Ibrahim, R v

This appeal against conviction by Dahir Ibrahim concerns the admissibility of hearsay evidence of a complainant who has died after giving statements to the police but before trial. The principal statutory provisions containing the court’s powers to adduce such evidence in criminal proceedings are now set out in Chapter 2 of Part 11 of the Criminal Justice Act 2003 (“the CJA”). Those provisions and the question of their compatibility with a defendant’ rights to a fair trial under Article 6(1) and Article 6(3)(b) of the European Convention on Human Rights (“ECHR”) have received very extensive scrutiny in the decisions of a five judge division of this court and the Supreme Court in the case of R v Horncastle and others (“Horncastle”). (Footnote: ¹)The Supreme Court’s decision in those cases was handed down on 9 December 2009. Both courts examined in great detail the jurisprudence of the European Court of Human Rights (“ECtHR”) on whether the introduction of hearsay evidence which could not be tested by direct questioning in the criminal process was contrary to the rights contained in Articles 6(1) and 6(3)(d) of the ECHR. Subsequently, on 15 December 2011, the Grand Chamber of the ECtHR handed down its decisions in the cases of Al-Khawaja and Tahery v the United Kingdom (“Al-Khawaja – GC”). (Footnote: ²) The judgment of the Grand Chamber comments on the Court of Appeal’s and Supreme Court’s analysis and decision in Horncastle. So far as we are aware, the present case is the first in which this court has been asked to consider the English statutory provisions concerning the admission of hearsay evidence of a witness who has died before the trial in the light of the Grand Chamber’s judgment.

We have set out the relevant sections of the CJA, ie. sections 114-116, and sections 124, 125 and 126, together with section 78 of the Police and Evidence Act 1984 (“PACE”) and Articles 6(1) and 6(3) of the ECHR in an Appendix to this judgment.

The appellant, who is a Somali citizen now aged 26, was convicted of three counts of rape after a trial before HHJ Cavell and a jury in the Crown Court at Birmingham in July and August 2006. At the same trial the appellant was acquitted of 5 other charges of rape, one charge of attempted rape and one of unlawful wounding. The last was the subject of count 2 which is relevant to this appeal. The jury was unable to agree on verdicts in respect of four further charges of rape and one of being in possession of an offensive weapon.

On 14 August 2006 the appellant was sentenced to 10 years imprisonment in respect of each of the three counts of rape of which he had been convicted. The sentences were ordered to be served concurrently and time spent on remand was ordered to count towards the sentence.

Following his conviction the appellant was given advice by leading and junior counsel that there were no grounds of appeal. But the appellant then became aware of recent decisions in the ECtHR and the English Court of Appeal on the issue of the admissibility of hearsay statements of witnesses who, for one reason or another, did not give or could not give evidence at the trial. The appellant sought advice from new solicitors and new counsel and Grounds of Appeal were lodged on 27 November 2009. On 17 March 2010 the single judge made his order extending time in which to seek leave to appeal and granted leave to appeal the appellant’s conviction on count one on the Indictment. That count alleged that the appellant had raped Enith Walker on 20 March 2003. Enith Walker died in 2006.

We understand that the hearing of this appeal was delayed pending the Grand Chamber’s decision. The Grand Chamber deliberated in private on 19 May 2010 and again on 9 November 2011 before delivering its judgment on 15 December 2011.

The facts giving rise to counts 1 and 2 on the Indictment are, in outline, as follows: the appellant had come to the UK from Somalia and had obtained asylum. He lived in Smethwick. Between 2003 and late 2005 there was a “campaign of rape and violence” – in the prosecution’s phrase – against prostitutes working in the Edgbaston red light area of Birmingham. The prosecution case was that the appellant was responsible for this campaign. There were 15 counts altogether on the Indictment; 11 were allegations of rape; one of attempted rape; two of unlawful wounding and one of having an offensive weapon. There were eight complainants. The alleged rape of the deceased Enith Walker was the earliest in the series and so formed count 1 on the Indictment.

Enith Walker worked as a prostitute in the Edgbaston area in order to fund her addiction to heroin and crack cocaine. The prosecution case was that the appellant had raped Ms Walker in the early hours of 20 March 2003 in the area of Edgbaston reservoir. Ms Walker’s account was contained in three statements dated 7 October 2005, 27 October 2005 and 9 November 2005; that is to say some two and a half years after the alleged offences. All three statements were in the normal form pursuant to section 9 of the Criminal Justice Act 1967 and were signed by Ms Walker.

Ms Walker’s statement of 7 October 2005 said she was approached by a black Somali male “over a year ago” but she could not remember exactly when. She said that she was standing by phone boxes on Icknield Port Road. It was about 3 am or 4 am in the morning. On her account the man asked her if she was doing “business”, a price was agreed for sex and she took him to the nearby reservoir. She stated that she then told him that she would only perform oral sex and that the price would be £30. She stated that the man did not wish to use a condom and he put a knife to her throat and told her he was going to take his money back. Her statement said that he put his mouth to her throat and forced her to the ground and raped her vaginally before ejaculating over her clothing. Ms Walker’s statement said that he then demanded her clothes and he pulled off her bomber jacket, jumper and T-shirt before she ran off shouting “rape” up Icknield Port Road and onto Summerfield Crescent, when she could hear sirens and helicopters. The statement said that she hid in bushes from the police “because I have an ASBO”. The statement then said that she ran to Gillott Road where she was stopped by police officers who knew her. However, she did not tell them what had happened and she walked off.

The statement of 7 October 2005 then gave a description of the “black Somalian male” as about 5ft 5in tall, early thirties, skinny build and with small ringlets of black, curly hair. The statement said that he had been chewing something which stank. There was a description of the knife. The statement indicated that Ms Walker had been with him for 20-25 minutes and he was so near to her that “I could smell his Bengali breath”.

