Confrontation: The Defiance of the English Courts
| Published date | 01 April 2011 |
| Author | William E. O'Brian |
| DOI | 10.1350/ijep.2011.15.2.372 |
| Date | 01 April 2011 |
| Subject Matter | Article |
Confrontation: the
defiance of the English
courts
By William E. O’Brian Jr*
Associate Professor of Law, University of Warwick, Coventry
Abstract This article discusses recent decisions that have made explicit a
conflict that has long been brewing between the English courts and the
European Court of Human Rights regarding Article 6(3)(d) of the European
Convention on Human Rights, which protects a defendant’s right to examine or
have examined the witnesses against him. It argues that the European Court has
correctly interpreted the Convention and that the Supreme Court’s case-by-case
approach to the right of confrontation would give insufficient protection to the
defendant.
Keywords Hearsay; Confrontation; European Convention on Human Rights
he European Convention on Human Rights provides in Article 6(3)(d) that
‘everyone charged with a criminal offence has the following minimum
T rights...toexamineorhaveexaminedthewitnessesagainsthim’.Thisis
one of a number of specified minimum rights, in addition to the general right to a
fair trial that is protected by Article 6(1). English law has for at least two centuries
included a prohibition on the admission in criminal cases of an assertion not
made while giving oral evidence in the proceedings as evidence of any matter
stated, a rule known as the hearsay rule, although this rule has always been the
subject of numerous exceptions. English law in this area was substantially revised
and codified by the Criminal Justice Act 2003.1
Although the English hearsay rule is based on some of the same considerations
that underlie the right to examine the witnesses against the defendant under
*
Email: w.obrian@warwick.ac.uk. The author wishes to thank Mike Redmayne, Andrew Choo, Roger
Leng and an anonymous peer reviewer for this journal for helpful comments on previous drafts.
Any remaining errors remain the responsibility of the author.
1
R v Singh [2006] EWCA Crim 660, [2006] 1 WLR 1564.
doi:10.1350/ijep.2011.15.2.372
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CONFRONTATION: THE DEFIANCE OF THE ENGLISH COURTS
Article 6, the two rules have significantly different ranges of application. The
English hearsay rule applies to both prosecution and defence evidence, while only
the defendant is protected by the Article 6 right. The English hearsay rule applies
in some cases where the person making the hearsay statement actually gives
evidence at trial, but Article 6 is unlikely to be implicated in such cases. Finally, it
is likely that Article 6 only applies to cases where the statement that is used
against a defendant without his having an opportunity to examine the maker of
the statement is one that was generated for the purposes of legal proceedings.2 The
hearsay rule is not so limited.
This article discusses the recent dramatic dispute between the English courts and
the European Court of Human Rights (hereafter ECtHR) over the interpretation of
Article 6(3)(d), culminating in the Supreme Court’s recent judgments, by a
seven-member panel, in R v Horncastle,3 a decision that effectively refuses to apply a
less than one-year-old (at the time) decision of the ECtHR (the Al-Khawaja decision).4
It will argue that the ECtHR decision is right, and the refusal of the Supreme Court
to follow it misguided. It is to be hoped that the ECtHR will refuse to back down in
the face of this challenge, and reiterate in the strongest possible terms its existing
authorities.
This dispute is one of a number of clashes between the English courts and the
ECtHR in recent years. In some of these cases the English courts have the better of
the argument, for example with respect to retention of DNA and fingerprint
profiles, where no serious interests of the defence are implicated and the potential
loss of vital probative evidence from the ECtHR’s ruling is dramatic.5 This article is
not a simple plea for the absolute priority of human rights considerations over
crime control considerations. Rather, it argues that the central importance of live
testimony of witnesses and cross-examination by the defence to the search for
truth requires reading the Convention, in accordance with its plain meaning, as
creating a virtually absolute right to the defence.6 The only exception to this right
that should be accepted is for cases where the defendant is responsible for the
witness’s failure to testify, for example if the defendant intimidated the witness or
killed her.
2
See section 5 below.
3
[2009] UKSC 14, [2010] 2 WLR 47.
