HORNCASTLE AND OTHERS v. THE UNITED KINGDOM

FOURTH SECTION

Application no. 4184/10
Michael Christopher HORNCASTLE and others
against the United Kingdom
lodged on 7 January 2010

STATEMENT OF FACTS

The applicants are Mr Michael Christopher Horncastle, who was born in 1980; Mr David Lee Blackmore, who was born in 1981; Mr Abijah Marquis, who was born in 1978; and Mr Joseph David Graham, who was born in 1981. They are all British nationals and are represented by The Johnson Partnership. They are currently in detention.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Mr Horncastle and Mr Blackmore

(a) The attack on P.R.

On 7 May 2005 the victim, P.R., a registered alcoholic, was attacked in his flat. He suffered extensive injuries.

He made a statement to the police on 3 June 2005. In his statement, he explained that on the day of the attack he had been at home in his flat and had drunk at least three litres of cider in the course of the day. At various times during the day he was in the company of X., B. and M. At some point B. and M. had left his flat and had returned carrying a television and a hi-fi system, which they placed in a bedroom. Later in the evening, X., B. and M. left, although the victim explained, “I don’t know times and my memory is vague”. He then recalled answering a knock on the door, following which three men entered the premises by force and attacked him. The victim said:

“The bigger male out of the three started punching me to the face, followed by a man who was on crutches. I was getting punched by all of them and I eventually fell to the floor. I was dragged and pulled into the bedroom where they saw the television and hi-fi system. I remember them going mad punching me more and more to my body and face. I don’t remember much else.”

He described the features of the “bigger male” and the “male on crutches”, whom he knew lived in the same block of flats. He said that the third male was called “Horncastle” and also described him.

The victim died on 23 July 2006 from an alcohol-related illness.

(b) The prosecution evidence and the defence case

Mr Horncastle and Mr Blackmore were subsequently charged, together with D., with causing the victim grievous bodily harm with intent.

The prosecution case was that B. and M. had burgled another flat in the victim’s block of flats, and had taken the stolen property to the victim’s flat. B. and M. had pleaded guilty to that burglary. The prosecution alleged that the attack on the victim had occurred when Mr Horncastle and Mr Blackmore had gone with D., the owner of stolen property, to recover it. They claimed that Mr Blackmore was the “bigger male” and D. was the “male on crutches”.

The defence case was that although Mr Horncastle and Mr Blackmore had gone to the victim’s flat to help recover D.’s property, neither had been involved in the attack.

In a statement, Mr Horncastle said that the victim was very drunk, and that he (Mr Horncastle) had simply collected the television and returned it to D.’s flat. He did not see the attack on the victim.

In his statement to the police, Mr Blackmore said he had been drinking with D. and Mr Horncastle. He had gone back to D.’s flat with them at about 9 p.m. and discovered that it had been burgled. D. asked if they would go with him and recover what had been stolen, as he had been told where it was. They went to the victim’s flat at about 10 p.m. The door was opened by a man whom the others pushed out of the way. They saw the stolen property. He picked up a DVD player, walked out, stepping over the victim who was lying on the floor. He said that he had some specks of blood on his shoes, jeans and T-shirt which had come from the wall or a splatter when the victim had been hit. The door closed behind him. He knew that the victim was getting punched and he did not want to have anything to do with that. He did not know what happened after that. He put the DVD player in the lift. When he returned to the flat, the victim was still lying on the floor. The others were just leaving. There was blood everywhere. He had not hit the victim. He had not expected them to do what they had done.

Another resident of the block of flats, J., made a statement to the police suggesting that M. might have been involved in the assault on the victim. That statement was disclosed to the defence.

(c) The application for the victim’s statement to be admitted at trial

The prosecution applied to read the victim’s statement at trial, under section 116(2)(a) of the Criminal Justice Act 2003 (see “Relevant domestic law and practice”, below). The application was opposed by the applicants under section 78 of the Police and Criminal Evidence Act 1984 (see “Relevant domestic law and practice”, below) on the ground that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them, as there could be no opportunity to challenge it and it was inherently unreliable. The applicants relied on the admission by the victim that he had drunk a quantity of alcohol; on his statement that “I don’t know times and my memory is vague”; and on the fact that the description given of the first male did not fit Mr Blackmore.

The judge ruled on 24 January 2007 that the evidence should be admitted. He found that the condition in section 116(1)(a) was satisfied (namely, that the witness was dead); and that the fact that it was the principal evidence against the defendants did not make its admission unfair. He relied in particular on the fact that the defendants had all admitted being present in the victim’s flat together to recover D.’s property; and that the defendants were going to call J. to give evidence that M. had been responsible for the attack.

(d) The trial

In March 2007 the trial commenced before a judge and a jury. D. subsequently pleaded guilty. The jury in the trial were later discharged for unrelated reasons and a retrial was ordered. A second trial commenced in June 2007, but the jury were again discharged following an issue in relation to the forensic evidence. A third trial commenced in November 2007.

The prosecution relied on other evidence, besides the statement of the victim. X., who had spent the day drinking with the victim, gave evidence to the effect that the victim had been tipsy but not drunk on the afternoon of the attack. He also testified that he had subsequently visited the victim in hospital, where the victim had indicated that he had been attacked by three people but that he could not really remember who had attacked him. Two witnesses gave evidence that the victim had told them that D. and his friends had attacked him. There was also evidence of blood on the television which matched that of the victim. Forensic evidence suggested that the assault had taken place at the front door and the hallway and then at the entrance to the bedroom. There was pooling of blood at the entrance to the bedroom as if the source of the blood had lain there for sometime. Blood on the crutches matched the victim’s DNA profile.

Mr Horncastle gave evidence in his defence. He said that he had been drinking all day with D. and Mr Blackmore. In the evening they had returned to D.’s flat, where they saw that it had been burgled. They went downstairs to another flat and he followed D. inside. He saw a man staggering in the hallway; and D. then pointed out the items that had been stolen. Mr Horncastle had picked up the television and returned to D.’s flat. He had not seen an assault and had not seen any blood. He, Mr Blackmore and D. had returned to the pub.