The statement continued by saying that Ms Walker had seen this man many times in the same area since that date. It stated that in the early part of 2004 there was another incident by a phone box in Dudley Road at about 1430 in the morning when Ms Walker was standing with a woman whom we will call Ms SES. Ms Walker recounted that she saw a black male walk past and he said “business”. The statement said that Ms SES “freaked out” saying that the man had raped her. The man said to Ms Walker “I know you I’m gonna get you , watch”. Ms Walker’s statement said that she recognised him as the man who had raped her. A short time later, Ms Walker recounted, she felt a hand across her mouth and a sharp point at her temple and the man said “I told you I would get you”. She stated that she stumbled across the road, but he followed her and said to her: “I’m going to kill you now, you should have let me have the girl in the phonebox”. Ms Walker managed to escape without further injury. This latter part of the statement formed the basis of Count 2 on the Indictment, which alleged that the appellant had unlawfully wounded Ms Walker between 17 – 20 February 2004, contrary to section 20 of the Offences Against the Person Act 1861.

The statement continued by describing the knife used in the assault incident and confirmed that it was the “same black Somalian and knife from the rape”. The statement ended by saying “I was scared that I would be arrested for breaching my ASBO so I didn’t want to report it to the police”.

It is known that on 19 February 2004 Ms Walker attended a nearby SAFE project where she would get methadone for her heroin addiction and that she made a complaint of an assault to Ms Alison Cook, a worker on the project. She did not mention that the assaulter had previously raped her. Ms Cook recorded a statement of Ms Walker about the assault incident and that was in evidence at the trial. We refer to it further below.

Ms Walker gave two further short statements, one dated 27 October 2005 and the other dated 9 November 2005. In the first of those she said that she knew that her attacker was Somali “by the way he looks and the way that he talks. Somalian’s [sic] have a particular look, that’s how I know”. She also gave further details about the circumstances of the rape. She said that the attacker took her to the wall of a building near the Icknield Road entrance to the reservoir and that there was a light (on the wall of that house we presume) that came on and there was a burnt out car nearby.

In her third statement Ms Walker confirmed that she had attended an identification procedure on 9 November 2005 and had identified the appellant.

The other two counts of rape of which the appellant was convicted, (counts 13 and 14) concerned the complainant Ms SES. She gave evidence at the trial and was cross-examined. She said that in September 2005 the appellant approached her and asked for sex. They agreed a price and went to a car park where he held what she believed to be a knife to her back. He threatened to cut her. Fearing that she would be stabbed unless she complied, she performed oral sex on him. He then pushed her down and penetrated her vagina from behind. She said she did not scream at the time out of fear of being knifed, but when she ran off she rang 999. The police arrived and found her confused and she had clearly been crying. She was later examined by a doctor who found no evidence supporting or refuting an allegation of sexual assault. No semen was discovered on vaginal swabs or on her clothes. However, DNA from the appellant and from Ms SES was detected on the front inside of the appellant’s shorts.

In relation to count 1 the appellant accepted that he had met Ms Walker. He said that they had talked and walked to the reservoir. He said that she wanted him to pay for sex but he refused. Then she started to scream and hit him with a bottle, so he pushed her away and she ran off.

In relation to counts 13 and 14 the appellant agreed that Ms SES had performed oral sex on him, but he said that it was against his wishes. He denied raping her or having any vaginal sex with Ms SES.

On 20 June 2006 there was a Pre-Trial Review before HHJ Hindley QC. Counsel for the prosecution indicated that at the trial there would be an application to adduce the three statements of Ms Walker as hearsay evidence. Counsel for the defence accepted that, in principle, they were admissible under section 116 of the CJA and that if there was any argument that they should be excluded it would be that the court should exercise its power to do so under section 78 of PACE.

The trial then started and it seems to have been accepted by the defence that the statements of Ms Walker should be adduced as hearsay evidence. There was no submission by defence counsel to the judge, based on section 78 of PACE, that the statements of Ms Walker should not be admitted because they would have such and adverse effect on the fairness of the proceedings that the court ought not to admit them. Her three statements were read to the jury and Judge Cavell told the jury that this was permissible in the circumstances. He added that, because the witness was now dead and could not be cross-examined it meant that the defence had been deprived of a means of testing the evidence in the statements.

The defence wished to put before the jury a document which made points about the credibility of Ms Walker, which the defence said would have been put to her had she given oral evidence. It was eventually agreed between counsel that the jury should be given a document headed “Some Agreed Facts relevant to the Credibility of Enith Walker”. These facts are important to the present appeal. They can be summarised as follows: (1) although Ms Walker stated in her witness statement of 7 October 2005 that the reason she hid from the police on 20 March 2003 was she feared she had breached her ASBO, in fact the ASBO was not made until May 2004. (2) A complaint made to the police by Ms Walker on 8 January 2003 that she had been indecently assaulted by a man that day, which was supported by a statement she made to the police, was fabricated. She retracted the allegation the following day saying that it was made up to support an allegation by another woman. (3) Ms Walker’s statement in support of that false complaint was in the usual section 9 Criminal Justice Act 1967 format and she had signed the caption and each page of the document. (4) Ms Walker was not prosecuted for any offence arising out of the false complaint.

Members of the jury were each given copies of this document and it was placed in their jury bundle and they retired with their copies when they considered their verdicts. Although the transcript does not say so, it seems to us that this document must have been prepared and admitted pursuant to section 124(1) and (2) of the CJA.

The prosecution then called its other evidence. Ms SES gave evidence that on 21 October 2005 she was asked by police about Ms Walker and told them that she did recall seeing her upset with a cut to her eye in late 2004 and that Ms Walker had told her that she (Ms Walker) had been raped by a Somali and he had cut her. But she denied ever being in a phone box with Ms Walker. Ms Anna Toogood gave evidence that during the night of 20 March 2003 she had been asleep in her house in the area of the reservoir and that she had been awoken by a scary scream coming from the direction of the reservoir. She said that she heard a female voice crying “rape” and calling for help. Ms Toogood dialled 999. The tape was played to the jury.

PC Poole was one of the officers that attended the scene following the 999 call. He gave evidence that the police began to search and heard footsteps. They called out “stop, Police” and PC Poole caught up with the appellant who was trying to run away. He struggled and was handcuffed. He was searched and no weapon was found. He gave his correct name and stated that he was staying with his sister and gave her correct address.

