CASE OF HORNCASTLE AND OTHERS v. THE UNITED KINGDOM
(Application no. 4184/10)
16 December 2014
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Horncastle and Others v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 25 November 2014,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 4184/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four British nationals, Mr Michael Christopher Horncastle, who was born in 1980; Mr David Lee Blackmore, who was born in 1981; Mr Abijah Marquis, who was born in 1978; and Mr Joseph David Graham, who was born in 1981 (“the applicants”), on 7 January 2010.
2. The applicants were represented by The Johnson Partnership, a firm of solicitors based in Nottingham. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, of the Foreign and Commonwealth Office.
3. The applicants alleged that the admission of witness statements at their trial rendered the proceedings unfair.
4. On 30 January 2013 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants are currently in detention.
A. Mr Horncastle and Mr Blackmore
1. The attack on P.R.
6. On 7 May 2005 the victim, P.R., a registered alcoholic, was attacked in his flat. He suffered extensive injuries and spent a month in hospital.
“This statement ... is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true.”
8. In his statement, he explained that on the day of the attack he had been at home in his flat and had drunk at least three litres of cider in the course of the day. At various times during the day he had been in the company of X., B. and M. At some point B. and M. had left his flat and had returned carrying a television and a hi-fi system, which they had placed in a bedroom. Later in the evening, X., B. and M. had left, although the victim explained, “I don’t know times and my memory is vague”. He then recalled answering a knock on the door, following which three men had entered the premises by force and attacked him. The victim said:
“The bigger male out of the three started punching me to the face, followed by a man who was on crutches. I was getting punched by all of them and I eventually fell to the floor. I was dragged and pulled into the bedroom where they saw the television and hi-fi system. I remember them going mad punching me more and more to my body and face. I don’t remember much else.”
10. The victim died on 23 July 2006 from an alcohol-related illness.
2. The prosecution evidence and the defence case
11. Mr Horncastle and Mr Blackmore were subsequently charged, together with another man, D., with causing P.R. grievous bodily harm with intent.
12. The prosecution case was that B. and M. had burgled another flat in the victim’s block of flats, and had taken the stolen property to the victim’s flat. B. and M. had pleaded guilty to that burglary. The prosecution alleged that the attack on the victim had occurred when Mr Horncastle and Mr Blackmore had gone with D., the owner of stolen property, to recover it. They claimed that Mr Blackmore was the “bigger male” and D. was the “male on crutches”.
13. The defence case was that although Mr Horncastle and Mr Blackmore had gone to the victim’s flat to help recover D.’s property, neither had been involved in the attack.
14. In a statement to the police, Mr Horncastle said that the victim had been very drunk, and that he (Mr Horncastle) had collected the television and returned it to D.’s flat. He had not seen the attack on the victim.
15. In his statement to the police, Mr Blackmore said that he had been drinking with D. and Mr Horncastle. They had gone back to D.’s flat at about 9 p.m. and discovered that it had been burgled. D. had asked if they would go with him and recover what had been stolen, as he had been told where it was. They had gone to the victim’s flat at about 10 p.m. The door had been opened by a man whom the others had pushed out of the way. They had seen the stolen property. He had picked up a DVD player and walked out, stepping over P.R., the victim, lying on the floor. Mr Blackmore said that he had had some specks of blood on his shoes, jeans and T-shirt which had come from the wall or a splatter when the victim had been hit. He had been aware that the victim was getting punched and had not wanted to have anything to do with it. He did not know what happened after that. He had put the DVD player in the lift and returned to the flat. At that point the victim was still lying on the floor and there was blood everywhere. He had not hit the victim. He had not expected them to do what they had done.
16. Another resident of the block of flats, J., made a statement to the police suggesting that M. might have been involved in the assault on the victim. That statement was disclosed to the defence. The defence was ultimately based on the assertion that M. was the perpetrator.
3. The application for the victim’s statement to be admitted at trial
17. The prosecution applied to read the victim’s statement at trial, under section 116(2)(a) of the Criminal Justice Act 2003 (“the 2003 Act” - see paragraphs 93-94 below). The application was opposed by the applicants under section 78 of the Police and Criminal Evidence Act 1984 (“PACE” - see paragraph 90 below) on the ground that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them, as there could be no opportunity to challenge it and it was inherently unreliable. The applicants relied on the admission by the victim that he had drunk a quantity of alcohol; on his statement that “I don’t know times and my memory is vague”; and on the fact that the description given of the first male did not fit Mr Blackmore.
18. The judge ruled on 24 January 2007 that the statement should be admitted. He found that the condition in section 116(2)(a) was satisfied (namely, that the witness was dead); and that the fact that the statement was the principal evidence against the defendants did not make its admission unfair. He relied in particular on the fact that the defendants had all admitted being present in the victim’s flat together to recover D.’s property; that the defendants were going to call J. to give evidence that M. had been responsible for the attack; and that the jury could be given directions as to any difficulties faced by the defence on account of P.R.’s statement being read.
4. The trial
19. In March 2007 the trial commenced before a judge and a jury. D. subsequently pleaded guilty. The jury in the trial were later discharged for unrelated reasons and a retrial was ordered. A second trial commenced in June 2007, but the jury were again discharged following an issue in relation to the forensic evidence. A third trial commenced in November 2007.
20. The prosecution relied on other evidence, besides the statement of the victim. X., who had spent the day drinking with the victim, gave evidence to the effect that P.R. had been tipsy but not drunk on the afternoon of the attack. He also testified that he had subsequently visited the victim in hospital, where the victim had indicated that he had been attacked by three people but that he could not really remember who had attacked him. Two witnesses gave evidence that the victim had told them that D. and his friends had attacked him. There was also scientific evidence that the blood on the television matched that of the victim. Forensic evidence suggested that the assault had commenced at the front door and the hallway and then moved to the entrance of the bedroom. There was pooling of blood at the entrance to the bedroom, as if the source of the blood had lain there for some time. Blood on D.’s crutches matched the victim’s DNA profile. Evidence was also led to show that P.R. had shown no fear of M. when meeting him after the attack.
21. Mr Horncastle gave evidence in his defence. He said that he had been drinking all day with D. and Mr Blackmore. In the evening they had returned to D.’s flat and realised that it had been burgled. They had gone downstairs to another flat and he had followed D. inside. He had seen a man staggering in the hallway. D. had then pointed out the items that had been stolen. Mr Horncastle had picked up the television and returned to D.’s flat. He had not seen an assault and had not seen any blood. He, Mr Blackmore and D. had returned to the pub.
23. P.R.’s neighbour, J., was called to give evidence for the defence. He testified that he had heard some shouting and banging on the night of the attack and had seen M. banging on doors. Later he had seen M. holding P.R. in a headlock; another person had been with him. He had closed the door but had heard a lot of shouting and noise for the next twenty minutes. His answers in cross-examination were not consistent with his previous statement to the police.
24. The judge, on Mr Blackmore’s application, admitted evidence of M.’s previous convictions as evidence of a propensity for violence. The judge refused to admit evidence of the previous convictions of Mr Horncastle and Mr Blackmore.
“The prosecution case here depends, does it not, upon the evidence of [the victim].”
26. He explained to the jury that the victim’s evidence was not agreed, that the defence had not had the opportunity of testing it by cross-examination and that it would carry less weight than evidence from a witness who had come to court and had testified. He set out examples of areas in the victim’s statement which had not been cross-examined.
27. Just over an hour after the jury had retired, they asked to see the victim’s statement; the judge told them that they could not see it but reminded them of its contents by reading it to them.
28. The jury subsequently returned unanimous guilty verdicts in respect of both Mr Horncastle and Mr Blackmore.
B. Mr Marquis and Mr Graham
1. The kidnapping of H.M.
29. On 1 November 2007 at around 7 p.m. the victim, H.M., was at home alone in the house she shared with her partner, G.P., preparing to take a bath. Six men entered the house and stole various items, including jewellery. After threatening the victim with a knife, they kidnapped her by taking her away in the car they had come in. A black BMW X5 car owned by her partner was also taken at the same time.