J. was called to give evidence for the defence. His evidence was that he had heard some shouting and banging on the night of the attack and had seen M. banging on doors. Later he saw M. holding the victim in a headlock; another person was with him. He closed the door but heard a lot of shouting and noise for the next twenty minutes. His answers in cross examination were not consistent with his previous statement to the police.

The judge, on Mr Blackmore’s application, admitted evidence of M.’s previous convictions as evidence of a propensity for violence. The judge refused to admit evidence of the previous convictions of Mr Horncastle and Mr Blackmore.

The judge made clear the importance of the evidence of the victim at the outset of his review of the evidence in the summing up to the jury, noting:

“The prosecution case here depends, does it not, upon the evidence of [the victim].”

He explained to the jury that the victim’s evidence was not agreed, that the defence had not had the opportunity of testing it by cross-examination and that it would carry less weight than evidence from a witness who had come to court and had testified. He set out examples of areas in the victim’s statement which had not been cross-examined.

Just over an hour after the jury had retired, they asked to see the victim’s statement; the judge told them that they could not see it but reminded them of its contents by reading it to them.

The jury subsequently returned unanimous guilty verdicts in respect of both Mr Horncastle and Mr Blackmore.

2. Mr Marquis and Mr Graham

(a) The kidnapping of H.M.

On 1 November 2007 at around 7 p.m. the victim, H.M., was at home alone in the house she shared with her partner, G.P., preparing to take a bath. Six men entered the house and stole various items, including jewellery. After threatening the victim with a knife, they kidnapped her by taking her away in the car they had come in. A black BMW X5 car owned by her partner was also taken at the same time.

The victim subsequently made a statement giving an account of her movements on 1 November 2007. She stated that, as she was about to bathe, two masked men entered her bedroom; one had a knife. She was ordered downstairs where there were four other men. They asked where the jewellery, money and car keys were. They then took her to the car they had come in; four men were with her and they drove off. They asked for G.P.’s telephone number which she gave them and they telephoned him. She then described the telephone conversations that followed. She was told by those who had kidnapped her that she should not go to the police because she would know what would happen to her if she did. She was put in the boot of the car for a while before being dropped off unharmed. After unsuccessful attempts to telephone from various locations, she eventually spoke to her father who picked her up. She did not identify any person as having participated in her kidnapping.

On 1 November 2007 G.P. made a short statement setting out his account of the ransom demands and how the kidnappers had threatened to cut off the victim’s fingers if he did not pay the ransom.

On 4 November 2007 a police officer visited G.P. and the victim, in the presence of the latter’s father, and told them “in no uncertain terms” that the men the police were seeking were dangerous and that it was not beyond them to use guns. He gave as an illustration the use of guns against a family who had fled and had been murdered in the village to which they had been relocated. He spoke to them about moving.

On 22 November 2007 the victim and G.P made statements stating that they wished to retract their previous statements and did not want the police to pursue a prosecution, as they were scared for the safety of their families.

(b) The prosecution evidence and the defence case

Mr Marquis and Mr Graham were charged with kidnapping. The prosecution relied on other evidence, apart from the victim’s statement.

First, Mr Graham was seen with other masked men on the CCTV cameras entering the house on the evening of 1 November 2007. That evidence was not disputed later at trial although when initially questioned Mr Graham had not accepted that he had been to the house or that the person shown on the CCTV was him. It was also not disputed that G.P.’s car had been taken from outside the house shortly thereafter. G.P. was subsequently contacted on his telephone from the victim’s telephone and, subsequently, a number of calls were made from Mr Marquis’ telephone to G.P.; the telephone records which proved this were undisputed.

There was evidence that Mr Marquis had spent the night of 1/2 November 2007 at a hotel and that a woman of his acquaintance, K.H., had gone to the hotel to meet him that night. She gave evidence that she was told to park her car between a red van and “my X5”. When she went to Mr Marquis’ room, she was introduced to a man (whom Mr Marquis refused to identify). She saw a pink telephone which was identical to the one owned by the victim. It was accepted that the telephone used to telephone G.P. that night was used by Mr Marquis to contact K.H. between 31 October and 2 November 2007. A text to her from Mr Marquis at 01:35 stated:

“Hey don’t let no-one know where I am, you know. Remember I know your address and that. You should have just said you were going. I ain’t bothered, but if I get arrested, I know it’s you”

CCTV evidence showed Mr Graham at the wheel of G.P.’s car twice on 2 November 2007; on the second occasion the car had false registration plates. A pursuit had ensued and Mr Graham was arrested; a knife was found in the car.

There was also evidence that a man describing himself as John Graham rented a room at the hotel where Mr Marquis had stayed on 1 November 2007 and had described himself as the driver of a black BMW X5.

Mr Graham’s defence was that there had been no kidnapping; the victim and her partner had been involved in an attempted insurance fraud. Mr Marquis denied any involvement in any kidnapping that there may have been.

(c) The application for the victim’s statement to be admitted at trial

The victim and G.P. did not attend court on 4 April 2008 in compliance with a witness summons that had been issued for the trial. The victim was arrested. On giving an explanation to the judge that, although she was frightened, she would have attended court but she had been told not to attend by Witness Support, she was bailed to appear on 9 May 2008. The trial was fixed for 12 May 2008. G.P. later surrendered into custody, and was also bailed to appear.

The victim made a third statement on 9 April 2008 which was video recorded. In it she said that she had made the retraction statement of 22 November 2007 because she was scared. She thought that those who had kidnapped her were dangerous and was very frightened. She said:

“Since I have been kidnapped, I’ve found that the incident has altered my life. I’m petrified. I find myself looking over my shoulder and wondering if the people responsible will come and get me. I feel like this because at the time they said to me, ‘you’d better not go to the police, ‘cos you know what will happen if you do’. I perceive this as a direct threat against me and I just don’t know what they are capable of, considering that they forced their way into my house and kidnapped me. I perceive them as very dangerous people.”