WPC Baldwin also gave evidence. She said that during the police activity that night she had found Ms Walker who was very distressed and was crying. Ms Walker had grabbed WPC Baldwin, who asked her if she had been raped and she said no. Ms Walker told WPC Baldwin that there had been a disagreement about payment. Because no complaint was made no further action was taken.

Ms Alison Cook gave evidence that on 19 February 2004 Ms Walker told her that she had been assaulted the night before, but she did not say anything about being raped on any occasion. Ms Cook filled in a form which described the incident as related by Ms Walker in the following terms:

“Asked for business earlier on night, I refused, called him a rapist as I was told he had raped two other working girls I know. Also told he carried a knife. Later that night, walking down Link Road, walking towards me, asked me for business, showed me £20, refused. Pulled me in the garden, told me he wanted a Durex. I said I had no Durex and refused to do any business. Then he backhanded me in the face. I was making a lot of noise. Someone looked out of their window and he ran off”.

That account, which was signed by Ms Walker, was very different from the account given in Ms Walker’s statement of 7 October 2005, ie. 18 months later. In the later account there was no mention of the man asking for business, or of a Durex or a “backhander”. The words of the appellant that are reported in the later statement are not referred to in the earlier one.

Ms Cook also stated that she took photographs of Ms Walker’s eye and took her to hospital. She said that Ms Walker told her that she did not wish to report the matter to the police as she was not supposed to be in that area. Ms Cook also said that in September 2005 she heard from the police that there was a Somali male attacking prostitutes in the area and she remembered what Ms Walker had said and so spoke to her. Her evidence was that Ms Walker was wary of involving the police because she was afraid she would get into trouble for being in the reservoir area as she had an ASBO that stipulated that she was not to go there.

At the close of the prosecution case on 31 July 2006 the defence submitted that the judge should either withdraw counts one and two from the jury or should direct the jury to acquit the defendant on those counts. The first submission was made on the principle of the “second limb” of the well-known case of R v Galbraith, (Footnote: ³) viz. that the prosecution evidence on those two counts was too weak or tenuous to enable a jury, properly directed, to convict with safety. Secondly, based on section 125(1)(b) of the CJA, the defence argued that the case against the defendant depended partly on the statements of Ms Walker and they were so unconvincing that, given their importance to the case against the defendant on those counts, the jury should be directed to acquit.

The defence emphasised in particular the facts that (1) there was no explanation of why Ms Walker had not reported the rape at the time; (2) she had made a false complaint of indecent assault on an occasion not long before the alleged rape; (3) there had been general talk amongst prostitutes about the rapes that had occurred and a description had been given which potentially fitted the defendant; and (4) there were inconsistencies in the evidence of Ms Walker and Ms SES. On the other hand the Crown emphasised the facts that (1) the defendant had been identified at the scene of the alleged rape; (2) there was evidence from Anne Toogood that she had heard a woman scream “rape” at 2.05 am that morning; (3) there was the evidence of WPC Baldwin; (4) the defendant was apprehended at the scene and there was a struggle and he was handcuffed; (5) the “similar fact” evidence of other prostitutes, eg in relation to the defendant’s breath.

The judge decided that, in relation to both counts 1 and 2, these were all matters for the jury to decide and that counts 1 and 2 were connected. Therefore, he rejected both the Galbraith submission and that based on section 125(1)(b) of the CJA, saying: “these are essentially matters to be considered by the jury and not by the judge at this stage”. (Footnote: ⁴)

The appellant gave evidence. He accepted that he had encountered Ms Walker on the night of 20 March 2003. He said that it was at a petrol station where he was buying cigarettes. He walked with her to the reservoir, but when she asked him for money for sex he realised she was a prostitute. His evidence was that he said he did not want that and she became angry, then screamed at him and hit him with a bottle. He pushed her away and she ran off. He then ran off because he thought that she was going to get someone. At first he thought that it was Ms Walker’s friends that were approaching him but then realised it was the police. He denied struggling and said he had not carried a weapon. The police took him home. He denied seeing Ms Walker at a later date.

The judge summed up on 7-8 August 2009. In relation to counts one and two, he explained to the jury that the law permitted a witness statement to be read when a witness had died. (Footnote: ⁵) He pointed out that if Ms Walker had given evidence she would have been cross-examined on the contradiction between her evidence and that of Ms SES about being in the phone box together and of Ms Walker having talked about a Somali man having raped her (both denied by Ms SES) and also on the matters that were in the agreed document concerning Ms Walker’s credibility. (Footnote: ⁶) The judge read to the jury virtually all of Ms Walker’s three statements. (Footnote: ⁷) He also referred to the agreed facts document and added “you will bear those matters very much in mind when you come to consider how much weight you give to the credibility and the evidence of Enith Walker”. (Footnote: ⁸) There was no specific warning to the jury about the fact that Ms Walker’s statements had not been tested in cross-examination. Nor was there a specific warning about the inconsistency in what Ms Walker had told Ms Cook about the 2004 incident and what Ms Walker had said in her statement of 7 October 2005. The judge reminded the jury of the evidence of the other witnesses relevant to counts 1 and 2 that we have already summarised above.

The judge also gave directions on the issue of “similar fact” evidence. In respect of counts 3 and 4 (attempted rape and unlawful wounding of Ms MC), 10 and 11 (rapes of Ms VC) and 12 (rape of Ms KG) there was no direct evidence. The prosecution case was that the jury could rely on the direct evidence of the rapes in counts 1 (Ms Walker), counts 5 and 6 (Ms CH), counts 7 and 8 (Ms SES), count 9 (Ms DD) and counts 12 and 14 (Ms SS) to assist them in being sure that the appellant had committed counts 3, 4, 10, 11 and 12 because, it was argued, the circumstances of the offences were so similar. The judge gave a proper direction on whether and when the jury could use their conclusions about the rapes where there was direct evidence to assist them on the counts where there was no direct evidence. He warned the jury about the possibility of contamination as a result of gossip between prostitutes. (Footnote: ⁹) He also emphasised that the fundamental rule was that each of the counts had to be considered separately. (Footnote: ¹⁰) Despite the submission made at the close of the prosecution case, it was apparently not suggested by the prosecution in its closing speech and, in any case, the judge was careful not to suggest in his summing up that evidence of the other rapes where there was direct evidence could be used to support the prosecution case in relation to count 1 involving Ms Walker.

