(Grand Chamber) The claimants complained of the use against them of hearsay evidence in their trials.
Held: ‘the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that the defendant should know the identity of his accusers so that he is in a position to challenge their probity of credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was made the statement or at some later stage of the proceedings.’
The court did not accept that the sole or decisive rule assumed that all hearsay evidence which is crucial to a case is unreliable or incapable of a proper assessment unless tested by cross-examination, but: ‘rather, it is predicated on the principle that the greater the importance of the evidence, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous or to be absent from the trial and the greater the need for safeguards to ensure that the evidence is demonstrably reliable or that the reliability can properly be tested and assessed.’ and
‘where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6(1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R v Davis, and one which requires sufficient counter-balancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counter-balancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.’
Judges:
Francoise Tulkens, P
Citations:
[2011] ECHR 2127, 26766/05, 2228/06
Links:
Statutes:
European Convention on Human Rights, Criminal Justice Act 2003 114 116, Coroners and Justice Act 2009
Jurisdiction:
Human Rights
Citing:
See Also – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 8-Jan-2008
Each claimant complained of the admission at their trials of hearsay evidence. . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
See Also – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 20-Jan-2009
Each complainant said that in allowing hearsay evidence to be used against them at their trials, their article 6 human rights had been infringed. In the first case the complainant had died before trial but her statement was admitted.
Held: In . .
Cited by:
Cited – Adeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .
Cited – Ibrahim, Regina v CACD 27-Apr-2012
The appellant challenged the admissibility of witness statements made by the complainant where the complainant had died before the trial.
Held: The ‘counterbalancing measures’ in the 2003 Act and at the common law had not been properly . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Evidence
Updated: 13 November 2022; Ref: scu.470825