When Strasbourg speaks
Date: 12 March 2010
Authors: Eddie Craven & Rowan Pennington-Benton
Issue: Vol 160, Issue 7408
Categories: Features, Human rights, Public
UK courts are required to “take into account” Strasbourg jurisprudence under s 2(1) of the Human Rights Act 1998 (HRA 1998). In R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23, [2001] All ER (D) 116 (May) Lord Slynn famously held that UK courts should “in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR” [20]. The possibility of declining to follow Strasbourg case law has been consistently and expressly preserved in successive judgments. In practice however the courts have been extremely reluctant to exercise that right, leading some – including judges – to start talking the language of binding precedent.
Professor Jane Wright suggests that this practice is justified given that the ECtHR does not lay down exacting rules, but instead “embodies very general principles which have to be mediated into national legal cultures” (Public Law (2009), Jul, 595–616). Recent case law disputes this account. One notable example is A v UK (2009) 49 EHRR 29, [2009] All ER (D) 203 (Feb), where the ECtHR held that the detention of terrorist suspects based “solely or to a decisive degree on closed material” always amounts to a breach of procedural fairness as guaranteed by the European Convention on Human Rights) (ECHR) [220]. This was so irrespective of domestic exigencies and procedural safeguards such as the use of special advocates and private hearings questioning the veracity of the evidence. The Strasbourg Court is clearly prepared then to lay down rigid and specific rules to be applied by the domestic courts.
Binding precedent?
The response to A v UK by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 All ER 643 is illuminating. The case concerned a challenge to control orders imposed on terrorist suspects, based, “solely or to a decisive degree” on closed evidence which the controlee had not had the opportunity to properly challenge. Although an earlier ruling of their Lordships had preferred a more flexible approach, the court unanimously followed A v UK, finding that there had been a breach of Art 6 – right to a fair trial.
Lord Hoffman felt that the ECtHR decision was “wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism” [70]. Nonetheless, he held that the domestic courts had “no choice but to submit”. Lord Carswell acknowledged that “not all may be persuaded that the Grand Chamber’s ruling is the preferable approach” [108]. Nonetheless, he too felt bound, as did Lord Roger who stated “we have no choice…Strasbourg has spoken, the case is closed” [98].
Domestic justification?
Lord Slynn’s justifications for adopting the duty under section 2(1) were essentially international comity and practical utility. Lord Hoffmann in AF appeared to accept these rationale, holding that a failure to follow A v UK would “put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so” [70]. The applicant is likely of course to put his case before the ECtHR which will ordinarily follow its own jurisprudence.
As one of the authors has argued elsewhere (see 159 NLJ 7386, p 1315), the approach of the court in AF and the underlying rationale neglects two possibilities. First, it disregards the possibility of valuable dialogue between the domestic and European courts as to the most appropriate interpretation and application of the ECHR. Second, it fails to secure the domestic margin of discretion that s 2(1) was clearly designed to allow the UK courts to enforce. It relinquishes domestic control in optimistic reliance upon the self-restraint of the Strasbourg Court.
An about-turn?
In a robust decision of the new UK Supreme Court, there appears to be something of an about-turn. In R v Horncastle and Others [2009] UKSC 14, seven law lords unanimously refused to follow ECtHR jurisprudence on the exact point in issue. In doing so they upheld a similarly unanimous refusal to do so by five members of the Court of Appeal. The case concerned two appellants who had been convicted of serious offences on the basis of evidence which they did not have the opportunity to fully challenge in court (hearsay). In one case the victim-witness had died before the court hearing and in the other was too scared to testify. The statements of each were read to the jury pursuant to provisions of the 2003 Criminal Justice Act.
The Supreme Court considered the case of Al-Khawaja and Tahery v UK (2009) 49 EHRR, where the ECtHR sitting as Chamber had upheld challenges made by persons convicted in similar circumstances to those in Horncastle. Article 6 of the ECHR guarantees the right to a fair trial, which expressly includes the right in Art 6 (3)(d) to “examine or have examined witnesses against him”. The ECtHR held that this right was one of a set of “express guarantees” with the consequence that Art 6 is breached “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” [36].
In reliance upon AF, it was argued before the court in Horncastle that the decision of the ECtHR in Al-Khawaja was determinative of the issue. Lord Phillips, president of the Supreme Court, stated “I do not accept that position.” [11]. In refusing to follow Al-Khawaja, his Lordship explained that “[t]here will…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.” [11].
