1. law, govt and politics
2. legal issues
3. human rights

University of Queensland, TC Beirne School of Law Staff Seminar, 23 April 2010.
This is work in progress: please do not cite without permission or disseminate further.
Criminal Evidence, Human Rights and Procedural Tradition:
Towards Cosmopolitan Common Law or Constitutional Anarchy in the UK?
PAUL ROBERTS 1
1. A Human Rights Revolution in English Criminal Procedure?
Lord Woolf CJ, addressing the ECtHR on 23 January 2003:
“[P]rior to the coming into force of the Human Rights Act, the United
Kingdom, alone among European States, had no written constitution. The
statutory recognition of human rights as part of domestic law involved a
seismic change in our approach to the protection of human rights. A change of
this nature can be as difficult for a mature legal system as it is for a new legal
system.”
Two diametrically opposed views can be traced through the relevant institutional
materials, and are reflected in broader policy and political debates: nothing has
changed vs everything has changed….
A. NOTHING HAS REALLY CHANGED
Despite this reference to “seismic” change, and a fair amount of real apprehension in
various quarters about the impact of the ECHR post-HRA, there was also a prominent
view that, in reality, it would be ‘business as usual’ after October 2000. This reflected:
•
pervasive (complacent?) attitude, still evident in many CA judgments, 2
that English law would already satisfy the minimum standards required
by Strasbourg;
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UK’s record at Strasbourg;
•
adversarial assumptions of Art 6;
•
the policy idiom of “bringing rights back home”.
Thus, in the speech from which I have already quoted, Lord Woolf CJ, proceeds to
explain why “the informed view is that making the European Convention part of our
domestic law has proved to be a great success” and the “process of implementation
has gone extremely smoothly”:
1
Professor of Criminal Jurisprudence & Co-Director of the LLM Programme, University of
Nottingham School of Law; Professorial Visiting Fellow, UNSW, April 2010.
2
Lord Woolf CJ’s remark in Attorney General’s Reference (No 1 of 2004) [2004] 2 Cr App R
27, CA, [14] that ‘Article 6 does no more than reflect the requirements of fairness which have
long been part of English law’ is typical of the genre.
“The first reason, and perhaps the most important, is that the values to which
the European Convention on Human Rights gives effect are very much the
same values that have been recognised by the common law for hundreds of
years.”
B. EVERYTHING HAS CHANGED
Accepting this congruence of values at a fairly abstract level of political morality, it
certainly does not follow that business is likely to continue as usual at the coalface of
criminal process. Bert Swart (1999) reports that the Dutch, who incorporated
immediately on becoming parties to the ECHR in 1954, were soon shaken out of their
complacent assumptions that the Convention would have little or no material impact
on domestic law. This model has been repeated in England and Wales.
e.g. Art 6(2) and the Presumption of Innocence…
Can a reverse onus ever be consistent with Art 6(2)’s presumption of innocence? Only
limited assistance can be derived from the Strasbourg jurisprudence:
Salabiaku v France (A/141-A) (1991) 13 EHRR 379, ECtHR
“the national legislature would be free to strip the trial court of any
genuine power of assessment and deprive the presumption of
innocence of its substance… Article 6(2) does not therefore regard
presumptions of fact or law provided for in the criminal law with
indifference. It requires states to confine them within reasonable limits
which take into account the importance of what is at stake and
maintain the rights of the defence.”
Since October 2000 there has been a slew of appeals challenging reverse onus clauses
under Art 6(2), including no less than five visits (so far!) to the House of Lords.
•
•
•
•
•
•
R v DPP, ex parte Kebilene [2000] 2 A.C. 326, DC & HL.
R v Lambert (Steven) [2002] 2 AC 545, HL.
R v Johnstone [2003] UKHL 28, [2003] 1 WLR 1736.
Attorney General’s Reference (No 1 of 2004); R v Edwards; R v
Denton and Jackson; R v Hendley; R v Crowley [2004] 2 Cr App R 27,
[2004] EWCA Crim 1025
Sheldrake v DPP; Attorney General’s Reference (No 4 of 2002) [2005]
1 AC 264; [2004] 3 WLR 976; [2004] UKHL 43.
R v Chargot Ltd [2009] 1 WLR 1, [2008] UKHL 73.
SEE: Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 E
& P 241.
Ian Dennis, ‘Reverse Onuses and the Presumption of Innocence: In Search of
Principle’ [2005] Crim LR 901.
David Hamer, ‘The Presumption of Innocence and Reverse Burdens: A Balancing
Act’ (2007) 66 Cambridge Law Journal 143.
2
Paul Roberts, ‘The Presumption of Innocence Brought Home? Kebilene
Deconstructed’ (2002) 118 LQR 41.
- ‘Drug-Dealing and the Presumption of Innocence: The Human Rights Act (Almost)
Bites’ (2002) 6 Evidence & Proof 17.
- ‘Strict Liability and the Presumption of Innocence: An Exposé of Functionalist
Assumptions’, in Andrew Simester (ed), Appraising Strict Liability (OUP,
2005), 151-194.
- ‘Criminal Procedure, the Presumption of Innocence and Judicial Reasoning under
the Human Rights Act’ in Helen Fenwick, Gavin Phillipson and Roger
Masterman (eds), Judicial Reasoning under the UK Human Rights Act (CUP,
2007).
Victor Tadros, ‘Rethinking the Presumption of Innocence’ (2007) 1 Criminal Law &
Philosophy 193.
Victor Tadros and Stephen Tierney, ‘The Presumption of Innocence and the Human
Rights Act’ (2004) 67 MLR 402.
Bert Swart, “The European Convention as an Invigorator of Domestic Law in the
Netherlands,” (1999) 26 Journal of Law and Society, 38.
2. Constitutional Legal Framework
To understand how this situation came about, one must begin with the basic statutory
framework of the HRA.
A. UK HUMAN RIGHTS ACT 1998
Since 2 October 2000 when HRA 1998 entered fully into force the ECHR and its
interpretative jurisprudence became sources of English law:
Section 2(1)
A court or tribunal determining a question which has arisen in connection with a
Convention right must take into account any(a) judgment, decision, declaration or advisory opinion of the European
Court of Human Rights,
(b) opinion of the Commission…
(c) decision of the Commission…, or
(d) decision of the Committee of Ministers…
whenever made or given, so far as, in the opinion of the court or tribunal, it is
relevant to the proceedings in which that question has arisen.
R (Ullah) v Special Adjudicator [2004] 2 AC 323, [2004] UKHL 26, [20]
“[A] national court subject to a duty such as that imposed by section 2 should not
without strong reason dilute or weaken the effect of the Strasbourg case law…
since the meaning of the Convention should be uniform throughout the states party
to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence
as it evolves over time: no more, but certainly no less.”
