UKSC 14
On appeal from:  EWCA Crim 964
R v Horncastle and others (Appellants) (on appeal from the Court of Appeal Criminal Division)
Lord Phillips, President
JUDGMENT GIVEN ON
9 December 2009
Heard on 7, 8 and 9 July 2009
|Appellants (Horncastle and Blackmore)
Tim Owen QC
(Instructed by The Johnson Partnership Solicitors )
|Appellants (Marquis and Graham)
Shaun Smith QC
(Instructed by The Johnson Partnership Solicitors )
David Perry QC
(Instructed by Crown Prosecution Service)
LORD PHILLIPS, PRESIDENT
This is a judgment with which all members of the court agree.
"(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….
. . .
(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."
"…where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6".
I shall call the test of fairness that this statement appears to require "the sole or decisive rule".
The approach to this appeal
The decision of the Court of Appeal
A summary of my conclusions
(1) Long before 1953 when the Convention came into force the common law had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure.
(2) Parliament has since enacted exceptions to the hearsay rule that are required in the interests of justice. Those exceptions are not subject to the sole or decisive rule. The regime enacted by Parliament contains safeguards that render the sole or decisive rule unnecessary.
(3) The continental procedure had not addressed that aspect of a fair trial that article 6(3)(d) was designed to ensure.
(4) The Strasbourg Court has recognised that exceptions to article 6(3)(d) are required in the interests of justice.
(5) The manner in which the Strasbourg Court has approved those exceptions has resulted in a jurisprudence that lacks clarity.
(6) The sole or decisive rule has been introduced into the Strasbourg jurisprudence without discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law jurisdictions.
(7) Although English law does not include the sole or decisive rule it would, in almost all cases, have reached the same result in those cases where the Strasbourg Court has invoked the rule.
(8) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure.
(9) Al-Khawaja does not establish that it is necessary to apply the sole or decisive rule in this jurisdiction.
The common law approach to a fair trial
Exceptions to the rules
"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
"informed by experience accumulated over generations and represents the product of concentrated consideration by experts of how the balance should be struck between the many competing interests affected. It also represents democratically enacted legislation substantially endorsing the conclusions of the expert consideration."
(i) It preserves certain specified common law categories of admissible evidence (ss.114(1)(b) and 118).
(ii) It makes specific provision for a limited number of categories of hearsay where there is special reason to make it admissible (ss.114(1)(a) and (c), 116-117, 119-120 and 127-129).
(iii) It provides for a limited residual power to admit hearsay if the interests of justice require it (s.114(1)(d) and 114(2)).
(iv) It establishes special stipulations to which hearsay evidence is subject (ss.121-126).
(i) by s.116(1) and (2)(a) the statement of a witness who is unavailable because he is dead is, subject to conditions, made admissible; similar provisions apply to a witness who is medically unfit, absent overseas and cannot be brought to the UK, or cannot despite all practicable efforts be found;
(ii) by s.116(1) and (2)(e) the statement of a witness who is unavailable because he does not give evidence through fear is, subject to conditions, made admissible;
(iii) by s.116(3) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (This is the addition I have made to the Court of Appeal's summary);
(iv) by s.117 the contents of business records maintained by those who can be expected to have had personal knowledge of the matters recorded are, subject to conditions, made admissible.
(i) the evidence must be such as would be admissible if the witness were present to give it orally (s.116(1)(a)); and
(ii) the witness must be identified to the satisfaction of the court (s.116(1)(b)).
(a) the contents of the statement;
(b) 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 in the absence of the maker);
(c) the possibility of alternative special measures for the protection of the witness, such as screens or video-transmitted evidence.
(i) S.124 makes special provision for the admissibility of any material which it is contended challenges the credibility of an absent witness. The opposing party is enabled to put in evidence anything which he could have put in if the witness had been present, but he may also put in material which, if the witness had been present, could only have been asked of him in cross-examination in circumstances where his answers would have been final; this puts the challenger to that extent in a better position than if the witness is present, and is designed to help to counterbalance the absence of cross-examination of the witness in person. In most cases also, in addition to the statutory rules, a defendant who is faced with hearsay evidence will be entitled to ask the court to call upon the Crown to investigate the credibility of any absent witness and to disclose anything capable of challenging it. That exercise will ordinarily require the Crown to go considerably beyond what would otherwise be the duty simply to disclose what is already in its possession and capable of undermining its case; it will require active investigation of the bona fides, associates and credibility of the witness, so as to provide the defendant with, in addition to anything he already knows, everything capable of being found which can be used to test the reliability of the absentee.