The jury retired on 8 August. On 10 August the jury sent a note asking if they could see Ms Walker’s statement of 7 October 2005. The judge directed them that they could not but he re-read its contents to them. He also reminded the jury of the agreed document about Ms Walker’s credibility which they had in their jury bundle.

The jury returned their verdicts later that day.

The basic rule of the law of England and Wales in criminal trials is that witnesses giving evidence are to be examined in court at the trial. It has long been recognised as a vital principle and is sometimes called the “right of confrontation”. There have always been common law exceptions to this basic rule and some statutory exceptions also. (Footnote: ¹¹)Chapter 2 of Part 11 of the CJA enacted (with some modifications) the recommendations of the Law Commission set out in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics of June 1997. (Footnote: ¹²) The provisions in Chapter 2 of Part 11 of the CJA make some far-reaching changes to the common law on the admissibility of hearsay evidence in criminal proceedings. The broad effect of the provisions is that a previous out of court statement of a witness (whether subsequently called to give oral evidence or not at the trial) is hearsay evidence if the aim of adducing the statement in evidence is to prove the “matters stated” in it within the meaning of section 114(1) and 115 of the Act. Any statement not made in oral evidence in criminal proceedings is only admissible as evidence of any “matter stated” in it (within the meanings of sections 114 and 115) if one (or more) of the four conditions set out in section 114(1) is applicable. The first of those conditions is that one of the provisions of Chapter 2 of Part 11 of that Act makes that statement admissible; one of those provisions is section 116.

Section 116(1) )(a), (b) and (c) set out three pre-conditions for the admission of a statement note made in oral evidence in the proceedings.The evidence must be such as would be admissible if given orally in the proceedings; the person must be identified to the court’s satisfaction; and one of the conditions set out in section (2)(a)-(e) must be satisfied. It is common ground that those pre- conditions were all satisfied in the case of Ms Walker’s three statements; the last because section 116(2)(a) applied: viz. Ms Walker had died before the trial.

However, even if a hearsay statement falls within one of the four classes set out in section 114(1), section 114(3) stipulates that nothing in Chapter 2 of Part 11 “affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings”. That power to exclude is complemented by section 126(2), which specifically provides, in paragraph (a), that nothing in Chapter 2 prejudices “any power of a court to exclude evidence under section 78” of PACE. Thus, hearsay evidence that the prosecution wishes to adduce which is, on the face of it, admissible under one of the conditions set out in section 114(1), can be excluded by the court in the exercise of its powers under section 78 of PACE. The test under that section is, of course, whether the admission of the evidence in question would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

As we have already noted, at the trial there was no application by the defence to exclude the witness statements of Ms Walker on section 78 grounds.

In Horncastle the Court of Appeal and then the Supreme Court (Footnote: ¹³) considered the question of when a court should exclude a hearsay statement made by an identified witness who had subsequently died before the trial and where the conditions set out in section 116(1) were fulfilled. We have decided that we should examine the Court of Appeal’s decision in some detail because, in giving the leading judgment in the Supreme Court, with which the other six members of the Supreme Court panel agreed, (Footnote: ¹⁴) Lord Phillips of Worth Matravers, President, said that he endorsed the Court of Appeal’s conclusions and “..almost all the reasoning…”. He commended the Court of Appeal’s judgment and he said that his own should be read as “..complementary to that of the Court of Appeal, not as a substitute for it”. (Footnote: ¹⁵)

In the Court of Appeal the appellants in Horncastle challenged their convictions on the ground that they were based solely or to a decisive extent on the statement of the dead complainant whose evidence they had, necessarily, not been able to cross-examine. (We examine the facts more fully below) They alleged that their rights guaranteed by Article 6(1) and Article 6(3)(d) of the ECHR had been violated and their convictions were therefore unsafe. The arguments of the appellants in the three cases before the Court of Appeal and the two in the Supreme Court were based on various decision of the ECtHR, culminating in its decision, sitting as a Chamber, in Al-Khawaja and Tahery v United Kingdom. (Footnote: ¹⁶)(We will refer to the Chamber decision as “Al-Khawaja” as opposed to the decision in the Grand Chamber, which we will refer to as “Al-Khawaja – GC”).

Both the Court of Appeal and the Supreme Court dismissed the appeals.

The Court of Appeal started from the basic proposition that, “in the case of unavailable witnesses, and in the case of apparently reliable hearsay, the CJA 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be”. (Footnote: ¹⁷)Moreover, these statutory provisions “represented a considered Parliamentary resolution of the proper balance to be achieved between competing interests in the light of Convention rights”. (Footnote: ¹⁸)

The Court emphasised a number of aspects of this statutory “code”, four of which are particularly important for the present appeal. The first is that Chapter 2 of Part 11 of the CJA is concerned with identified but absent witnesses, not anonymous witnesses. (Footnote: ¹⁹) Secondly, the importance of section 124, which permits the admission of material which could have been put to the absent witness if he had given evidence at the trial; but which also permits the introduction of material which, if the witness had given evidence, could only have been put to him in cross-examination in circumstances where the witness’ answers would have been final. Section 124, the court said, was designed to counterbalance the absence of cross-examination of the witness in person. (Footnote: ²⁰)

The third aspect emphasised by the court was the power given to a judge by section 125, which it described as an “important exception to the usual rule of the law of England and Wales that the assessment of the weight of the evidence is a matter for the jury: see R v Galbraith [1981] 1 WL R 1039”. Fourthly, the court noted that section 126(2) preserved the general power of the court to exclude any evidence relied upon by the Crown (but not by the defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. (Footnote: ²¹)

The Court of Appeal next considered in detail the case law of the ECtHR (up to and including Al Kawaja) on the application of Article 6(3)(d) in cases where there had been a criminal conviction based on the evidence of witnesses who had not, for one reason or another, been present to give evidence at the trial of the defendant. It noted (Footnote: ²²) that at paragraph 40 in its decision in Lucà v Italy, (Footnote: ²³)the ECtHR stated the general proposition, apparently equally applicable to cases of both absent witnesses and anonymous witnesses, 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 provide by Article 6…”.