3
Section 3(1)
So far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights…
R v Sheldrake [2005] 1 AC 264, [28], reciting Ghaidan v GodinMendoza [2004] 2 AC 557, [2004] UKHL 30
“[T]he interpretative obligation under section 3 is a very strong and far reaching
one, and may require the court to depart from the legislative intention of
Parliament’:
Section 4
(1) Subsection (2) applies in any proceedings in which a court determines
whether a provision of primary legislation is compatible with a Convention
right.
(2) If the court is satisfied that the provision is incompatible with a Convention
right, it may make a declaration of that incompatibility…
The ECHR comes complete with its now massive, and continually expanding,
jurisprudence (with most cases raising Art 6 points):
Lord Woolf CJ:
“[W]hile previously a few experts in the United Kingdom were aware of the
rich jurisprudence of this Court, now that jurisprudence is familiar to every
judge and competent lawyer in the country. In the cases that I hear it is rare for
a decision from Strasbourg not to be cited as some stage of the hearing. The
remarkable thing is that although the Strasbourg cases are persuasive, and not
binding, authority, I cannot recall it being suggested that my court should not
follow a Strasbourg precedent because it did not accurately reflect the law.
Without exception practitioners regard the Strasbourg decisions as being of the
highest authority.”
B. ‘INCORPORATION’ AND THE BRITISH CONSTITUTION
The HRA 1998 is both more and less than incorporation of the ECHR (though
lawyers, commentators and even the Government frequently refer, somewhat
casually, to ‘incorporation’).
The Act creates a unique constitutional arrangement with many intriguing and still not
fully untested possibilities. In general terms, the following issues immediately present
themselves:
(i) Novel points
English courts are bound to be called upon to address many specific points of
detail that have not (yet) been litigated in Strasbourg.
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(ii) A domestic law of human rights
English courts could – and arguably should - be bolder than the ECtHR on
certain issues, including some that have previously been litigated in
Strasbourg.
C. INTERPRETATIONAL PRINCIPLES OF THE EUROPEAN COURT
As an international court, the ECtHR needs to find some way of mediating between
the Convention (as part of international human rights law) and domestic legal
procedures and traditions. The pivotal juridical concept for these purposes is the
‘margin of appreciation’:
Handyside v UK (1976) 1 EHRR (Series A/24), [48]-[49]
“[T]he machinery of protection established by the Convention is subsidiary to
the national systems safeguarding human rights. The Convention leaves to each
Contracting State, in the first place, the task of securing the rights and freedoms
it enshrines…. The domestic margin of appreciation thus goes hand in hand
with a European supervision. Such supervision concerns both the aim of the
measure challenged and its ‘necessity’; it covers not only the basic legislation
but also the decision applying it, even one given by an independent court… [I]t
is not possible to find in the domestic law of the various Contracting States a
uniform European conception of morals. The view taken by their respective
laws of the requirements of morals varies from time to time and from place to
place, especially in our era which is characterised by a rapid and far-reaching
evolution of opinions on the subject. By reason of their direct and continuous
contact with the vital forces of their countries, State authorities are in principle
in a better position than the international judge to give an opinion on the exact
content of these requirements..”
Specifically in the context of the law of criminal evidence/procedure, Strasbourg
competence is denied:
Schenk v Switzerland (1988) 13 EHRR 242, [46]
“While Article 6 of the Convention guarantees the right to a fair trial it does not
lay down any rules on the admissibility of evidence as such, which is therefore
primarily a matter for regulation under national law. The Court therefore cannot
exclude as a matter of principle and in the abstract that unlawfully obtained
evidence of the present kind may be admissible. It has only to ascertain whether
Mr. Schenk’s trial as a whole was fair.”
But this statement, taken at face value, is misleading, because the Strasbourg Court
itself defines what counts as a matter of “evidence” for these purposes. Thus, what we
might want to call points of “evidence” might easily strike the ECtHR as significant
components of fair trial rights, on which it will ‘lay down the law’: hence the
jurisprudence on burden and standard of proof, pro-active policing methods
(‘entrapment’), covert surveillance, hearsay, etc.
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Moreover, the ECtHR is not afraid to criticise established procedural traditions and
sometimes even finds them incompatible with a Convention right. Longevity, and
even constitutional status, are no guarantees of Conventional compatibility. This is all
of a piece with another important juridical notion, that of the Convention as a ‘living
instrument’ requiring an ‘evolutive approach’ to its judicial interpretation.
The epitome of evolutive interpretation occurred in Funke, when the ECtHR read the
right to silence and the privilege against self-incrimination into the Convention,
notwithstanding the complete absence of any direct textual support for these rights.
SEE: Allan v United Kingdom (2003) 36 EHRR 143, ECtHR
Borges v Belgium (1993) 15 EHRR 92, Series A No 214-B, ECtHR
Funke v France (1993) 16 EHRR 297, ECtHR
Reinhardt and Slimane-Kaid v France (1998) 28 EHRR 59, ECtHR
Teixeira de Castro v Portugal (1998) 28 EHRR 101; [1998] Crim LR 751, ECtHR
Sander v United Kingdom (2001) 31 EHRR 1003, ECtHR
3. Backlash Against the HRA 1998
The broader political/policy debate betrays an evident caucus of backlash, extending
beyond the usual Euro-sceptic cavils and platitudes.
Melanie Phillips, ‘The human wrong of rule by lawyers’, Daily Mail 26
June 2006:
“[I]n practice [human rights law] has turned our most fundamental values on
their heads. It has stopped us from deporting terrorists and extremists, forcing
us to accommodate people who are a danger to the state. It has tied the police
up in knots and been on the side of those who do wrong, from illegal
immigrants to criminals cocking a snook at justice and milking the system for
compensation…. [V]oters… are horrified by the way it is thwarting attempts
to deal with crime and protect this country against terrorism…. The problem is
that no politician wants to be presented as abolishing human rights… But the
idea that this country had no human rights – like fair trials or freedom of
speech – before the European Convention was drafted just after World War
Two is clearly absurd. Our traditions of justice and liberty are ingrained in
British history. Indeed, it was our lawyers who drafted the Convention.”
Cf. Conor Gearty, Can Human Rights Survive? (CUP, 2006).
The Government’s position was set out in its response to the Joint Committee’s
Report on A Bill of Rights for the UK? (August 2008).
Joint Committee on Human Rights, A Bill of Rights for the UK?
Government Response to the Committee’s Twenty-ninth Report of Session
2007-08, Third Report of Session 2008-09 HL Paper 15/HC 145 (19 January
2009), paras.2, 3, 8 & 11
“The Government has carried out considerable work to correct public
misperceptions about the Human Rights Act. The Implementation Review of
the Human Rights Act (2006) found that the Act had had no adverse effect on
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the Government’s ability to fight crime and had brought about a positive and
beneficial impact upon the relationship between the citizen and the state….
