Case Update: The final word on hearsay evidence in criminal trials?

29 January 2015

Horncastle And Others v The United Kingdom, ECHR 16-Dec-2014

The ECHR has held, unanimously, that there had been no violation of Article 6(1) and (3), namely the right to a fair trial and right to obtain attendance and examination of witnesses, of the European Convention on Human Rights in the trials of the four applicants in this case.

The UK trials

In 2007 Mr Horncastle and Mr Blackmore faced trial in the UK for causing grievous bodily harm to another male (P.R), a known alcoholic.  The offence was alleged to have taken place on 7 May 2005.   P.R. made a statement to the police in June 2005, which contained the usual declaration of truth. Sadly, by the time of the trial in 2007 P.R. had died.  The prosecution applied under section 116(2)(a) of the Criminal Justice Act 2003 for P.R.’s statement to be admitted at trial as evidence against both defendants. The application was opposed by the defence on the basis that it was the only evidence of their participation in the offence and that there could be no opportunity to challenge it.  It was also said that it was inherently unreliable. The Judge ruled that the statement would be admitted; the condition in section 116(2)(1) was satisfied (namely the witness was dead), and the fact that the statement was the principal evidence against the defendants did not make its admission unfair.  He relied on the fact that the defendants admitted being present in the victim’s flat at the relevant time, that the defence were going to call a witness who said that someone else carried out the attack and that the jury could be given directions as to any difficulties the defence faced by P.R. not being available. Both Mr Horncastle and Mr Blackmore were eventually found guilty of the offence.

Mr Marquis and Mr Graham both faced trial in the UK in 2008 for an offence of kidnapping.  The victim of the offence, which was said to have taken place in November 2007, made a statement to the police outlining what took place and what was done to her.  This statement contained a statement of truth.  The victim’s partner, (G.P), who had been asked for ransom money and could provide relevant evidence against the defendants, also made a short statement.  However, prior to trial both the victim and G.P said that they wanted to retract their statements as they were scared for the safety of their families.  The victim was later to make a further video recorded statement saying that she had made the retraction statement because she was scared.  The prosecution applied to read the statements of the victim and G.P under section 116(2)(e) of the Act on the grounds that they would not give evidence through fear. The Judge admitted the evidence of the victim, but declined to admit the evidence of G.P.  Mr Marquis and Mr Graham were convicted of kidnapping.

The Court of Appeal

The four individuals above appealed to the Court of Appeal.  Mr Horncastle and Mr Blackmore appealed against their convictions on the grounds that the victim’s statement should not have been admitted as evidence.  They submitted that the statement was the sole and decisive evidence against them.  Mr Marquis and Mr Graham appealed 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 been caused by the applicants and that the police had contributed to the fear (by telling the victim that she would need to move house).  It was also said that the evidence was decisive in the case, as it was the only evidence that there had been a kidnaping.

In May 2009 the Court of Appeal unanimously dismissed the appeals. 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 2003 Act was legitimate and wholly consistent with the Convention.  Having regard to the safeguards contained within the 2003 Act, rigorously applied, 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 assed, it said, there would be sufficient counterbalancing measures and the trial would be fair. 

In relation to Mr Horncastle and Mr Blackmore the Court of Appeal held 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 was held that the applicants were provided with sufficient counterbalancing measures to ensure the respect for their fair trial rights.   The jury had been properly directed and had considered other evidence in support.
In respect of Mr Marquis and Mr Graham, the Court concluded that the applicants defence rights were respected, the trial was fair and convictions safe.  It considered that it was clear that the convictions did not rest on the evidence of the victim to a decisive extent. 

The Supreme Court

The applicants appealed to the Supreme Court arguing that the decision to admit the statements in their cases rendered their convictions unfair.  They relied heavily on the ECtHR judgement in Al-Khawaja and Tahery v the United Kingdom, 26766/05 and 22228/06, given in January 2009.