30. The victim subsequently made a formal statement to the police, containing a statement of truth in the terms outlined above (see paragraph 7), giving an account of events on 1 November 2007. She stated that, as she had been about to bathe, two masked men had entered her bedroom; one had a knife. She had been ordered downstairs where there were four other men. They had asked where the jewellery, money and car keys were and she had told them about her partner’s safe in his wardrobe. Four of the men had then taken her to the car they had come in and had driven off. She assumed that the other two men had taken G.P.’s car.
31. The men in her car had then asked for G.P.’s telephone number, which she gave them, and they had telephoned him. She described the telephone conversations that followed and explained that the men had told her that they wanted one hundred thousand pounds before they would let her go. She had also been told that she should not go to the police because she would know what would happen to her if she did. She had been warned not to look at her captors, and had taken the threats to mean that they would kill her if she saw their faces. She said that she had been punched twice in the back of the head, which she understood to have been intended to show her that her kidnappers were serious about hurting her. She had heard her captors say that if they did not get money they would cut off her fingers and toes. One of the men had said something about putting her in a vice. She was eventually put in the boot of the car for a while before being dropped off unharmed. After unsuccessful attempts to telephone G.P. from various locations, she had eventually spoken to her father who had picked her up. She had arrived home shortly after 9 p.m. and the police had arrived around ten minutes later. In her statement, she did not identify any person as having participated in her kidnapping.
34. On 3 November 2007 H.M. made a further police statement. She was shown the knife which had been recovered from the car in which Mr Graham had been arrested and asked if she had seen it before. She confirmed that it was the knife used to threaten her.
35. On 4 November 2007 a police officer visited G.P. and the victim, in the presence of the latter’s father, and told them “in no uncertain terms” that the men the police were seeking were dangerous and that it was not beyond them to use guns. He gave as an illustration the use of guns against a couple who had fled and had been murdered in the village to which they had been relocated. He spoke to them about moving.
36. On 22 November 2007 the victim and G.P made police statements to the effect that they wished to retract their previous statements and did not want the police to pursue a prosecution, as they were scared for the safety of their families.
2. The prosecution evidence and the defence case
38. First, Mr Graham was seen with other masked men on the CCTV cameras entering the victim’s house on the evening of 1 November 2007. That evidence was not disputed at trial although when initially questioned Mr Graham had not accepted that he had been to the house or that the person shown on the CCTV was him. It was also not disputed that G.P.’s car had been taken from outside the house shortly thereafter. The telephone records proving that G.P. had subsequently been contacted on his telephone from the victim’s telephone and that a number of calls were made from Mr Marquis’ telephone to G.P. were undisputed.
39. There was evidence that Mr Marquis had spent the night of 1-2 November 2007 at a hotel and that a woman of his acquaintance, K.H., had gone to the hotel to meet him that night. She gave evidence that she had been told to park her car between a red van and “my X5”. When she had gone to Mr Marquis’ room, she had been introduced to a man (whom Mr Marquis refused to identify). She had seen a pink telephone which was identical to the one owned by the victim. It was accepted that the telephone used to call G.P. that night was also used by Mr Marquis to contact K.H. between 31 October and 2 November 2007. A text to her from Mr Marquis at 1:35 a.m. on 2 November stated:
“Hey don’t let no-one know where I am, you know. Remember I know your address and that. You should have just said you were going. I ain’t bothered, but if I get arrested, I know it’s you”
41. There was also evidence that a man describing himself as John Graham had rented a room at the hotel where Mr Marquis had stayed on 1 November 2007 and had described himself as the driver of a black BMW X5.
42. Mr Graham’s defence was that there had been no kidnapping. He claimed that the victim and her partner had been involved in an attempted insurance fraud. Mr Marquis denied any involvement in any kidnapping that there may have been.
3. The application for the victim’s statement to be admitted at trial
43. The victim and G.P. did not attend court on 4 April 2008 in compliance with a witness summons that had been issued for the trial. The victim was arrested on 7 April 2008 and brought to court. On giving an explanation to the judge that, although she was frightened, she would have attended court but had been told not to attend by Witness Support, she was bailed to appear on 9 May 2008. She was warned that if she did not attend a warrant for her arrest would be issued and she could be imprisoned for up to two years. The trial was fixed for 12 May 2008. G.P. later surrendered into custody and was also bailed to appear.
44. The victim made a further statement on 9 April 2008 which was video recorded. In it she said that she had made the retraction statement of 22 November 2007 because she was scared. She thought that those who had kidnapped her were dangerous and she was very frightened. She said:
“Since I was kidnapped, I have found that the incident has altered my life. I am petrified. I find myself looking over my shoulder and wondering if the people responsible will come and get me. I feel like this because at the time they said to me, ‘You’d better not go to the police ‘cos you know what will happen if you do’.
I perceived this as a direct threat against me and I just don’t know what they are capable of, considering that they forced their way into my house and kidnapped me. I perceive them as very dangerous people.
As such I am terrified all of the time and find myself very tearful, and I am almost not sleeping at night.”
45. She added that the police had made her more frightened when they told her that she and G.P. had to move. She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case.
46. She confirmed that the police had explained the possibility of using special measures at trial. She said that her evidence would be “greatly enhanced” if she could speak from behind a screen in the court room. Finally, she said that she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her, but that she still felt scared.
47. G.P. made a statement on video on 16 April 2008. In his statement he referred to the police visit in November 2008 and the advice to “leave town”, which he said had “really frightened” them. He said that he had tried to get in touch, through a friend, with a certain “Bijer” because another friend had recognised the number which had called him on the night of the kidnapping as that of “Bijer”. “Bijer” had rung him, but it was clear that this was not the person who had rung him on the telephone on 1 November 2007. “Bijer” had explained to him that he had sold the telephone the week before. G.P said that he was not scared to give evidence but just did not want to, in case there were reprisal attacks.
49. On 12 May 2008, the prosecution applied to read the statements of H.M. and G.P. under section 116(2)(e) of the 2003 Act on the grounds that they would not give evidence through fear (see paragraphs 93-94 below). The applicants argued that the statements could not be admitted as the fear did not fall within the meaning of the 2003 Act as it had not been generated by any action of theirs or their associates, but by what the police officer had said on 4 November 2007 (see paragraph 35 above).
“I have seen a portion of that tape and it is perfectly clear to me the witness was petrified, genuinely really distressed, breaking down into tears.”
51. The judge heard evidence from the victim’s father and the police officer who had spoken to her on 4 November 2007. He observed that in her witness statement of 9 April, H.M. had explained that she was “more” scared as a consequence of the police advice, noting that this was “on top of her own fears”. He also observed that in her statement, H.M. had confirmed that the possibility of special measures at trial had been explained to her. He referred to the warning that he had given her as to the serious consequences if she failed to attend court (see paragraph 43 above). He concluded:
“Having heard all the evidence, the only sensible conclusion is that she was and is so terrified of coming to court to give evidence, she would rather face arrest and imprisonment. I have no doubt she’s in fear of giving evidence.”
52. The judge noted that there was no qualification in section 116(2)(e) of the 2003 Act on how the fear had to have been generated. He accepted that H.M. qualified under the Act to have her statement read as a witness in fear, and stressed that there had been no bad faith by the police in respect of the advice that they had given. The judge found that it would not be unfair or unjust to admit the statement.
54. On 15 May 2008 an application was made to the judge to admit G.P.’s statement made on 16 April 2008 in the interests of justice under section 114(1)(d) of the 2003 Act (see paragraph 92 below) so that it could be advanced as part of the defence case of Mr Marquis. It was submitted that Mr Marquis was put at a great disadvantage because the defence could not cross-examine G.P. in relation to the voice heard over the telephone on 1 November 2007. The judge refused the application on the basis that G.P. was not in fear and he was not prepared to go behind his ruling of 13 April 2008; and the evidence covered many matters which implicated the applicants and not just that part of it relating to the recognition of the voice over the telephone.
