R v Horncastle [2009] UKSC 14

The Supreme Court considered two groups of criminal appeals. Horncastle and Blackmore had been convicted of causing grievous bodily harm with intent. The injured complainant gave a police statement but died from an unrelated cause before trial, so the statement was admitted under the Criminal Justice Act 2003. Marquis and Graham were convicted of kidnapping after a frightened complainant did not attend court and his statement was admitted. The appellants argued that their convictions depended decisively on testimony they could not test by cross-examination. They relied on Strasbourg authority suggesting that using an absent witness's statement as the sole or decisive basis of conviction necessarily breached the fair-trial guarantee in Article 6 ECHR.

Does Article 6 make a conviction automatically unsafe where admissible hearsay from an absent witness forms the sole or decisive evidence against the accused?

The Supreme Court unanimously dismissed the appeals. It declined to apply the Strasbourg sole-or-decisive rule as an inflexible prohibition. Parliament had enacted a detailed hearsay code containing conditions for admission and substantial safeguards, including challenges to credibility, exclusion powers and a duty to stop a case resting on unconvincing hearsay. The fairness of the proceedings therefore depended on the statutory scheme and the case as a whole, not a single mechanical test. Under section 2 of the Human Rights Act 1998, domestic courts must take Strasbourg decisions into account but are not formally bound by every ruling. The safeguards had operated sufficiently in both appeals and the convictions were safe.

The admission of sole or decisive hearsay does not automatically violate Article 6. English courts assess overall fairness through the Criminal Justice Act 2003 safeguards, while giving serious consideration to Strasbourg jurisprudence under section 2 of the Human Rights Act 1998.

Horncastle is a leading example of judicial dialogue between the UK Supreme Court and the European Court of Human Rights. The Supreme Court explained why the domestic statutory regime addressed risks that Strasbourg's earlier formulation appeared to overlook. In Al-Khawaja and Tahery v United Kingdom, the Strasbourg Grand Chamber later accepted that sole or decisive hearsay need not cause an automatic violation where sufficient counterbalancing safeguards ensure fairness. Students should therefore avoid presenting either authority as allowing untested evidence without close scrutiny of necessity, reliability and the proceedings as a whole.