This essay will critically examine the statement made by the Grand Chamber of the European Court of Human Rights in light of the hearsay provisions of the Criminal Justice Act. It will then define hearsay, then provide an explanation of the common law rules on hearsay, and lastly, hearsay evidence in conjunction with Article 6 of the European Convention of Human Rights
The rule against hearsay was a common law exclusionary rule but it is now contained within Statute, which defines hearsay and sets out when it is admissible. s114 of the Criminal Justice Act defines hearsay as 'a statement not made in oral evidence in the proceedings relied on as evidence of any matter stated'. However, there are several reasons such as ambiguity, insincerity, memory loss and defective observation which prevents hearsay evidence to be admitted
s114 (1) (c) also allows hearsay to be admissible where the prosecution and the accused agree to it being admissible.
However, despite the clear rules on hearsay evidence and its admissibility, there has been some criticism of hearsay evidence in that it is not given on oath. This argument was supported by Lord Norman in Teper v R, who stated that 'hearsay evidence is not the best evidence as it is not given on oath. The accuracy of it cannot be tested by cross-examination.
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Historically, the importance of an oath was founded on the belief that they would be punished for perjury by divine sanction in the next world. However, this argument carries with it very little conviction in the modern day as people have ceased to believe in the possibilitty of divine sanction for lying.
A difficult question that has confronted the courts is whether there will be a breach of Article 6 of the european convention on Human Rights if evidence is based solely or to a decisive degree, on evidence made by someone whom the accused had no opportunity to question.
Article 6 of the European Convention on Human Rights provides the accused with minimum rights to examine witnesses against him and obtain the attendance and examination of witnesses on his behalf. The case of 'R v Horncastle' examined the relationship between the statutory provisions of hearsay and Article 6. In this case, the court stated that the right provided for in Article 6 is not an absolute right, and there may be circumstances which justify a departure from it.
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Additionally, in relation to the decision made in Al Khawaja and Tahery v UK, the court, relying upon the case of Luca v Italy, agreed stating that Article 6 (3) (d) is a minimum right which allows the accused to be given a proper and adequate opportunity to challenge and question a witness against him.
The Criminal Justice Act also concluded that provided the provisions of the Criminal Justice Act 2003 were rigorously observed, then there can be no breach of Article 6 and in particular Article 6 (3) (d), even if the conviction is solely based on hearsay evidence admitted under the CJA 2003.
It can be argued that the terms 'sole or decisive' are merely labels to illustrate different situations when evidence is called, for example, if there is only one piece of evidence which is the only evidence in the case. If, however there are a number of pieces of evidence, and the hearsay part is important, it is arguably the decisive evidence.
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Lord Phillips stated that the CJA 2003 was a Statutory code that contained specific safeguards; this did not include a 'sole or decisive' rule. Nevertheless, the judgment in Al Khawaja can be argued to provide valuable guidance with framework for judges to follow. This is supported by the fact that in hearsay cases, the judge is required by s125 to assess whether the hearsay evidence is so unconvincing that any conviction would be unsafe. However, in R v Ibrahim, it seems that the more critical the hearsay evidence, the more justification is needed before it can be admitted.
Furthermore, in proceedings where a conviction was based solely or decisively on evidence of absent witnesses, sufficient counterbalancing factors, including the existence of strong procedural safeguards must exist to permit a fair and proper assessment of the reliability of the evidence.
Nevertheless, in Horncastle et al, the Court of Appeal accepted that Article 6 (3) (d) had a content of its own, but given that it did not create any absolute right to have every witness examined, the balance struck by the CJA 2003 was legitimate and consistent with the convention.