(ii) By s.125 the judge is required to stop any case depending wholly or partly on hearsay evidence if that evidence is unconvincing to the point where conviction would, in the judge's opinion, be unsafe; this is an important exception to the usual rule of the law of England and Wales that the assessment of the weight of evidence is exclusively for the jury (see R v Galbraith (1981) 1 WLR 1039).
(iii) S.126 preserves the general power of the judge (which existed at common law and is enshrined in s.78 of the Police and Criminal Evidence Act 1984) to exclude any evidence relied upon by the Crown (but not by a defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted; the section adds a further obligation upon the judge to exclude hearsay evidence if its admission would generate satellite disputes which would cause an undue waste of time such as to outweigh the case for admitting it.
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".
Hearsay exceptions in other Commonwealth Jurisdictions
Hearsay in the United States
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence."
Special measures and anonymity
"It is that no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses. The reason is that such a conviction results from a trial which cannot be regarded as fair. This is the view traditionally taken by the common law of England."
In fact, as I shall show, Lord Bingham slightly overstated Lord Mance's conclusion.
"(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal proceedings.
(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.
(3) Condition A is that the measures to be specified in the order are necessary–
(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or
(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).
(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.
(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that–
(a) it is important that the witness should testify, and
(b) the witness would not testify if the order were not made.
(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness–
(a) that the witness or another person would suffer death or injury, or
(b) that there would be serious damage to property,
if the witness were to be identified."
Section 5 sets out the matters to be taken into consideration when deciding whether the considerations in section 4 are satisfied:
"(1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to–
(a) the considerations mentioned in subsection (2) below, and
(b) such other matters as the court considers relevant.
(2) The considerations are–
(a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;
(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;
(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;
(d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;
(e) whether there is any reason to believe that the witness–
(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;
(f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court."
Criminal procedure in the civil law jurisdictions
"…the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused...An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge."
The Strasbourg jurisprudence prior to Al-Khawaja
"The Strasbourg court has time and again insisted that the admissibility of evidence is governed by national law and that its sole concern is to assess the overall fairness of the criminal proceedings in question…
. . .
The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances. What matters is the fairness of the proceedings as a whole.
. . .
the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole Convention…Thus the rights of the individual must be safeguarded, but the interests of the community and the victims of crime must also be respected. An example, not based on the present facts, illustrates the point. In Jamaica, as in England and Wales, as already noted, the statement of a witness may be adduced in evidence if he is shown to have absented himself through fear of the consequences to him if he gives evidence. In the case of a prosecution witness, such fear is likely to have been induced by or on behalf of a defendant wishing to prevent adverse evidence being given. As observed by Potter LJ in R v M (KJ)  2 Cr App R 322, para 59, echoed by Waller LJ in R v Sellick  I WLR 3257, paras 36, 52-53, it would be intolerable if a defendant shown to have acted in such a way could rely on his human rights under article 6 (or section 20) to prevent the admission of hearsay evidence. Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage.
While, therefore, the Strasbourg jurisprudence very strongly favours the calling of live witnesses, available for cross-examination by the defence, the focus of its inquiry in any given case is not on whether there has been a deviation from the strict letter of article 6(3) but on whether any deviation there may have been has operated unfairly to the defendant in the context of the proceedings as a whole. This calls for consideration of the extent to which the legitimate interests of the defendant have been safeguarded."
"It is true that article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify."
"As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations)."
"in the circumstances the 'counterbalancing' procedure followed by the judicial authorities in obtaining the evidence of witnesses Y15 and Y16 must be considered sufficient to have enabled the defence to challenge the evidence of the anonymous witnesses and attempt to cast doubt on the reliability of their statements, which it did in open court by, amongst other things, drawing attention to the fact that both were drug addicts."
"It has to be recalled at the outset that the admissibility of evidence is primarily a matter for regulation by national law. Again, as a general rule it is for the national courts to assess the evidence before them.
In the light of these principles the Court sees its task in the present case as being not to express a view as to whether the statements in question were correctly admitted and assessed but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair.
This being the basic issue, and also because the guarantees in article 6(3) are specific aspects of the right to a fair trial set forth in paragraph (1), the Court will consider the applicant's complaints from the angle of paragraphs (3)(d) and (1) taken together."
This passage indicates that the fairness of a trial has to be assessed on a case by case basis, viewing each trial as a whole, and that an inability on the part of a defendant to cross-examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair.
"In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."
