One ITL, the Chambers of Marion Smullen, are delighted to announce that with effect from 1st January 2017 we will be merging with the Chambers of William Mousley QC at 2 Kings Bench Walk.
November 7, 2012
With its recent twin judgements of R v Riat & Others  EWCA Crim 1509 and R v Ibrahim  EWCA Crim 837 the Court of Appeal have finally dealt with the fallout from the long running spat over the correct approach to hearsay evidence which had been taking place between the British and European courts.
In one corner had been the Supreme Court armed with R v Horncastle  UKSC 14, and in the other had been the European Court of Human Rights (ECHR) armed with Al-Khawaja and Tahery v United Kingdom. The main argument between these two heavyweight contenders had been over whether the UK courts provided sufficient counterbalancing measures against the admission of untested hearsay evidence which was central to a prosecution case against a defendant. The position of the ECHR was that hearsay evidence against a defendant which was 'sole or decisive', but was nonetheless admitted into evidence, may well lead to a breach of the defendant’s right to a fair trial under Article 6. The Supreme Court’s position was that the measures contained within the CJA 2003 were sufficient to protect a defendant’s human rights and that the 'sole or decisive' test championed by the ECHR was not one which should be adopted by the UK courts. The final word in this dual came on 15th December 2011 when the Grand Chamber of the ECHR effectively conceded, albeit grudgingly, that even where hearsay evidence was 'sole or decisive' the provisions of the UK courts (under a combination of common law, the CJA 2003 and the PACE 1984) were sufficient, whilst still maintaining that in the case of Tahery there had been a violation of his Article 6 rights.
As the recent judgement in Riat makes clear, the net result of this cross-jurisdictional wrangling is that advocates dealing with an application to admit hearsay evidence in the UK courts are bound to follow what was said in Horncastle and to apply the relevant provisions of the CJA 2003 rather than to rely on anything said by the Grand Chamber in Al-Khawaja and Tahery. It is also clear that even if the hearsay evidence relied on by the prosecution is the sole or decisive evidence against a defendant, the fact that it is sole or decisive does not necessarily mean it will be excluded.
Whilst it might be tempting to simply chalk this up as a victory for the Supreme Court, the reality is that the various lengthy judgements by both sides have meant that the adequacy of the provisions of the CJA 2003 in relation to hearsay evidence have come under an unprecedented degree of scrutiny. The upshot of this can be seen in the cases of Ibrahim and Riat where the Court of Appeal have provided useful practical guidance for advocates on how to approach an application to adduce hearsay evidence likely to be critical in a case against a defendant.
The proper approach in terms of the CJA 2003, itemised by Lord Justice Hughes in Riat at paragraph 7, is now as follows:
In determining the answers to the questions above, both Ibrahim and Riat suggest that a court should have at the forefront of its mind two matters. Firstly, how important is the hearsay evidence to the case as a whole? The more central it is, the greater the caution that should be adopted before it is admitted. And secondly, how reliable is the hearsay evidence in the case when compared against other known information and evidence? The more unreliable it is, or the more difficult it is to properly assess its reliability, the less likely it is to be admitted. As the court put it in Ibrahim there is a 'pre-condition that [the] untested hearsay evidence be shown to be potentially safely reliable before it can be admitted'.
The question of the reliability of hearsay evidence is therefore not one that can simply be left to the jury, but one that a judge, by virtue of s.125 CJA 2003, has to keep under review during the entirety of a case. It is for the judge to decide if, at any stage, the hearsay evidence becomes ‘so unconvincing that, considering its importance to the case of the defendant, his conviction of the offence would be unsafe.’
It is this use of the word "unsafe" in s.125 CJA 2003 which might cause some problems. That, of course, is the test applied in all appeal against conviction matters considered by the Court of Appeal. It is not a test that a Crown Court judge at first instance is used to applying during the course of a trial, especially as it may require him or her to effectively overturn an earlier decision of his or her own to admit hearsay evidence in the first place.
Somehow I have a feeling that it won't be too long before the Court of Appeal are back considering the interpretation and application of this part of the CJA 2003.