The Government remains fully committed to the fundamental human rights
which are set out in the European Convention and incorporated in the Human
Rights Act…. The Government has repeatedly made it clear that it has no
intention of detracting or resiling from any of the rights guaranteed by the
ECHR in the Human Rights Act…. If any future Bill of Rights and
Responsibilities were drawn up in the form of an Act of Parliament, there
would be a range of options for dealing with the Human Rights Act. These
might include simultaneously repealing and re-enacting the Human Rights Act
as part of a new constitutional document, cross-referencing the Act in any new
document, or simply preserving it as a separate Act.”
The current Tory position is that a Cameron government would repeal the HRA and
replace it with a ‘British Bill of Rights’.
David Cameron speech 8 December 2008: ‘Mugabe must go Now’
“For both of these reasons – the need to enshrine civil liberties in a way that is
relevant to our British traditions and the need to guide the judiciary and the
Executive towards proportionality and common sense – I believe that we now
need a home-grown British Bill of Rights. No doubt it is possible to have a
perfectly fair trial in many civil law jurisdictions without a jury convicting
only against the presumption of innocence. But juries and the presumption of
innocence are fundamental to the particular system of justice that has protected
civil liberties in Britain over the course of a long history. They therefore
represent the natural and proper way for us to translate the universal principle
of the right to a fair trial into practice in England here and now.”
Nick Herbert MP, ‘The law that has devalued your human rights’, 9
November 2008
“Labour’s flagship law has been a poor advertisement for rights. In 1997, one
of the Act’s architects, Lord Irvine, promised that ‘a culture of awareness of
rights will develop’. What has actually been unleashed is a culture of
grievance. The legislation has been a gift to lawyers, an encouragement to
undeserving litigants and a burden on frontline public servants who struggle to
decide what the law is in practice. There are now a thousand human rights
lawyers in the UK, many funded by taxpayers through legal aid. A new
textbook on human rights is published in Britain every week…. We need a
new approach which balances rights with responsibilities in a framework
which will command public support. So instead of adding to the Human
Rights Act, we will replace it with a new British Bill of Rights which puts
rights in context, makes clear Parliament’s intention, and constrains the
influence of Strasbourg law. This solution must protect liberties in this
country, respect legal inheritance, and help restore the place of Parliament.”
Such sentiments are predictably echoed at the extreme Right of the political spectrum:
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George Fanning, ‘Many Unhappy Returns of the Human Rights Act’, 3
November 2008
“…surely one of the most pernicious pieces of legislation ever passed by the
mother of Parliaments…. At best, the Human Rights Act has been ineffective;
at worst it has created a toxic culture of faux rights and impunity for the guilty
and undeserving. It has also done much to undermine the foundations of the
English legal system…. Free speech has been eroded by successive racial and
religious ‘hate’ laws which have made Britons terrified of speaking their mind
on any subject that might be deemed ‘politically incorrect’. The right to trial
by jury has been limited and the ancient legal protections against ‘double
jeopardy’ have been abolished. A freeborn Englishman can now be locked up
without charge in his own land for longer than in any other western country….
Needless to say, the Human Rights Act would be repealed during the first term
of a British Nationalist Government. We would replace it with a British Bill of
Rights, based on the best principles of Magna Carta and the original 1689 Bill
of Rights…. ancient and robust British freedoms would be restored, and the
vacuous, alien jargon of Human Rights legislation would be exposed to the
ridicule it so richly deserves.”
But also by some informed judicial (and broadly sympathetic) observers:
Lord Hoffmann:
“[W]e have not surrendered our sovereignty over all these matters. We remain
an independent nation with its own legal system, evolved over centuries of
constitutional struggle and pragmatic change. I do not suggest belief that the
United Kingdom’s legal system is perfect but I do argue that detailed decisions
about how it could be improved should be made in London, either by our
democratic institutions or by judicial bodies which, like the Supreme Court of
the United States, are integral with our own society and respected as such….
Even if the Strasbourg judges were omniscient, knowing the true interests of
the people of the United Kingdom better than we do ourselves, it would still be
constitutionally inappropriate for decisions of the kind [discussed in this
paper] to be made by a foreign court…. I would accept, indeed applaud, the
use of [the Convention] at the political level as a benchmark for compliance
with human rights by members of the European Union. The problem is the
Court; and the right of individual petition, which enables the Court to
intervene in the details and nuances of the domestic laws of Member States.”
4. The English Law of Hearsay and Article 6(3)(d)
An unfinished tale, not of two cities, but of three cases (with a fourth yet to come):
• Al-Khawaja
•
Tahery
•
Horncastle
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A. THE FIRST TWO COURT OF APPEAL DECISIONS
Both cases raised the question whether the prosecution could rely on the out-of-court
hearsay statement of an absent witness.
•
R v Imad Al-Khawaja [2005] EWCA Crim 2697, The Times, 15 Nov 2005
•
R v Alireza Tahery [2006] EWCA Crim 529
CJA 2003, s. 116 Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the
proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the
statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is
identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or
mental condition;
(c) that the relevant person is outside the United Kingdom and it is not
reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is
reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not
continue to give) oral evidence in the proceedings, either at all or in
connection with the subject matter of the statement, and the court gives
leave for the statement to be given in evidence.
(3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and
(for example) includes fear of the death or injury of another person or of
financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that
the statement ought to be admitted in the interests of justice, having regard—
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness
to any party to the proceedings (and in particular to how difficult it
will be to challenge the statement if the relevant person does not
give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of
the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special
measures for the giving of evidence by fearful witnesses etc) could
be made in relation to the relevant person, and
(d) to any other relevant circumstances.
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(5) A condition set out in any paragraph of subsection (2) which is in fact
satisfied is to be treated as not satisfied if it is shown that the circumstances
described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the
statement in evidence, or
(b) by a person acting on his behalf, in order to prevent the relevant
person giving oral evidence in the proceedings (whether at all or in
connection with the subject matter of the statement).
1.
R v Al-Khawaja [2005] EWCA Crim 2697, [25] - [26]
“The appellant was able to attack the accuracy of Miss T’s statement by
exploring the inconsistencies between it and the witnesses, Mr F and Mrs H,
and through the expert evidence relating to ‘altered perception’ under
hypnosis. The relevant sections of the 1988 Act contained provisions designed
to protect defendants, which were properly considered by the judge, before the
statement was admitted in evidence. Lastly, the tribunal of fact, here the jury,
could and should take proper account of the difficulties which the admission
of a statement might provide for the appellant, which should be provided by an
appropriate direction to the jury.
Where a witness who is the sole witness of a crime has made a statement to
be used in its prosecution and has since died, there may be a strong public
interest in the admission of the statement in evidence so that the prosecution
may proceed. That was the case here. That public interest must not be allowed
to override the requirement that the defendant have a fair trial…. This was not
a case where the witness had absented himself, whether through fear or
otherwise, or had required anonymity, or had exercised a right to keep silent.
The reason was death, which has a finality which brings in considerations of
its own.”
2.
R v Alireza Tahery [2006] EWCA Crim 529, [12]-[13], [17], [21]
per Rose VP:“The judge was satisfied that, if he were to refuse the application there would
be unfairness to the Crown and that, were he to allow it, there would not be
unfairness to the applicant. To rebut what Takhtshani had to say, there was
available not only cross-examination of other prosecution witnesses but also
evidence from the applicant himself and the potential for evidence from other
bystanders.
