might be concocted, it is not delivered on oath and it may not be the ‘best evidence.
The Criminal Justice Act 2003 now stands as the main mechanism for admitting hearsay evidence. Particularly relevant to the present discussion is section 116 which allows hearsay evidence to be admitted where evidence would normally be capable of being admitted, the person who made the statement is identified to the court’s satisfaction and the person is dead, unable to attend due to a mental or physical condition, is outside the United Kingdom and could not reasonably be expected to return, the witness cannot be found, or the witness is fearful of giving evidence. This gateway to admission is wider than its predecessor – section 23 of the Criminal Justice Act 1988 – in that is extends to oral statements, admission of evidence is usually automatic if the criteria is met and the definition of fear includes considerations such as fear of financial loss. Given this wide approach there are real concerns that the new provisions may tilt the balance too far against the accused. These concerns fell to be considered by the European and domestic courts.
Al-Khawaja (Fourth Chamber)
Article 6(1) of the European Convention asserts that all those accused of a crime have the right to a fair trial. Article 6(3)(d) of the European Convention further provides an accused with a right to ‘examine or have examined witnesses against him and to obtain the attendance and examination of witnesses’. The protection of these rights is problematic where the courts have to consider the guilt of a defendant based on hearsay evidence which is the sole or decisive evidence against him. This has led to a series of decisions at the European and domestic level which have attempted to fashion an adequate resolution to this issue.
The clash between Strasbourg and the domestic courts was realised in the landmark decision of Al-Khawaja and Tahery v UK. The decision was a direct attack on the provisions of the 2003 Act. The Strasbourg Court found a violation of Article 6 based on the grounds that there could be no viable way in which the defence could rebut the hearsay evidence presented. The court held that since the hearsay evidence was the sole, or at least the decisive, prosecution evidence any conviction would therefore be in breach of Article 6(1) and 6(3)(d).
The Strasbourg decision initiated a dialogue between the ECtHR and the Supreme Court with the latter rejecting the approach in Al-Khawaja in R v Horncastle. Horncastle was convicted based solely or decisively on statements made by parties who were not called to give evidence before the jury. The statements made by the absent witnesses were admitted by virtue of section 116 of the 2003 Act. Horncastle, relying on the Strasbourg decision in Al-Khawaja asserted that as his conviction was based solely or decisively on evidence from absent witnesses who could not be cross-examined, that this was a violation of article 6(1) and 6(3)(d) of the Convention.
The Supreme Court emphatically rejected much of the analysis of the Strasbourg Court in Al-Khawaja. The court conceded that while there was a duty under section 2(1) of the Human Rights Act 1998 to take account of jurisprudence of the ECtHR, the domestic court could decline to follow the Strasbourg Court where there were concerns that the European Court had failed to appreciate aspects of the domestic process. This was despite the fact that normally domestic courts will apply the Strasbourg case law.
Lord Philips, giving the leading judgement of the court, analysed the relevant case-law from Strasbourg on Article 6(3)(d). His Lordship concluded that although the ECtHR had recognised the need for exceptions to a strict application of Article 6(3)(d), the manner in which the Strasbourg courts approved such exceptions resulted in case law that lacked any clarity. Lord Philips highlighted that the sole or decisive rule had been introduced as an overarching rule in the case-law without any consideration of whether such application was necessary in both continental and common law legal systems. Lord Philips urged that the rule had been introduced to remedy a flaw in the continental systems whereas the English system could call on a body of jurisprudence related to the rules governing the admissibility of evidence and therefore the sole or decisive rule was not required.
Furthermore, Lord Philips posited that the sole or decisive rule would create considerable practical difficulties for English criminal procedure. Problems existed as to the meaning of ‘decisive’ and it would be exceptionally difficult for appellate courts to enquire as to whether a statement was ‘decisive’. The Court was concerned that the ‘sole or decisive test produces a paradox. It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon.’ Lord Philips acknowledged that there would be instances where a hearsay statement would be unreliable, but equally there would be instances where such sole and decisive hearsay statements would be entirely reliable from which to construct a conviction from. His Lordship provides the example of a man who visits London and witnesses a hit and run and makes a statement to police in which he recalls the registration number and make of car involved as well as the fact that the driver was a man with a beard. Lord Philips concluded that 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’.
Finally, and crucially, the Supreme Court found that the current legislative framework in the 2003 Act made the sole or decisive rule unnecessary in criminal evidence. The provisions of the 2003 Act contained safeguards which if observed meant that a conviction based solely or decisively on hearsay evidence would not violate Articles 6(1) and 6(3)(d). For Lord Brown, given the practical difficulties identified, and the current safeguards provided by the 2003 regime, the Fourth Chamber in the initial Al-Khawaja case could not have intended such an ‘absolute principle’ so as to always hold that sole or decisive hearsay evidence would violate the Convention. The net effect is that the Supreme Court recognised that the admissibility of hearsay evidence which constituted the sole or decisive prosecution evidence did not automatically result in a violation of Article 6.
