ECHR
R v Horncastle and another
R v Marquis and another
R v Carter and another
[2010] 2 AC 373
The Supreme Court (Lord Phillips, Lord Judge, Lord Neuberger, Baroness Hale, Lord Brown, Lord Mance and Lord Kerr)
Judgment delivered by Lord Phillips (with which the other six members of the Court agreed), 9 December 2009.
Evidence – Hearsay – Right to a fair trial – Articles 6(1) and 6(3)(d) of the European Convention on Human Rights – the sole or decisive rule – The Human Rights Act, 1998.
Facts:
The appellants were convicted on indictment of serious criminal offences in circumstances where the victims of the offences did not give evidence at their trials. In relation to the first appeal, where the charge was causing grievous bodily harm with intent, the victim had given a witness statement, but died prior to the trial. In the second appeal, where the charge was one of kidnap, the victim had also given a statement to the police but absconded prior to the trial because of fears for her safety. In each case a statement from the victim was admitted into evidence at the trial pursuant to section 116 of the Criminal Justice Act, 2003 and was placed before the jury.
On appeal, the appellants submitted that their convictions were based solely or to a decisive extent on the statements of a witness who they had no chance to cross examine. This, they submitted, infringed their right to a fair trial as guaranteed by articles 6(1) and 6(3) (d) of the European Convention on Human Rights. In so submitting, the appellants relied on a number of decisions, culminating in the decision of Al- Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.
The Court of Appeal held that, in the circumstances of each of the appeals, the appellants had received a fair trial and the appeals were dismissed.
Lord Phillips, in the Supreme Court, stated that the questions before the court were: (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.
Held: (Lord Phillips)
1. that although the domestic court was required to take account of the jurisprudence of the European Court of Human Rights in applying principles which were clearly established, where, on rare occasions, the domestic court was concerned that the European Court’s decision insufficiently appreciated or accommodated particular aspects of the domestic process, it might decline to follow the decision. In such circumstances it would give reasons for adopting that course. This, it was stated, was likely to give the European Court the opportunity to reconsider the particular aspect of the decision that was in issue, and it was hoped that there would take place what might prove to be a valuable dialogue between the courts. It was held that the present cases came within that category; [Par 11]
2. that the Criminal Justice Act, 2003 represented a crafted code enacted by Parliament which regulated the admission of hearsay evidence at trial in the interests of justice and contained specific safeguards. These safeguards did not include a “sole or decisive” rule, but a regime which contained such safeguards rendered this rule unnecessary; [Par 14]
3. that the statutory code struck the correct balance between ensuring the fairness of the defendant’s trial and protecting the interests of the victim in particular and society in general that a guilty person should not be immune from conviction where a witness who had given critical and apparently reliable evidence in a statement was unavailable through death or some other reason to be called at trial; [Par 108]
4. that, although the European court had recognised the need for exceptions to the strict application of article 6(3)(d), it had approved such exceptions largely in the context of continental procedures which did not address the aspect of a fair trial guaranteed by article 6(3)(d) and its resulting jurisprudence lacked clarity; [Par 14]
5. that the “sole and decisive” rule, which had been introduced into its jurisprudence without explanation of the underlying principle or full consideration of whether its imposition was justified as applicable equally to the continental and common law jurisdictions, would create severe practical difficulties if applied to English criminal procedure and the European court had not established that its introduction was necessary; [Par 14]
6. that it was not right for the domestic court to require such a rule to be applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning; and that, so long as those provisions were observed, there would be no breach of article 6 and, in particular article 6(3)(d), if a conviction were based solely or to a decisive extent on hearsay evidence; [Par 108]
7. that, accordingly, there was no ground for differing from the Court of Appeal’s conclusion that the defendants’ appeals were unsustainable. The appeals were dismissed.
See also the concurring judgment of Lord Brown.
Significance of the Case:
The decision of the Supreme Court in R v Horncastle is potentially of great importance in that it considers the obligation placed on the United Kingdom courts by section 2(1) of the Human Rights Act 1998 to “take into account” the jurisprudence of the European Court of Human Rights in determining any question in relation to which such a judgment is relevant. This provision is similar to Section 4 of the European Convention on Human Rights Act, 2003.
