R v Horncastle and another

JurisdictionEngland & Wales
Judgment Date09 December 2009
Neutral Citation[2009] UKSC 14
Date09 December 2009
CourtSupreme Court

[2009] UKSC 14


Michaelmas Term

On appeal from: [2009] EWCA Crim 964


Lord Phillips, President

Lady Hale

Lord Brown

Lord Mance

Lord Neuberger

Lord Kerr

Lord Judge


and others

(Appellants) (on appeal from the Court of Appeal Criminal Division)

Appellants (Horncastle and Blackmore)

Tim Owen QC

John Gibson

Janet Reaney

(Instructed by The Johnson Partnership Solicitors)

Appellants (Marquis and Graham)

Shaun Smith QC

James Beck

(Instructed by The Johnson Partnership Solicitors)


David Perry QC

Louis Mably

(Instructed by Crown Prosecution Service)


This is a judgment with which all members of the court agree.



Each of the appellants has been convicted on indictment of a serious criminal offence. Each has had an appeal against conviction dismissed by the Court of Appeal. Each appeals on the ground that he did not receive a fair trial, contrary to article 6 of the European Convention on Human Rights ("article 6") ("The Convention"). The appeal of each is based on the fact that there was placed before the jury the statement of a witness who was not called to give evidence. In each case the witness was the victim of the alleged offence.


Mr Horncastle and Mr Blackmore were convicted of causing grievous bodily harm, with intent, to Mr Peter Rice. Mr Rice made a witness statement to the police about what had happened to him. He died before the trial of causes not attributable to the injuries that had been inflicted upon him. His statement was read at the trial. Although there was other evidence that supported it, the Court of Appeal concluded that the statement was "to a decisive degree" the basis upon which the appellants were convicted.


Mr Marquis and Mr Graham were convicted of kidnapping a young woman called Hannah Miles. She made a witness statement to the police in which she described what happened to her. The day before the appellants' trial she ran away because she was too frightened to give evidence. Her statement was read to the jury. A considerable body of oral evidence was also given at the trial. The Court of Appeal held that the appellants' convictions did not rest on the evidence of Miss Miles "to a decisive extent". The appellants challenge that finding.


Mr Rice's witness statement was admitted pursuant to section 116(1) and (2)(a) of the Criminal Justice Act 2003 ("the CJA 2003"), which makes admissible, subject to conditions, the statement of a witness who cannot give evidence because he has died. Miss Miles' witness statement was admitted pursuant to section 116(1) and (2)(e) of the CJA 2003, which makes admissible, subject to conditions, the statement of a witness who is unavailable to give evidence because of fear.


The principal issue raised by these appeals is whether a conviction based "solely or to a decisive extent" on the statement of a witness whom the defendant has had no chance of cross-examining necessarily infringes the defendant's right to a fair trial under articles 6(1) and 6(3)(d) which provide:

"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….

(3) Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."


The appellants submit that an affirmative answer must be given to this principal issue. In each case it is submitted that the trial judge should have refused to admit the statement on the ground that it was a decisive element in the case against the appellants. This the judge could have done, either by "reading down" the relevant provisions of the 2003 Act so as to preclude the admission of hearsay evidence in such circumstances or by excluding it under section 78 of the Police and Criminal Evidence Act 1984 ("PACE").


In so submitting the appellants rely on a line of Strasbourg cases, culminating in the decision of the Fourth Section of the European Court of Human Rights ("the Chamber"), delivered on 20 January 2009, in the cases of Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. In each of those applications statements had been admitted in evidence at a criminal trial of a witness who was not called to give evidence. The Strasbourg Court held that, in each case, the statement was "the sole or, at least, the decisive basis" for the applicant's conviction. The Court reviewed its own jurisprudence and concluded that this established that the rights of each applicant under articles 6(1) and 6(3)(d) had not been respected. The Court took as its starting point the following statement in Lucà v Italy (2001) 36 EHRR 807 at paragraph 40:

"…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 to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6".

I shall call the test of fairness that this statement appears to require "the sole or decisive rule".


The Court of Appeal did not accept that the decision in Al- Khawaja was determinative of the results of these appeals. It held that, in the circumstances of each of the appeals, the appellants had received a fair trial and dismissed the appeals.

The approach to this appeal


Article 43(1) of the Convention provides that within a period of three months from the date of judgment of the Chamber any party may, in an exceptional case, request that the case be referred to the Grand Chamber. Article 43(2) provides that a Panel of 5 judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance. On 16 April 2009 the United Kingdom requested that the decision of the Chamber in Al-Khawaja be referred to the Grand Chamber. On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending our judgment in the present case.


Mr Tim Owen QC, for Mr Horncastle and Mr Blackmore, submitted that we should treat the judgment of the Chamber in Al-Khawaja as determinative of the success of these appeals. He submitted that this was the appropriate response to the requirement of section 2(1) of the Human Rights Act 1998 that requires a court to "take into account" any judgment of the European Court of Human Rights in determining any question to which such judgment is relevant. He submitted that the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2009] 3 WLR 74 exemplified the correct approach to a decision of the European Court. In that case the Committee held itself bound to apply a clear statement of principle by the Grand Chamber in respect of the precise issue that was before the Committee. Mr Owen submitted that we should adopt precisely the same approach to the decision of the Chamber in Al-Khawaja.


I do not accept that submission. The requirement to "take into account" the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

The decision of the Court of Appeal


In recognition of the importance of these appeals for English criminal procedure the Criminal Division of the Court of Appeal sat five strong in a composition that included the Vice-President and other senior judges with extensive experience of the criminal process. The court was thus particularly well qualified to consider the questions at the heart of these appeals. These questions are: (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not, (2) whether the Strasbourg jurisprudence none the less requires the court to apply that regime in a manner contrary to the intention of Parliament.


The Court of Appeal carried out an extensive survey of both domestic and Strasbourg jurisprudence. They concluded that the statutory regime produced a fair trial and that the Strasbourg jurisprudence did not require the court to apply that regime in a manner contrary to Parliament's intention. I endorse those conclusions and almost all the reasoning that led to them. I commend the Court of Appeal's judgment and shall, in places, borrow from it. This judgment should be read as complementary to that of the Court of Appeal, not as a substitute for it.

A summary of my conclusions


The following are the conclusions that I have reached for reasons that I shall develop:

(1) Long before 1953 when the Convention came into force the common law had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure.

(2) Parliament has since enacted exceptions to the hearsay rule that are required in the interests of justice. Those exceptions are not subject...

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