4
Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
5
S and Marper v United Kingdom (2009) 48 EHRR 50.
6
Accordingly, the question of whether, irrespective of the merits of the dispute, the Supreme Court
was required by s. 2(1) of the Human Rights Act 1998 to follow the ECtHR ruling in Al-Khawaja is not
considered here. That is an interesting question in its own right, but this article is focused on the
merits of the dispute. For what it is worth, I agree with the Supreme Court that it was entitled to
disagree with the decision in Al-Khawaja and ask a Grand Chamber to reconsider it.
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CONFRONTATION: THE DEFIANCE OF THE ENGLISH COURTS
1. The earlier European Court cases
The decisions of the ECtHR under Article 6(3)(d) have tended to involve one type of
evidence that falls within the hearsay rule in English law: the use of witness state-
ments, typically those provided to the police or the prosecution, in place of the live
testimony of the witness at trial where the witness can be cross-examined, either
by defence counsel or by the court itself in response to requests by the defendant
or his lawyers. Although the ECtHR has stressed that there is nothing wrong with
the use of such statements at the investigatory stage, it has repeatedly found a
violation of the Convention where a conviction is based solely or to a decisive
extent on statements of witnesses that the defendant has not had an opportunity
to question, either at trial or at the time the statement is given.7
The leading case prior to Al-Khawaja was Luca, where the court found a violation of
Article 6 because Luca’s conviction was based solely on statements given by a
witness that he and his lawyers were never able to question, allegedly because the
witness was afraid to testify. The court noted that witness intimidation was a
problem, especially in cases involving ‘Mafia-type organisations’, but nonetheless
held that it could not justify a conviction based solely or decisively on such state-
ments. The court said that while use of depositions or similar police statements at
the investigatory stage was permissible, ‘where a conviction is based solely or to a
decisive degree on depositions that have been made by a person whom the accused
has had no opportunity to examine or have examined, whether during the investi-
gation or at the trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by article 6’.8
This fairly strong stand by the ECtHR had until recently been to some extent
undermined by two common features of its decisions under Article 6(3)(d). First,
despite the language of Article 6, which specifies that the rights enumerated in
Article 6(3) are ‘minimum rights’, it tended to suggest that these rights were
merely aspects of the overall right to a fair trial guaranteed by Article 6(1). In part
it did this because it did not view its role as one of prescribing rules of evidence for
the conduct of trials by national courts, but rather simply as one of assuring that
the trial is fair overall.9 Secondly, in a series of cases where the defendant has been
convicted based in part on evidence from witnesses that the defence has never
been able to question, the court has found no violation of Article 6 on the basis
that there was other evidence against the accused on which the conviction was
7
See, e.g., Luca v Italy (2001) 36 EHRR 46; PS v Germany (2003) 36 EHRR 61; Sadak v Turkey (2003) 36 EHRR
26, among many others.
8
Luca v Italy (2001) 36 EHRR 46 at para. 40.
9
See, e.g., Kostovski v The Netherlands (1989) 12 EHRR 434.
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CONFRONTATION: THE DEFIANCE OF THE ENGLISH COURTS
based.10 But even before Al-Khawaja, there was no case where the ECtHR had upheld
the fairness of a trial where the outcome was based solely on witness statements or
depositions that the defendant has had no opportunity to test.11
Even where the ECtHR has found a violation of Article 6 where convictions have
been based primarily on witness statements from witnesses that the defendant
has been unable to examine, the court has typically been unwilling to speculate
whether the defendant would have been convicted if the trial had complied with
Article 6. This is because the court does not have the power to overturn convictions
or to order suspects released; if it finds a violation it is generally limited to
awarding ‘just satisfaction’ in the form of money.12 Under these circumstances, it
is not surprising that the ECtHR should eschew the task of reviewing decisions to
admit or exclude evidence, and limit its task to one of ensuring that the
proceedings taken as a whole were fair.
The combination of these features operated to dilute the effect of what were
otherwise reasonably clear pronouncements from the court on what Article 6(3)(d)
requires. Member States have an...
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