In the opinion of the Court of Appeal, however, upon an analysis of the ECtHR case law, there was no reason to treat the cases dealing with absent witnesses in the same way as those dealing with anonymous witnesses, as the passage in the Lucà case appeared to do. (Footnote: ²⁴) The Court of Appeal considered that this portmanteau approach of applying the “sole and decisive” test to the case of the absent but identified witness as well as anonymous witnesses was carried over into the ECtHR’s decision in Al – Khawaja. (Footnote: ²⁵)

In Al-Khawaja the ECtHR heard two applications together. In the first Mr Al-Khawaja had been convicted of two counts of indecent assault on female patients. One of the victims had made a police statement but had then committed suicide for totally unrelated reasons. Her statement was admitted as evidence at his trial, pursuant to section 23 of the 1988 Act. Her evidence was supported by the fact that she had complained shortly after the incident to two friends. They gave oral evidence at the trial. Moreover, another patient, who gave oral evidence at the trial and who was cross-examined, said that she had suffered a very similar assault. Al-Khawaja was convicted. His appeal to the Court of Appeal was dismissed. (Footnote: ²⁶)

In the second case Mr Tahery was convicted of wounding with intent during a street fight in the early hours of the morning between a group of Kurds and a group of Iranians. An Iranian, S, was stabbed in the back. Tahery had administered first aid to S and gone to the hospital with him. Another participant in the fracas, T, later told the police that he saw Tahery use a knife to inflict the wounds. No other witness identified Tahery as the assailant. Tahery himself at first asserted that the assault was the work of two black men, but later admitted that this allegation was untrue. At the trial T told the judge that he had been threatened. The judge excused him from giving oral evidence and his statement was read in support of the prosecution case. Tahery was convicted and his appeal against conviction was also dismissed by the Court of Appeal. (Footnote: ²⁷)

In its decision in Al-Khawaja the ECtHR held that the right under Article 6(3)(d) was a minimum right that must be accorded to anyone charged with a criminal offence. (Footnote: ²⁸) The Court of Appeal in Horncastle also noted that the ECtHR concluded in both cases in Al-Khawaja that none of the counterbalancing measures or factors was sufficient to overcome the prejudice caused to the defence by the admission in that case of the absent witnesses’ statements. (Footnote: ²⁹)

The Court of Appeal analysed the consistency of Al-Kawaja with previous case law in the ECtHR. The Court of Appeal concluded: (1) the ECtHR case law demonstrated that the right to confront witnesses for the prosecution under Article 6(3)(d) was not an absolute one. (Footnote: ³⁰) (2) In the case of evidence from an identified but absent witness, even when that was the “sole or decisive” evidence against the defendant, “counterbalancing measures” could protect the rights of the defence sufficiently, at least in cases where the hearsay evidence was “demonstrably reliable or its reliability was capable of proper testing and assessment”. (Footnote: ³¹) Conclusion (2) was based on a number of considerations so far as criminal trial procedure in England and Wales was concerned, not least the provisions of sections 124 and 125 of the CJA and the rigorous application of the statutory conditions before hearsay evidence would be admitted. (Footnote: ³²)

The Court of Appeal next analysed the difficulties in adopting a test of whether particular hearsay evidence was “sole or decisive” against a defendant as the basis for an absolute exclusion of such evidence in criminal trials. The court first of all challenged what it regarded as two false assumptions made by the ECtHR about hearsay evidence: first, that all hearsay evidence that was critical to a case was potentially unreliable in the absence of testing in open court ; and, secondly, that the fact finder could not be trusted to assess the weight of such evidence. (Footnote: ³³) The Court of Appeal gave examples of the falsity of the first assumption, (Footnote: ³⁴) and rejected the second, so far as the practice and experience of English jury trials were concerned. (Footnote: ³⁵) It again emphasised the safeguards of section 125 of the CJA. (Footnote: ³⁶)

The court ended its general survey by examining the practical difficulties of adopting a “sole or decisive” test in the case of identified but absent witnesses. In particular it questioned how, in advance of the result of a trial, it could necessarily be known what particular evidence was decisive against a defendant. (Footnote: ³⁷)

The Court of Appeal’s general conclusion was:

“…provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d) if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003…Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected, there are in the language of the ECtHR sufficient counterbalancing measures and the trial is fair”. (Footnote: ³⁸)

The Court of Appeal then considered the particular facts in the Horncastle appeal. They are instructive, because there are certain factors which are similar to the present case. The victim of the attack, Peter Rice, was a long-term and registered alcoholic. On the day of the attack by the three defendants (of whom two were convicted and one pleaded guilty) he had been drinking all day with companions. The attack took place in the evening of 7 May 2005 in Rice’s flat, when the defendants were trying to recover stolen property that had been deposited in the flat. Rice suffered head injuries which caused a large blood clot in the surface of the brain and another small clot inside the skull. He was in hospital for a month but made a good recovery. He gave a statement to the police on 3 June 2005. Rice died in July 2006. The trial took place (at the third attempt) in November 2007.

The judge admitted Rice’s statement pursuant to section 116(2)(a). The other evidence relied on by the prosecution at the trial included witnesses of fact who spoke to events before and after the attack. There was also forensic evidence, including a DNA profile of Rice’s blood found on crutches belonging to one of the defendants. There was no application by the defence under section 125 at any stage after the close of the prosecution case.

In the Court of Appeal, as a result of the decision of the ECtHR in Al-Khawaja, it was argued that (i) the statement of Rice was the “sole or decisive” evidence against the defendants, so that, in accordance with the decision in Al-Khawaja, the admission of Rice’s statement was itself a breach of Article 6(3)(d) so that the trial was thereby unfair. In addition, (ii) there were insufficient counterbalancing safeguards to overcome the prejudice to the defence which would be caused by the admission of this untested hearsay evidence. It was noted in particular that the jury had asked to see a copy of Rice’s statement once they had retired to consider their verdicts. Accordingly, for that additional reason the trial was unfair and so the convictions were unsafe.