There are two points to make in respect of this passage. The first is that the phrases "in principle" and "as a rule" reflect the fact that the Strasbourg Court has recognised that the requirements of article 6(3)(d) are not absolute or inflexible. The second point is that the proposition that "an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings" (emphasis mine) reflects Strasbourg jurisprudence which appears to dilute the protection that article 6(3)(d) would otherwise supply. One of the objects of the right of a defendant to cross-examine witnesses is to give the trial court the chance of "observing their demeanour under questioning and thus forming its own impression of their reliability" – see Kostovski at paragraph 43. The aim is "adversarial argument" at a "public hearing" – see Kostovski at paragraph 41. These objects will not be achieved by granting the defendant or his lawyers an opportunity to confront or question witnesses in the course of the inquisitorial investigation by the investigating judge. The words that I have emphasised, repeated again and again in the Strasbourg jurisprudence, appear to suggest that a right to challenge a witness at the investigatory stage of the criminal process will be enough to satisfy article 6(3)(d). This exemplifies the danger that repeated repetition of a principle may lead to its being applied automatically without consideration of whether, having regard to the particular facts of the case, its application is appropriate. The true position is, I suggest, that where possible the defendant should be entitled to examine witnesses at the trial but that, where this proves impossible, the fact that the defendant had a right to challenge the witness at the investigatory stage is a relevant factor when considering whether it is fair to rely on the witness' deposition as evidence at the trial – see, for instance, Lucà v Italy (2001) 36 EHRR 807.
The sole or decisive rule
"Finally, it should be recalled that, even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements."
""Bearing in mind the provisions of the European Convention on Human Rights and the case-law of its organs, which recognise the rights of the defence to examine the witness and to challenge his/her testimony but do not provide for a face to face confrontation between the witness and the alleged offender;"
"50. What appears from the above authorities are the following propositions. (i) The admissibility of evidence is primarily for the national law. (ii) Evidence must normally be produced at a public hearing and as a general rule article 6(1) and (3)(d) of the Convention require a defendant to be given a proper and adequate opportunity to challenge and question witnesses. (iii) It is not necessarily incompatible with article 6(1) and (3)(d) of the Convention for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair. (iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.
51. The question is whether there is a fifth proposition to the effect that where the circumstances would otherwise justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight para 40 of Lucà v Italy 36 EHRR 807 seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of article 6 of the Convention, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Lucà v Italy nor any of the other authorities were concerned with a case where a witness, whose identity was well known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in para 40 of Lucà v Italy shows that the court had extreme circumstances in mind.
52. The question we have posed to ourselves is as follows. If the European court were faced with the case of an identified witness, well known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no 'counterbalancing' measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury's attention to aspects of that witness's credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European court would nevertheless hold that a defendant's article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with article 6(1). We for our part see no difficulty in such a clear case.
53. More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J's state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant's article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be 'got at' the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European court in Strasbourg."
In R v Davis Lord Mance analysed the Strasbourg jurisprudence in relation to anonymous witnesses and summarised his conclusions as follows:
"89. In his submissions for the Crown Mr Perry suggested that any requirement that anonymous evidence should not be the sole or decisive basis for conviction derived from the authorities on pretrial statements by (identified) witnesses who were not called for cross-examination at trial. That submission derives possible support from the citation in Kok, Visser and Krasniki of authorities which deal with that subject matter, rather than with anonymous witnesses. But it does not mean that a similar principle is inappropriate in relation to anonymous witnesses who are available for such cross-examination as is possible at trial. Whatever its origin, the requirement has been deployed without drawing this distinction, which is probably less real in those civil law countries with procedures involving use of an investigating magistrate than it is in the United Kingdom. Further, in Krasniki the requirement was applied to one anonymous witness who was called at trial. It is considerably less certain, for the reasons I have mentioned in paras 84-86 above, that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence, or whether the extent to which such testimony is decisive may be no more than a very important factor to balance in the scales. I doubt whether the Strasbourg court has said the last word about this."
"Article 6(3)(d) is an aspect of the right to fair trial guaranteed by article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument (Krasniki v Czech Republic (Application No 51277/99, BAILII:  ECHR 176 ), 28 February 2006, para 75). As with the other elements of article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick (see para  above), as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barberà v Spain (1987) 9 EHRR CD101, paras 67 and 68; Kostovski v The Netherlands, (1989) 12 EHRR 434, para 39)."
"Equally, even where those minimum rights have been respected, the general right to a fair trial guaranteed by article 6(1) requires that the Court ascertain whether the proceedings as a whole were fair."
