was a decision of the Supreme Court of the United Kingdom regarding hearsay evidence and the compatibility of UK hearsay law with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The case represents another stage in the judicial dialogue between the European Court of Human Rights (ECtHR) and the higher courts of the United Kingdom about whether it is acceptable to base convictions "solely or to a decisive extent" on evidence made by a witness who is identified but does not appear in court (for example, in a witness statement made to the police).
A panel of 7 judges sat in the case, including the President of the Supreme Court, Lord Phillips, the Lord Chief Justice, Lord Judge and the Master of the Rolls, Lord Neuberger. The court unanimously affirmed the decision of the Court of Appeal and dismissed the appeals of several defendants who were convicted on the basis of statements of absent witnesses.
The case can be viewed as a direct response to the European Court of Human Rights ruling in Al-Khawaja v United Kingdom (2009) 1 EHRR 49 in which the facts were legally very similar. In this case the ECtHR ruled against the state and found that while it was justifiable to allow hearsay evidence in some circumstances, it was likely never permissible for a conviction to be based solely or decisively on such evidence. Al-Khawaja has been appealed by the United Kingdom and the decision by the Grand Chamber (a larger panel of judges which did not overturn the initial decision) is available. The Lords in Horncastle do not look favourably upon the decision of the Grand Chamber stating "that although the domestic court was required to take account of the jurisprudence of the European Court of Human Rights in applying principles which were clearly established, where, on rare occasions, the domestic court was concerned that the European court's decision insufficiently appreciated or accommodated particular aspects of the domestic process, it might decline to follow the decision".
Background
Article 6 of the European Convention on Human Rights guarantees a fair trial to anybody charged with a criminal offence. As a subset of this general right, accused persons are entitled to benefit from a number of "minimum rights", one of which under Article 6(3)(d) is the right to cross-examine prosecution witnesses.
Previous cases in the European Court of Human Rights such as Lucà v Italy and Kostovski v Netherlands concerned trials in which either the testimony of anonymous witnesses or witness statements made by witnesses who were not called in court were accepted as evidence. The European Court accepted that while allowing this sort of evidence did prima facie breach a defendant's rights under Article 6(3)(d), this was acceptable so long as sufficient counterbalances were present. The court maintained the caveat that although this sort of evidence was normally acceptable, it was never appropriate for a conviction to be based solely or decisively on this sort of untested evidence.
In Al-Khawaja v United Kingdom (2009) 49 EHRR 1, two applications to the ECtHR were made by men who had been convicted on criminal charges on the basis of untested hearsay statements. In one case a defendant was convicted of indecent assault on the basis of the statement of a woman who had subsequently committed suicide, in the other a defendant was convicted of wounding with intent (contrary to section 18 of the Offences against the Person Act 1861) on the basis of a statement made by the victim, who had been unwilling to testify in court. The ECtHR found that in both cases the state was in breach of Article 6 by allowing convictions to be based "solely or decisively" on hearsay evidence.
Facts
Two of the Appellants had been convicted of committing grievous bodily harm with intent. Their convictions were based "to a decisive extent" on a statement made by the victim of the alleged offence, who had later died (the cause of his death was "not attributable to the injuries" he suffered). The other appellants were convicted of kidnapping, in this case their conviction was found to have been based "to a decisive extent" on a statement made by the victim who had not attended the trial due to fear.