The Court of Appeal concluded, first, that there was, in fact, substantial evidence that was independent of Rice’s statement which proved that all three defendants were present in Rice’s flat and that the attack occurred in the presence of each of them. (Footnote: ³⁹) However, secondly, the court accepted that Rice’s statement had been regarded by counsel, the judge and the jury as the basis, “to a decisive degree”, on which the two appellants were convicted. (Footnote: ⁴⁰) Thirdly, even if that was the case, that was only one factor in seeing whether the trial was unfair or not. When all the statutory safeguards in the “code” were considered in the light of the facts of this case, there was no unfairness. Indeed, “…if that statement had been excluded…or the trial stopped using the power in section 125, there would have been a denial of justice in circumstances where the death of a key witness intervened prior to the trial”. (Footnote: ⁴¹) There had been a fair trial and there was ample evidence to support the jury’s conclusion.

As already noted, the judgment of the Supreme Court was given by the President, Lord Phillips of Worth Matravers. He first gave a short history of how hearsay evidence has been dealt with in criminal trials in England and Wales. Looking at the CJA provisions, he drew a distinction between two broad classes of hearsay evidence. In the first were statements of witnesses who had died, were ill, missing or absent from the trial through fear. Lord Phillips said those were examples of hearsay evidence made admissible because the evidence would otherwise be unavailable. He contrasted this with other categories of hearsay evidence that was made admissible because, “…in the ordinary way, they are likely to be reliable”. In this class, Lord Phillips included business records and other examples. (Footnote: ⁴²) He said that the CJA provided safeguards to protect a defendant against unfair prejudice as a result of the admission of hearsay evidence, over and above the general safeguards that apply to every jury trial. He summarised them. (Footnote: ⁴³) Lord Phillips then surveyed hearsay in Commonwealth jurisdictions and the United States and considered criminal procedure in civil law jurisdictions.

Lord Phillips next analysed the Strasbourg jurisprudence on Article 6(3)(d) prior to Al-Khawaja. He pointed out that Article 6(3)(d) does not deal with the question of what procedure is appropriate where “…it is simply not possible to comply with Article 6(3)(d); where for instance, after making a statement, the witness for the prosecution or defence has died. Fairness does not require that in such circumstances the evidence of the witness should not be admitted to the trial”. (Footnote: ⁴⁴)Indeed, he added, the opposite might be so and the Strasbourg cases had recognised this, provided that there was justification for that course. (Footnote: ⁴⁵) If there is justification, then, in Lord Phillip’s view, the ECtHR had been concerned with whether the process as a whole “…has been such as to involve the danger of a miscarriage of justice”. (Footnote: ⁴⁶)

However, Lord Phillips concluded that although the ECtHR had accepted that in exceptional cases a failure to comply with the strict requirements of Article 6(3)(d) would not invalidate the fairness of the trial, the court had not acknowledged this in terms. He continued:

“The court might have said, in terms, that paragraph (3)(d) has no application where it is impossible to call a witness at the trial but it did not. The court might have said, in terms, that in exceptional circumstances a failure to comply with paragraph (3)(d) will not render the trial unfair, but it did not. Rather the court has used language that has tended to obscure the fact that it is, in reality and in special circumstances, countenancing a failure to comply with the requirements of paragraph (3)(d). I shall take Kostovski v The Netherlands (Footnote: ⁴⁷)as an example of the language used. The phraseology is almost standard form in cases dealing with Article 6(3)(d)”.

Lord Phillips then analysed statements in paragraphs 39 and 41 of Kostovski and drew three further conclusions. The first is that the ECtHR had recognised that the requirements of Article 6(3)(d) were not absolute. The second is that the ECtHR was there contrasting adversarial argument at a public hearing (whether at trial or at an earlier stage) with the position where there had been no opportunity for the defence to challenge evidence, whether at trial or at an earlier inquisitorial investigation stage. The third is to identify the danger that a repeated repetition of a principle, often in identical words, “…may lead to its being applied automatically without consideration of whether, having regard to the particular facts of the case, its application is appropriate”. (Footnote: ⁴⁸)

Lord Phillips next considered the so-called “sole or decisive” rule. He noted that, in Doorson v The Netherlands, (Footnote: ⁴⁹) the ECtHR had said, at paragraph 76 that:

“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”.

Lord Phillips stated that this went further than previous decisions of the ECtHR had done, because it appeared to state an absolute rule that even where there was a justification for not calling a witness, to base a conviction solely or decisively on that witness’s evidence would be unfair. (Footnote: ⁵⁰) He noted that in that case the ECtHR gave no explanation of the “sole or decisive” rule, nor had it done so in subsequent decisions, either in the case of anonymous witnesses or where a witness could not be called. (Footnote: ⁵¹) But he concluded that the ECtHR must have decided that in the case of a conviction based “solely or decisively” on the evidence of an anonymous witness or one not called and cross-examined (as opposed to a conviction based only partly on such evidence) it violated Article 6(3)(d), because such a conviction “would not be safe”.

Lord Phillips continued by reiterating the concerns of the Court of Appeal over the impracticality of trying to apply the “sole and decisive” test, at least in cases where it was suggested that the evidence of the absent or anonymous witness is said to be “decisive”. The trial judge would have to try and predict whether a particular statement was capable of proving “decisive” for the jury; no easy task. And, he said: “If ‘decisive’ means capable of making the difference between a finding of guilt and innocence, then all hearsay evidence will have to be excluded”. (Footnote: ⁵²)

Finally, Lord Phillips analysed the decision in Al-Khawaja itself.He noted, first, that, at paragraph 34, the judgment had set out “general principles applicable to both cases [viz. absent and anonymous witnesses]”. It is worthwhile repeating the passage of the ECtHR’s judgment which Lord Phillips quotes at [96] of his own judgment:

“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). (Footnote: ⁵³)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 (Footnote: ⁵⁴)as illustrations of matters to be taken into account when considering whether a fair trial has been held (see Barberà v Spain; (Footnote: ⁵⁵)Kostovski v The Netherlands). (Footnote: ⁵⁶)”

Lord Phillips stated that he found it impossible to reconcile this passage with other statements of the ECtHR that the fairness of a trial is to be assessed on a case by case basis, looking at the trial as a whole and that “..an inability on the part of a defendant to examine the maker of a statement that is admitted in evidence will not necessarily render the trial unfair”. (Footnote: ⁵⁷)

Next, Lord Phillips quoted paragraph 36 of the ECtHR’s judgment, which itself referred to paragraph 40 of its decision in Lucà v Spain, which stated:

“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(I)(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 to 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…”.

