CRIMINAL LAW WEEK

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in the criminal law. Published weekly, each issue contains a comprehensive and concise roundup of new developments regarding offences, police powers, and the rules of procedure and evidence. It also contains commentary placing key developments in context. Criminal Law Week is published both online and in hardcopy. The online service (which includes a fully searchable database and access to updated and annotated key criminal legislation) is available free of charge to all police officers as part of a PNLD subscription at www.pnld.co.uk. For more information about Criminal Law Week or a sample hard copy issue please visit www.criminal-law.co.uk or call 01483 414040.

Can an absent witness provide the sole or decisive evidence against a defendant?
“Yes”, said the Court of Appeal in R v Horncastle and Blackmore;  R v Marquis and Graham; R v Carter (CLW/09/20/2).
This was an appeal against convictions in three cases where hearsay evidence (ie, evidence not given first hand by a witness) was part of the case against the appellants. In the first (R v Horncastle and Blackmore), the witness was dead, but had made a full written statement before he died. In the second (R v Marquis and Graham), the witness, who again had made detailed statements, refused to attend because she was frightened for her safety, indeed for her life, if she did. In the third (R v Carter), what was sought to be introduced as evidence was the product of business records in a large public company.
On January 20, 2009, the European Court of Human Rights handed down its decision in Al-Khawaja v UK;  Tahery v UK (CLW/09/03/1).   In the case of Al-Khawaja the statement of a deceased witness had been admitted under section 23 of the Criminal Justice Act 1988 and in the case of Tahery the statement of a witness too fearful to attend trial had been admitted under section 116 of the Criminal Justice Act 2003. In each of those cases, the Court of Appeal had held that the statements were admissible and that the convictions were safe. The European Court of Human Rights held, however, that there had been a breach of Article 6 of the European Convention on Human Rights in each case, as the convictions had been based to a sole or decisive degree on the statements of the absent witnesses which the appellants had had no opportunity of challenging.
The principal argument raised in these appeals was that, in consequence of that decision, the admission of the hearsay evidence meant that these convictions involved an infringement of the right to a fair trial under Article 6, as the convictions were based solely or to a decisive degree on that evidence. The appellants argued that, in consequence, their convictions were unsafe and ought to be quashed.
The Court of Appeal considered in detail both the background to, and the provisions of, Chapter 2 of Part 11 of the Criminal Justice Act 2003 and the jurisprudence of the European Court of Human Rights up to and including Al-Khawaja v UK; Tahery v UK. It held, first, that as long as the terms of the Act are observed, the admission of the statement of an absent, but identified, witness will not involve a breach of Article 6 even if the evidence of the absent witness is the sole or decisive evidence against the accused. Rather, where the hearsay is demonstrably reliable, or its reliability can be properly tested and assessed, there are, in the language of the European Court of Human Rights, sufficient counter-balancing measures to make the trial fair. Given that Article 6(3)(d) does not create an absolute right in an accused to have every witness against him