Thursday, February 12, 2015
A fascinating judicial dialogue recently took place between the European Court of Human Rights (ECHR) and the U K Supreme Court concerning the admissibility of hearsay evidence. A look at that discussion illuminates how the ECHR handles its role with respect to its constituent countries. For us in the United States, it also shows how the United States Supreme Court’s approach to hearsay stands uniquely against that of other countries.
The exchange between the ECHR and the U K Supreme Court involves two cases: Al-Khawaja and Tahery v . United Kingdom1 and R. v. Horcastle & Ors..2 In the first, Al-Khawaja and Tahery v. United Kingdom, the ECHR held there were two requirements before hearsay evidence could be admitted: (1) there had to be good reason for non-attendance of the witness (so-called unavailability) and (2) to put it briefly, there had to be sufficient safeguards against unreliability. Significantly, however, the Court held that where hearsay evidence is the “sole or decisive” evidence supporting a conviction, its admission constitutes a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights,3 regardless of the presence or efficacy of safeguards. That case was sent back to the United Kingdom’s domestic courts; domestic courts are then required to take ECHR judgments “into account.”
Meanwhile, the U K Supreme Court decided R. v. Horncastle & Ors.. While the Court noted that the requirement to “take into account” the Strasbourg decisions normally results in domestic courts applying the principles laid out by the ECHR, the Supreme Court nevertheless held that there were rare occasions where the Supreme Court could refuse to follow the ECHR and “give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.”4 It did so in Horncastle, and concluded that the hearsay was not the sole or decisive evidence in the case. And even if it had been, the Court held that “there were sufficient counterbalancing factors to compensate for any difficulties caused to the defense….”
The ECHR then reached the same decision in Horncastle. As a result, the ECHR’s original holding, that where hearsay is the sole or decisive evidence supporting a conviction that conviction violates Article 6, was modified so that the “sole or decisive rule” should not be applied inflexibly.
It is so interesting to see how the Strasbourg Court, which reviews cases from different countries and different systems, must and does, in fact, take many different national interests into account. This is really a case in which the United Kingdom’s Courts took the opportunity to explain the particular safeguards against hearsay in the UK system to the Strasbourg Court.
Incidentally, these decisions also show how the United States Supreme Court’s Sixth Amendment approach to the admission of hearsay in Crawford v. Washington5 is so obviously based on our Constitutional text. Anyone reading Justice Scalia’s decision knows that. However, the contrast to the balancing and fairness that is currently the law in Europe – and, incidentally, was the law in the United States before Crawford – is made absolutely crystal clear.
- Al-Khawaja and Tahery v. United Kingdom,  ECHR 2127, http://www.bailii.org/eu/cases/ECHR/2011/2127.html.
- R. v. Horncastle & Ors.,  UKSC 14, http://www.bailii.org/uk/cases/UKSC/2009/14.html.
- Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art. 6, http://conventions.coe.int/treaty/en/treaties/html/005.htm.
- Horncastle, at ¶ 11.
- Crawford v. Washington, 541 U.S. 36 (2004), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-9410#opinion1.