The court questioned whether the conclusions reached in Al-Khawaja necessarily followed from the existing Strasbourg jurisprudence, but accepted that the “sole or decisive degree” test had been recited in a number of cases. However, “that case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure. Nor, I suspect, can the Strasbourg Court have given detailed consideration to the English law of admissibility of evidence, and the changes made to that law, after consideration by the Law Commission, intended to ensure that English law complies with the requirements of Art 6(1) and (3)(d)” [107]. These factors rendered the adoption of the “sole or decisive degree” rule unnecessary in the UK to protect the rights of the accused under Art 6. In failing to recognise this, there is, underlying this judgment, the sense that the European Court overplayed its part.
Lord Brown alone attempted to reconcile the decision with previous practice on the ground that Al-Khawaja was only a Chamber decision and therefore “not as authoritative as a Grand Chamber decision” [120]. Additionally, the reasoning in Al-Khawaja was “altogether less clear” than the court’s judgment in A v UK. Notwithstanding this attempt we appear to have moved some way from the proposition that “Strasbourg has spoken…the case is closed.” International comity or not, the domestic courts will not rubber stamp ill-reasoned decisions of the European Court.
Dialogue
The possibility of dialogue was expressly recognised in Horncastle. It is relevant in this respect that the decision in Al-Khawaja is currently the subject of an application to the Grand Chamber for reconsideration. Lord Phillips envisaged that the Horncastle decision would “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”. [11].
Interestingly, the Grand Chamber decided to adjourn the UK government’s request for a reconsideration of Al-Khawaja until after the Supreme Court had given judgment in Horncastle. This may well be a tacit recognition of the importance and value of dialogue with national courts. In any event, the ECtHR now has an explicit invitation before it to respond to the Supreme Court’s critique of its jurisprudence.
Judicial dialogue with the ECtHR has occurred previously in a series of cases concerning the compatibility of residential possession proceedings with Art 8, ECHR. In Qazi v Harrow LBC [2003] UKHL 43, [2003] 4 All ER 461 the House of Lords (by a majority) held that Art 8 could not be used to defeat a local authority’s right to possession. In Kay v Lambeth LBC [2006] UKHL 10, [2006] All ER (D) 120 (Mar) the House of Lords revisited its judgment in Qazi in the light of the ECtHR’s judgment in Connors v UK (2005) 40 EHRR 189. The majority modified its approach by holding that a defendant to possession proceedings could invoke Art 8 to challenge the legality of the domestic legislation as a whole, but if the statute itself was complaint, decisions under it would be immune from further assessment under Art 8. In McCann v UK (2008) 47 EHRR 40, [2008] All ER (D) 146 (May) the ECtHR held that Qazi and Kay gave insufficient regard to Art 8. However, in Doherty v Birmingham City Council [2008] All ER (D) 425 (Jul), the House of Lords declined to follow McCann. Lord Scott stated that the ECtHR had misunderstood domestic possession procedures, a sentiment echoed by Lord Hope, who described the Strasbourg decision as “almost useless” [20]. A challenge in Kay is now pending before the ECtHR, and the stage is therefore set for a further exchange of views on this subject.
Another example of dialogue in action was Z v UK (2002) 34 EHRR 3, where the ECtHR took the opportunity to “review” (a Strasbourg euphemism for what was essentially a decision to overturn) its previous holding in Osman v UK (2000) 29 EHRR 245 concerning duties of care in negligence owed by local authorities and rights of access to the courts. This departure was prompted by “clarifications” of the domestic law provided by the House of Lords in X v Bedfordshire CC [1995] 2 AC 633, [1995] 3 All ER 353.
The future
“Lively dialogue, in and out of court” between the ECtHR and English courts has recently been advocated by Lady Justice Arden, writing extra-judicially (Public Law (2010), Jan, 140–159). If the Strasbourg court accedes to the Supreme Court’s invitation to reconsider following Horncastle, this will surely have an emboldening effect upon the willingness of domestic courts (in the UK and elsewhere) to point out cases where they think that the ECtHR has gone wrong.
However it is equally clear that if the Grand Chamber upholds the Chamber judgment in Al-Khawaja serious consequence would follow. It is unlikely that the Supreme Court would depart from its conclusions in Horncastle, even in the face of a Grand Chamber judgment expressly and emphatically affirming the “sole or decisive” hearsay test. However, this would still leave the hearsay provisions of the CJA 2003 in breach of the ECHR in international law. The provisions would need to be repealed or substantially amended in order to avert a stream of adverse holdings from the Strasbourg Court. And this may risk, in Lord Brown’s words, that “many guilty defendants will have to go free” [113].
Eddie Craven of Lincoln’s Inn and Rowan Pennington-Benton of the Middle Temple
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