Consequent upon his ruling, Takhtshani’s statement was read. The judge
warned the jury that the witness had not before it given oral evidence since,
although the source was not the applicant, he was in fear. That being so, the
jury should not hold against the applicant the fear felt by the absent
Takhtshani, indeed the applicant wanted him there so as to cross-examine
him.”
“Summing-up, the judge reminded the jury of his earlier direction upon the
admission of Takhtshani’s evidence and expanded upon it. The jury had been
denied the opportunity, he told it, to consider Takhtshani’s demeanour. It
should consider the whole of the evidence, when asking itself whether
Takhtshani had reached an accurate or an inaccurate conclusion: his statement
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should be relied upon only were the jury sure it was true, accurate and
compelling.”
“[I]n our judgment, the learned judge was well aware of the constraints
imposed upon him by the combination of national and international
legislation… He was, as he made plain and is accepted, addressing the familiar
task of putting [in]consistencies into the melting pot which is the totality of
evidence for a jury.”
Nit-picking through the language of the summing-up…
A “melee of unfairness”?
B. THE APPLICATION TO STRASBOURG
The applications to Strasbourg were founded on ECHR Article 6(1) and (3)(d):
Article 6 – Right to a fair trial
1 In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law…
2 Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
3 Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance, to
be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.
Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1; [2009]
Crim LR 352 (App Nos. 26766/05 & 22228/06) ECtHR Judgment, 20
January 2009
There had been a breach of Art 6(3)(d) in both cases, inasmuch as the accused had
been convicted solely or to a decisive extent on the basis of witness evidence that D
had never had an opportunity to challenge, contrary to the statement of principle set
out in Lucà v Italy at [40]:
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“If the defendant has been given an adequate and proper opportunity to
challenge the depositions either when made or at a later stage, their admission
in evidence will not in itself contravene Article 6 §§ 1 and 3(d). The corollary
of that, however, is 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 examine or to have examined, whether during the
investigation or at the trial, the rights of the defence are restricted to an extent
that is incompatible with the guarantees provided by Article 6.”
[42]
[46]
[47]
Applied in relation to A-K:
“While it was certainly open to the defence to attempt to challenge the
credibility of S.T., it is difficult to see on what basis they could have done so,
particularly as her account corresponded in large part with that of the other
complainant, with whom the trial judge found that there was no evidence of
collusion. The absence of collusion may be a factor in domestic law in favour
of admissibility but in the present case it cannot be regarded as a
counterbalancing factor for the purposes of Article 6 § 1 read with Article 6 §
3(d). The absence of collusion does not alter the Court’s conclusion that the
content of the statement, once admitted, was evidence on count one that the
applicant could not effectively challenge. As to the judge’s warning to the
jury, this was found by the Court of Appeal to be deficient. Even if it were not
so, the Court is not persuaded that any more appropriate direction could
effectively counterbalance the effect of an untested statement which was the
only evidence against the applicant. Therefore the Court finds a violation of
Article 6 §§ 1 read in conjunction with Article 6 § 3(d) of the Convention in
respect of Mr Al-Khawaja.”
Applied in relation to T:
“[T]he fact that alternative measures are found to be inappropriate does not
absolve domestic courts of their responsibility to ensure that there is no breach
of Article 6 §§ 1 and 3 (d) when they then allow witness statements to be read.
Indeed, the rejection of less restrictive measures implies a greater duty to
ensure respect for the rights of the defence. As regards the ability of the
applicant to contradict the statement by calling other witnesses, the very
problem was that there was no witness, with the exception of T., who was
apparently able or willing to say what he had seen. In these circumstances, the
Court does not find that T.’s statement could have been effectively rebutted.
The Court accepts that the applicant gave evidence himself denying the
charge, though the decision to do so must have been affected by the admission
of T.’s statement. The right of an accused to give evidence in his defence
cannot be said to counterbalance the loss of opportunity to see and have
examined and cross-examined the only prosecution eye-witness against him.”
In neither case, moreover, could this defect be cured by a judicial direction:
“[I]n the case of an absent witness such as T., the Court does not find that such
a warning, including a reminder that it was not the applicant who was
responsible for the absence, however clearly expressed, would be a sufficient
counterbalance where that witness’s untested statement was the only direct
evidence against the applicant.”
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C. COMMON LAW COMMENTATORS’ REACTIONS
Some common lawyers reacted to the Al-Khawaja judgment as a step too far. In
delivering last year’s JSB lecture on 19 March 2009, Lord Hoffmann declared:
“This was a case after the Human Rights Act 1998 had come into force and in
which the Court of Appeal expressly considered whether the procedure was
compatible with article 6. It is quite extraordinary that on a question which had
received so much consideration in the Law Commission and Parliament, the
Strasbourg court should have taken it upon themselves to say that they were
wrong.”
Also see:
Andrew Ashworth [2009] Crim LR 353:
“This judgment creates difficulties for English law… Here, the Strasbourg
Court, including the English judge Sir Nicholas Bratza, reaches a clear and
uncompromising conclusion on the importance of giving effect to art.6(3)(d).
It may be regarded as paradoxical that this provision, a common law principle
insisting on the importance of cross-examining witnesses, should be mobilised
so strongly against the jurisdiction chiefly responsible for its drafting.”
Editorial (Ian Dennis) [2009] Crim LR 311-2
“There can be no doubt that the more liberal regime for hearsay put in place by
the Criminal Justice Act 2003 has received a sharp check. On the face of it,
trials are not going to be able to continue where the only or the main
prosecution evidence against the defendant is a statement from a witness who
has become unavailable…. The fallout from this latest Strasbourg judgment is
likely to receive the attention of the Court of Appeal in the near future.
Practitioners and commentators can expect to be kept busy.”
5. The English Courts’ Response: Horncastle
The UK government referred Al-Khawaja to the Grand Chamber on 16 April 2009;
Grand Chamber has deferred judgment pending outcome of these domestic appeals.
In the meantime, English courts had to figure out what to do with the ECtHR’s
judgment.
A. COURT OF APPEAL
R v Horncastle and Blackmore; R v Marquis and Graham; R v Carter
[2009] 2 Cr App R 15, [2009] EWCA Crim 964
Conjoined appeals, heard by five member CA, all presented issue of relying on
hearsay evidence “solely or to a decisive degree” in the light of Al-Khawaja (which
the UK government has requested be referred to Grand Chamber.
13
[28]
Thomas LJ:“The question with which we are confronted is whether art.6 requires the line
as to the admissibility of hearsay (against a defendant) to be drawn at the point
at which such evidence is to be classified as the ‘sole or decisive’ evidence or
whether the Convention permits it to be drawn in the manner enacted by
Parliament in the CJA 2003.”