4. The trial
55. Mr Marquis and Mr Graham were tried at the Crown Court before a judge and a jury.
56. Oral evidence was heard from S., a friend of G.P., which the judge directed the jury to treat with caution. S. said he had been with G.P. on the night of the kidnapping when G.P. had received a telephone call. He had answered it and had looked distressed. S. had been able to hear some of the conversation, including a demand for money and a girl crying in the background. G.P. had told him that someone had taken his girlfriend and was demanding money. There had then been a couple more calls. G.P. had asked him to telephone the police which he had done. The tape of that call recorded the person calling the police as giving an account that three black males were demanding money while holding his girlfriend in the bathroom at her house. S. gave evidence that G.P. had also received further calls from another telephone. S. had recognised the telephone number and when he had put it into his own mobile telephone it had registered as belonging to Bijah (the abbreviation used by Mr Marquis for his first name). When S. denied that Bijah was the same person as Mr Marquis, the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew Mr Marquis.
57. A police officer gave evidence that he had called S.’s mobile telephone and had spoken to a man who had given his name as G.P. He had sounded agitated and was shouting that they had kidnapped her. He had then heard a mobile telephone ringing and had been told by G.P. that it was his girlfriend’s number. G.P. had asked him to listen. He had been able to hear some of the demands for money when the two telephones were held against one another. The telephone had rung again and he could hear a girl’s voice screaming that they had taken her. When the telephone had gone dead, G.P. had confirmed that it was his girlfriend and that he did not know where she was. He did not say where he was but said that he would be returning to their home shortly. Another call had then taken place during which money was demanded.
58. The victim’s father gave evidence that he had received a telephone call between 8.30 p.m. and 8.45 p.m. on 1 November 2007 from his daughter. She had told him that she had been kidnapped and needed to be picked up. She had sounded distressed. He had collected her and she had given him an account of what she said had happened. She had tried to contact her partner on the telephone, but had not answered. They had gone to her home to see if he was there. When they had arrived at the house, two of her friends were there and asked what had happened. She had given an account, tearful and shaken. The victim’s father had then searched the house but G.P. was not there. He had found lukewarm water in the bath and had telephoned the police. Before they came, the victim had given an account of what had happened which was consistent with the statement she subsequently gave to them.
59. Mr Marquis gave evidence at trial, denying any role in the kidnapping. He stated that his telephone had been used by him between 31 October and 2 November 2007 to contact K.H., but that he had lost it when he got into a car owned by some men on the afternoon of 1 November 2007 and did not get it back from them until he was at the hotel. The telephone had therefore not been in his possession when the calls had been made to G.P. He would not identify the men. When he had gone to the room at the hotel, the pink telephone was already there, but he had no idea how it had got there.
60. Mr Graham did not give evidence. He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud. It was nonetheless advanced as part of the defence case to the jury.
62. On 12 May 2008 Mr Marquis and Mr Graham were convicted of kidnapping.
C. The applicants’ appeal to the Court of Appeal
63. Mr Horncastle and Mr Blackmore appealed against their convictions on the ground that the victim’s statement should not have been admitted as evidence. They submitted that the statement was the sole or decisive evidence against them.
64. Mr Marquis and Mr Graham appealed against their convictions on the grounds, inter alia, that the victim’s statement should not have been admitted because there was no evidence that the fear had been caused by the applicants, and the police had contributed hugely to the fear. It was also contended that her evidence was decisive in the case, as it was the only evidence that there had been a kidnapping.
65. On 22 May 2009, the Court of Appeal unanimously dismissed the appeals.
1. General discussion
66. The court found that Article 6 § 3 (d) did not create any absolute right to have every witness examined and that the balance struck by the 2003 Act was legitimate and wholly consistent with the Convention. It noted, however, that there could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling. Having regard to the safeguards contained in the 2003 Act, which were rigorously applied, it was of the view that there would be no violation of Article 6 if a conviction were based solely or to a decisive degree on hearsay evidence. Where the hearsay evidence was demonstrably reliable, or its reliability could properly be tested and assessed, the rights of the defence would be respected, there would be sufficient counterbalancing measures and the trial would be fair. The court considered that it was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive.
67. In terms of counterbalancing measures, the Court of Appeal considered that the power of a trial judge under section 125 of the 2003 Act to stop the case if the absent-witness evidence was unconvincing (see paragraph 98 below) provided for a “proportionate assessment of the reliability” of such evidence; and that it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the evidence were the sole or decisive evidence. Sole or decisive absent-witness evidence could be wholly convincing and, equally, evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe. Where there was a legitimate argument that the absent witness evidence was unconvincing and important to the case, the trial judge was required to make up his own mind as to whether a conviction would be safe. This involved assessing the reliability of the impugned evidence, its place in the evidence as a whole, the issues in the case as they had emerged, and all the other individual circumstances of the case. Finally, the other safeguards contained in the 2003 Act were rigorously applied and the difficulties faced by defendants when absent-witness evidence was admitted were well understood by the courts.
68. The Court of Appeal gave guidance as to when it would be appropriate to allow absent-witness evidence to be introduced because a witness was in fear. There was, in the case-law of this Court, no requirement that the fear had to be attributable to the defendant; the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed. The Court of Appeal added:
“87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the [2003 Act]. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the [2003 Act] based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.
88. ... In the case before us of Marquis and Graham ... the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the [2003 Act] requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.”
69. Having considered the general principles, the court turned to examine the specific facts of the applicants’ cases.
2. The findings in respect of Mr Horncastle and Mr Blackmore
70. The Court of Appeal reviewed the victim’s statement and the evidence presented to the trial court. It found that there was substantial evidence independent of the statement to prove that Mr Blackmore and Mr Horncastle had gone to the victim’s flat, that they had been present when the attack had taken place and that both had taken away items from the flat. It noted:
“108. i) Blackmore and Horncastle both admitted they accompanied [D.] to flat 9 and were present when the door was opened.
ii) Horncastle removed the TV on his own admission. The TV had [the victim’s] blood on it. It is an inescapable inference that Horncastle must have been present after sufficient violence had been inflicted on [the victim] for blood to have got onto the TV. His account that he saw no violence must have been untruthful.
iii) Blackmore admitted taking the DVD and stepping over the prostrate body of [the victim]. He must have been present when the violence began and he returned to the flat to help with removing the TV, despite knowing that [the victim] had been attacked.
iv) Neither appellant contended there was anyone else other than [D.] present at that time they first went to the flat or when the DVD or TV were removed.
v) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance. The attack must therefore have been visible to anyone who remained at the entrance.
vi) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants.
vii) There was no evidence of motive for [M.] to have attacked [the victim]. On the contrary he was a friend of [the victim’s] and [the victim] had shown no fear when he saw him ... after he had been attacked.”
71. Despite the substantial amount of independent evidence, the Court of Appeal accepted that it was clear from the judge’s ruling on admissibility, from the way in which the case was summed up and from the question from the jury that the victim’s statement was to a decisive degree the basis on which the applicants were convicted.
72. However, it considered that the decisive nature of the evidence was only one of the factors which the court had to put into the balance in the various stages that it had to go through in applying the legislation. It observed that the judge’s decision on the admissibility of the evidence carefully applied the statutory tests under the 2003 Act; that the applicants had been provided with ample material to attack the victim’s credibility, including the notes of his treatment in hospital; that no application had been made under section 125 of the 2003 Act to stop the case; that the judge’s direction to the jury was very full and that he had drawn attention to the particular matters that put the defence at a disadvantage, in particular the inability to cross-examine the victim as to his memory, his alcoholism, his description of Mr Blackmore and other matters; and that there was no suggested reason why the victim should have provided an untruthful statement.
73. The Court of Appeal was satisfied that the jury had been able to make a proper assessment of the reliability of the victim’s evidence contained in the statement. It further considered that the jury was right in placing reliance on the statement, as its convincing nature and reliability in important respects could be tested against other evidence, including the applicants’ own admissions; the visit of three persons to the victim’s flat and taking items away; the evidence of blood on the television removed by Mr Horncastle; Mr Blackmore’s evidence in relation to observing the victim on the floor and the blood in the flat; and the other independent evidence to which it had already referred .