She added that the police had made her more frightened when they told her that she and G.P. had to move. She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case. She was prepared to give evidence, but only if she could do so from behind screens. She said that she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her, but that she still felt scared.

G.P. made a statement on video on 16 April 2008. In his statement he said that he had tried to get in touch with Mr Marquis because he blamed him for what had happened. Mr Marquis had rung him, but it was clear when Mr Marquis rang that this was not the person who had rung him on the telephone on 1 November 2007. Mr Marquis had explained to him that he had sold the telephone the week before.

Neither the victim nor G.P. attended court on 9 May 2008. The victim’s father’s evidence to the trial judge was that she had fled the day before.

On 12 May 2008, the prosecution applied to read the statements of the victim and G.P. under section 116(2)(e) of the 2003 Act on the grounds that they would not give evidence through fear. The applicants argued that the statement could not be admitted as the victim’s fear was not fear within the meaning of the 2003 Act as it had not been generated by any action of theirs or their associates, but by what the police officer said on 4 November 2007.

On 13 May 2008, the trial judge heard evidence from the victim’s father and the police officer who had spoken to her on 4 November 2007. He concluded that the police officer, though acting entirely in good faith to protect the witnesses, had imparted real fear in the victim:

“Having heard all the evidence, the only sensible conclusion is that she was and is so terrified of coming to court to give evidence, she would rather face arrest and imprisonment. I have no doubt she is in fear of giving evidence.”

He found that there was power under section 116(2)(e) to admit the victim’s statement as she was a witness in fear and concluded that it would not be unfair or unjust to admit it. In the same ruling he declined to admit the evidence of G.P. as he was not satisfied that his non-attendance was due to fear.

On 15 May 2008 an application was made to the judge to admit G.P.’s statement made on 16 April 2008 in the interests of justice under section 114(1)(d) of the 2003 Act so that it could be advanced as part of the defence case of Mr Marquis. It was submitted that Mr Marquis was put at a great disadvantage because the defence could not cross-examine G.P. in relation to the voice heard over the telephone on 1 November 2007. The judge refused the application on the basis that G.P. was not in fear and he was not prepared to go behind his ruling of 13 April 2008; the evidence covered many matters which implicated the applicants and not just that part of it relating to the recognition of the voice over the telephone.

(d) The trial

Mr Marquis and Mr Graham were tried at the Crown Court before a judge and a jury.

Oral evidence was heard from S., a friend of G.P., which the judge directed the jury to treat with caution. S. said he had been with G.P. when G.P. had received a telephone call. He had answered it and looked distressed. S. had been able to hear some of the conversation, including a demand for money and a girl crying in the background. G.P. had told him that someone had taken his girlfriend and was demanding money. There were then a couple more calls. G.P. had asked him to telephone the police which he had done. The tape of that call recorded the person calling the police as giving an account that three black males were demanding money while holding his girlfriend in the bathroom at her house. S. gave evidence that G.P. also received further calls from another telephone. S. had recognised the telephone number and when he put it into his own mobile telephone it registered as belonging to Bijah, the abbreviation used by Mr Marquis for his first name. When S. denied that Bijah was the same person as Mr Marquis, the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew Mr Marquis.

A police officer gave evidence that he had called S.’s mobile telephone and spoken to a man who had given his name as G.P. He had sounded agitated and was shouting that they had kidnapped her. He then heard a mobile telephone ringing and was told by G.P. that it was his girlfriend’s number. G.P. had asked him to listen; he had been able to hear some of the demands for money when the two telephones were held against one another. The telephone rang again and he could hear a girl’s voice screaming that they had taken her. When the telephone went dead, G.P. confirmed that it was his girlfriend and that he did not know where she was. He did not say where he was but said that he would be returning to their home shortly. Another call then took place during which money was demanded.

The victim’s father gave evidence that he had received a telephone call between 8.30 p.m. and 8.45 p.m. on 1 November 2007 from his daughter. She had told him that she had been kidnapped and needed to be picked up. She had sounded distressed. He had collected her and she had given him an account of what she said had happened. She had tried to contact her partner on the telephone, but had had no answer. They had gone to her home to see if he was there. When they arrived at the house, two of her friends were there and asked what had happened. She gave an account, tearful and shaken. The victim’s father then searched the house, but G.P. was not there. He found lukewarm water in the bath and telephoned the police. Before they came again, the victim had given an account of what had happened which was consistent with the statement she subsequently gave.

Mr Marquis gave evidence at trial, denying any role in the kidnapping. He stated that his telephone had been used by him between 31 October and 2 November 2007 to contact K.H., but that he had lost it when he got into a car owned by some men on the afternoon of 1 November 2007 and did not get it back from them until he was at the hotel. The telephone was therefore not in his possession when the calls were made to G.P. He would not identify the men. When he went to the room at the hotel, the pink telephone was already there, but he had no idea how it had got there.

Mr Graham did not give evidence. He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud. It was nonetheless advanced as part of the defence case to the jury.

On 12 May 2008 Mr Marquis and Mr Graham were convicted of kidnapping.

3. The applicants’ appeal to the Court of Appeal

Mr Horncastle and Mr Blackmore appealed against their convictions on the ground that the victim’s statement should not have been admitted as evidence. They submitted that the statement was the sole or decisive evidence against them.

Mr Marquis and Mr Graham appealed against their convictions on the grounds, inter alia, that the victim’s statement should not have been admitted because there was no evidence that the fear had been caused by the applicants, and the police had contributed hugely to the fear. It was also contended that her evidence was decisive in the case, as it was the only evidence that there had been a kidnapping.

On 22 May 2009, the Court of Appeal unanimously dismissed the appeals.

