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 court must implement the ECHR decision in Al-Khawaja.
Held: The appeals failed. ‘The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, 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. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to 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 the domestic court and the Strasbourg court.’
It is our common law tradition that the defendant is entitled to examine the witnesses against him and only in strictly circumscribed circumstances will a hearsay statement be admitted in the interest of justice.’
‘Article 6(3)(d) is concerned with the fairness of the trial procedure. It recognises that a fair procedure should entitle the defendant to have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf. What the article does not deal with is the procedure that is appropriate where it is simply not possible to comply with article 6(3)(d); where, for instance, after making a statement, the witness for the prosecution or defence has died. Fairness does not require that in such circumstances the evidence of the witness should not be admitted at the trial. On the contrary it may well require that it should be admitted.’

Lord Phillips, President, Lady Hale, Lord Brown, Lord Mance, Lord Neuberger, Lord Kerr, Lord Judge
Times 10-Dec-2009, [2009] UKSC 14, [2010] UKHRR 1, [2010] 1 Cr App R 17, [2010] 2 WLR 47, [2009] WLR (D) 358, [2010] HRLR 12, [2010] 2 All ER 359, [2010] 2 AC 373, UKSC 2009/0073
Bailii, WLRD, Bailii Summary, SC Summary, SC
Criminal Justice Act 2003 116, European Convention on Human Rights 6, Human Rights Act 1998 2(1)
England and Wales
Appeal fromHorncastle and Others v Regina CACD 22-May-2009
Each defendant appealed on the basis that they had not had proper opportunity to cross examine prosecution witnesses whose evidence had been accepted by the court. In each case evidence had been hearsay. In two cases, the witness had died before . .
CitedMyers v Director of Public Prosecutions HL 1965
Limits to Admission of Hearsay Evidence
It was not for the House to alter the admissibility of hearsay evidence on a case by case basis.
Lord Reid said: ‘I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to . .
CitedX v Germany ECHR 1979
Paragraph (3)(d) rights applied at the trial and not when a witness was being questioned by the police. . .
CitedRegina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
CitedSecretary of State for the Home Department v AF AN and AE (No 3) HL 10-Jun-2009
The applicants complained that they had been made subject to non-derogating control orders as suspected terrorists, but that the failure to inform them of the allegations or evidence against them was unfair and infringed their human rights. The . .
CitedFerrari-Bravo v Italy ECHR 1984
Paragraph (3)(d) rights did not apply when a witness was being questioned by the investigating judge, but only at trial. . .
CitedAl-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 . .
CitedArtner v Austria ECHR 28-Aug-1992
Hudoc No violation of Art. 6-1+6-3-d . .
CitedRegina 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, . .
CitedY, Regina v CACD 25-Jan-2008
The Crown appealed against a ruling that the court would not admit a written statement of a defendant from a related trial implicating the defendant.
Held: A Court of Appeal will only interfere with a ruling under the Act if the ruling falls . .
CitedRegina v Finch CACD 15-Jan-2007
The defendant appealed his conviction for possession of a firearm, complaining that the statement of his co-accused had not been admitted. The judge saying that since the co-accused had admitted the offence he had no jurisdiction to admit the . .
CitedKrasniki v The Czech Republic ECHR 28-Feb-2006
. .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
CitedSellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
CitedD (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
CitedVisser v The Netherlands ECHR 14-Feb-2002
The applicant alleged that in criminal proceedings against him, there was used in evidence a statement from an anonymous witness, and his defence rights had been unacceptably restricted in breach of Article 6. The police said that witnesses were . .
CitedTrivedi v United Kingdom ECHR 27-May-1997
. .
CitedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
CitedKok v The Netherlands ECHR 1999
Following a police raid leading to the discovery of a cache of arms, the police took a statement from an anonymous witness as to the delivery of the arms to the house (though the precise date of delivery was withheld). The investigating judge heard . .
CitedLuca v Italy ECHR 27-Feb-2001
The accused had been convicted. After exercising his right to silence, there were read to the court accounts of statements made by co-accused but without an opportunity for him to cross examine the witnesses.
Held: Saunders had established the . .
CitedAl-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 by:
CitedRegina v EED CACD 28-May-2010
A witness had been warned to attend court, but had not served with an order and did not attend. The defendant appealed against his conviction saying that her evidence should not have been read to the jury. He had faced allegations of sexual abuse of . .
CitedManchester City Council v Pinnock SC 3-Nov-2010
The tenant had been secure but had his tenancy had been reduced to an insecure demoted tenancy after he was accused of anti-social behaviour. He had not himself been accused of any misbehaviour, but it was said that he should have controlled his . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedAl-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 15-Dec-2011
(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 . .
CitedAdeojo 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 . .
CitedRegina v Riat and Others CACD 11-Jul-2012
Five defendants appealed against their convictions after the admission of hearsay evidence.
Held: The court re-iterated that the importance of the hearsay evidence to the case remained a vital consideration when deciding upon its . .
CitedIbrahim, 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 . .
CitedTaylor v Regina CACD 20-Dec-2013
The defendant appealed against his conviction, for sex offences some 33 years earlier, saying that the convictions had been unfairly obtained. Evidence had been available since 1980, but a decision not to prosecute had been taken.
Held: ‘the . .
At SCHorncastle And Others v The United Kingdom ECHR 30-Jan-2013
The claimants alleged unfair in their trial after admission in evidence of statements of witnesses who had died before the trial. . .
At SCHorncastle And Others v The United Kingdom ECHR 16-Dec-2014
The applicants alleged that the admission of witness statements from the deceased alleged victims at their trial rendered the proceedings unfair. . .
CitedHaney and Others, Regina (on The Application of) v The Secretary of State for Justice SC 10-Dec-2014
The four claimants, each serving indeterminate prison sentences, said that as they approached the times when thy might apply for parol, they had been given insufficient support and training to meet the requirements for release. The courts below had . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.383787