This proposition is unexceptionable. What is puzzling is that the Court should cite Unterpertinger v Austria in support of it, for that was a case where the Court found that both articles 6(1) and 6(3)(d) had not been satisfied.
"Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of article 6(1) and (3)(d) is set out in Lucà … at para 40:
'If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene article 6(1) and (3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6 [references omitted].'"
"The Court notes that in the present cases the Government relying on the Court of Appeal's judgment in Sellick (see paragraph 25 above), argue that this Court's statement in Lucà and in other similar cases is not to be read as laying down an absolute rule, prohibiting the use of statements if they are the sole or decisive evidence, whatever counterbalancing factors might be present. However, the Court observes that the Court of Appeal in Sellick was concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear induced by the defendants. That is not the case in either of the present applications and, in the absence of such special circumstances, the Court doubts whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant. While it is true that the Court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other."
The individual appeals
(Prepared by Lord Mance – see paragraph 41).
"59(1). Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact."
There follow a number of specific exceptions, including:
"65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:
(a) was made under a duty to make that representation or to make representations of that kind; or
(b) was made when or shortly after the asserted fact occurred and in circumstances that made it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probably that the representation is reliable; or
(i) against the interests of the person who made it at the time it was made; and
(ii) made in circumstances that make it likely that the representation is reliable. …
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived
the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation."
The scheme of the Australian statute is both nuanced and circumscribed, with a view to ensuring the overall fairness of the proceedings.
"30. …The hearsay evidence must have sufficient apparent reliability, either inherent or circumstantial, or both, to justify its admission in spite of the dangers against which the hearsay rule is designed to guard. We use the expression 'apparent reliability' to signify that the judge is the gatekeeper and decides whether to admit the evidence or not. If the evidence is admitted, the jury or judge, as trier of fact, must decide how reliable the evidence is and therefore what weight should be placed on it. If a sufficient threshold level of apparent reliability is not reached, the hearsay evidence should not be admitted. The inability of a primary witness to give evidence is not good reason to admit unreliable hearsay evidence.
31. As a final check, as with all evidence admitted before a jury, the Court must consider whether hearsay evidence which otherwise might qualify for admission should nevertheless be excluded because its probative value is outweighed by its illegitimate prejudicial effect."
Reviewing the facts of R v Manase, the Court of Appeal concluded that there was a lack of sufficient apparent reliability in the primary utterances and drawings to qualify them for admission as hearsay. The appeal was therefore allowed.
(See paragraph 77)
(See paragraph 80)
"The Court therefore concludes that in the present case the applicant's conviction was not based exclusively or to a decisive extent on the evidence of the anonymous witness. In the Court's view, in assessing whether the procedures involved in the questioning of the anonymous witness were sufficient to counterbalance the difficulties caused to the defence due weight must be given to the above conclusion that the anonymous testimony was not in any respect decisive for the conviction of the applicant. The defence was thus handicapped to a much lesser degree."
(Prepared by Lord Judge – see paragraph 93)
|Case||Reference||Category of Witness||Paragraph|
|Unterpertinger v Austria||(1991) 13 EHRR 175||Absent, identified||2|
|Bricmont v Belgium||(1990) 12 EHRR 217||Absent, identified||6|
|Kostovski v The Netherlands||(1989) 12 EHRR 434||Absent, anonymous||10|
|Windisch v Austria||(1991) 13 EHRR 281||Absent, anonymous||14|
|Delta v France||(1993) 16 EHRR 574||Absent, identified||17|
|Lüdi v Switzerland||(1993) 15 EHRR 173||Absent, anonymous||21|
|Saïdi v France||(1994) 17 EHRR 251||Absent, identified||26|
|Doorson v The Netherlands||(1996) 22 EHRR 330||Combination||31|
|Ferrantelli and Santangelo v Italy||(1997) 23 EHRR 288||Absent, identified||41|
|Van Mechelen and others v The Netherlands||(1997) 25 EHRR 647||Anonymous
|AM v Italy||(1999) (Application No 37019/97, BAILII:  ECHR 141)||Absent identified||55|
|Lucà v Italy||(2001) 36 EHRR 807||Absent identified||60|
|PS v Germany||(2003) 36 EHRR 61||Absent Identified||65|
|Visser v The Netherlands||(2002) (Application No 26668/95, BAILII:  ECHR 108 )||Anonymous, present in part||70|
|Birutis and others v Lithuania||(2002) (Application Nos 47698/99 and 48115/99, BAILII:  ECHR 349 )||Anonymous, absent||76|
|Sadak and others v Turkey||(2003) 36 EHRR 26||Absent, identified||82|
|Krasniki v Czech Republic||(2006) (Application No 51277/99, BAILII:  ECHR 176 )||Anonymous, absent, present||86|
|Taxquet v Belgium||(2009) (Application No 926/05)||Absent, anonymous||91|
Unterpertinger v Austria (1991) 13 EHRR 175
Bricmont v Belgium (1990) 12 EHRR 217
Kostovski v The Netherlands 12 EHRR 434
"…we are being invited to re-write the [Criminal Evidence (Witness Anonymity) Act 2008] by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury. We cannot do so. Neither the common law, nor the [Criminal Justice Act 2003], nor the 2008 Act, permits it."