As Lord Phillips then pointed out, (Footnote: ⁵⁸) neither proposition is self-evidently correct. A mere opportunity to challenge a deposition does not make its admission at the trial fair even if the maker is there to be cross-examined. The second proposition is plainly not a corollary of the first proposition. It is a rule that has resulted from the Strasbourg case law.

Lastly in his analysis of the decision in Al-Khawaja, Lord Phillips examined paragraph 37 of the ECtHR’s judgment. He commented (Footnote: ⁵⁹) that the paragraph “did not completely close the door to the possibility of ‘counterbalancing factors’ being sufficient to justify the introduction of a statement as sole or decisive evidence in [circumstances other than a refusal to testify through fear].”

Lord Phillips completed his survey with this conclusion: (Footnote: ⁶⁰)

“In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason”.

Lord Brown of Eaton-under-Heywood agreed with Lord Phillips and expressed the hope that the Grand Chamber of the ECtHR would “clarify the law on hearsay evidence and recognise that our domestic legislation is compatible with Article 6”. (Footnote: ⁶¹)

The Grand Chamber consisted of 17 judges of the Court, including Sir Nicholas Bratza, who sat as the national judge in a case brought against the United Kingdom. He is the ECtHR’s current President. The judgment of the majority (Footnote: ⁶²) reviews the circumstances of the two cases, the relevant domestic statutory law, practice and case law (including Horncastle) and then considered relevant comparative law. It summarises the Chamber’s decision and the submissions of the parties. From [118] the judgment sets out the Grand Chamber’s assessment.

The judgment first sets out some general principles. We hope we can fairly summarise these as follows: (1) the admissibility of evidence is a matter for regulation by national law and national courts. The ECtHR’s only concern is to see whether the proceedings have been conducted fairly. (2) The guarantees in Article 6(3)(d) are specific aspects of the right to a fair hearing set out in Article 6(1). The guarantees in Article 6(3)(d) have to be taken into account in any assessment of the fairness of the proceedings, but the ECtHR’s concern under Article 6(1) is to evaluate the overall fairness of the criminal proceedings. (3) The principle enshrined in Article 6(3)(d) is that all evidence against an accused must normally be produced in his presence at a public hearing “with a view to adversarial argument” before the accused can be convicted. Exceptions to this rule are possible but must not infringe the rights of the defence. As a rule they include the right to have an adequate and proper opportunity to challenge and question a witness who is against the accused, whether this is done at the time he initially made his statement or later in the criminal proceedings. (Footnote: ⁶³) (4) There must be good reason for the “non-attendance” of a witness. That reason must be investigated before considering whether that person’s evidence is “sole or decisive”. (Footnote: ⁶⁴) (5) “When 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 [at any stage in the criminal proceedings], the rights of the defence may be restricted to an extent that is incompatible with the guarantees provided by Article 6: (the so-called “sole or decisive rule”). (Footnote: ⁶⁵) The ECtHR characterises the admission of a witness statement in lieu of live evidence at trial in circumstances where the witness had not been examined at any prior stage as a “measure of last resort”. (Footnote: ⁶⁶)

The ECtHR then considers the history and rationale of its “sole and decisive” rule. It states the rationale in the form of an axiom that “if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted.” (Footnote: ⁶⁷) At this stage there is neither a definition of the “defence rights” nor any discussion of what the axiom implies, which must be that there can be acceptable restrictions on the “defence rights”.

The judgment next examines objections to the “sole or decisive” rule. In doing so it recognises that what it describes as English law’s “dilutions of the strict rule against hearsay,” by virtue of the CJA (and the 1988 Act), have been accompanied by statutory safeguards. It therefore accepts that “the central question in the present case is whether the application (Footnote: ⁶⁸) of these safeguards was sufficient to secure the applicants’ rights under Article 6 (1) and (3)(d)”. (Footnote: ⁶⁹)

The judgment debates the question of what is covered by the word “decisive” which the Court of Appeal and Supreme Court in Horncastle had criticised for being impossible of precision. The ECtHR states that the word, whose French equivalent is stated to be “déterminante” (Footnote: ⁷⁰)means more than “probative”. The Court states:

“Instead, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supporting evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be decisive”. (Footnote: ⁷¹)

For our part we respectfully suggest that this attempt to give the word “decisive” more precision so as to make the “sole and decisive” test more useful does not meet all the criticisms raised by both the Court of Appeal and the Supreme Court in Horncastle. In a trial with a jury in England and Wales, the judge is not the finder of fact. Even at the end of all the prosecution evidence, how is a judge able to determine whether a jury would regard a particular piece of hearsay evidence of an absent witness as passing from being “not decisive” to “decisive”? Or, to put it the other way round, how is he to assess whether other corroborative evidence is sufficiently strong to tip the balance so the relevant hearsay evidence turns from being “decisive” into “not decisive”? With great respect to the ECtHR’s statement at [134], when a judge is asked to withdraw the case from the jury on a submission of no case to answer at the close of the prosecution case, he does not test the “strength and reliability of the evidence of the prosecution”. He only has to decide whether the prosecution must fail for lack of evidence, or because the evidence overall is of such a weak and tenuous nature that no properly directed jury could reasonably convict on the basis of it. The strength and reliability of a particular piece of evidence is a matter for the jury, not the judge. As the Court of Appeal in Horncastle pointed out, section 125 introduced, for the first time in English law, a strictly limited principle that the judge, not the jury, should assess the importance and strength of particular hearsay evidence in the context of the case against the defendant. But section 125 does not have a “sole or decisive” criterion; it is a broader test.