In R v Horncastle, a question arose in relation to the conflict between the judgment of the European Court of Human Rights in Al-Khawaja and Tahery v the United Kingdom (2009) 49 EHRR 1 and the decision of the Court of Appeal in R v Horncastle.
In Al-Khawaja, the European Court of Human Rights held that the introduction in evidence of a hearsay statement which constituted the sole or decisive evidence against the defendant would constitute a breach of Articles 6(1) and 6(3) (d) of the European Convention on Human Rights. In R v Horncastle, the Supreme Court declined to follow the decision in Al-Khawaja. The reasons given for not following Al-Khawaja were very detailed and involved a full analysis of the jurisprudence relating to the sole or decisive rule.
The United Kingdom requested that the decision in Al – Khawaja be referred to the Grand Chamber of the European Court of Human Rights. On the 5th of June 2009, the Grand Chamber adjourned consideration of that request pending the judgment of the Supreme Court in R v Horncastle. One must await the decision of the Grand Chamber for further clarification of the situation.
Reporter: Philomena Lyons BL
November 2010
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Taxquet v Belgium; (Application 926/05); Grand Chamber
Judgment 16 November 2010
The Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of the Applicant’s right to a fair trial under Article 6 § 1 of the Convention, in circumstances where he had been found guilty of murder by a jury, by reason of the failure to give sufficient reasons for the verdict . It found that the questions to the jury had been formulated in such a way that it could not be ascertained why each of them had been answered in the affirmative. The Chamber found that it was essential, for the purpose of explaining the verdict, both to the accused and to the public at large, to highlight the considerations that had persuaded the jury of the accused’s guilt or innocence and to indicate the precise reasons why each of the questions had been answered in the affirmative or the negative.
There were submissions from three third party interveners, namely the United Kingdom, Ireland and France. In the Irish Government’s submission, the system of jury trial in Ireland was the unanimous choice of accused persons and of human-rights advocates and was viewed as a cornerstone of the country’s criminal-law system. There had never been, it was submitted, a complaint that the system lacked transparency or impinged on or inhibited the rights of the accused. The Irish Government questioned how a system of trial that had been in operation for centuries and long predated the Convention could now be considered to breach Article 6 § 1. It was noted that in Gregory v. the United Kingdom (25 Feb 1997), the Court had acknowledged that the secrecy of jury deliberations was a crucial and legitimate feature of English trial law which served to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among the jurors on the evidence which they had heard. The Irish Government submitted that the confidentiality of jury deliberations was intertwined with the absence of reasons. To require juries to give reasons for their decisions would alter the nature and the very essence of the system of jury trial as operated in Ireland.
The Court considered the various models of adjudication in the member States of the Council of Europe and noted that several states opted for the “traditional” trial – by – jury model, the defining feature of which was that professional judges were unable to take part in the jurors’ deliberations on the verdict. Other states, the Court noted, opted for a system without any form of jury trial or any model of lay adjudication in criminal matters. Further states, the Court observed, implemented a collaborative court model of lay adjudicators sitting and deliberating alongside professional judges in criminal matters. Having considered the various models, the Court accepted that it was not its task to standardise the various legal systems existing in Europe. The Court was of the view that a State’s choice of a particular criminal justice system is in principle outside the scope of the supervision which is carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention. Accordingly, the Court held that the institution of the lay jury could not be called into question in this context.
Thereafter, the Court considered a number of its previous decisions and found that the Convention did not require jurors to give reasons for their decision and that Article 6 did not preclude a defendant from being tried by a lay jury even in circumstances where reasons are not given for the verdict. Nevertheless, for the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this in the Court’s view was a vital safeguard against arbitrariness. The Court noted that such safeguards could include, for instance, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers. In the case of proceedings conducted before professional judges, the accused’s understanding of his conviction will stem primarily from the reasons given in the judicial decision and accordingly, the Court must ensure that the grounds on which the decision is based are indicated with sufficient clarity. In the instant case, neither the indictment nor the questions to the jury contained sufficient information as to the Applicant’s involvement in the commission of the offences of which he was accused.