74. The Court of Appeal accordingly concluded that the applicants were provided with sufficient counterbalancing measures to ensure respect for their fair trial rights. They had received considerable information about the victim and his time in hospital; they were able to draw to the jury’s attention all the arguments for treating the statement as unreliable; and they were able to put forward an alternative case that the assault was carried out by M. by calling independent evidence in support.
3. The findings in respect of Mr Marquis and Mr Graham
75. The Court of Appeal reviewed the evidence at trial and the judge’s decision to admit the victim’s statement. It also examined the directions given to the jury in relation to the way in which they should treat the statement and the disadvantages to the applicants in not being able to cross-examine the victim, which it considered to be appropriate.
“140. ... We also consider that its convincing nature and reliability in important respects could be tested against other evidence including:
i) that when the police visited the house, the bath had lukewarm water in it.
ii) that a knife was recovered from the BMW in which Graham was arrested; she identified it as the one used on her.
iii) that [G.P.] was phoned using her phone and an identical phone was seen in the bedroom at the Castle Marina Holiday Inn used by Marquis.
In considering the overall fairness of the decision to admit the evidence of [the victim] and in looking at the safety of the conviction, we have taken into account the criticism of the judge’s refusal to admit the statement of [G.P.]. Marquis sought to admit only part of his evidence contained in the statements. The judge had concluded that [G.P.] was not in fear and could have attended. To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence.”
“142. ... i) The main evidence against Graham was that there was clear CCTV evidence that Graham had been at the house at the time [the victim] said she was kidnapped; he admitted that, though in his interview he had not accepted that. He was arrested in [G.P.’s] stolen BMW X5. [The victim’s] statement did not identify him.
ii) The main evidence against Marquis was that his phone was used to make the ransom demands heard by [S.] and [the police officer]. It was not disputed that a phone identical to one owned by [the victim] was seen by [K.H.] when she went to Marquis’ bedroom at the Marina Castle Holiday Inn. [The victim’s] statement did not identify him.
iii) The only matter proved by [the victim’s] statement was that she had been kidnapped. There was, however, sufficient evidence of that from the other witnesses in the case, particularly her father.
iv) There was no evidence to support the case advanced by Graham that the kidnapping was an attempted insurance fraud.
v) Counsel for the Crown had submitted in his application to the judge to admit the statements of both [G.P.] and [the victim] that they were central to the case. However, the fact that this submission was made is an illustration of the difficulty ... of determining in advance whether the evidence is decisive. Self evidently the evidence of [G.P.] made no difference, as it was not admitted and in the result, for the reasons we have given, the evidence of [the victim] was not, in the event, decisive.
vi) Thus, if contrary to the view we have expressed, a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction, then as the conviction rests on other evidence, then that ground of appeal fails for that additional reason.”
D. The applicants’ appeal to the Supreme Court
80. The applicants appealed to the Supreme Court arguing that the decisions to admit the statements in their cases rendered their convictions unfair. They relied heavily on the judgment of the Fourth Section of this Court in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009.
81. On 9 December 2009 the Supreme Court dismissed the applicants’ appeals. Lord Phillips gave the judgment of the court, with which the other justices agreed. He identified the principal issue raised by the appeals as being whether a conviction based “solely or to a decisive extent” on the statement of a witness whom the defendant had had no chance of cross-examining necessarily infringed his right to a fair trial under Article 6 §§ 1 and 3 (d).
82. Lord Phillips began with an analysis of the common law approach to a fair trial and the provisions of the 2003 Act. He set out the legal framework under section 116 of the 2003 allowing, exceptionally, the admission of hearsay evidence at criminal trials (see paragraphs 93-96 below), explaining
“36. ... [T]he [Criminal Justice Act] 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be.”
83. He went on to detail the “special stipulations” set out in sections 124-126 of the 2003 Act which were applicable to all hearsay evidence and designed to ensure the fairness of the proceedings (see paragraphs 97-99 below).
“38. ... i) The trial judge acts as gatekeeper and has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received.
ii) Hearsay evidence is only admissible in strictly defined circumstances. In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness.
iii) Once the prosecution case is closed, the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance, the defendant’s conviction would be unsafe.
iv) The judge has to direct the jury on the dangers of relying on hearsay evidence.
v) The jury has to be satisfied of the defendant’s guilt beyond reasonable doubt.
vi) The defendant can apply for permission to appeal against his conviction, which will be granted where reasonable grounds for appeal are demonstrated. A failure to comply with the safeguards outlined above, and in particular the admission of hearsay evidence contrary to the rules on its admissibility, will constitute such grounds. Where the Court of Appeal finds that there has been such a failure, the appeal will be allowed unless the court is satisfied that, despite the shortcoming, the conviction is ‘safe’.”
85. Lord Phillips considered the approach to absent-witness evidence in other common law jurisdictions. He then examined criminal procedure in civil law jurisdictions and the case-law of this Court prior to the Chamber judgment in Al-Khawaja and Tahery. He reviewed in some detail the origins and development of the “sole or decisive rule” in the Court’s case-law.
86. He then turned to consider the Chamber’s judgment in Al-Khawaja and Tahery, citing an extract of the judgment which explained that in the absence of special circumstances arising where the absent witness failed to give oral evidence as a result of fear induced by the defendant, it was doubtful whether any counterbalancing measures would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for conviction. He observed:
“103. There are two points to be made about this passage. The first is that the Court appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant. The second is that the Court did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances. The Court made it quite plain, however, that compliance with the statutory regime under which the statements in the two appeals had been admitted carried ‘limited weight’...”
87. However, having regard to the judgment of the Court of Appeal and to the development of the “sole or decisive rule” in cases largely relating to civil law jurisdictions, Lord Phillips concluded that the 2003 Act made the “sole or decisive” rule unnecessary in English criminal procedure. He considered that the safeguards it contained meant that if the 2003 Act were observed, there would be no breach of Article 6 § 3 (d) even if a conviction were based solely or to a decisive extent on absent witness-evidence. He therefore held:
“108. In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.”
88. As to the applicants’ alternative arguments that, regardless of the application of the sole or decisive rule, the statements should not have been admitted, Lord Phillips relied on the findings of the Court of Appeal, which he said had given the arguments “careful consideration”.
“115. ... Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court be to ensure that it can be fairly adduced and is likely to be reliable. In this connection there can be no harm in using the concept of ‘sole or decisive’ so long as it is used broadly ... Understood and applied inflexibly, however, the concept would involve insoluble problems of detailed interpretation and application.
116. The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom ...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Exclusion of unfair evidence
90. There is discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This is supplemented by section 78 PACE, which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted.
B. Admission of hearsay evidence
91. Hearsay evidence is any statement of fact other than one made of his own knowledge by a witness in the course of oral testimony. As a general rule it is inadmissible in a criminal case unless there is a common law rule or statutory provision which allows for its admission.
92. Under section 114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. One such gateway is section 114(1)(d) which allows for the admission of hearsay if the court is satisfied that it is in the interests of justice for it to be admissible. Pursuant to section 114(2), the following factors are relevant to that test:
“(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.”
93. Section 116 of the 2003 Act allows specifically for the admission of statements of absent witnesses. Section 116(1) sets out the general conditions which must be satisfied before a written statement can be admitted:
“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.”
“(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”
96. Where an application is made for a statement to be admitted for reason of fear, section 116(4) provides that leave may be given for its admission only if the court considers that the statement ought to be admitted in the interests of justice, having regard:
“(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 ... (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
(d) to any other relevant circumstances.”
97. Section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example, through the admission of evidence of his bad character, including previous convictions or a propensity to be untruthful. It also allows the admission of inconsistent statements that the witness has made. It further allows, with the leave of the court, the admission of evidence to challenge credibility even in circumstances where it would not be admissible in respect of a live witness.
98. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe.
99. Section 126 preserves both the common law discretion and the section 78 PACE discretion of the trial judge to exclude hearsay evidence. It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.