(a) General discussion

The court found that Article 6 § 3 (d) did not create any absolute right to have every witness examined, and that the balance struck by the Criminal Justice Act 2003 (“the 2003 Act”) was legitimate and wholly consistent with the Convention. It noted, however, that there could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling. Having regard to the safeguards contained in the 2003 Act, which were rigorously applied, it was of the view that there would be no violation of Article 6 if a conviction were based solely or to a decisive degree on hearsay evidence. Where the hearsay evidence was demonstrably reliable, or its reliability could properly be tested and assessed, the rights of the defence would be respected, there would be sufficient counterbalancing measures and the trial would be fair. The court considered that it was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive.

The court also identified difficulties with a sole or decisive rule. First, as a principled difficulty, the test assumed that all absent witness evidence was unreliable in the absence of testing in open court; and second, it assumed that the fact-finder (such as the jury) could not be trusted to assess the weight of the evidence. It considered neither assumption to be justified. For the first, the Court of Appeal gave examples of hearsay evidence that would be reliable, such as a victim who, before dying, revealed the name of his or her murderer. For the second, the Court of Appeal found that juries were perfectly able to understand the limitations of written statements and, pursuant to the requirements of the relevant legislation, would be provided with material about the maker of the statement. The mere fact that the evidence was an essential link in the chain of evidence against the accused did not alter that conclusion.

The court also found that there were practical difficulties with the sole or decisive rule as a test of admissibility of evidence. It observed:

“68. It is clear from the judgment in Al-Khawaja v UK that the ECtHR took the view that the error had lain in admitting the hearsay evidence... Any test of admissibility must be one which can be applied in advance of the giving of the evidence, let alone of the outcome of the trial. 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. Judge, jury, witnesses and parties may find themselves engaged in shadow-boxing without knowing whether the solemn result of the trial will stand to be reversed on the grounds that, as things have turned out, the test of admissibility was not met. 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.

69. It will no doubt often be possible to identify in advance a case in which the hearsay evidence in question is the sole evidence against the accused. An obvious case is that of the single eye-witness case, with no suggested support from any other source. But this frequently may not be clear from the outset; there may be other evidence which the prosecution intends to present, but which, on hearing, turns out not to incriminate the accused, or is effectively demolished. Conversely, what appears at the outset to be hearsay evidence standing alone may sometimes come to be supported by other material as the evidence develops. A witness may add something of great significance not previously mentioned, or the significance of something always said may become apparent when apparently unconnected other evidence is given. In any case where there is more than one accused jointly charged, it is common experience that the evidence of one may well shed enormous light upon the guilt or innocence of another. So even the concept of ‘sole’ evidence is an impractical test for admissibility.

70. It is, however, the second limb of the suggested test which is apt to cause the greatest difficulty. No one can know what evidence is decisive until the decision‑making process is over. On no view can it be possible to rule in advance, at the stage when admissibility is in question, which evidence will be decisive ... The application of the test is made the more difficult yet if the meaning of ‘decisive’ is extended to encompass any evidence of which it can be said that, if it were absent, ‘the prospect of a conviction would have receded and that of an acquittal advanced’ (see paragraph 21 of Al-Khawaja). Indeed, if that is the test of what is decisive, virtually all evidence would qualify; evidence which does not, if accepted by the jury, advance the prospect of conviction will ordinarily be excluded as irrelevant.”

The Court of Appeal considered that the power of a trial judge under section 125 of the 2003 Act to stop the case if the absent witness evidence was unconvincing provided for a “proportionate assessment of the reliability” of such evidence; and that it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the evidence were the sole or decisive evidence. Sole or decisive absent witness evidence could be wholly convincing and, equally, evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe. Where there was a legitimate argument that that absent witness evidence was unconvincing and important to the case, the trial judge was required to make up his own mind as to whether a conviction would be safe; this involved assessing the reliability of the impugned evidence, its place in the evidence as a whole, the issues in the case as they had emerged, and all the other individual circumstances of the case. Finally, the other safeguards contained in the 2003 Act were rigorously applied and the difficulties faced by defendants when absent witness evidence was admitted were well understood by the courts.

The Court of Appeal gave guidance as to when it would be appropriate to allow absent witness evidence to be introduced because a witness was in fear. There was, in the case-law of this Court, no requirement that the fear had to be attributable to the defendant; the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed. The Court of Appeal added:

“87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the [2003 Act]. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the [2003 Act] based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.

88. It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the Judge and not for the police. In the case before us of Marquis and Graham ... the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the [2003 Act] requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.”

Having considered the general principles, the court turned to examine the specific facts of the applicants’ cases.

(b) The findings in respect of Mr Horncastle and Mr Blackmore

The Court of Appeal reviewed the victim’s statement and the evidence presented to the trial court. It found that there was substantial evidence independent of the statement to prove that Mr Blackmore and Mr Horncastle went to the victim’s flat, that they were present when an attack took place and that both took away items from the flat. It noted:

“108. i) Blackmore and Horncastle both admitted they accompanied [D.] to flat 9 and were present when the door was opened.

ii) Horncastle removed the TV on his own admission. The TV had [the victim’s] blood on it. It is an inescapable inference that Horncastle must have been present after sufficient violence had been inflicted on [the victim] for blood to have got onto the TV. His account that he saw no violence must have been untruthful.

iii) Blackmore admitted taking the DVD and stepping over the prostrate body of [the victim]. He must have been present when the violence began and he returned to the flat to help with removing the TV, despite knowing that [the victim] had been attacked.

iv) Neither appellant contended there was anyone else other than [D.] present at that time they first went to the flat or when the DVD or TV were removed.

v) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance. The attack must therefore have been visible to anyone who remained at the entrance.

vi) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants.

vii) There was no evidence of motive for [M.] to have attacked [the victim]. On the contrary he was a friend of [the victim’s] and [the victim] had shown no fear when he saw him ... after he had been attacked.”

Despite the substantial amount of independent evidence, the Court of Appeal accepted that it was clear from the judge’s ruling on admissibility, from the way in which the case was summed up and from the question from the jury that the victim’s statement was to a decisive degree the basis on which the applicants were convicted.