In December 2009 the Supreme Court dismissed the applicant’s appeals.  The question the Court was asked to consider was whether a conviction based solely or to a decisive extent on the statement of a witness whom the defendant had had no chance of cross-examining necessarily infringed his right to a fair trial under Article 6(1) and (3)(d).  Lord Philips outlined the various safeguards present at trial to protect against potential unfairness arising from the admission of hearsay evidence, these included: the trial judge acting as gatekeeper; the judge being satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence; the judge being able to withdraw the case from the jury in certain circumstances; directions to the jury, and the high standard of proof. 
Lord Philips looked at the judgment in Al Khawaja in which the Court explained that in the absence of special circumstances arising where the absent witness failed to give 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.  Lord Philips noted that in that judgment the ECtHR appeared to accept that the sole or decisive rule does not apply so as to preclude reliance on the statement for a witness who refuses to testify because of fear inducted by the defendant.  In addition he noted that the court does not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive in other circumstances. 

Lord Philips concluded that the 2003 Act made the ‘sole and decisive’ rule unnecessary in English criminal procedure.  He held 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. 

In a concurring judgement Lord Brown observed

‘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 and decisive’ so long as it is used broadly.…Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application.  The better view may therefore be that no such absolute principle merges from the Strasbourg Court’s judgement in Al-Khawaja.’

Horncastle and others v United Kingdom (App. No. 4184/10): the final word

Following the decision of the Supreme Court, the applicant made an application against the United Kingdom lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. They alleged that the admission of the various witness statements at their trials rendered the proceedings unfair and contrary to Article 6(1) and (3)(d).

The Court summarised the law as laid down by the Court in Al-Khawaja, and applied it to the facts of the present cases.   It stated that where sole or decisive evidence was provided by an absent witness, the key question according to the Grand Chamber in Al-Khawaja, was whether counterbalancing measures which permit a fair and proper assessment of reliability were present.  The applicant’s argument that any decisive evidence must be reliable, or at the very least shown not to be unreliable to any significant extent, before it can be fairly admitted must therefore be rejected. 

With respect to Mr Horncastle and Mr Blackmore, the Court was satisfied that, when taken with the strength of the other prosecution evidence in the case, the provisions of the 2003 Act, PACE and the common law as applied in the applicant’s case, enabled the jury to conduct a fair and proper assessment of the reliability of the victim’s statement.  There had accordingly been no violation.
With respect to Mr Marquis and Mr Graham it could not be said that the victim’s statement was of such significance or importance as to be likely to determine the outcome of the case.  The victim’s statement was therefore neither the sole or decisive basis of the convictions.  In those circumstances it was unnecessary to examine whether there were sufficient counterbalancing factors, thus there had been no violation.


This judgment (should) conclude the judicial dialogue on the admissibility of hearsay evidence in criminal trials.  Clearly, the Supreme Court was right to say that the sole or decisive rule should not be applied in an inflexible way; the safeguards of the 2003 Act, PACE and the common law are suitable to ensure that, if rigorously complied with, there will be no violation of the Convention. 

How is this relevant to regulatory proceedings? Each regulator has its own statutory rules to govern the admissibility of evidence in fitness to practise proceedings.  Under the rules of some regulatory bodies, hearsay evidence is automatically admissible, whereas in others hearsay evidence will only be admitted subject to the twin requirements of relevance and fairness, with any discussion as to the weight to be attached to that evidence to take place after it has been admitted.

These cases re-emphasise the importance of assessing what safeguards are available to counterbalance the effect of the admission of hearsay evidence that is the sole or decisive basis of a particular allegation. In practice, at what stage those safeguards fall to be considered and precisely what those safeguards are is likely to vary as between regulators. Horncastle also reiterates the importance of a thorough assessment of whether or not evidence contended to be the sole or decisive basis of a particular allegation can, in fact be categorised as such.

Share insightLinkedIn Twitter Facebook Email to a friend Print

Email this page to a friend

We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

Leave a comment

You may also be interested in:

Skip to content Home About Us Insights Services Contact Accessibility