Two recent cases from the United Kingdom in which the UK courts had admitted hearsay evidence in the absence of the witness have provoked comment by the authors of the usually excellent UK Human Rights Blog – 30th September 2016. Many observers would argue that the UK courts had the better of the ferocious exchanges that occurred after a Chamber of the European Court of Human Rights [ECtHR] reached its decision in Al-Khawaja v. UK; Tahery v. U.K. (2009) E.H.R.R. 1 and that this was proved in the diplomatic climbdown in the decision of the Grand Chamber almost three years later  E.C.H.R. 2127. On the other hand it might be argued that the careful way in which the UK Court of Appeal considered another hearsay case in R.v. Ibrahim  2 Cr. App. R. just a few months after the GC decision in Al-Khawaja would not have happened had it not been for the stand taken by the ECtHR [and it should not be forgotten that Mr Tahery’s conviction was ultimately overturned by the UK Court of Appeal] and that it was really a case of the UK winning that particular battle but Europe winning the war by forcing the UK courts to take a much more cautious approach towards the admission of hearsay evidence. Whatever your view it has been interesting to watch the two sets of courts eying each other up ever since.
Before turning to the two UK cases it is necessary to start with the case of Schatschaschwili v Germany (GC) Application No. 9154/10, 15 December 2015. In that case the Grand Chamber had reiterated the three-step process required to be gone through in considering the admissibility of hearsay evidence of an absent witness, namely
- whether good reason existed for the absence of the witness;
- whether the impeached evidence was the “sole and decisive” evidence against the accused;
- whether there were sufficient counterbalancing factors and strong procedural safeguards which allowed the reliability of the evidence to be fairly and properly tested – para 107.
The Grand Chamber stated that in the light of previous decisions of the court since Al-Khawaja v UK  ECHR 2127, it should make it clear that the lack of good reason for the failure of the witness to attend was not sufficient in itself to result in a violation of Article 6 but it was a strong factor to be considered when assessing the overall fairness of the proceedings (para 113). Furthermore, the necessary extent of the counterbalancing factors depends upon the weight of the evidence provided by the absent witness in the overall context of the proceedings (para 116.)
In Seton v UK (Application No. 55287/10, 31 March 2016) a decision of the First Section rather than the GC, Mr Seton was charged with murder. His defence involved accusing another man P of the murder. The impeached evidence relied on by the prosecution was the transcript of a phone call made by P from prison (which he would have known would be monitored and recorded) to his family in which he had denied the murder. Unsurprisingly P had declined any invitation to make a formal witness statement much less attend court to give evidence.
The ECtHR held that whilst there was, in their view, no good reason for the non-attendance of the witness, the evidence could not be considered to be “sole or decisive” because of what had been described in the UK Court of Appeal as “overwhelming evidence” against the applicant, and in any event there were sufficient procedural safeguards in place, courtesy of the hearsay provisions of the Criminal Justice Act 2003, to ensure the overall fairness of the proceedings and accordingly there was no breach of Article 6.
The author of the influential UK Human Rights Blog commented on this decision to suggest that this represented a watering down of the procedural safeguards contained in Article 6 (3) citing previous decisions of the ECtHR where a strict approach had been taken to the lack of good reason for not calling the witness and pointing out that the three factors identified in Al-Khawaja seem now to be little more than matters that need to be considered by the court but which are no longer determinative. He also suggests the ECtHR “may be surrendering its role as an upholder of fundamental human rights and moving towards that of an international criminal appeal court.”
Then in the case of Simon Price v UK (Application No. 15602/15, 15 September 2016) the same First Section of the Court, declined to decide whether there had been good reason for the failure to call the absent witness but held, in view of the wealth of other evidence that in any event, the evidence was not “sole and decisive”. This was another case involving the hearsay provisions of the CJA 2003 and the Court held that there were sufficient safeguards to ensure the overall fairness of the proceedings. Accordingly the Court held that there had been no breach of Article 6 (3) in admitting the evidence of the absent witness.
In this case Mr Price had been tried for drug trafficking, the not inconsiderable amount of £35 million worth of cocaine which had been intercepted in Holland. The impeached evidence here was from a customs broker for the shipping agents that supported the prosecution case that the final destination of the drugs was the UK. The witness declined to give evidence including offers of special measure such as giving evidence via a video-link.
Again the author of the UK Human Rights Blog commented along much the same lines as in Seton. He suggests that the three step test set out in Al-Khawaja has “almost morphed into a single step test – was there other supporting evidence securing the conviction other than the evidence of the absent witness?” The author concludes that “it appears that the stronger the case against the applicant, the less likely it is that the right under Article 6 (3) (d) will need to be respected.
For my part I think the author may be over-stating the case. I do not think these decisions indicate that the ECtHR has been cowed into submission by the battle with the UK courts culminating in Al-Khawaja and R.v. Horncastle  2 A.C. 373 or that it has given up on defending fundamental human rights under Article 6 (3). The reality in both cases is that there was an overwhelming case against the Applicants quite apart from the evidence of the absent witness and since the ECtHR’s primary concern under Article 6 (1) is to “evaluate the overall fairness of the criminal proceedings” [Al-Khawaja, para 118] there had been no breach of Article 6 (1) read in conjunction with Article 6 (3) (d) of the Convention. To have held otherwise risked bringing the reputation of the ECtHR into further disrepute and would have provoked accusations from the UK that the ECtHR had lost any sense of proportion in considering cases from this jurisdiction. I think we need to await a case with much better facts before reaching the conclusions drawn by the author of the UK HR Blog.