Hearsay essay 2018/ ZONE B/ Q4

‘While Al Khawaja and Tahery v UK (2011) made convincing arguments that the Criminal
Justice Act 2003 had robust provisions to deal with the problems of hearsay evidence, they
have been applied very loosely since then.’ Discuss.

In this essay the student will be discussing the grand chamber decision of Alkhawaja v
UK(2011),Its effect on english courts and whether the courts have subsequently followed the
decision.

Under english law hearsay evidence has always been generally inadmissible However,
with the introduction of the CJA 2003 the admissibility rules of hearsay were relaxed to an
extent with the statute providing exceptions for its admissal. This was because as recognised by
the government white paper ‘justice for all’, there was a danger in making all hearsay evidence
inadmissible,a lot of relevant evidence that could most likely help in bringing justice would be
lost.

The CJA 2003 holds that hearsay evidence is prima facie inadmissible but it can become
admissible if it satisfies the conditions of one of the gateways provided by the statute and it will
thus be admitted once the safeguards found in the act are applied by the court.In the case of
Horncastle, the supreme court showed its support to the principles found in the CJA by holding
that the act was a well crafted code with enough safeguards to protect defendant’s right to a fair
trial. Some of the safeguards provided by the CJA are as follows:

First of all the act provides for very restricted gateways with strict conditions that must be
satisfied before its admissal. An example of one of these gateways is S116, which provides that
hearsay evidence is only admissible if the witness is either dead, unfit, outside the UK, cannot
be found or fears coming to court. The fear gateway provides an illustration of the rigidity of the
act; the provision provides that the gateway is not automatic, the court must grant leave for its
admissal first. In the case of Shabir the court stated that the judge will only grant leave if it is in
the interest of justice to do so, thus the judge must also have regard to the matters set out in
s116(4)(a)-(c). Another example of the gateways in the act is s114(1)(d), which allows for the
admission of hearsay evidence if the court is satisfied that it will be in the interest of justice to
admit the evidence, however the court must have regard to the factors set out in s114(2) which
are intended to focus the attention of the courts on the question of reliability.

Secondly the act has supplementary provisions which are meant to act as safeguards. S 124
allows for the admission of evidence to attack the credibility of a witness where hearsay
evidence has been admitted; the provision was praised in Horncastle where the supreme court
stated that it enables defendants to bring forth evidence that could've been put to the witness if
they were present. The court held that ‘..this puts the challenger to that extent in a better
position than if the witness is present; and this is designed to help to counterbalance the
absence of cross examination of the witness in person’. S125 gives judges the power to exclude
evidence where they are convinced that the evidence is so unconvincing that its admissal would
lead to an unsafe conviction. While S126 provides that the judges may exclude admissible
hearsay evidence either where they are satisfied that the reasons to exclude it substantially
outweighs the reasons to admit it or under s78 PACE 1984.

Having regard to the above mentioned safeguards, the grand chamber in the case of Al
Khawaja(2011) agreed with Horncastle that the CJA contained enough safeguards to protect
against unfair trials. The issue brought to the court was whether the admission of hearsay
evidence that forms the sole or decisive evidence in a case results in an infringement of article
6(3)(d). Under article 6 of the ECHR a defendant's right to confront a witness accusing them is
protected; this is because as Redmayne stated the right to confront has an epistemic nature in
so far as it promotes fact finding in trials which helps source out unreliable evidence but also
has a non epistemic nature because it protects defendants dignity.

In its judgement the grand chamber made a key concession that the sole or decisive rule which
was long followed by the ECtHR(luca v italy) should not be applied too rigidly but rather as a
part of the overall assessment of whether there has been a fair trial. The court made this
concession but still held that in order for the trial to be fair the courts when deciding admissibility
must subject the proceedings to ‘the most searching scrutiny’ and the only way to do this is
making sure that the counterbalancing factors found in the CJA meant to allow for a fair and
proper assessment of the reliability of evidences are applied.

The grand chamber whilst making its decision also created guidelines which must be followed
by future courts when deciding the question of admissibility (schatschaschuli v germany). They
held that the courts must ask: whether there was good reason for the absence of the witness;
whether the hearsay played a sole or decisive role in the prosecution's case; and whether there
were sufficient counter balancing factors in place. The court also stated that the lack of good
reason for the failure of the witness to attend is not sufficient in itself to result in a violation of
article 6.

Noting the compromise made by the ECtHR to ease the conflict between the Strasbourg court
and the english courts it would be expected that the English courts would finally follow and apply
the decisions of the ECtHR; however this was not the case.