However, it considered that the decisive nature of the evidence was only one of the factors which the court had to put into the balance in the various stages that it had to go through in applying the legislation. It observed that the judge’s decision on the admissibility of the evidence carefully applied the statutory tests under the 2003 Act; that the applicants were provided with ample material to attack the victim’s credibility, including the notes of his treatment in hospital; that no application was made under section 125 of the 2003 Act to stop the case; that the judge’s direction to the jury was very full and that he had drawn attention the particular matters that put the defence at a disadvantage, in particular the inability to cross-examine the victim as to his memory, his alcoholism, his description of Mr Blackmore and other matters; and that there was no suggested reason why the victim should have provided an untruthful statement.

The Court of Appeal was satisfied that the jury was able to make a proper assessment of the reliability of the victim’s evidence contained in the statement. It further considered that the jury was right in placing reliance on the statement, as its convincing nature and reliability in important respects could be tested against other evidence, including the applicants’ own admissions; the visit of three persons to the victim’s flat and taking items away; the evidence of blood on the television removed by Mr Horncastle; Mr Blackmore’s evidence in relation to observing the victim on the floor and the blood in the flat; and the other independent evidence to which it had already referred .

The Court of Appeal accordingly concluded that the applicants were provided with sufficient counterbalancing measures to ensure respect for their fair trial rights. They had received considerable information about the victim and his time in hospital; they were able to draw to the jury’s attention all the arguments for treating the statement as unreliable; and they were able to put forward an alternative case that the assault was carried out by M. by calling independent evidence in support.

(c) The findings in respect of Mr Marquis and Mr Graham

The Court of Appeal reviewed the evidence at trial and the judge’s decision to admit the victim’s statement. It also considered the directions given to the jury in relation to the way in which they should treat the statement and the disadvantages to the applicants in not being able to cross-examine the victim, which it found to be appropriate.

It found, having regard to its observations on the ambit of “fear” under the 2003 Act, that the judge was correct in his ruling as to the witness’ fear.

The court also considered that there was sufficient material before the jury to enable them properly to assess the reliability of the victim’s statement. It explained:

“140. ... We also consider that its convincing nature and reliability in important respects could be tested against other evidence including:

i) that when the police visited the house, the bath had lukewarm water in it.

ii) that a knife was recovered from the BMW in which Graham was arrested; she identified it as the one used on her.

iii) that [G.P.] was phoned using her phone and an identical phone was seen in the bedroom at the Castle Marina Holiday Inn used by Marquis.

In considering the overall fairness of the decision to admit the evidence of [the victim] and in looking at the safety of the conviction, we have taken into account the criticism of the judge’s refusal to admit the statement of [G.P.]. Marquis sought to admit only part of his evidence contained in the statements. The judge had concluded that [G.P.] was not in fear and could have attended. To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence.”

The Court of Appeal considered it clear that the convictions did not rest on the evidence of the victim to a decisive extent. It noted:

“142. ... i) The main evidence against Graham was that there was clear CCTV evidence that Graham had been at the house at the time [the victim] said she was kidnapped; he admitted that, though in his interview he had not accepted that. He was arrested in [G.P.’s] stolen BMW X5. [The victim’s] statement did not identify him.

ii) The main evidence against Marquis was that his phone was used to make the ransom demands heard by [S.] and [the police officer]. It was not disputed that a phone identical to one owned by [the victim] was seen by [K.H.] when she went to Marquis’ bedroom at the Marina Castle Holiday Inn. [The victim’s] statement did not identify him.

iii) The only matter proved by [the victim’s] statement was that she had been kidnapped. There was, however, sufficient evidence of that from the other witnesses in the case, particularly her father.

iv) There was no evidence to support the case advanced by Graham that the kidnapping was an attempted insurance fraud.

v) Counsel for the Crown had submitted in his application to the judge to admit the statements of both [G.P.] and [the victim] that they were central to the case. However, the fact that this submission was made is an illustration of the difficulty ... of determining in advance whether the evidence is decisive. Self evidently the evidence of [G.P.] made no difference, as it was not admitted and in the result, for the reasons we have given, the evidence of [the victim] was not, in the event, decisive.

vi) Thus, if contrary to the view we have expressed, a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction, then as the conviction rests on other evidence, then that ground of appeal fails for that additional reason.”

The court concluded that the applicants’ defence rights were respected, the trial was fair and the convictions were safe.

4. The applicants’ appeal to the Supreme Court

The applicants appealed to the Supreme Court arguing that the decisions to admit the statements in their cases rendered their convictions unfair. They relied heavily on the judgment of the Fourth Section of this Court in Al‑Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009.

On 9 December 2009 the Supreme Court dismissed the applicants’ appeals. Lord Phillips gave the judgment of the court, with which the other justices agreed. He identified the principal issue raised by the appeals as being whether a conviction based “solely or to a decisive extent” on the statement of a witness whom the defendant has had no chance of cross-examining necessarily infringed the defendant’s right to a fair trial under Article 6 §§ 1 and 3 (d).

Lord Phillips began with an analysis of the common law approach to a fair trial and the approach to absent witness evidence in other common law jurisdictions. He then examined criminal procedure in civil law jurisdictions and the case-law of this Court prior to the Chamber judgment in Al‑Khawaja and Tahery. He reviewed in some detail the origins and development of the “sole and decisive rule” in the Court’s case-law.

Lord Phillips, in agreement with the Court of Appeal, found that the rule would create severe practical difficulties if applied to English criminal procedure. First, it was not easy to apply because it was not clear what was meant by “decisive”: under English criminal procedure no evidence could be admitted unless it was potentially probative and, in theory, any item of probative evidence could make the difference between conviction and acquittal. Second, it would be hard enough to apply that test at first instance but it would be impossible for national appellate courts or for this Court to decide whether a particular statement was the sole or decisive basis for a conviction. In a jury trial, the only way the rule could be applied would be to exclude all absent witness evidence.

