UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses

R v Horncastle & Ors [2009] UKSC 14 (9 December 2009) The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from witnesses who were unable to attend court either because they were dead or out of fear for their safety.  The Court held that where the evidence before a court is that of an identified but absent witness, there is no reason for imposing an absolute rule that such evidence should be excluded where it is the 'sole or decisive evidence' against a defendant, provided appropriate counter-balancing measures had been adhered to.

Facts

Horncastle concerned two sets of appeals heard together:

• In the first case, Mr Horncastle & Mr Blackmore were convicted of causing grievous bodily harm, with intent, to Mr Rice.  Mr Rice provided a statement to police.  However, he died before trial.  His statement was admitted into evidence at trial pursuant to the Criminal Justice Act 2003 (UK) (‘CJA’), which makes admissible (subject to conditions), the statement of a witness who cannot give evidence because he or she has died.  The defendants appealed their convictions, but the Court of Appeal rejected their appeals.
• In the second case, Mr Marquis & Mr Graham were convicted of kidnapping a young woman, Ms Miles.  Ms Miles provided a statement to police.  The day before trial, Ms Miles disappeared, citing her fear of attending Court.  Her statement was admitted into evidence pursuant to the CJA, which makes admissible (subject to conditions), the statement of a witness who is unable to give evidence out of fear.  The defendants appealed their convictions too, which were also rejected by the Court of Appeal.

All appellants then appealed to the UK Supreme Court on the basis that they did not receive a fair trial, contrary to art 6 of the European Convention on Human Rights.  The central issue on appeal was whether a conviction based ‘solely on or to a decisive extent’ on the statement of a witness whom the defendant had not had the opportunity to cross-examine at trial, infringed the right to a fair trial under arts 6(1) and 6(3)(d) of the Convention.

Decision

The Court dismissed the appeals.  In a unanimous decision, the Court concluded that, provided the safeguards enshrined in the CJA are properly adhered to, there will be no breach of art 6 of the Convention if a conviction is based solely, or decisively, on hearsay evidence.

The words ‘solely’ or ‘decisively’ were considered at length because the appellants sought to rely on the decision of the European Court of Human Rights in Al-Khawaja & Tahery v United Kingdom (2009) 49 EHRR 1.  In that case, the European Court found that ‘where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to re-examine or to have examined...the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6’.

However, in Horncastle, the UK Supreme Court differed from that approach, noting that hearsay evidence leading to a conviction is not ‘unsafe’ and can be justified where ‘counter-balancing factors’ have been strictly followed, but that this must be assessed on a case by case basis.  Those factors are numerous and include: the overall unfairness to any party to the proceeding; alternative special measures for the protection of a witness; the credibility of the unavailable witness; and whether the evidence would be admissible if the witness were to give it orally.  The Court also said that imposing ‘the sole or decisive test produces a paradox’, adding ‘it will often be impossible to decide whether a particular statement was the sole or decisive basis of a conviction’.   In the case of a jury trial, the Court suggested that the test would require ‘mental gymnastics that few would be well equipped to perform’.  All in all, the Court held that it would not be right to hold that the 'sole or decisive test' should override the provisions of the CJA, stating:

[We] believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims...and society...that a criminal should not be immune from conviction where a witness...dies or cannot be called to give evidence for some other reason.

Relevance to the Victorian Charter

The decision in Horncastle appears to be consistent with the trend in international and comparative jurisprudence to allow hearsay evidence in criminal proceedings, particularly in circumstances where a key witness is too fearful for their safety to attend court.  In Australia, hearsay evidence is generally excluded, although there are some exceptions.  Interestingly, in Horncastle, the Court noted that the approach by Australian courts to such evidence is ‘nuanced and circumscribed, with a view to ensuring the overall fairness of the proceedings’.  This often means that hearsay evidence will only be permissible as a last resort, where all other options (such as witness protection, remote facilities, suppression of names, etc) have been exhausted.

Finally, the Court’s approach to art 6 of the Convention may inform the interpretation of s 24 (right to fair hearing) and s 25 (rights in criminal proceedings) of the Victorian Charter, in particular, s 25(g) (right to examine witnesses against him or her),  Given international trends, it seems likely that Victorian courts would take a similar approach to that in Horncastle and look at the admissibility of hearsay evidence on a case by case basis and where the right balance can be struck.

The decision is available at http://www.bailii.org/uk/cases/UKSC/2009/14.html.

Daniel Creasey is a lawyer and Pro Bono Coordinator with DLA Phillips Fox