A Political Judgment? Reconciling Hearsay and the Right to Challenge
| Date | 01 July 2010 |
| Published date | 01 July 2010 |
| Author | Imogen Jones |
| DOI | 10.1350/ijep.2010.14.3.356 |
| Subject Matter | Article |
RECONCILING HEARSAY AND THE RIGHT TO CHALLENGE A political judgment?
Reconciling hearsay
and the right to
challenge
By Imogen Jones*
Lecturer in Law, University of Manchester
Abstract The hearsay provisions in the Criminal Justice Bill 2002 attracted
considerable political opposition, often based upon a belief that the provisions
unacceptably interfered with a defendant’s right to challenge. The govern-
ment’s counter position has to be understood as advancing its policy goals,
continuing the politicisation of criminal justice. This article examines the
approach of the courts to the issue of whether a conviction can be based
primarily on hearsay evidence in RvHorncastle, evaluating the relationship
between the arguments advanced in Parliament and by the courts. It is argued
that there are significant overlaps between the two, an understanding of the
political context being essential to a full appreciation of the legal judgments.
Keywords Hearsay evidence; Right to challenge; Absent witnesses; Politics of
criminal justice
he relationship between hearsay evidence and a defendant’s right to
challenge is of legal and political significance. Politicians had the oppor-
tunity to address this contentious issue when enacting the Criminal
Justice Act 2003. Nevertheless, the recent Court of Appeal and Supreme Court
decisions in the case of RvHorncastle1demonstrated that many of the arguments
about this relationship have remained the same, with the passage of the 2003 Act
eight years previously failing to resolve them. The legal reasoning employed by the
courts has already been subject to some critical analysis and no doubt more will
doi:10.1350/ijep.2010.14.3.356
232 (2010) 14 E&P 232–252 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
1 [2009] UKSC 14, [2010] 1 Cr App R 17; [2009] EWCA Crim 964, [2009] 2 Cr App R 15.
T
* Email: imogen.jones@manchester.ac.uk. The author is extremely grateful to Andrew Sanders and
Jonathan Doak for their comments on an earlier version of this article. Thanks also to Alison Jones
for her help and support.
follow.2What is often neglected, however, is the political context of these
decisions. This is arguably a crucial omission; an understanding of the political
context of the Criminal Justice Bill 2002 and the parliamentary debates about it
provide an important insight into the approach of the courts to the right to
challenge. This article examines the links between the parliamentary debates on
the pertinent provisions of the 2002 Bill and the arguments advanced by both
appellate courts in the Horncastle case in order to increase understanding of this
important issue.
The Horncastle case
The Horncastle case went to the core of the role of the defendants’ right to challenge
in criminal adjudication. If upheld, the entire scheme in the 2003 Act for the
admission of hearsay evidence could be brought into conflict with defendants’
right to challenge. The case concerned four combined appeals with the common
feature that the convictions in question were argued to be substantially based on
the evidence of identifiable, but absent witnesses—hearsay evidence. In the case,
Horncastle and Blackmore were appealing convictions based to a ‘decisive degree’
on the evidence of a witness who had died since the incident in question. Marquis
and Graham argued that the evidence of an absent frightened witness was decisive
in the findings of guilt against them. A key issue in the appeals was the submission
that the UK courts should feel bound by the European Court of Human Rights
(ECtHR) decision in Al-Khawaja and Tahery vUnited Kingdom,3itself a case involving
the evidence of both deceased and frightened witnesses. Here, the ECtHR’s
Chamber found that allowing convictions to be based solely or decisively on the
evidence of absent witnesses, save for exceptional circumstances, violated the
defendant’s right to challenge the evidence against him under Article 6(3)(d) of the
European Convention on Human Rights (ECHR).
The political background to the hearsay reforms
As criminal justice is a pressing political issue, it is not particularly surprising to
find evidence of policy rationale in judicial decisions. Consequently, analysis of
judicial attitudes, here to the issue of hearsay and challenge, will be more
complete when the political context is evaluated alongside legal commentary.
There is a mass of literature examining the development of criminal justice policy.
This charts how popular and political perceptions of the appropriate ‘balances’
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 233
RECONCILING HEARSAY AND THE RIGHT TO CHALLENGE
2 See, e.g., A. Webster, ‘Horncastle vR: Statements from Witnesses Absent at Trial’ (2009) 13 E & P 324;
M. Requa, ‘Absent Witnesses and the UK Supreme Court: Judicial Deference as Judicial Dialogue?’
(2010) 14 E & P 210.
3 (2009) 49 EHRR 1. Now being appealed to the Grand Chamber of the ECtHR.
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