In the case of Ibrahim(2012) one of the first english cases post Alkhamaja(2011) the english
courts seemed to be complying to an extent to the grand chamber decision. The court here
whilst trying to decide whether the evidence of a dead witness had been properly admitted
pointed out a difference in approach to the sole or decisive rule between the supreme court and
the grand chamber, however Aikens LJ held that this was more of form than substance. The
court also identified 4 questions to help determine whether defendants have a fair trial according
to the CJA: was their proper justification for the admissal of the hearsay (where the conditions of
the gateways satisfied)? How important is the hearsay evidence to the prosecution case- do
they form the central part of the case without which the case would not continue? How
demonstrably reliable is the hearsay evidence? Were the counterbalancing safeguards properly
applied to ensure that the defendant has a fair trial?

The case of Ibrahim to an extent seems to take the same route as the grand chamber decision
whilst placing emphasis on the need for reliability before admissal, however the same cannot be
said to an extent about the case of Riat(2013). Hughes LJ whilst delivering his judgment gave 5
central principles for the future courts to follow when dealing with the admissibility of hearsay
evidence, mostly underlying that Horncastle must be followed rather than Alkhawaja(2011). He
listed the following: the law is what is stated in the CJA; if on close analysis there are
differences between the supreme court and the grand chamber judgements, the english courts
are obligated to follow the supreme court's judgement; there is no rule under the ECtHR or the
english courts that hearsay evidence that is the sole or decisive evidence in the case is
automatically admissible, there are different takes between the two courts but these are more of
form than substance; judges need only follow the CJA and Horncastle; neither under the CJA or
Horncastle can hearsay evidence be treated as first hand evidence and automatically
admissible.

As can be seen from the above judgement, the court in Riat did not shy away from picking a
side to follow, Hughes LJ’s judgment explicitly followed that the courts should look at Horncastle
and the CJA rather than the grand chambers and to follow this he came up with 5 steps that the
courts should use to consider the statutory framework of the CJA: is there statutory justification
for the admissal of the evidence (where one of the gateways satisfied)? What material is there
to help in assessing the hearsay statement (i.e s124 allows for the credibility of the witness to
be attacked)? Is there a specific ‘interest of justice’ test under the s114CJA gateway (this route
must be used routinely because it would subvert the other gateways)? Even if prima facie
admissible should the evidence be ruled inadmissible (i.e S78 PACE/ S126 CJA)? If the
evidence is admitted, should the case subsequently be stopped under S125 CJA?

Whilst the judgment in Riat did show support to the supreme court rather than the grand
chamber, the judgment nevertheless complied with the grand chamber judgement in so far as it
held that the CJA must be followed to ensure that the trials are fair and even went further to give
guidelines on how to apply the CJA principles.

So far, looking at the judgements of Ibrahim and Riat it does not seem like the courts have
strayed too far from the grand chamber judgment and have so far followed their decision where
the CJA is concerned. However as the following case law will show the courts have not
complied as much to the grand chambers 3 steps guidance on determining admissibility.

In the case of Septor v Uk(2016) the ECtHR had to decide whether the hearsay evidence of an
absent witness was rightfully admitted, the court held that there was no good reason for the
absence of the witness and that the hearsay was not decisive because the court of appeal had
held that there were overwhelming evidences against the defendant. The court also held that
regardless of whether the evidence was decisive or that the witness did not have good reason
for his absence, the CJA had sufficient procedural safeguards to ensure a fair proceeding, thus
there was no breach of article 6.

In the case of taylor(2013) the english courts also did not follow the 3 steps guidelines provided
by the grand chamber. The court allowed for the admission of unverified and uncorroborated
hearsay evidence that was used to gather the defence’s mens rea and held that there is no
requirement that hearsay evidence must be proved to be reliable before admission, the
evidence need only be demonstrably reliable or there must be sufficient tools available to the
jury to help them assess the reliability of the evidence.

It could be argued that the judgement of Taylor and Sector showed that the ECtHR was
gradually giving up on its strong stance when it came to hearsay admissibility and the
requirement for good reason for the unavailability of a witness. It also seems now that the 3
steps guidelines given by the grand chamber are little more than matters that the courts can
choose to consider but are no longer determinative.

On the issue of the requirement of having a good reason for the unavailability of a witness, the
recent case of Price (2016) also proves that the court has loosened up on the requirement. The
ECtHR held here that it is for the domestic courts to decide whether or not there was a good
reason for the absence of a witness and not the ECtHR. In giving their judgement the court held
that regardless of whether there was good reason for absence there was still substantial
independent evidence against the defendant which made the hearsay demonstrably reliable and
the domestic courts had provided enough sufficient counter balancing procedures.

Looking back at the above case law it might seem that the subsequent courts had made no
effort to follow the decision of Alkhawaja, but looking at the cases even closer it can be seen
that the courts were still respecting the grand chambers decision and praise for the provisions
contained in the CJA and even going further to give guidelines on how to apply the statutory
framework.