The Strasbourg case law addresses situations in which the witness is absent, or
anonymous, or sometimes both. Although “witness” is given an autonomous meaning,
not limited to those who actually testify at trial, it is also clear that there is no absolute
right to confront witnesses under Art 6(3)(d).
[37]
“Examples of reasons which have been found in principle acceptable to the
Court are:
• i) death: Farrantelli v Italy (1997) 23 E.H.R.R. 288;
• ii) illness: Trivedi v United Kingdom [1997] E.H.R.L.R. 521;
• iii) fear of reprisals, whether from the defendant personally or more
generally: Doorson at [71], Kok v The Netherlands [2000] ECHR 706 (
Application No.43149/98), Visser v The Netherlands [2002] ECHR
108 ( Application No.26668/95) at [47], Krasniki v Czech Republic
[2006] ECHR 176 (Application No.51277/99) at [80]– [81];
• iv) missing witness: Artner v Austria [1992] ECHR 55 ( Application
No.39/1991/291/362);
• v) vulnerable witness such as a child: SN v Sweden (2004) 39 E.H.R.R.
13 (p.304).
It will be seen that these categories, which are not exhaustive, are closely
matched in the CJA 2003.”
[47]
“[W]e respectfully question whether any of the decisions prior to Al-Khawaja
has gone so far as to examine evidence from an identified witness who is
absent for good reason, but where such evidence can be assessed as reliable or
tested in a manner that respects the rights of the defence.”
[48]
“It is necessary, we think, to distinguish between cases of anonymous
witnesses and identified but absent witnesses. The CJA 2003 is concerned
with identified but absent witnesses. It does not permit the admission of the
evidence of anonymous witnesses. Different considerations apply to
anonymous witnesses.”
“It is clear in our view that the right to confront witnesses for the prosecution
under art.6(3)(d) is not an absolute one. That follows from the case law of the
ECtHR and is the position accepted by the Privy Council in Grant v R. [2007]
1 A.C. 1 at [17(1)] and [19]. If it were, there would be no exception and there
would be a prohibition upon all hearsay evidence, whether crucial or
otherwise. As we have set out, the case law demonstrates that the right to
confront a witness can in certain limited circumstances be restricted, provided
that the trial is fair and the rights of the defence respected… The adequacy of
such counterbalancing measures can only be judged by the criterion whether
the proceedings as a whole are fair, for once it is accepted that the right under
art.6(3)(d) is not absolute, that is the only criterion against which it can be
judged.”
[56]
14
[57]
“Where the evidence before the court is that of an identified but absent
witness, we can see no reason for a further absolute rule that no
counterbalancing measures can be sufficient where the statement of the absent
witness is the sole or decisive evidence against the defendant. That would
include cases where the hearsay evidence was demonstrably reliable, or its
reliability was capable of proper testing and assessment, thus protecting the
rights of the defence and providing sufficient counterbalancing measures.”
[64]
“The importance of the evidence within the case is an entirely separate issue
from its reliability.”
[74]
“Sole or decisive hearsay evidence can be wholly convincing, indeed scarcely
capable of dispute. Equally, evidence which is neither sole nor decisive might,
in some circumstances, have such a potential influence upon the deliberations
of the jury that the judge is persuaded that a conviction would be unsafe.”
“[I]t cannot realistically be contended that in every case the jury or other factfinder will be incapable of making a proper decision as to what weight can be
attached to the evidence. The mere fact that such evidence is an essential link
in the chain by which it is sought to prove the guilt of the accused does not
alter that.”
[66]
[68]
[70]
[72]
In addition to arguments of principle and precedent, a general rule excluding all “sole
or decisive” hearsay would be utterly unworkable, because it is not possible to know
in advance of the trial being run what evidence will, in fact, turn out to be decisive (or
sole) in the case:
“A routine test of admissibility of evidence which can only be applied in
retrospect, after the outcome of the trial is known, makes the trial process little
more than speculative….Nor can any defendant decide how to conduct his
case, and indeed whether or not to plead guilty, if he does not know what
evidence can and cannot be relied upon.”
“No one can know what evidence is decisive until the decision-making process
is over.”
“It follows that as a matter of practice the concept of ‘sole or decisive
evidence’ is incapable of operating as a legal test of admissibility, as it would
have to be applied in a criminal trial in England and Wales.”
This analysis shows that there is no support for an independent ‘sole or decisive’ test
for the admission of hearsay, either on grounds of authority, principle (including fair
trial considerations) or pragmatic convenience.
[58]
[79]
“[W]e consider that the decision of the ECtHR in Al-Khawaja does not, on the
analysis which we endeavour to set out in the light of a fuller consideration of
the CJA 2003, justify us in departing from the decisions of this court prior to
that decision.”
“For these reasons, we conclude that, provided the provisions of the CJA 2003
are observed, there is no breach of art.6, and in particular art.6(3)(d), if the
conviction is based solely or to a decisive degree on hearsay evidence
admitted under the CJA 2003. There is nothing in our view in the judgment of
the ECtHR in Al-Khawaja considered in the light of a full analysis of the CJA
15
2003 that leads us to conclude that this court was wrong in the result it reached
in a number of its decisions in relation to art.6 and art.6(3)(d).”
[80]
[82]
“What art.6 requires is that the trial shall be fair. As we have set out,
art.6(3)(d) is not simply one example of the right to a fair trial, but has a
content of its own. But given that art.6(3)(d) does not create any absolute right
in an accused to have every witness against him present to be examined, the
balance struck by the code enacted in the CJA 2003 is a legitimate one and
wholly consistent with the Convention.”
“It is not therefore necessary for us to consider the methods by which a sole
and decisive test could be written into the code set out in the CJA 2003.”
B. UK SUPREME COURT
R v Horncastle; R v Marquis; R v Carter [2009] UKSC 14, [2010] 2
WLR 94 (47 for [2009] EWCA Crim 964)
The judgment delivered by Lord Phillips was notably unanimous, with a concurrence
from Lord Brown and several annexes of detailed jurisprudential analysis prepared by
Lords Mance, Phillips and Judge.
Lord Phillips PSC (Lords Judge CJ, Neuberger MR, Brown, Mance, Kerr, and
Baroness Hale JJSC agreeing):
This judgment should be regarded as complementary to the CA’s, not as its substitute
– “I endorse those conclusions and almost all of the reasoning that led to them” [13].
[14]
“The following are the conclusions that I have reached for reasons that I shall
develop: (1) Long before 1953 when the Convention came into force the
common law had, by the hearsay rule, addressed that aspect of a fair trial that
article 6(3)(d) was designed to ensure. (2) Parliament has since enacted
exceptions to the hearsay rule that are required in the interests of justice.