Lord Phillips observed:

“91. 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. There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction. There will, however, be some cases where the evidence in question is demonstrably reliable. The Court of Appeal has given a number of examples. I will just give one, which is a variant of one of theirs. A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard. He then returns to his own country, where he is himself killed in a road accident. The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard. The owner declines to answer questions as to his whereabouts at the time of the accident. 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.

92. As I have suggested earlier, the 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 ... 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) and (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.

Lord Phillips then turned to consider the Chamber’s judgment in Al‑Khawaja and Tahery, citing an extract of the judgment explained that in the absence of special circumstances arising where the absent witness failed to give oral evidence as a result of fear induced by the defendant, it was doubtful whether any counterbalancing measures would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for conviction. He observed:

“103. There are two points to be made about this passage. The first is that the Court appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant. The second is that the Court did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances. The Court made it quite plain, however, that compliance with the statutory regime under which the statements in the two appeals had been admitted carried ‘limited weight’...”

However, having regard to the judgment of the Court of Appeal, and to the development of the “sole and decisive rule” in cases largely relating to civil law jurisdictions, Lord Phillips concluded that the 2003 Act made the “sole and decisive” rule unnecessary in English criminal procedure. He considered that the safeguards it contained meant that if the 2003 Act were observed, there would be no breach of Article 6 § 3 (d) even if a conviction were based solely or to a decisive extent on absent witness evidence. He therefore held:

“108. 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.”

As to the applicants’ alternative arguments that regardless of the application of the sole and decisive rule, the statements should not have been admitted, Lord Phillips upheld the findings of the Court of Appeal.

In a separate concurring opinion, Lord Brown observed:

115. ... Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court be to ensure that it can be fairly adduced and is likely to be reliable. In this connection there can be no harm in using the concept of ‘sole or decisive’ so long as it is used broadly ... Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application.

116. The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 ...”

B. Relevant domestic law and practice

1. Exclusion of unfair evidence

There is discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This is supplemented by section 78 of the Police and Criminal Evidence Act 1984 (“PACE”), which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted.

2. Admission of hearsay evidence

Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony. As a general rule it is inadmissible in a criminal case unless there is a common law rule or statutory provision which allows for its admission.

Under section 114 of the Criminal Justice Act 2003, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. Although it was not relied upon in the applicants’ cases, one such gateway is section 114(1)(d) which allows for the admission of hearsay if the court is satisfied that it is in the interests of justice for it to be admissible. Pursuant to section 114(2), the following factors are relevant to that test:

“(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it.”

Section 116 of the Criminal Justice Act 2003 allows specifically for the admission of statements of absent witnesses. Section 116(1) sets out the general conditions which must be satisfied before a written statement can be admitted:

“(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.

The five conditions in section 116(2) 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.

Section 116(3) explains that “fear” is to be widely construed and includes fear of the death or injury of another person or of financial loss.

Where an application is made for a statement to be admitted for reason of fear, section 116(4) provides that leave may be given for its admission 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 ... (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.”

Section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example, through the admission of evidence of his bad character, including previous convictions or a propensity to be untruthful. It also allows the admission of inconsistent statements that the witness has made. It further allows, with the leave of the court, the admission of evidence to challenge credibility even in circumstances where it would not be admissible in respect of a live witness.

Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe.

Section 126 preserves both the common law discretion and the section 78 PACE discretion of the trial judge to exclude hearsay evidence. It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.

3. Further safeguards

If hearsay evidence is admitted and put before the jury, the trial judge, in his summing up, must direct the jury as to the dangers of relying on hearsay evidence.

The jury must also receive the traditional direction as to the burden of proof, namely that they must be satisfied of the defendant’s guilt beyond reasonable doubt.

4. Judicial consideration of the admission of hearsay evidence since the judgment of the Grand Chamber in Al-Khawaja and Tahery

(a) R. v. Ibrahim ([2012] EWCA Crim 837

The Court of Appeal handed down its first judgment following the Grand Chamber judgment in Al-Khawaja and Tahery on 27 April 2012 in R. v. Ibrahim. The court summarised the pertinent points of the Grand Chamber’s judgment as follows:

“85. ... (1) Issues of the admissibility of evidence are for national courts. (2) The ECtHR is primarily concerned, in respect of Article 6(1), with the overall fairness of the criminal proceedings concerned. (3) In such proceedings there has to be a good reason for the admission of hearsay evidence of an absent witness whose evidence is to be relied on and whose evidence has not been examined at some stage in the procedure. The admission of such hearsay evidence is a ‘measure of last resort’. (4) In order to decide whether the admission of such a hearsay statement would lead to overall unfairness and a breach of Article 6(1) it is first necessary to see if the evidence is the ‘sole or decisive’ evidence relied on for the conviction of the defendant. In this context, ‘decisive’ means the central corpus of evidence without which the case cannot proceed. (5) If the evidence has that characteristic then its admission does not result automatically in a breach of Article 6(1) or Article 6(3)(d). (6) To decide whether that is the case, the existence and application of sufficient ‘counterbalancing measures’ in the trial process, including the existence and use of strong procedural safeguards, must be considered. (7) These measures will include those that permit a fair and proper assessment of the reliability of the relevant hearsay evidence to be undertaken before its admission and afterwards if it is admitted. (8) The question in each case is whether (a) the existence of these ‘counterbalancing measures’ and (b) their proper enforcement in the instant case, is sufficient to enable the defence to counter the handicaps it would suffer by the introduction of the untested hearsay evidence. The defendant’s Article 6 rights must not be ‘unacceptably restricted’.”

The Court of Appeal considered that at least so far as the hearsay evidence of dead witnesses was concerned, this Court had appeared to conclude that the combined counterbalancing measures of the common law, section 78 of PACE and the provisions of the 2003 Act were in principle sufficient to make a trial fair in cases where the untested hearsay evidence sought to be admitted was the “decisive” evidence against the defendant.