In short, such evidence is inadmissible.
Windisch v Austria (1991) 13 EHRR 281
Delta v France (1993) 16 EHRR 574
Lüdi v Switzerland (1993) 15 EHRR 173
"In relation to police officers the normal problem is not quite the same as that envisaged by orders for witness anonymity which were considered at the trial of Davis. These witnesses may well be known to the defendant by a false identity, or are using a false identity. Knowledge of their true identities can rarely be of any importance to the defendant, who can advance whatever criticisms of the evidence, or indeed the conduct of the officers, while they continue to be known by their false identities" (R v Mayers  1 Cr App R 30 , para 31).
Effectively, the approach domestically and in Strasbourg would have been identical.
It is unnecessary to address the admissibility of the telephone-tap evidence: it is, to put it no higher, extremely unlikely that this evidence would have been admissible.
Saïdi v France (1994) 17 EHRR 251
Doorson v The Netherlands (1996) 22 EHRR 330
"it should be recalled that, even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements…"
"under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care. The Court is satisfied that this was done in the criminal proceedings leading to the applicant's conviction, as is reflected in the express declaration of the Court of Appeal that it had treated [the anonymous testimony] 'with the necessary caution and circumspection'."
The Court held that the testimony from the absent but identified witness caused the applicant no unfairness because it was impossible to trace the witness, and the evidence was corroborated by other evidence before the court (para 80). In conclusion, therefore, the Court considered, "None of the alleged shortcomings considered on their own lead the Court to conclude that the applicant did not receive a fair trial. Moreover, it cannot find, even if the alleged shortcomings are considered together, that the proceedings as a whole were unfair..."
Ferrantelli and Santangelo v Italy (1997) 23 EHRR 288
Van Mechelen and others v The Netherlands (1997) 25 EHRR 647
"Prosecutors must also be able to show that any fear expressed by the witness that they, or any other person, would suffer death or injury, or that there would be serious damage to property, if they were identified to the defendant, is reasonable" (emphasis added).
In this case it is open to very serious question whether an application for police anonymity would be made at all.
AM v Italy (Application No 37019/97, BAILII:  ECHR 141 ), 14 December 1999
"in convicting the applicant… the domestic courts relied solely on the statements made in the United States before trial and the applicant was at no stage in the proceedings confronted with his accusers…"
Lucà v Italy (2001) 36 EHRR 807
PS v Germany (2003) 36 EHRR 61
Visser v The Netherlands (Application No 26668/95, BAILII:  ECHR 108 ), 14 February 2002
"In these circumstances the Court is not satisfied that the interest of the witness in remaining anonymous could justify limiting the rights of the defence to the extent that they were limited…" (emphasis added).
Birutis and others v Lithuania (Application Nos 47698/99 and 48115/99, BAILII:  ECHR 349 ), 28 March 2002
Sadak and others v Turkey (2003) 36 EHRR 26
Krasniki v Czech Republic (Application No 51277/99, BAILII:  ECHR 176 ), 28 February 2006
"the Court is not satisfied that the interest of the witnesses in remaining anonymous could justify limiting the rights of the applicant to such an extent…
Taxquet v Belgium (Application No 926/05), 13 January 2009
"The applicant contended that the question of the anonymous witness testimony took on particular significance in his case as it was linked to the preceding complaint concerning the lack of reasoning in the Assize Court's judgment. In order to be able to find that a witness statement had played a decisive role in a person's conviction, it was necessary to know the reasons for the decision, but in the present case none had been given. If the reasoning had been known, it might have been possible to identify the information received anonymously as having been a decisive factor, or the sole factor, in establishing his guilt."
"anonymous statements should be examined by a judge who knows of the identity of the witness, has verified the reasons for granting anonymity and is able to express an opinion on the witness's credibility in order to establish whether there is any animosity between the witness and the accused." (Emphasis added).
"Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed."