Absent Witnesses and the UK Supreme Court: Judicial Deference as Judicial Dialogue?

AuthorMarny Requa
Published date01 July 2010
Date01 July 2010
Subject MatterArticle
the UK Supreme Court:
judicial deference as
judicial dialogue?
By Marny Requa*
Lecturer, School of Law, Queen’s University Belfast
Abstract This article analyses the position of absent witness evidence under the
UK Criminal Justice Act 2003 after significant European and domestic case law
on the topic. It argues that flexibility in the hearsay regime under the 2003 Act
and a permissive approach by appellate courts has increased the potential for
fair trial violations in recent years. Moreover, the UK Supreme Court decision in
RvHorncastle preserves domestic courts’ authority to determine the meaning of
European rights and selectively defer to Parliament. This area of the law
demonstrates the scope that the domestic system retains for divergence from
European standards.
Keywords Hearsay; Criminal evidence; Confrontation; Fair trial rights; Human
Rights Act 1998; Judicial dialogue; Constitutional system
n the aftermath of the House of Lords’ 2008 judgment in RvDavis,1and
Parliament’s haste towards enactment of the Criminal Evidence
(Witness Anonymity) Act 2008,2public debate centred on anonymous
witnesses in criminal trials. The related issue of admissibility of documentary
evidence provided by unavailable witnesses, however, was largely overlooked in
this discussion. In Davis, Lord Mance had queried the breadth in the English
common law of the principle that defendants in criminal trials are entitled to be
1 [2008] UKHL 36, [2008] 3 WLR 125.
2 Chapter 15, 21 July 2008.
* Email: m.requa@qub.ac.uk. Many thanks to Gordon Anthony, Karen Brennan, Brice Dickson,
Dimitrios Doukas, John Jackson, Shadd Maruna, and Anne-Marie McAlinden as well as two
anonymous reviewers and the editors of the International Journal of Evidence & Proof for comments on
previous drafts of this article. Any errors or omissions are my own.
confronted in court by their accusers in a section titled ‘A right to confron-
tation?’3That fundamental question arguably reflects a new era in the United
Kingdom in which exclusionary evidential rules have been relaxed, but the trial
itself remains the apex of the criminal process. In relation to hearsay evidence,
incremental changes over many decades were accelerated by the Criminal
Justice Act 19884(CJA 1988) and Criminal Justice Act 2003 (CJA 2003). In Davis,it
was held that measures aimed at maintaining anonymity of multiple witnesses
had undermined the ability of the accused to carry out an effective defence and
deprived the appellant of a fair trial,5but the House of Lords left open questions
about the fairness of proceedings when statements of absent witnesses were read
in court.6
During 2009 there was a flurry of judicial decisions on the topic. Unavailable
witness evidence came to the fore in January 2009 with the European Court of
Human Right’s findings of fair trial violations in Al-Khawaja and Tahery vUnited
Kingdom7(hereafter Al-Khawaja), a decision reproved by the Court of Appeal of
England and Wales in RvHorncastle andjoinedappeals.
8The Supreme Court
affirmed Horncastle in a unanimous, seven-member judgment in its first term.9
The decision was to be ‘read as complementary’ to the Court of Appeal judgment
yet it spanned 75 pages (including four annexes). Rather than lend its judicial
weight to development of a more principled system for treatment of absent
witness evidence by trial courts, the court used the judgment to defend the
current statutory regime as a guarantor of fair trial rights. It failed to
acknowledge any dangers in a system that has become increasingly flexible in
recent decades. Instead, the judgment seemed to be written for one audience:
the Grand Chamber of the European Court, which had adjourned consideration
of a government request that Al-Khawaja be referred to it pending the outcome in
3RvDavis [2008] UKHL 36, [2008] 3 WLR 125 at [68]–[70].
4 Repealed by Criminal Justice Act 2003, s. 332 and Sched. 37, Part 6.
5RvDavis [2008] UKHL 36, [2008] 3 WLR 125 at [35] (Lord Bingham).
6 See, e.g., ibid. at [60] (Lord Carswell).
7 (2009) 49 EHRR 1.
8RvHorncastle; R vMarquis; R vCarter [2009] EWCA Crim 964, [2009] 4 All ER 183.
9 [2009] UKSC 14, [2010] 2 WLR 47 at [13] (Lord Phillips). The case was heard in July 2009 by the House
of Lords.
10 European Court of Human Rights Registrar, ‘Cases Accepted for Referral to the Grand Chamber’,
Press release 514, 25 June 2009. The Grand Chamber subsequently accepted the referral and heard
the case on 19 May 2010.

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