Those exceptions are not subject to the sole or decisive rule. The regime
enacted by Parliament contains safeguards that render the sole or *98 decisive
rule unnecessary. (3) The continental procedure had not addressed that aspect
of a fair trial that article 6(3)(d) was designed to ensure. (4) The Strasbourg
court has recognised that exceptions to article 6(3)(d) are required in the
interests of justice. (5) The manner in which the Strasbourg court has approved
those exceptions has resulted in a jurisprudence that lacks clarity. (6) The sole
or decisive rule has been introduced into the Strasbourg jurisprudence without
discussion of the principle underlying it or full consideration of whether there
was justification for imposing the rule as an overriding principle applicable
equally to the continental and common law jurisdictions. (7) Although English
law does not include the sole or decisive rule it would, in almost all cases,
have reached the same result in those cases where the Strasbourg court has
invoked the rule. (8) The sole or decisive rule would create severe practical
difficulties if applied to English criminal procedure. (9) Al-Khawaja does not
establish that it is necessary to apply the sole or decisive rule in this
jurisdiction.”
16
[11]
[16]
(i) An open letter to Strasbourg
“The requirement to ‘take into account the Strasbourg jurisprudence will
normally result in the domestic court applying principles that are clearly
established by the Strasbourg court. There will, however, be rare occasions
where the domestic court has concerns as to whether a decision of the
Strasbourg court sufficiently appreciates or accommodates particular aspects
of our domestic process. In such circumstances it is open to the domestic court
to decline to follow the Strasbourg decision, giving reasons for adopting this
course. This is likely to give the Strasbourg court the opportunity to reconsider
the particular aspect of the decision that is in issue, so that there takes place
what may prove to be a valuable dialogue between the domestic court and the
Strasbourg court. This is such a case.”
(ii) English criminal procedure – the basics
“The English criminal process is adversarial. Its focal point is the trial, which
is the judicial part of the process.”
[18]
“There are two principal objectives of a fair criminal trial. The first is that a
defendant who is innocent should be acquitted. The second is that a defendant
who is guilty should be convicted. The first objective is in the interests of the
individual; the second is in the interests of the victim in particular and society
in general. The two objectives are sometimes in tension and, where they are,
the first carries more weight than the second.”
[20]
“Jury trials are presided over by a judge who acts as gatekeeper as to what is
and what is not permitted to be placed before the jury as evidence. This is an
important safeguard for the defendant. The basic principle is that only the
‘best’ evidence is placed before the jury, that is, the evidence that is most
likely to be reliable. In 1953 this principle rendered inadmissible almost all
‘hearsay’ evidence.”
[26]
“While some of these rules were designed to guard against the risk of an
innocent man being convicted, others also met the requirement of fairness that
called for ‘equality of arms’ in a procedure that was adversarial.”
[31]
[35]
[36]
(iii) The admissibility of hearsay in common law jurisdictions
“Hearsay is not made generally admissible by this statutory code [CJA 2003].”
“The statements of witnesses who are dead, ill, missing, or absent through fear
are examples of hearsay made admissible because the evidence is otherwise
unavailable. Other categories of hearsay are made admissible because, in the
ordinary way, they are likely to be reliable.”
“It follows that both in the case of unavailable witnesses, and in the case of
apparently reliable hearsay, the CJA 2003 contains a crafted code intended to
ensure that evidence is admitted only when it is fair that it should be.”
Other generic safeguards apply: s.124 permits admissibility of material going to credit
of absent witness, on a basis potentially more favourable to opposing party than in the
normal course (because the collateral-finality rule is disapplied); s.125 instructs judge
to stop proceedings in order to prevent an unsafe conviction, on a basis going beyond
17
Galbraith; also s.78 PACE. Law Commission expressly considered, and rejected,
formal corroboration requirement, in favour of this balanced package of protections.
[38]
“The trial judge acts as gatekeeper and has a duty to prevent the jury from
receiving evidence that will have such an adverse effect on the fairness of the
proceedings that it should not be received…. Hearsay evidence is only
admissible in strictly defined circumstances.”
Auld [Spencer] would have gone further and opted for a best evidence rule. But Law
Com’s more modest proposals prevailed, and “it was upon the Law Commission’s
recommendations that the 2003 Act was essentially based” [40].
[41]
[107]
[73]
[75]
Hearsay exceptions in other Commonwealth jurisdictions
“Other established common law jurisdictions, namely Canada, Australia and
New Zealand have, by both common law and statutory development,
recognised hearsay evidence as potentially admissible, under defined
conditions, in circumstances where it is not possible to call the witness to give
evidence, even where the evidence is critical to the prosecution case….
[U]nder the common law and statutory exceptions to the hearsay rule
recognised in those jurisdictions there is no rigid rule excluding evidence if it
is or would be either the ‘sole’ or ‘decisive’ evidence, however those words
may be understood or applied. Instead, the common law and legislature in
these countries have, on a principled basis, carefully developed and defined
conditions under which hearsay evidence may be admitted, in the interests of
justice and on a basis ensuring that defendants receive a fair trial. Under the
common law system of jury trial, the conditions relating to the admissibility of
evidence combine, to this end, with the trial judge's role as gatekeeper in
applying them and his general residual discretion to exclude prejudicial or
unfair evidence from going before the jury.”
(iv) How to interpret Article 6(3)(d)
Criminal procedure in the civil law jurisdictions
“The jurisprudence of the Strasbourg court in relation to article 6(3)(d) has
developed largely in cases relating to civil law rather than common law
jurisdictions and this is particularly true of the sole or decisive rule.”
The Strasbourg jurisprudence prior to Al-Khawaja
“Although… the Strasbourg court has accepted that in exceptional cases
failure to comply with the strict requirements of article 6(3)(d) will not
invalidate the fairness of the trial, the court has not acknowledged this in
terms. The court might have said, in terms, that paragraph (3)(d) has no
application where it is impossible to call a witness at the trial, but it did not.
The court might have said, in terms, that in exceptional circumstances a failure
to comply with paragraph (3)(d) will not render the trial unfair, but it did not.
Rather the court has used language that has tended to obscure the fact that it is,
in reality and in special circumstances, countenancing a failure to comply with
the requirements of paragraph (3)(d).”
“[T]he phrases ‘in principle’ and ‘as a rule’ [in Kostovski, [41]] reflect the fact
that the Strasbourg court has recognised that the requirements of article 6(3)(d)
are not absolute or inflexible…. The words that I have emphasised, repeated
18
again and again in the Strasbourg jurisprudence, appear to suggest that a right
to challenge a witness at the investigatory stage of the criminal process will be
enough to satisfy article 6(3)(d). This exemplifies the danger that repeated
repetition of a principle may lead to its being applied automatically without
consideration of whether, having regard to the particular facts of the case, its
application is appropriate. The true position is, I suggest, that where possible
the defendant should be entitled to examine witnesses at the trial but that,
where this proves impossible, the fact that the defendant had a right to
challenge the witness at the investigatory stage is a relevant factor when
considering whether it is fair to rely on the witness' deposition as evidence at
the trial: see, for instance, Lucà v Italy 36 EHRR 807.”