The Court also noted that, under the Belgian system, an appeal to the Court of Cassation concerns points of law alone and accordingly does not provide the accused with adequate clarification of the reasons for his conviction. The Court held in conclusion that the Applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty. Since the proceedings were not fair, there had accordingly been a violation of Article 6 § 1 of the Convention.
See also the concurring judgment of Judge Jebens.
Reporter: Philomena Lyons BL
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Greens and M.T. v. the United Kingdom (European Court of Human Rights,
23 November 2011, application nos. 60041/08 & 60054/08)
This case follows upon the earlier case of Hirst v. United Kingdom No. 2 (6 October 2005, no. 74025/01), in which the Grand Chamber of the European Court had held that legislation imposing a blanket prohibition on convicted prisoners in detention in respect of voting in national and European elections amounted to a violation of Article 3 of the First Protocol to the European Convention on Human Rights (right to free elections). In the intervening years, notwithstanding reular monitoring of the situation by the Committee of Ministers, the United Kingdom had failed to introduce legislative proposals to bring UK law into compliance with the Convention. In the present case, which was a ‘pilot judgment’ within the meaning of the Court’s procedures, the Court confirmed that the prohibition on the applicants voting in the elections constituted a violation of Article 3 of the First Protocol. The Court noted that the ‘pilot judgment’ procedure had a dual purpose; (a) to identify structural problems underlying violations of Convention provisions and (b) to induce respondent States to resolve large numbers of individual cases arising from some structural problem at domestic level. The Court went on to consider the appropriate measures to be ordered in view of the respondent’s State continuing failure to respond to the Hirst decision. The Court held that while the margin of appreciation to be afforded to States prevented it from ordering the State to adopt legislation with any particular content, the Court could make directions as to timescale. The Court ordered the Government of the United Kingdom to introduce legislative proposals to bring the disputed legislation in line with the Convention within 6 months of the date of its judgment becoming final, with a view to its enactment within any time frame decided by the Committee of Ministers. The Court declined to award damages to the applicant but awarded costs.
Sophie More’ O’ Ferrall BL
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Cadder (App.) v Her Majesty’s Advocate (Resp.) (Scotland)
[2010] UKSC 43
The issue in this appeal was whether a person has the right of access to a solicitor under Article 6 of the European Convention on Human Rights prior to his being interviewed while in police custody. Under section 14 of the Criminal Procedure (Scotland) Act, 1995, as amended, the detainee did not have a right of access to legal advice before or during interview; the detainee’s rights were limited to having his solicitor informed of his detention. The Supreme Court of the United Kingdom followed the ECtHR (Grand Chamber) decision in Salduz v Turkey [2008] 49 EHRR 421 and held that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right.
Lord Hope (Deputy President) delivered the leading judgment. Lord Rodger delivered a separate judgment agreeing with Lord Hope but adding observations of his own. All other Law Lords agreed with the reasoning given by Lords Hope and Rodger. It had been argued that other safeguards in the process prevented there being a breach of Article 6, but both Lord Hope and Lord Rodger rejected the argument that these safeguards ensured a fair trial when a detainee was interrogated without access to a lawyer, and held that distinctions of that kind would be entirely out of keeping with the Strasbourg court’s approach. Lord Hope held that the Salduz decision indicated a clear intention on the part of the Grand Chamber to tighten up the approach that must be taken to protect a detainee against duress or pressure of any kind that might lead him to incriminate himself. The conclusion the Court drew from Salduz was that the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained must have access to advice from a lawyer before he is subjected to police questioning.
Interestingly, the Court cited the Irish case of A v. Governor of Arbour Hill Prison [2006] 4 IR 88 with approval for the proposition that its ruling could not be invoked retrospectively in respect of cases already decided.
Sorcha Whelan BL