The Supreme Court handed down judgment in R v Horncastle and others [2009] UKSC 14 on 9th December 2009. The case concerned an appeal against conviction on the ground that the appellants did not receive a fair trial, contrary to article 6 of schedule 1 to the Human Rights Act 1998 c.42, due to the fact that statements of witnesses who were not called to give evidence were put before the jury.

In the case of Mr Horncastle and Mr Blackmore, convicted of bodily harm with intent, the witness and victim had died from injuries not attributable to the offence prior to the trial. In the case of Mr Marquis and Mr Graham, who were convicted of kidnapping a young woman, the witness and victim ran away as she was too frightened to give evidence; their statements were regardless put before the court.

The question for the court was whether the statutory regime for the admissibility of evidence for absent witnesses would result in an unfair trial, and whether jurisprudence from the European Court of Human Rights required the court to apply the “sole and decisive test” advocated in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1.

Refusing the appeal and adopting the reasoning of the Court of Appeal, the Supreme Court held that the Strasbourg case law had been developed without sufficient consideration of the safeguards against an unfair trial developed by English common law and codified in the amendments made by Criminal Justice Act 2003 c. 44 (“the Act”). The test as to whether the hearsay evidence was the “sole or decisive” factor leading to conviction was not to be applied over the provisions of the Act, which strikes a fair balance between achieving a fair trial and protecting the interests of victims and society in general.

One of the most interesting developments in the area of criminal evidence has been the use of hearsay. Since the introduction of s.114 of the Criminal Justice Act 2003, there has been an epic debate over the role such evidence should play.

The general exclusion of hearsay has always been based on the need to test evidence orally in a criminal court: that evidence not given in this form may unfairly affect the jury as well as being unsusceptible to cross-examination. In recent times, the exclusion clauses brougt in by the CJA 2003 have eroded this, to the point where hearsay is becoming a common theme.

The European Courts have always been slightly wary of our propensity to edge toward this permission. In Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 it was claimed that certain admissions amounted to a breach of the defendants rights under Article 6.

In Horncastle, the Supreme Court stood up against this disapproval - claiming that the European Court was wrong to judge the law in the UK as insufficient. The fact that the judiciary have wide discretion, coupled with several key safeguards, means that a defendant does have the opportunity to undergo a fair trial.

One of the key factors was the refusal of the Supreme Court to accept the Strasbourg jurisprudence as 'binding', and sticking to the strict wording: 'taking into account'. The refusal to follow this jurisprudence precisely could be seen as putting the United Kingdom directly at odds with Strasbourg. Whether the decision of the Supreme Court will be respected the next time such a case arises against the UK remains to be seen.