[80]
[86]
[89]
[90]
The sole or decisive rule
“The court in Doorson v The Netherlands gave no explanation for the sole or
decisive rule. It was not a rule that was relevant on the facts of that case, so an
English jurist might suggest that it was mere obiter dicta which need not be
afforded much weight. But the rule was propounded repeatedly in subsequent
cases, and it is necessary to consider these in order to attempt to deduce the
principle underlying the rule.”
“No explanation was given in Doorson in respect of the principle underlying
the sole or decisive test first propounded by the court in that case, and, so far
as I am aware, the Strasbourg court has not subsequently explained why a
conviction based in part on the evidence of a witness who was not called, or
who was anonymous, need not offend article 6(1)(3)(d), while, on the
contrary, if the evidence is sole or decisive the article will be violated. I have
concluded, however, that the Strasbourg court has drawn the distinction on the
premise that a conviction based solely or decisively upon the evidence of a
witness whose identity has not been disclosed, or who has not been subjected
to cross-examination, or both, will not be safe…. I have not been able to
identify any convincing alternative rationale for the sole or decisive test.”
Practicality
“Whatever be the precise definition of ‘decisive’, the duty not to treat a
particular piece of evidence as ‘decisive’ is hard enough for a professional
judge to discharge. In theory he can direct himself that he must not convict if
the relevant statement is decisive, and state in a reasoned judgment that he has
complied with that direction. In practice such a course will often not be easy.
As for the Court of Appeal or the Strasbourg court, 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, a direction to the jury that they can have regard to a
witness statement as supporting evidence but not as decisive evidence would
involve them in mental gymnastics that few would be equipped to perform. If
the sole or decisive test is to be applied in the context of a jury trial, the only
practical way to apply it will be a rule of admissibility. The judge will have to
rule inadmissible any witness statement capable of proving ‘decisive’. This
will be no easy task… If ‘decisive’ means capable of making the difference
between a finding of guilt and innocence, then all hearsay evidence will have
to be excluded.”
19
[92]
[93]
[107]
[108]
[113]
Application to English law
“[T]he justification for the sole or decisive test would appear to be that the risk
of an unsafe conviction based solely or decisively on anonymous or hearsay
evidence is so great that such a conviction can never be permitted. Parliament
has concluded that there are alternative ways of protecting against that risk
that are less draconian, as set out in the 1988 and 2003 Acts (and now, with
regard to anonymous witnesses, the 2008 Act). When the Strasbourg decisions
are analysed it is apparent that these alternative safeguards would have
precluded convictions in most of the cases where a violation of article
6(1)(3)(d) was found. In particular the legislation does not permit the
admission of the statement of a witness who is neither present nor identified.
Where the witness is unavailable but identified, or present but anonymous, the
respective Acts provide the safeguards to which I have referred earlier against
the risk that the use of the witness’ evidence will render the verdict unsafe and
the trial unfair.”
“Under our domestic principles of admissibility in almost all of these
[Strasbourg] cases [set out in Lord Judge CJ’s Annexe] the relevant evidence
would have been ruled inadmissible and the defendant would not have been
convicted. The cases suggest that in general our rules of admissibility provide
the defendant with at least equal protection to that provided under the
continental system.”
“[Strasbourg] case law appears to have developed without full consideration of
the safeguards against an unfair trial that exist under the common law
procedure. Nor, I suspect, can the Strasbourg court have given detailed
consideration to the English law of admissibility of evidence, and the changes
made to that law, after consideration by the Law Commission, intended to
ensure that English law complies with the requirements of article 6(1)(3)(d) .
In these circumstances I have decided that it would not be right for this court
to hold that the sole or decisive test should have been applied rather than the
provisions of the 2003 Act, interpreted in accordance with their natural
meaning. I believe that those provisions strike the right balance between the
imperative that a trial must be fair and the interests of victims in particular and
society in general that a criminal should not be immune from conviction where
a witness, who has given critical evidence in a statement that can be shown to
be reliable, dies or cannot be called to give evidence for some other reason. In
so concluding I have taken careful account of the Strasbourg jurisprudence. I
hope that in due course the Strasbourg court may also take account of the
reasons that have led me not to apply the sole or decisive test in this case.”
Lord Brown JSC:“These appeals are of the utmost importance. If the Strasbourg case law does
indeed establish an inflexible, unqualified principle that any conviction based
solely or decisively on evidence adduced from an absent or anonymous
witness is necessarily to be condemned as unfair and set aside as contrary to
articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme
for ensuring fair trials— the scheme now enshrined (as to hearsay evidence) in
the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal
Evidence (Witness Anonymity) Act 2008 — cannot stand and many guilty
20
defendants will have to go free. It is difficult to suppose that the Strasbourg
court has in fact laid down so absolute a principle as this…”
Perhaps Al-Khawaja did not intend to lay down an inflexible “absolute principle”. But
then again, reading the judgment, there is a “distinct possibility” [117] that the
Strasbourg Court intended precisely that:
[117]
[118]
“In this event the question then arises: what should this court do? Should we
accept and apply this absolute principle with the inevitable result that these
appeals must be allowed or should we instead decline to follow the Strasbourg
decision in Al-Khawaja and in effect join with the United Kingdom
Government in inviting the Grand Chamber to overrule it (the Grand Chamber
panel having adjourned the UK's request for such a reference until the
pronouncement of our decision on these appeals)?
I have not the least doubt that the latter course is to be preferred.”
6. Towards Cosmopolitan Common Law?
The ECtHR is not afraid to criticise established procedural traditions and sometimes
even finds them incompatible with a Convention right. Longevity, and even
constitutional status, are no guarantees of Conventional compatibility. All well and
good, in principle.
But if the ECtHR is determined to regulate the minutiae of states parties’ criminal
procedure, it had better ensure that it acquaints itself with the finer details and realities
of local procedural law and practice. It is not sufficient to paint in broad brushstrokes
here. The judgement that, e.g, the admission of particular kinds of hearsay in
particular kinds of cases offends Article 6 cannot justifiably be made on a cursory
inspection of the law and its application to the facts in the instant case. Rather, it
requires detailed and informed jurisprudential analysis, not only of the broader legalnormative framework in which particular doctrinal rules sit, but also – far more
ambitiously – of the juridical heritage and contemporary local interpretations of an
evolving procedural tradition.
SEE: Allan v United Kingdom (2003) 36 EHRR 143, ECtHR
Borges v Belgium (1993) 15 EHRR 92, Series A No 214-B, ECtHR
Funke v France (1993) 16 EHRR 297, ECtHR
Reinhardt and Slimane-Kaid v France (1998) 28 EHRR 59, ECtHR
Teixeira de Castro v Portugal (1998) 28 EHRR 101; [1998] Crim LR 751, ECtHR
Sander v United Kingdom (2001) 31 EHRR 1003, ECtHR
A. BROADENING THE COMMON LAW MIND (WITHOUT BLOWING IT)
English lawyers cannot help reading cases as precedents in the stare decisis sense.
This is generally a mistake when applied to the European legal order.