C. Further safeguards
D. Selected judicial consideration of the admission of hearsay evidence since the judgment of the Grand Chamber in Al-Khawaja and Tahery
1. R. v. Ibrahim ( EWCA Crim 837
102. The Court of Appeal handed down its first judgment following the Grand Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, on 27 April 2012 in R. v. Ibrahim. It considered that at least so far as the hearsay evidence of dead witnesses was concerned, this Court had appeared to conclude that the combined counterbalancing measures of the common law, section 78 of PACE and the provisions of the 2003 Act were in principle sufficient to make a trial fair in cases where the untested hearsay evidence sought to be admitted was the “decisive” evidence against the defendant.
103. Turning to examine whether there were differences in the approach of the Grand Chamber in Al-Khawaja and Tahery and the Supreme Court’s approach in the present applicants’ case, the Court of Appeal noted first that, absent wholly exceptional circumstances, it was bound to follow the principles set out by the Supreme Court’s earlier decision, even if it appeared inconsistent with the subsequent decision of this Court. No wholly exceptional circumstances arose in the case. The court continued:
“88. It seems to us that there is a difference in approach between the Supreme Court’s decision in Horncastle and the Grand Chamber’s decision in Al-Khawaja. First and foremost, the Supreme Court declined to apply ‘the sole or decisive’ test, at least to the two cases before it. The Grand Chamber confirmed that this test remained part of the Strasbourg jurisprudence, although it accepted that the consequence of concluding that a particular piece of untested hearsay evidence was ‘sole or decisive’ did not automatically mean that the particular trial where that evidence was admitted was unfair.
89. This difference may be more one of form than substance, however. Thus, the Court of Appeal talked of a conviction being based ‘solely or to a decisive degree on hearsay evidence admitted under the [2003 Act]’ and the Supreme Court talked of the hearsay evidence being ‘critical evidence’. That may not be very different from the Grand Chamber’s concept of ‘sole or decisive’. Next, the Court of Appeal and the Supreme Court both emphasise that when the untested hearsay evidence is ‘critical’, the question of whether the trial is fair will depend on three principal factors. First, the English courts accept that there has to be good reason to admit the untested hearsay evidence. To decide this under English law there must be compliance with the statutory code. The Grand Chamber necessarily puts this requirement on a more general basis, but it emphasised the need for ‘justification’. Secondly, and we think most importantly, all three courts stipulate that there must be an enquiry as to whether that evidence can be shown to be reliable. Thirdly, all three courts are concerned with the extent to which there are ‘counterbalancing measures’ and if so whether they have been properly applied in deciding whether to admit the ‘critical’ untested hearsay evidence or to allow the case to proceed. In the case of England and Wales those ‘counterbalancing measures’ must include all the statutory safeguards in the ‘code’, as well as a proper application of common law safeguards, such as proper directions in the summing up. The Grand Chamber emphasised the same thing at paragraph 144 and particularly in its ‘general conclusion on the sole or decisive rule’ at paragraph 147 ...”
104. As to the correct approach in its case, the Court of Appeal explained that, consistently with the judgments of the Court of Appeal and Supreme Court in the present applicants’ case (Horncastle and Others) but also, in practice, consistently with the approach of the Grand Chamber in Al-Khawaja and Tahery, it was required to deal with four questions in order to determine whether the appellant had a fair trial:
“90. The first is: was there proper justification for admitting the untested hearsay evidence ... Under English law, this must depend on whether the conditions of section 116(1) and (2)(a) were satisfied, although that test is also subject to the ‘counterbalancing measures’ in the statutory ‘code’ and the common law. Secondly, how important are the three untested hearsay statements ... in relation to the prosecution’s case against the appellant on count 1? Do they amount to the ‘central corpus of evidence without which the case could not proceed’ on count one ... Thirdly, how ‘demonstrably reliable’ are those statements? Fourthly, were the ‘counterbalancing safeguards’ inherent in the common law, the [2003 Act] and section 78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial?”
105. The court concluded that the absent-witness evidence in question could not be shown to be reliable. Given that this evidence was central to the prosecution case, the court quashed the appellant’s conviction on the ground that it was unsafe.
2. R. v. Riat and Others ( EWCA Crim 1509)
106. The Court of Appeal handed down its judgment in R. v. Riat and Others on 11 July 2012. It examined the statutory framework of the 2003 Act, identifying six principal steps to be dealt with in considering whether to grant leave to admit an absent-witness statement:
“7 ... i) Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (s 116-118)?
ii) What material is there which can help to test or assess the hearsay (s 124)?
iii) Is there a specific ‘interests of justice’ test at the admissibility stage?
iv) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s 114(1)(d))?
v) Even if prima facie admissible, ought the evidence to be ruled inadmissible (s 78 PACE and/or s 126 CJA)?
vi) If the evidence is admitted, then should the case subsequently be stopped under section 125?”
107. The Court of Appeal observed that although there was no rule to the effect that where the hearsay evidence was the “sole or decisive” evidence in the case it could never be admitted, the importance of the evidence to the case against the accused was central to these various decisions.
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
108. The applicants complained that the domestic proceedings violated their right to cross-examine witnesses who gave sole or decisive evidence against them. They relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
109. The Government contested that argument.
110. The Court is satisfied that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicants
(i) Introductory comments
111. The applicants referred to the fact that the Court of Appeal had found decisiveness to be “only one factor” and alleged that it had failed to recognise that significant weight had to be placed on the fact that the relevant evidence was decisive. As a consequence of this fundamental error in approach, they argued, the review by the Court of Appeal could not properly be relied upon in the way contended for by the Government.
112. They invited the Court to consider whether decisive evidence must be shown to be “demonstrably reliable” before being admitted (referring to the domestic courts’ judgments in Ibrahim and Riat - see paragraphs 102-107 above). They considered that Al-Khawaja and Tahery, cited above, § 147, was authority for the proposition that decisive evidence had to be reliable, or at the very least shown not to be unreliable to any significant extent, before it could be fairly admitted.
(ii) Mr Horncastle and Mr Blackmore
113. The applicants argued that their defence statements made clear that the central issue at trial was their participation in the attack on P.R. They disputed that any “inescapable inference” (see paragraph 70 above) could be drawn from the blood found on the television. There had been no record at trial of precisely where on the television the swabs for analysis had been taken. It was possible that blood had been transferred from D.’s crutches. There was no other forensic evidence linking Mr Horncastle to the attack.
114. In the applicants’ view, the evidence of P.R. was plainly decisive. They referred to the comment of the trial judge during his summing up (see paragraph 25 above). The Court of Appeal itself had said that the convictions depended “to a decisive degree” on P.R.’s evidence (see paragraph 71 above). It could be inferred that absent the evidence of P.R., there was no case to answer against either applicant. There was no independent evidence that the applicants had participated in the attack, rather than merely being present at its commencement. The sole evidence of their participation was P.R.’s statement. It was significant that, although the statement named Mr Horncastle as one of the participants, Mr Blackmore had been neither named nor accurately described by P.R. Indeed, the description given could not, on any version, fit Mr Blackmore. The primary purpose in adducing P.R.’s statement had been to establish the applicants’ participation in the attack; P.R.’s statement was not necessary to prove any other element of the offence. The other witnesses who gave hearsay evidence of what P.R. had told them said that he had neither named nor described his attackers (see paragraph 20 above). There was no other evidence that could be described as decisive as to the identity of the attackers.
115. The applicants accepted that, as the Court found in Al-Khawaja and Tahery, cited above, § 151, the safeguards in the 2003 Act, if properly applied, were capable of providing sufficient counterbalancing measures. The question was whether these mechanisms were properly applied. Referring to the counterbalancing measures relied on by the Government, the applicants argued that the statement of P.R. was not, in any sense, demonstrably reliable in relation to the central issue at trial, namely the participation of the applicants in the attack. P.R. was a registered alcoholic who admitted to having drunk a significant amount of alcohol on the night in question and to having a vague memory; none of the descriptions he gave fitted Mr Blackmore; X. gave evidence that P.R. could not really remember who had attacked him; P.R. did not name the applicants to any other person to whom he spoke; and the medical notes indicated that P.R. was confused and forgetful at times. That being the case, the factors and safeguards to which the Government referred were not capable of compensating for the disadvantage suffered by the applicants in being unable to cross-examine P.R. and, in particular, to explore the extent to which he was confused in his recollection, the extent to which his account was corrupted by information provided to him prior to the making of his statement three weeks after the night in question and his relationship with M. in the light of the statement of his neighbour, J.
(iii) Mr Marquis and Mr Graham
116. The applicants argued that there was no evidence that they had made threats to H.M., thereby putting her in fear. A distinction had to be drawn between them and the perpetrators of the attack, since assimilating the two would be to pre-empt the outcome of the present case. They rejected the Government’s argument that they had “waived” their right to cross-examine H.M. (see paragraph 126 below). The applicants accepted that H.M. was in fear and that it was not necessary for her fear to be attributable to the applicants for there to be a good reason for her non-attendance. However, in this case it was clear from the evidence that H.M. had become unwilling to give evidence as a result of what was said to her by police officers and the question arose whether such fear constituted a good reason for non-attendance. Relying, inter alia, on the comments of the Court of Appeal, they argued that the conduct of the officers fell below the standards expected of them (see paragraph 68 above). The State, and not they, should bear the consequences of such unprofessionalism. Referring to the trial judge’s ruling on 13 May 2008 (see paragraph 51 above), the applicants claimed that it was indisputable that but for the unprofessionalism of the officers H.M. would not have refused to attend. They submitted that there had been a violation of Article 6, since there was no good reason for the absence of a key witness. In the alternative, they argued that the fact that H.M.’s fear was attributable to the police should weigh heavily in the balance when deciding on the admissibility of the evidence.
117. According to the applicants, the issues at trial were (i) whether there was a kidnap or whether it was part of an insurance scam; and (ii) if there was a kidnap, did the applicants participate in it. They accepted that H.M.’s statement did not prove the identity of her attackers. They alleged that it was, however, decisive as to whether she had been kidnapped. Without it, there was no evidence that she had been taken against her will. The Court of Appeal had indicated that the “only matter proved by [H.M.’s] statement was that she had been kidnapped” (see paragraph 78 above). Without her evidence, the applicants argued that the prosecution would not have sought convictions. Her father gave hearsay evidence of the kidnap, repeating his daughter’s account of events and her apparent distress (see paragraph 58 above). It could not by itself have supported a conviction for kidnap.
118. The applicants emphasised that the existence of safeguards in the 2003 Act was only of relevance where they had been properly applied. Had the “interests of justice” criterion in the 2003 Act (see paragraph 96 above) been applied, the court would have concluded that the applicants could not have had a fair trial. In the applicants’ case, although proper jury directions had been given by the trial judge, this could not compensate for the loss of the opportunity for the jury to see and hear a witness who, if she was telling the truth, was giving evidence about a serious and traumatic incident. Her demeanour, as well as her oral evidence, was crucial to the assessment to be made of her by the jury. In particular, the applicants pointed to the following aspects which they claimed provided strong support for the need for cross-examination of whether there had been a kidnap: first, G.P. told the police that H.M. was being held at a particular address when she was not and in circumstances where he had no reason to believe she was; and second, according to H.M.’s account she was released with no money being paid. The applicants submitted that the unfairness was exacerbated by the trial judge’s refusal to permit to be adduced by the defence the evidence of G.P. that the voice he heard using the “Marquis phone” during the kidnap was not Mr Marquis (see paragraphs 47 and 54 above).
119. Finally, the applicants claimed that the statement of H.M. fell far short of establishing the degree of apparent reliability required before decisive or important hearsay evidence should be admitted. The fact that H.M. had identified a knife in Mr Graham’s possession when arrested as the knife used in the kidnap begged the question at the heart of the trial, namely whether there was in fact a kidnap, and could not therefore establish the reliability of H.M.’s statement on that central issue. Further, even if the phone in Mr Marquis’ possession at the time of arrest was H.M.’s phone, all that showed was that he had come into possession of it by the time of arrest. It established neither that there had been a kidnap nor that he had participated in it. The presence of lukewarm water in the bath was irrelevant since such circumstances were not uncommon and it could have easily been contrived if the kidnap was an insurance scam. While these matters might have been relied upon as offering some support for the prosecution contention that there had been a kidnap, they did not even come near to establishing the degree of reliability required before decisive evidence could properly be admitted.
(b) The Government
(i) The appropriate test
120. The Government referred to the Grand Chamber’s judgment in Al-Khawaja and Tahery, cited above. The relevant principles were that there had to be a good reason for the non-attendance of the witness; and if the conviction was based solely or to a decisive extent on the hearsay evidence, there had to be sufficient counterbalancing measures. According to the Government, the Grand Chamber in Al-Khawaja and Tahery had clarified the meaning of decisive in this context and this new test had to be applied to the evidence in the applicants’ cases.
121. As to the applicants’ invitation to the Court to consider whether hearsay evidence had to be “demonstrably reliable” before it could be admitted, the Government considered that this was an invitation to modify substantially the Grand Chamber’s decision in Al-Khawaja and Tahery. At paragraph 139 of its judgment, the Grand Chamber had referred to the need for safeguards “to ensure that evidence is demonstrably reliable or that its reliability can be properly tested and assessed”.
(ii) Mr Horncastle and Mr Blackmore
122. In the case of Mr Horncastle and Mr Blackmore, the evidence of P.R. was neither sole nor decisive, within the narrow sense in which the term was to be understood after Al-Khawaja and Tahery. Although the Court of Appeal had said that the statement of P.R. was “to a decisive degree” the basis of the convictions, it had also said that there was substantial evidence independent of P.R. (see paragraphs 70-71 above). It would be wrong to adopt the Court of Appeal’s “decisive” conclusion without scrutiny, since this was before the Grand Chamber’s judgment Al-Khawaja and Tahery. According to the modified test, the evidence had to be determinative of the outcome. Where there was corroborating evidence, the statement was less likely to be decisive. In the present case, there was medical evidence and direct eye witness evidence that P.R. was the victim of a brutal attack on the night in question. Important concessions had been made by Mr Horncastle and Mr Blackmore. They admitted drinking with D.; that D. had been burgled; that D. had asked them for help to recover his property; and that they had gone with D. to P.R.’s flat. They did not claim that anyone else had been with them (see paragraphs 14-15 and 21 above). There was scientific evidence that the attack had commenced at the entrance to the flat; it would therefore have been visible to anyone at the entrance (see paragraph 20 above). As the Court of Appeal said, there was an “inescapable inference” that Mr Horncastle had been present during the violence (see paragraph 70 above). The account that Mr Horncastle had given in evidence had been shown to be untruthful since blood had been found on the television (see paragraph 20 above). In his police interview Mr Blackmore had admitted that he stepped over a man covered in blood (see paragraph 15 above). The Court of Appeal found that he must have been present when the violence began (see paragraph 70 above). Finally, although the defence had tried to implicate M. as the perpetrator of the attack, there was evidence that M. had been a friend of P.R. and that the latter had shown no fear of him after the attack (see paragraph 20 above).
123. The Government pointed out that the other evidence specifically corroborated P.R.’s statement. There was the evidence of injuries to corroborate that an assault had taken place. P.R.’s claim that three men had carried out the attack corresponded to the defence admission that Mr Horncastle, Mr Blackmore and D. had gone to the flat, as well as the evidence that they had been present when the attack took place. P.R.’s account of having been attacked and then pulled into the bedroom when he went to open the door was corroborated by the scientific evidence. P.R.’s allegation that the television and hi-fi had been removed was supported by their recovery from D.’s flat, with P.R.’s blood. His account that Mr Horncastle and Mr Blackmore knew that the goods had been stolen was corroborated by their own admission His claim that one of his assailants had used crutches was supported by the discovery of D.’s crutches with blood on them matching that of P.R. Finally, that P.R.’s account was contrary to the suggestion that M. was the attacker was corroborated by the fact that P.R. had shown no fear of M. after the attack.