Turning to examine whether there were differences in the approach of the Grand Chamber in Al-Khawaja and Tahery and the Supreme Court’s approach in the applicants’ case, the Court of Appeal noted first that, absent wholly exceptional circumstances, it was bound to follow the principles set out by the Supreme Court’s earlier decision, even if it appeared inconsistent with the subsequent decision of this Court. No wholly exceptional circumstances arose in the case. The court continued:

“88. It seems to us that there is a difference in approach between the Supreme Court’s decision in Horncastle and the Grand Chamber’s decision in Al-Khawaja. First and foremost, the Supreme Court declined to apply ‘the sole or decisive’ test, at least to the two cases before it. The Grand Chamber confirmed that this test remained part of the Strasbourg jurisprudence, although it accepted that the consequence of concluding that a particular piece of untested hearsay evidence was ‘sole or decisive’ did not automatically mean that the particular trial where that evidence was admitted was unfair.

89. This difference may be more one of form than substance, however. Thus, the Court of Appeal talked of a conviction being based ‘solely or to a decisive degree on hearsay evidence admitted under the [2003 Act]’ and the Supreme Court talked of the hearsay evidence being ‘critical evidence’. That may not be very different from the Grand Chamber’s concept of ‘sole or decisive’. Next, the Court of Appeal and the Supreme Court both emphasise that when the untested hearsay evidence is ‘critical’, the question of whether the trial is fair will depend on three principal factors. First, the English courts accept that there has to be good reason to admit the untested hearsay evidence. To decide this under English law there must be compliance with the statutory code. The Grand Chamber necessarily puts this requirement on a more general basis, but it emphasised the need for ‘justification’. Secondly, and we think most importantly, all three courts stipulate that there must be an enquiry as to whether that evidence can be shown to be reliable. Thirdly, all three courts are concerned with the extent to which there are ‘counterbalancing measures’ and if so whether they have been properly applied in deciding whether to admit the ‘critical’ untested hearsay evidence or to allow the case to proceed. In the case of England and Wales those ‘counterbalancing measures’ must include all the statutory safeguards in the ‘code’, as well as a proper application of common law safeguards, such as proper directions in the summing up. The Grand Chamber emphasised the same thing at paragraph 144 and particularly in its ‘general conclusion on the sole or decisive rule’ at paragraph 147 ...”

As to the correct approach in its case, the Court of Appeal explained that, consistently with the judgments of the Court of Appeal and Supreme Court in the applicants’ case (Horncastle and Others) but also, in practice, consistently with the approach of the Grand Chamber in Al-Khawaja and Tahery, it was required to deal with four questions in order to determine whether the appellant had a fair trial:

“90. The first is: was there proper justification for admitting the untested hearsay evidence ... Under English law, this must depend on whether the conditions of section 116(1) and (2)(a) were satisfied, although that test is also subject to the ‘counterbalancing measures’ in the statutory ‘code’ and the common law. Secondly, how important are the three untested hearsay statements ... in relation to the prosecution’s case against the appellant on count 1? Do they amount to the ‘central corpus of evidence without which the case could not proceed’ on count one ... Thirdly, how ‘demonstrably reliable’ are those statements? Fourthly, were the ‘counterbalancing safeguards’ inherent in the common law, the [2003 Act] and section 78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial?”

The court concluded that the absent witness evidence in question could not be shown to be reliable. Given that this evidence was central to the prosecution case, the court quashed the appellant’s conviction on the ground that it was unsafe.

(b) R. v. Riat and Others ([2012] EXCA Crim 1509)

The Court of Appeal handed down its judgment in R. v. Riat and Others on 11 July 2012. It observed:

“2. As is well known by now, Horncastle involved, both in this court and subsequently in the Supreme Court, careful analysis of the impact on English law of the Strasbourg jurisprudence relating to Article 6(3)(d) of the European Convention on Human Rights. Since the decision of the Supreme Court there has been a further development at Strasbourg, because the ECtHR’s chamber decision in Al-Khawaja & Tahery v United Kingdom has been further considered by the Grand Chamber .... There is a thorough analysis of the relationship between Horncastle and Al Khawaja & Tahery in the judgment of this court in Ibrahim ..., to which we pay grateful tribute; it would not be helpful to repeat it ...”

The Court of Appeal went on to identify five central propositions for the guidance of Crown Courts when dealing with absent witness cases:

“i) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 (‘CJA 03’);

ii) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja & Tahery, the obligation of a domestic court is to follow the former ...;

iii) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is ‘sole or decisive’ is for that reason automatically inadmissible;

iv) therefore, both because of point (ii) and because of point (iii), the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle; we endeavour to set out below the principal questions which must be addressed;

v) however, neither under the statute, nor under Horncastle, can hearsay simply be treated as if it were first hand evidence and automatically admissible.”

The court examined the statutory framework of the 2003 Act, identifying six principal steps to be dealt with in considering whether to grant leave to admit an absent witness statement:

“7 ... i) Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (s 116-118)?

ii) What material is there which can help to test or assess the hearsay (s 124)?

iii) Is there a specific ‘interests of justice’ test at the admissibility stage?

iv) 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))?

v) Even if prima facie admissible, ought the evidence to be ruled inadmissible (s 78 PACE and/or s 126 CJA)?

vi) If the evidence is admitted, then should the case subsequently be stopped under section 125?”

The Court of Appeal observed that although there was no rule to the effect that where the hearsay evidence was the “sole or decisive” evidence in the case it could never be admitted, the importance of the evidence to the case against the accused was central to these various decisions.

It considered each of the steps in some detail, and referred to Ibrahim as a good example of the working of the statutory framework. It explained:

“33. We respectfully agree that the hearsay statements in Ibrahim were so flawed, so central to the case, and so difficult to assess, that it was unfair for them to be left to the jury. The case is a good illustration of the use of the framework provided by the [2003 Act] to ensure that a trial remains fair where hearsay evidence is tendered. However, [the] references [in Ibrahim] to the statements not being shown to be reliable may be open to misconstruction if taken out of context ... [I]t is clear that the framework of the [2003 Act] does not carry the implication that a hearsay statement must be wholly verified from an independent source before it can be admissible. Nor does it mean that there has to be such independent verification before the case can properly be left to the jury ... In speaking of evidence which is shown to be reliable it is clear that [Lord Phillips in the applicants’ case] was demonstrating the error of such an overarching ‘sole or decisive’ test; he was recognising that hearsay evidence, even if sole and decisive, might be shown to be reliable in the sense that it is shown to be so to the jury, and the jury might perfectly properly accept it without any unfairness in the trial process.”