In addition to the unusual position of an international court (reflected in the margin of
appreciation) and the idea of evolutive interpretation of a living instrument,
21
Strasbourg decisions are also intensely fact-based and delivered on the merits. For all
these reasons, the Strasbourg Court does not really regard itself as being bound by its
own case law: cf:
SN v Sweden (2004) 39 EHRR 13, ECtHR, [47]
“The Court has had regard to the special features of criminal proceedings
concerning sexual offences. Such proceedings are often conceived of as an
ordeal by the victim, in particular when the latter is unwillingly confronted
with the defendant. These features are even more prominent in a case
involving a minor. In the assessment of the question whether or not in such
proceedings an accused received a fair trial, account must be taken of the right
to respect for the private life of the perceived victim. Therefore, the Court
accepts that in criminal proceedings concerning sexual abuse certain measures
may be taken for the purpose of protecting the victim, provided that such
measures can be reconciled with an adequate and effective exercise of the
rights of the defence (see Baegen v. the Netherlands, judgment of 27 October
1995, Series A no. 327-B, opinion of the Commission, p. 44, § 77). In
securing the rights of the defence, the judicial authorities may be required to
take measures which counterbalance the handicaps under which the defence
labours (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports
of Judgments and Decisions 1996-II, p. 471, § 72, and P.S. v. Germany, no.
33900/96, § 23, 20 December 2001).”
Too cheers for Horncastle in this regard.
Most obviously, the English judges, wisely in my opinion (in light of the broader
political context), did not fall for reading a general ‘sole of decisive’ criterion into the
hearsay provisions of the CJA 2003.
Secondly, the UKSC’s insistence that the application of Article 6 to concrete fact
situations necessitates fully contextualised analysis of local law seems absolutely right
to me.
But I am withholding the third cheer because much of both the CA’s and UKSC’s
approach to distinguishing Al-Khawaja involved quite technical doctrinal analysis of
Strasbourg case-law. Moreover, the English courts are telling Strasbourg that its case
law on this issue is unclear and perhaps confused (which it is) and that the ECtHR has
misinterpreted it own jurisprudence. This further criticism might be justified as well,
but it puts the ECtHR in an awkward position.
It is possible that the ECtHR will magnanimously accept being put right by the UKSC
on its own jurisprudence, but I am not holding my breath. I suspect that the ECtHR
will feel obliged to recover some ground here, even if – as it should – it concedes the
broad principle to Horncastle.
B. LEGAL COSMOPOLITANISM
These cases exemplify the trend towards an increasingly cosmopolitan jurisprudence
drawing on diverse legal sources. In these illustrations we can begin to glimpse the
22
complexities and challenges thrown up, for supranational as well as domestic courts,
by the need to draw on more pluralistic legal sources and to construct new normative
hierarchies.
English law is not only being shaped by a supra-national European court comprising
judges of 47 nationalities, the vast majority of whom are civilian jurists; it is also
being affected, albeit indirectly and fairly remotely but nonetheless cumulatively, by
the criminal procedure law and practice of each of the 47 Council of Europe national
states. To paraphrase Neils Bohr’s observations on quantum theory, those who are not
shocked by the profound implications of the cosmopolitan revolution in English
criminal jurisprudence basically just haven’t noticed or properly understood what is
going on.
Further complexity is contributed by the supra-national/regional dimension, with
migration of norms between the ECHR and the EU (with different implications for
English law: cf the Scots Law Commission’s recent conclusion that Art 4 of Protocol
7 ECHR may be incompatible with Art 50 of the Schengen Convention), etc.
Scottish Law Commission, Discussion Paper on Double
Jeopardy DP No 141 (January 2009), paras. 4,44, 4.47, 4.48
“The difficulty here is apparent from a simple comparison of the terms of
Article 50 and of Article 4 of Protocol 7 [to the ECHR]. Article 50, which is in
terms similar to every other international Convention – and in particular to the
various EU agreements and conventions – on the subject, makes no provision
for a new trial on the basis of new evidence. Article 4 of Protocol 7, which the
United Kingdom has neither signed nor ratified, is the only international
Convention to make such provision…. [W]e would hazard the view that, if
both were in force within the United Kingdom, Scottish legislation permitting
a retrial on the basis of new evidence of a person who had been previously
acquitted in another Member State might well be held to be incompatible with
Community law…. [T]his may simply be an occasion where, in spite of the
assertion in the Explanations [to the EU Charter of Fundamental Rights
2007/C 303/02], the Fundamental Right within the European Union is
different from the Fundamental Right expressed in Article 4.”
Human rights law is both typically universalistic in ambition and doctrinally welldeveloped at both national and international levels, and thus predictably is at the
forefront of, and consequently exemplifies, these cosmopolitan trends. The cases
discussed in this paper demonstrate that the law of criminal evidence and procedure is
fully implicated in this on-going jurisprudential revolution.
C. TAKING COMPARATIVE COMMON LAW JURISPRUDENCE SERIOUSLY
The common law is both a fantastic boon and a dangerous fiction.
English law has been enormously enriched by the idea of the common law and the
institutional practices which it has spawned. But there is also a significant downside.
Judicial use of extra-jurisdictional common law authorities is often selective and
sometimes problematic, doctrinally speaking. There is a tendency to assume that all
23
common lawyers think alike, and that the procedural law of every common law
jurisdiction is essentially the same. Notice how it already jars to describe common law
precedents as ‘foreign’ law, even though that is plainly what they are in jurisdictional
terms. The Anglo-American legal universe comprises, not two nations but perhaps
one hundred or more separate legal jurisdictions, divided by a common law language
and its powerful system of ideas.
The era of cosmopolitan legality could be a time of renaissance for a truly
comparative, distinctively common law, jurisprudence. English law is uniquely placed
to be the leading common law system in Europe, and the leading European system in
the common law world.
The broader lesson I draw from the case-study presented in this paper is that the
common law has a bright future in a time of increasingly cosmopolitan jurisprudence.
In order to live up to its full potential, however, the methodological demands of
comparative law and legal reasoning are going to have to be taken much more
seriously than English common lawyers have generally appreciated in the past. This
paper has tried to indicate some of the methodological challenges and novel
jurisprudential possibilities now opening up to legal practitioners, judges and scholars,
not least in the field of criminal evidence and procedure.
SEE: Paul Roberts, ‘Faces of Justice Adrift? Damaška’s Comparative Method and the
Future of Common Law Evidence’, in John Jackson, Maximo Langer and
Peter Tillers (eds), Crime, Procedure and Evidence in A Comparative and
International Context – Essays in Honour of Professor Mirjan Damaska (Hart,
2008), 295-328.
- ‘Why International Criminal Evidence?’, in Paul Roberts and Mike Redmayne
(eds), Innovations in Evidence and Proof: Integrating Theory, Research and
Teaching (Hart, 2007; pb 2009).
- ‘Comparative Law for International Criminal Justice’, in Esin Örücü and David
Nelken (eds), Comparative Law – A Handbook (Hart, 2007), 339-370.
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