124. The Government accepted that there were issues of reliability as a result of P.R.’s admission that he had been drinking and that his memory was vague (see paragraphs 8 and 20 above). However, these issues could have been explored by the defence, particularly with the other witnesses who had given evidence.
125. Finally, the Government insisted that strong counterbalancing measures had been in place. They referred in this respect to the factors identified by the Court of Appeal (see paragraphs 72-74 above). They also highlighted that while the jury had not been told of the previous convictions of Mr Horncastle and Mr Blackmore, they had been informed of M.’s dishonesty and propensity to violence (see paragraph 24 above). Mr Horncastle and Mr Blackmore had therefore not been deprived of the opportunity to test the evidence against them.
(iii) Mr Marquis and Mr Graham
126. The Government argued that there was plainly a good reason for the non-attendance of H.M., namely fear. The trial judge had found that she was “petrified, genuinely really distressed, breaking down in tears” (see paragraph 50 above). The availability of special measures had been explained to her (see paragraph 46 above). The court had heard evidence from her father that she had fled (see paragraph 48 above). The correctness of the trial court’s conclusion that she was in fear was not called into question by the Court of Appeal or the Supreme Court. There was no basis for questioning it now. Although there had been no finding that H.M.’s fear had been brought about by or on behalf of the applicants, the assessment had been conducted at the pre-trial stage. H.M. had given a clear account of being put in fear by the applicants. In her video statement of 9 April 2008, she explained that they had told her that she had better not go to the police, because she knew what would happen if she did (see paragraph 44 above). The applicants and their associates were directly responsible for threatening and inducing fear in H.M. On this basis, the Government argued, the applicants were to be taken to have waived their right to examine the witness.
127. Even if the fear had not been because of the applicants, there was still a good reason for her non-attendance (citing Al-Khawaja and Tahery, § 124). There were objective grounds for her fear: the incident of kidnap, the threats to which she had been exposed and the advice from the police that she should move. In respect of the latter, it was important to emphasise that the police had been under a duty to protect her and had acted in good faith. Police advice had only been one cause of the fear; the Government disputed the applicants’ contention that H.M. had refused to give evidence solely on account of the advice from the police officers.
128. The Government further contended that H.M.’s evidence in the case was neither sole nor decisive. The Court of Appeal had explicitly said that the convictions did not rest on H.M.’s evidence to a decisive extent (see paragraph 78 above). It had further explained that the convincing nature and reliability of the statement could be tested against the other evidence (see paragraph 77 above). It had pointed out that the kidnappers were not identified in H.M.’s statement and that their identities had been proved by other means. H.M.’s statement was evidence only that she had been kidnapped, and there was sufficient evidence of that from other sources, including the evidence of her father given orally at trial (see paragraph 78 above).
129. In any event, there had been strong counterbalancing measures at trial. The applicants had been entitled to all the protections under the 2003 Act, section 78 PACE and the common law (see paragraphs 90-99 above). It was open to them at trial to make an application to adduce evidence relevant to H.M.’s credibility and the prosecution was obliged to disclose such information. Other witnesses had attended court and gave evidence. The trial judge had given an appropriate direction to the jury on how to treat H.M.’s statement. After reviewing the evidence, the Court of Appeal had been satisfied that the statement was reliable.
2. The Court’s assessment
(a) General principles
130. As the Court has consistently underlined, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III; Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010; and Al-Khawaja and Tahery, cited above, § 118).
131. In Al-Khawaja and Tahery, cited above, § 118, the Grand Chamber reiterated that the guarantees in paragraph 3 (d) are specific aspects of the right to a fair hearing set forth Article 6 § 1 which have to be taken into account in the assessment of the overall fairness of proceedings. In making this assessment, the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses. Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Al-Khawaja and Tahery, cited above, § 118).
132. The Grand Chamber set out two requirements which flow from the general principle identified. First, it has to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction is based solely or to a decisive extent on statements made by a person whom the accused has had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors are required, including the existence of strong procedural safeguards, which permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).
133. It is plain that, where a witness has died, in order for his evidence to be taken into account it will be necessary to adduce his witness statement if his evidence is to be taken into account (see Al-Khawaja and Tahery, cited above, § 121). Where absence is the result of fear, a distinction can be drawn between fear attributable to threats or other actions of the defendant or those acting on his behalf and fear attributable to a more general fear of what will happen if the witness gives evidence at trial. In the former case, it is appropriate to allow a statement of that witness to be introduced at trial even if it is the sole or decisive evidence against the defendant, because to allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. As to the latter, there is no requirement that a witness’s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. This does not mean, however, that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine, first, whether or not there are objective grounds for that fear, and, second, whether those objective grounds are supported by evidence. In all cases, where no prior examination of the witness has taken place, the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. The trial court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable (see Al-Khawaja and Tahery, cited above, §§ 122-125).
134. As far as the “sole or decisive” rule is concerned, as was pointed out by the Grand Chamber in its judgment in Al-Khawaja and Tahery, “decisive” in this context means more than “probative” or that, without the evidence, the chances of a conviction would recede and the chances of an acquittal advance. It should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be “decisive” (see Al-Khawaja and Tahery, cited above, § 131).
135. In respect of the need for counterbalancing factors where evidence is deemed to be sole or decisive, the Court has found that the safeguards contained in the 2003 Act, supported by section 78 PACE and the common law, are in principle strong safeguards designed to ensure the fairness of criminal proceedings (see Al-Khawaja and Tahery, cited above, § 151).
(b) Application of the general principles to the facts of the case
136. The applicants do not challenge the legal framework governing the admission of absent-witness evidence in the United Kingdom. They accept that, in principle, the 2003 Act offered adequate safeguards to ensure a fair trial (see paragraphs 115 and 118 above). However, they contend that the decisions to admit the statements in their cases resulted in a violation of their defence rights.
137. In assessing whether there was a violation of Article 6 §§ 1 and 3 (d) in the applicants’ case, the Court must apply the principles set out by the Grand Chamber in the Al-Khawaja and Tahery judgment. As noted above, the Grand Chamber confirmed that when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors which permit an assessment of the reliability of the evidence are required. Two observations follow.
138. First, where sole or decisive absent-witness evidence has been admitted, the key question, according to the Grand Chamber, is whether counterbalancing measures which permit a fair and proper assessment of reliability were present (see Al-Khawaja and Tahery, cited above, § 147). The applicants’ argument that any decisive evidence must be reliable, or at the very least shown not to be unreliable to any significant extent, before it can be fairly admitted must therefore be rejected.
139. Second, in the applicants’ case the Supreme Court said that it declined to apply the so-called “sole or decisive rule”, as it was at that time understood following the judgment of the Chamber in Al-Khawaja and Tahery (see paragraph 87 above). However, this does not, of itself, lead to a violation of Article 6 of the Convention, since the Grand Chamber’s subsequent judgment in that case made it clear that the admission of sole and decisive absent-witness evidence may be compatible with Article 6 if the appropriate counterbalancing measures are present. In the present case, taking the test for compliance with Article 6 as enounced in the Grand Chamber judgment in Al-Khawaja and Tahery, the Court must thus decide whether there was a good reason for the witnesses’ non-attendance; whether the witness statements were “sole or decisive”; and, if so, whether there were nonetheless adequate counterbalancing measures to protect the applicants’ right to a fair trial.
(i) Mr Horncastle and Mr Blackmore
140. P.R.’s death made it necessary to admit his witness statement as hearsay evidence if his testimony was to be considered, as was possible pursuant to section 116(2)(a) of the 2003 Act (see paragraph 94 above).
