In one corner had been the Supreme Court armed with R v Horncastle  UKSC 14, and in the other had been the European Court of Human Rights armed with Al-Khawaja and Tahery v United Kingdom  ECHR 110. The main argument between these two heavyweight contenders had been over whether the UK courts provided sufficient counterbalancing measures against the admission of untested hearsay evidence which was central to a prosecution case against a defendant. The position of the ECHR was that hearsay evidence against a defendant which was “sole or decisive”, but was nonetheless admitted into evidence, may well lead to a breach of the defendant’s right to a fair trial under Article 6. The Supreme Court’s position was that the measures contained within the CJA 2003 were sufficient to protect a defendant’s human rights and that the “sole or decisive” test championed by the ECHR was not one which should be adopted by the UK courts. The final word in this duel came on 15 December 2011 when the Grand Chamber of the ECHR effectively conceded, albeit grudgingly, that even where hearsay evidence was “sole or decisive” the provisions of the UK courts (under a combination of common law, the CJA 2003 and the PACE 1984) were sufficient, whilst still maintaining that in the case of Tahery there had been a violation of his Article 6 rights.
As the recent judgement in Riat makes clear, the net result of this cross-jurisdictional wrangling is that advocates dealing with an application to admit hearsay evidence in the UK courts are bound to follow what was said in Horncastle and to apply the relevant provisions of the CJA 2003 whenever it comes into conflict with anything said by the Grand Chamber in Al-Khawaja and Tahery. It is also clear that even if the hearsay evidence relied on by the prosecution is the sole or decisive evidence against a defendant, the fact that it is sole or decisive does not necessarily mean it will be excluded.
Whilst it might be tempting simply to chalk this up as a victory for the Supreme Court, the reality is that the various lengthy judgements by both sides have meant that the adequacy of the provisions of the CJA 2003 in relation to hearsay evidence have come under an unprecedented degree of scrutiny. The upshot of this can be seen in the cases of Ibrahim and Riat where the Court of Appeal have provided useful practical guidance for advocates on how to approach an application to adduce hearsay evidence likely to be critical in a case against a defendant.
The proper approach in terms of the CJA 2003, itemised by Lord Justice Hughes in Riat at paragraph 7, is now as follows:
- Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss.116-118 CJA)?
- What material is there which can help to test or assess the hearsay (s.124)?
- Is there a specific ‘interests of justice’ test at the admissibility stage?
- If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s.114(1)(d))?
- Even if prima facie admissible, ought the evidence to be ruled inadmissible (s.78 PACE 1984 and/or s.126)?
- If the evidence is admitted, then should the case subsequently be stopped under s.125?
In determining the answers to the questions above, both Ibrahim and Riat suggest that a court should have at the forefront of its mind two matters. Firstly, how important is the hearsay evidence to the case as a whole? The more central it is, the greater the caution that should be adopted before it is admitted. And secondly, how reliable is the hearsay evidence in the case when compared against other known information and evidence? The more unreliable it is, or the more difficult it is properly to assess its reliability, the less likely it is to be admitted. As the court put it in Ibrahim there is a ‘pre-condition that [the] untested hearsay evidence be shown to be potentially safely reliable before it can be admitted.’
Quite how these concepts will interact with a judge’s duty under s.125 CJA 2003 to stop a case where the hearsay evidence is so unconvincing that any conviction would be “unsafe” is, I suspect, something which the Court of Appeal may well have to re-visit.
Oliver Weetch, 1 Inner Temple Lane, London.