(c) R. v. Fagan and Another ([20102] EWCA Crim 2248)

On 7 September 2012 the Court of Appeal issued its judgment in Fagan and Another. Again, the court considered the judgment of the Grand Chamber in Al-Khawaja and Tahery and referred to its own judgment in Ibrahim, summarising the approach to be taken as follows:

“35. ... [T]he question of whether the trial is fair will depend on three principal factors. First, there must be good reason to admit the untested hearsay in compliance with the statutory code; second, and most importantly, there must be an enquiry as to whether that evidence can be shown as reliable; and third, there must be consideration of the extent of counterbalancing measures.”

(d) R. v. Shabir ([2012] EWCA Crim 2564)

The Court of Appeal handed down a further judgment on the question of hearsay evidence in R. v. Shabir on 29 November 2012. In assessing whether the admission of the hearsay statements had been unfair, the court referred to the clear framework which emerged from the terms of the 2003 Act and the judgments of the Supreme Court in the applicants’ case and of the Court of Appeal in Ibrahim and Riat and Others.

The court set out the applicable framework as follows:

“64. ... When it is sought to admit the hearsay statement because it is said that the witness will not give oral evidence at the trial ‘through fear’, so admission through the ‘gateway’ of section 116(2)(e) is sought, the framework is, broadly, as follows: (1) The ‘default’ position is that hearsay evidence is not admissible. (2) It is a pre-condition to the admission of a hearsay statement that the witness concerned is identified ... (3) The necessity to resort to second-hand evidence must be clearly demonstrated. The more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay. (4) Although ‘fear’ is to be widely ... and, specifically, the fear of a witness does not have to be attributed to the defendant, a court has to be satisfied, to the criminal standard, that the proposed witness will not give evidence ... ‘through fear’. Thus a causative link between the fear and the failure or refusal to give evidence must be proved. (5) How it is proved that a witness will not give evidence ‘through fear’ depends upon the background together with the history and circumstances of the particular case. Every effort must be made to get the witness to court to test the issue of his ‘fear’. The witness alleging ‘fear’ may be cross-examined by the defence ..., if necessary using ‘special measures’ to assist the witness. ... (6) If testing by the defence is properly refused (after consideration) then ‘it is incumbent on the judge to take responsibility rigorously to test the evidence of fear and to investigate all the possibilities of the witness giving oral evidence in the proceedings’. The manner in which that should be done will depend on the circumstances of the case and upon the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. For example, if a court cannot hear from a witness, a tape recording or video of an interview on the question of his ‘fear’ should, if possible, be made available. The critical thing is that ‘every effort is made to get the witness to court’ ...

65. We continue with the framework. (7) In relation to the ‘gateway’ of section 116(2)(e), leave to admit the statement will only be given if the conditions for passing through a specific ‘secondary gateway’ are satisfied. They are set out in section 116(4). Overall a court will only admit a statement under section 116(2)(e) if it considers that it is ‘in the interests of justice’ to do so. In that respect, the court has to have specific regard to the matters set out in section 116(4)(a) to (c). (8) When a court considers section 116(4)(c), the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension ... A court must therefore have regard to whether (in an appropriate case), a witness would give evidence if a direction for ‘special measures’ were to be made ... (9) In this regard it is particularly important that, before the court has ruled on the application to admit under section 116(2)(e), no indication, let alone assurance, is given to a potential witness that his evidence will or may be read if he says he is afraid, because that can only give rise to an expectation that this will, indeed, happen ... (10) When a judge considers the ‘interests of justice’ under section 116(4), although he is not obliged to consider all the factors set out in section 114(2)(a) to (i) of the [2003 Act], those factors may be a convenient checklist for him to consider. (11) Once the judge has concluded that the specific gateways in section 116(4) have been satisfied, the court must consider the vital linked questions of (a) the apparent reliability of the evidence sought to be adduced as hearsay and (b) the practicality of the jury testing and assessing its reliability. In this regard section 124 (which permits a wide range of material going to credibility of the witness to be adduced as evidence) is vital. (12) In many cases a judge will not be able to make a decision as to whether to admit an item of hearsay evidence unless he has considered not only the importance of that evidence and its apparent strengths and weaknesses, but also what material is available to help test and assess it, in particular what evidence could be admitted as to the credibility of the witness and the hearsay evidence under section 124. The judge is entitled to expect that ‘very full’ enquires as to witness credibility will have been made if it is the prosecution that wishes to put in the hearsay evidence and if it is the defence, they too must undertake proper checks.”

COMPLAINT

The applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that the domestic proceedings violated their right to cross-examine witnesses who gave sole or decisive evidence against them.

QUESTIONS TO THE PARTIES

1. (a) Was the evidence of the witness P.R. the sole or decisive basis on which Mr Horncastle and Mr Blackmore were convicted (within the meaning of Al-Khawaja and Tahery, cited above, § 131)?

(b) Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicants’ trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) (Al-Khawaja and Tahery, cited above, § 147)?

2. (a) Was there a good reason for the non-attendance of the witness H.M. at the trial of Mr Marquis and Mr Graham (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 122‑125, ECHR 2011)?

(b) If not, was there, by that fact, a violation of Article 6 §§ 1 and 3 (d) (see Al-Khawaja and Tahery, cited above, §120 and the references therein)?

3. (a) Was the evidence of the witness H.M. the sole or decisive basis on which Mr Marquis and Mr Graham were convicted (within the meaning of Al-Khawaja and Tahery, cited above, § 131)?

(b) Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicants’ trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) (Al-Khawaja and Tahery, cited above, § 147)?

 

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