141. As to whether P.R.’s witness statement was sole or decisive, the Court’s starting point is the judgments of the domestic courts. The trial judge, in his summing up, said that the prosecution case depended upon the evidence of P.R. (see paragraph 25 above). The Court of Appeal identified substantial evidence independent of P.R.’s statement (see paragraph 70 above). However, it also accepted that in the circumstances of the case - including the trial judge’s summing-up and the fact that the jury specifically asked to see the statement after they had retired to deliberate - the statement was “to a decisive degree” the basis of the applicants’ convictions (see paragraph 71 above). It is true that the Court of Appeal’s assessment of the statement’s “decisive” nature was made before the Grand Chamber clarified that the term is to be interpreted narrowly and with regard to the extent of the other accompanying incriminating evidence. It is more than arguable that the strength of that other incriminating evidence in the case, and in particular the admissions by Mr Horncastle and Mr Blackmore that they were present at P.R.’s flat that night to recover stolen property and the scientific evidence of blood on the recovered property and as to the location of the attack, meant that P.R.’s statement was not “decisive” in the sense of being determinative of the outcome of the case.
142. Even assuming that the evidence of P.R. were to be taken as “decisive”, the Court is satisfied that there were sufficient counterbalancing factors to compensate for any difficulties caused to the defence by the admission of the statement. The safeguards contained in the 2003 Act and in section 78 PACE were applied appropriately. In particular, the trial judge considered a challenge under section 78 to the admissibility of P.R.’s statement before it was read and provided detailed reasons for his refusal to uphold the challenge (see paragraphs 17-18 above). He identified the need for directions to the jury as to the weight to be given to the statement. In due course, careful directions were given to the jury by the trial judge in his summing-up, warning them of the need to approach the statement with care and identifying the various restrictions on the defence which resulted from P.R.’s absence at trial (see paragraph 26 above). They would have left the jury in no doubt as to the limitations of P.R.’s testimony and the extent to which they could rely on it. The applicants did not argue that the jury had been misdirected on this matter. It should also be noted that P.R.’s identity, anonymised for the purposes of the present decision, was known to the applicants. They could, and did, lead evidence to challenge the reliability of the statement and P.R.’s credibility. Full details of P.R.’s hospital stay was disclosed to them, and they attacked P.R.’s statement by reference to his admitted alcoholism, his drinking on the day in question and his subsequent admission that his memory was “vague” (see paragraph 17 above). The various elements of P.R.’s statement were corroborated by the independent evidence in the case, including the applicants’ admission that they, along with D., attended P.R.’s flat, to recover items stolen in a burglary and the scientific evidence (see paragraphs 20 and 70 above). The defence did not make an application under section 125 of the 2003 Act for the prosecution to be stopped on the basis that the hearsay evidence was so unconvincing that any conviction would be unsafe (see paragraph 98 above). Further, the applicants were able to put forward their defence that M. was the perpetrator and were given permission to introduce into evidence details of M.’s previous convictions (see paragraph 24 above).
143. In conclusion, the Court is satisfied that, when taken with the strength of the other prosecution evidence in the case, the provisions of the 2003 Act, PACE and the common law as applied in the applicants’ case enabled the jury to conduct a fair and proper assessment of the reliability of P.R.’s statement. There has accordingly been no violation of Article 6 §§ 1 or 3 (d) in respect of Mr Horncastle and Mr Blackmore.
(ii) Mr Marquis and Mr Graham
144. The applicants have challenged the Government’s assertion that H.M.’s fear constituted a good reason for her non-attendance at trial. They argue that her fear was attributable to the comments made to her by the police and that the prosecution should not benefit from a situation for which the authorities were responsible.
145. The Court clarified in Al-Khawaja and Tahery, cited above, § 124, that fear need not be attributable to threats or actions by, or on behalf of, the defendants in order to constitute a good reason for the absence of a witness at trial. What is required is that the trial court conducted appropriate enquiries to determine whether there were objective grounds for the fear and whether those objective grounds were supported by evidence. The trial court must also be satisfied that all available alternatives would be inappropriate or impracticable.
146. In the present case, the trial judge undertook appropriate enquiries into the nature, extent and grounds of H.M.’s fear. He had no doubt that H.M.’s kidnap left her in fear for her safety. Her experience led her to believe that her assailants were “very dangerous people” (see paragraph 44 above). She claimed that they threatened her with a knife and punched her in the back of her head and that she had heard them say that they would cut off her fingers and toes if they did not get money (see paragraphs 30-31 above). In his ruling on the admissibility of H.M.’s statement, the judge said that she was clearly “petrified, genuinely in distress” (see paragraph 50 above). The fact that she would rather risk imprisonment than testify at the trial was considered by the judge to demonstrate the level of her fear (see paragraph 51 above). The judge’s refusal to admit the written statement of G.P. because he was not satisfied that G.P.’s absence at trial was due to fear demonstrates the care and diligence with which the judge approached his task (see paragraph 53 above).
147. It is true that H.M.’s fear was aggravated by the warning given to her by the police officers (see paragraph 35 above). As the Court of Appeal pointed out, potential witnesses should not be given assurances that their evidence will be read out (see paragraph 68 above). However, there is no evidence that any such assurances were given to H.M. The trial judge found no bad faith on the part of the police and noted H.M.’s explanations that her being “more” scared as a result of the police advice was “on top of her own fears” (see paragraphs 51-52 above).
148. It is also evident that all available steps were taken to seek to secure H.M.’s attendance at trial. When she failed to attend court, she was arrested and bailed to appear for trial (see paragraph 43 above). She was warned of the serious consequences of failing to attend, which included the possible imposition of a prison sentence of up to two years. The police explained to her the availability of special measures to facilitate the giving of her evidence at trial (see paragraph 46 above). When the judge ruled her written statement to be admissible, her whereabouts were not known since she had fled some days earlier (see paragraph 48 above).
149. In light of the above, the Court is satisfied that there was a good reason for H.M.’s failure to attend trial to give oral evidence.
150. Again, the Court’s assessment of the sole or decisive nature of the evidence must begin with examination of the comments of the domestic courts. It is significant that the Court of Appeal did not consider that the applicants’ conviction rested on the evidence of H.M. to a decisive extent (see paragraph 78 above). It listed the extensive independent evidence in the case. That evidence included undisputed CCTV footage putting Mr Graham, together with other masked men, outside H.M.’s home at the time of the kidnapping and undisputed telephone record data showing calls from the victim’s phone and from the phone of Mr Marquis to G.P., the victim’s partner, on the night of the kidnapping (see paragraphs 38 and 77-78 above). There was evidence that Mr Graham had been identified in CCTV footage and subsequently arrested in G.P.’s car, stolen during the kidnapping, and that a knife was recovered from the car (see paragraph 33, 38 and 77 above). Evidence was led that the two applicants had checked into a hotel on the night of the kidnapping with the stolen car in their possession (see paragraphs 39 and 41 above). There was other witness evidence, including from the victim’s father as to H.M.’s distress following the kidnapping and from the police officer who heard the ransom demands (see paragraphs 57-58 and 78 above). It is significant that the statement of H.M. provided no evidence whatsoever as to the identity of her kidnappers: the applicants were linked to the crime by evidence wholly independent of H.M. (see paragraph 78 above). As the Court of Appeal pointed out, the only matter proved by H.M.’s statement was that she had been kidnapped (see paragraph 78 above), and there was sufficient evidence of that from other witnesses including her father and the police officer who had listened to the ransom calls. It is also noteworthy that while Mr Graham sought to advance the defence that the kidnapping was part of an insurance fraud, he provided no evidence to support that allegation (see paragraph 60 above).
151. In light of the other strong incriminating evidence in the case, it cannot be said that H.M.’s statement was of such significance or importance as to be likely to determine the outcome of the case against the applicants. Her statement was therefore neither the sole nor the decisive basis of the applicants’ convictions. In these circumstances, it is not necessary to examine whether there were sufficient counterbalancing factors which permitted a fair and proper assessment of the reliability of the statement (compare and contrast Al-Khawaja and Tahery, cited above, §§ 154-155 and 160-161).
152. There has accordingly been no violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of Mr Marquis and Mr Graham.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of any of the applicants.
Done in English, and notified in writing on 16 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ineta Ziemele