The ECHR has been having a hard time of it recently from the UK press and particularly from some of the more right wing elements in the House of Commons (see the ‘votes for prisoners’ row last year). Just before Christmas, the ECHR’s decision in Al-Khawaja was eagerly awaited as the first ‘showdown’ on the issue. Judgment came on 15th December.
The background was the decision of the Fourth Section on 20th January 2009 that concluded that a conviction could not be obtained if the hearsay evidence was the ‘sole and decisive’ evidence against the defendant. This did not go down well with everyone. Five months later, the Court of Appeal gave judgment in Horncastle where the Court concluded (paras 79-82) that, contrary to the view of the ECHR, “the principled solution provided for by the CJA 2003 in relation to hearsay evidence is consistent with Article 6(3)(d) of the ECHR, and is not further qualified by a separate test relating to whether the evidence is sole or decisive in the case”. The stage was set for the Supreme Court…
When judgment was given on 9th December 2009, it came as somewhat of a shock. Six months earlier (and after Al-Khawaja in the ECHR) the House of Lords had given judgment in AF that considered, in effect, that a Strasbourg judgment was binding (it’s obviously more complicated than that). Most pithilily was Lord Rogers: “Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.” However, the Supreme Court in Horncastle dimsissed the appeal and invited the ECHR, when they inevitably considered it, to consider the conclusions of the British courts and on the differences in the British common law system.
As it came closer to the ECHR judgment, the political row deepened, and it looked less likely that the ECHR would ‘overturn’ the Supreme Court. The judgment was given on 15th December. The Press Release accompanying it seemed to suggest that Britain had ‘won’. “The Court agreed with the domestic courts and found that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6 § 1.” and “For the second requirement the Court took the same same view as the British courts, and found that the sole or decisive rule should not be applied in an inflexible way, ignoring the specificities of the particular legal system concerned.”
So, game over? It would seem so. However, I think that the press release is slightly misleading and leaves the ‘sole and/or decisive’ test alive and kicking…at least as far as the ‘sole’ part is concerned. Certainly the Prosecution syllogism that has been seen : (1) There is no sole and decisive rule, (2) In this case the hearsay evidence is the only evidence, therefore (3) This evidence is admissible, is not correct.
The Court does conclude (para 147) that the ‘sole or decisive’ rule does not apply. However, there must be suffiecient safeguards in place. Whilst s78 PACE contains sufficient safeguards in theory, it’s worth looking at the Tahery case (para 165): “The Court therefore considers that the decisive nature of T’s statement in the absence of any strong corroborative evidence in the case meant the jury in this case were unable to conduct a fair and proper assessment of the reliability of T’s evidence. Examining the fairness of the proceedings as a whole, the Court concludes that there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement. It therefore finds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention in respect of Mr Tahery. ”
Conceptually then, how can a piece of evidence by ‘sole’ but there be ‘corroborative evidence’? The judgment seems to say (and defence practitioners should certainly argue) that in a ‘typical’ case; say, for example, Mr Smith is up for ABH where the only evidence is the witness statement of the complainant then, in the absence of any corroborative evidence, the application of the ECHR judgment means that it is not possible to have a fair trial, end of. What is sufficient corroboration? Well, an admission in interview certainly. An exculpatory ‘self-defence’ interview, probably. Photographs of injury, possibly.
Taher is a ‘typical’ case. The ‘appeal’ was allowed not because of any problems with the directions to the jury or anything like that, but with the legislative framework that allowed the absent witness’ evidence to be read. Whatever the press release says, it seems clear that there are a category of cases where, however undesirable, due to the absence of other evidence, it is simply not Art 6 compliant for an individual to be convicted. Those cases are basically ones where the hearsay evidence is the only evidence against an individual.
But for now, it’s over to the Court of Appeal/Admin Court to see where we go from here. The only case so far is Hornsell  EWCA Crim 227 (2nd February this year) where the conflict between Al-Khawaja in the ECHR and the Supreme Court was not addressed (as clearly on the facts, the evidence was not sole or decisive). For now however, Argentoratum locutum, iudicium finitum and the sole or decisive rule is there, albeit under a different guise.