Use of hearsay evidence does not breach human rights

Criminal convictions based solely or to a decisive degree on hearsay evidence do not breach human rights laws, the Court of Appeal has ruled.

In R v Horncastle and Blackmore and two other cases [2009] EWCA Crim 964, five appeal court judges considered whether the admission of hearsay evidence meant that the convictions involved an infringement of the right to a fair trial under Art 6 of the European Convention on Human Rights, and in particular a breach of Art 6(3)(d), as the convictions were based solely or to a decisive degree on the hearsay admitted as evidence.

In one of the cases, the witness was deceased, but had made a full written statement before his death; in the second, the witness had made detailed statements but was too frightened to attend court; and in the third, the evidence was produced from the business records of a large public company.

The appellants argued that the conviction were unsafe, on the basis of the European Court of Human Rights’ judgment in Al-Khawaja and Tahery v UK [2009] ECHR 26766/05, in which the reliance to a sole or decisive degree on evidence from a deceased witness and one too fearful to attend court was found to have breached Art 6 since the appellants had no means of challenging the statements.

However, the Lords of Appeal ruled there would be no breach in the first two cases, as long as the provisions of the Criminal Justice Act 2003 were observed. In the third case, where the evidence was produced from business records, the court +allowed the appeal not on grounds of admissibility but on the grounds the trial judge failed to properly direct the jury on how the evidence could be used.

Lord Justice Thomas said: “Given that Art 6(3)(d) does not create any absolute right in an accused to have every witness against him present to be examined, the balance struck by the code enacted in the CJA 2003 is a legitimate one and wholly consistent with the Eurpean Convention on Human Rights.”