Al-Khawaja (Grand Chamber)
After Horncastle had been heard, the issue was revisited by the Grand Chamber of the ECtHR in Al-Khawaja v UK. The European Court welcomed the ‘judicial dialogue between national courts and the European Court on the application of the Convention’. The Grand Chamber concluded that the admission of hearsay evidence, as the sole or decisive evidence in a prosecution case would not ‘automatically result in a breach of Article 6 § 1.’ However, where such evidence was admitted, the courts ‘must subject the proceedings to the most searching scrutiny’ which would involve as assessment of whether ‘there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place.’ In relation to the 2003 Act, the court found that it contained ‘strong safeguards designed to ensure fairness’. In Al-Khawaja’s case, sufficient counterbalancing factors existed in that the complainant had told two of her friends the details of the alleged offence shortly after it had been committed and there was a similar complaint from another complainant.
However, the ruling should not be considered a decisive victory for the Supreme Court. As evidenced by Redmayne ‘in the crucial sections where the Court responds to the Horncastle arguments, it gives little indication that it is backing down, and actually takes issue with the principal claims put forward in Horncastle’ (2012).’ For example the court rejected the Supreme Court’s arguments relating to the practical difficulties with the sole and decisive test and the lack of clarity in the Strasbourg jurisprudence. Nevertheless, the thrust of the Grand Chamber judgement, like the Supreme Court in Horncastle, is that hearsay evidence which is the sole or decisive evidence for conviction does not automatically result in a violation of the right to a fair trial.
The law as it stands after Horncastle and the Grand Chamber judgment in Al-Khawaja is to be applauded. We must have faith in our juries that they can weigh up the strength of evidence in a case, and judges will continue to stress that oral arguments tested by cross-examination carry more weight that hearsay statements. Various studies have concluded that juries are capable of understanding the limitations of hearsay evidence. Hearsay evidence is capable of being compelling – the hit and run example in Horncastle, or well-corroborated as in Al-Khawaja. Therefore, any argument advocating that such evidence should be excluded loses much of its force. Furthermore, where a court finds that there are not sufficient safeguards in place to counterbalance the hearsay evidence, a violation of Article 6 is still possible – this is exactly what happened to the second defendant in the Al-Khawaja case.
After Horncastle, convictions based on hearsay evidence which constitutes the sole or decisive evidence in a case do not automatically threatened the right to a fair trial. While the approach of the Supreme Court and the Grand Chamber have some differences, both judgements advocate this approach. Such an approach is to be applauded in that it allows compelling or well-corroborated evidence to be admitted. Exclusion of such evidence automatically would lead to injustice for victims.
List of Cases and Statutes
R v Cole and Keet  EWCA Crim 1924
R v Horncastle  2 AC 373
R v Lam Hai Vo  EWCA Crim 2292
R v Shabir (Mohammed Haness)  EWCA Crim 2564
Al-Khawaja and Tahery v UK Application No 26766/05 (2009) 49 EHRR 1
Al-Khawaja v UK (2012) 54 EHRR 23
Criminal Justice Act 2003
Criminal Justice Act 1988
Doak J and McGourlay C, Evidence in Context (3rd edn, Routledge 2012)
Durston G, Evidence: Text and Materials (2nd edn, OUP 2011)
Klug F and Wildbore H, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’  European Human Rights Law Review
Park R,‘Visions of Applying the Scientific Method to the Hearsay Rule’  Michigan State Law Review 1149
Redmayne M, ‘Hearsay and Human Rights: Al-Khawaja and the Grand Chamber’ (2012) 75(5) Modern Law Review 865
Jonathan Doak and Claire McGourlay, Evidence in Context (3rd edn, Routledge 2012) at 291.
 EWCA Crim 2292.
R v Shabir (Mohammed Haness)  EWCA Crim 2564.
Gregory Durston, Evidence: Text and Materials (2nd edn, OUP 2011) 243-244.
Criminal Justice Act, section 116(1)(a).
Criminal Justice Act 2003, section 116(1)(b).
Criminal Justice Act 2003, section 116(2)(a).
Criminal Justice Act 2003, section 116(2)(b).
Criminal Justice Act 2003, section 116(2)(c).
Criminal Justice Act 2003, section 116(2)(d).
Criminal Justice Act 2003, section 116(2)(e).
Durston (n 4) 256-257.
Application No 26766/05 (2009) 49 EHRR 1.
 2 AC 373.
F Klug and H Wildbore, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’  EHRLR 621.
Horncastle (n 14) at .
ibid at .
ibid at 
ibid at .
(2012) 54 EHRR 23.
ibid at [O-I 2].
ibid at 
ibid at .
Mike Redmayne, ‘Hearsay and Human Rights: Al-Khawaja and the Grand Chamber’ (2012) 75(5) Modern Law Review 865 at 870.
R v Cole and Keet  EWCA Crim 1924 at .
R Park,‘Visions of Applying the Scientific Method to the Hearsay Rule’  Michigan State Law Review 1149.
Redmayne (n 34) at 876.
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