We respectfully suggest that a more useful test is used by the ECtHR when it considers the facts of Al-Khawaja itself. (Footnote: ⁷²) It points out that the trial judge characterised the statement of the complainant (who had died) as: “no statement, no count one”. The statement of the victim was thus a necessary (although not necessarily sufficient) pre-condition of bringing the case to trial; it was, in the words of one distinguished commentator “the central piece of evidence without which the case could not proceed”. (Footnote: ⁷³) The ECtHR regarded that statement as “decisive”; (Footnote: ⁷⁴)even though there was other, strongly corroborative, evidence. (Footnote: ⁷⁵) The Court’s conclusion in that case was, effectively, that although the victim’s statement was “decisive”, it was not decisive enough to lead to an infringement of Article 6(1) or (3)(d), whereas the admission of the hearsay statement of the witness T in Tahery, which was also a “decisive” statement, did lead to an infringement. There must therefore be degrees of “decisiveness”.

The Court concludes (Footnote: ⁷⁶) that there are two reasons which underpin the “sole or decisive” rule first adumbrated fully in Doorson.These are: (1) untested statements of witnesses can look cogent and compelling, but often fall apart on cross-examination, so care is needed before they can be used against defendants; (2) a defendant must not be placed in a position where he is unable to defend himself properly because he cannot challenge a hearsay statement against him. The judgment then states, somewhat curiously, “Trial proceedings must ensure that a defendant’s Article 6 rights are not unacceptably restricted and that he or she remains able to participate effectively in the proceedings”. (Footnote: ⁷⁷) This again implies that a degree of restriction is permissible; but the degree of permissible restriction is not defined.

The judgment continues by saying that the ECtHR has always considered it necessary to examine the significance of the untested evidence to determine whether the defendant’s rights have been “unduly restricted”. (Footnote: ⁷⁸) In examining the “overall fairness of the proceedings” the ECtHR will consider “the way in which statutory safeguards have been applied” including the way in which the proceedings have been conducted by the trial judge. (Footnote: ⁷⁹)

The general conclusion on the “sole or decisive” test is set out at paragraph 147 of the ECtHR’s judgment. It is necessary to quote it in full:

“The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 (1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph 50 above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case”.

The judgment then examines the procedural safeguards contained in the 1988 Act and the CJA. (Footnote: ⁸⁰) It notes: (1) the use of statements of absent witnesses has to be justified and must fall within one of the identified categories; (Footnote: ⁸¹)(2) the effect of sections 114(3), 124, 125 and section 126(2), together with section 78 of PACE; (3) the common law requirement that the judge direct the jury on the burden (and we would add standard) of proofto be attained before they can convict and the dangers of relying on a hearsay statement. The Court concludes that those safeguards are, in principle, “strong safeguards designed to ensure fairness’. But it remained to see how they were applied in the two cases before it.

The Court concluded that in Al-Khawaja’s case there were “sufficient counterbalancing factors” to the difficulties caused to the defence by admitting the dead victim’s statement (which it characterised as “decisive”) to conclude that its admission “did not result in a breach of Article 6(1) read in conjunction with Article 6(3)(d) of the Convention”. (Footnote: ⁸²)

But the Court reached the contrary conclusion in Tahery’s case. In doing so it seems to have concluded that the hearsay evidence of the witness who would not give evidence was not “demonstrably reliable”. Yet because it was the only evidence that Tahery had stabbed the victim and it was uncorroborated, it was “decisive”. The Court rejected HM Government’s submission that the combination of (a) the judge’s conclusion that the admission of the statement would not be unfair; (b) the defendant’s ability to challenge the statement in evidence; and (c) the judge’s full and careful summing up and direction to approach the evidence given by an absent witness with care all constituted sufficient counterbalances to the handicap under which the defence laboured. The Court noted that the defendant “was not able” to call any other witness to contradict the evidence in the hearsay statement and also the equivocal and circumstantial evidence of the victim. Overall, the Court concluded:

“…there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement [so that] there has been a violation of Article 6(1) read in conjunction with Article 6(3)(d)”.

The ECtHR’s necessarily elaborate judgment is difficult to summarise, but we think that, for present purposes, the pertinent points are as follows: (1) issues of the admissibility of evidence are for national courts. (2) The ECtHR is primarily concerned, in respect of Article 6(1), with the overall fairness of the criminal proceedings concerned. (3) In such proceedings there has to be a good reason for the admission of hearsay evidence of an absent witness whose evidence is to be relied on and whose evidence has not been examined at some stage in the procedure. The admission of such hearsay evidence is a “measure of last resort”. (4) In order to decide whether the admission of such a hearsay statement would lead to overall unfairness and a breach of Article 6(1) it is first necessary to see if the evidence is the “sole or decisive” evidence relied on for the conviction of the defendant. In this context, “decisive” means the central corpus of evidence without which the case cannot proceed. (5) If the evidence has that characteristic then its admission does not result automatically in a breach of Article 6(1) or Article 6(3)(d). (6) To decide whether that is the case, the existence and application of sufficient “counterbalancing measures” in the trial process, including the existence and use of strong procedural safeguards, must be considered. (7) These measures will include those that permit a fair and proper assessment of the reliability of the relevant hearsay evidence to be undertaken before its admission and afterwards if it is admitted. (8) The question in each case is whether (a) the existence of these “counterbalancing measures” and (b) their proper enforcement in the instant case, is sufficient to enable the defence to counter the handicaps it would suffer by the introduction of the untested hearsay evidence. The defendant’s Article 6 rights must not be “unacceptably restricted”.

It seems to us that, at least so far as the hearsay evidence of dead witnesses is concerned, the ECtHR appears to conclude that the combined “counterbalancing measures” of the common law, section 78 of PACE and the provisions of the CJA are in principle sufficient to make a trial fair in cases where the untested hearsay evidence sought to be admitted is the “decisive” evidence against the defendant. That seems consistent with the principle of “last resort” and means that a prosecution for a serious offence can proceed, provided the “counterbalancing measures” are rigorously applied. That is always going to be the acid test in any particular case.

In R(RJM) v Work and Pensions Secretary (Footnote: ⁸³) the House of Lords stated that where the Court of Appeal considers that an earlier decision of the House of Lords, which would otherwise be binding on the Court of Appeal, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then, other in wholly exceptional circumstances, the Court of Appeal must faithfully follow the decision of the House of Lords. That principle continues to apply. There are no “wholly exceptional circumstances” which might prevent this principle from applying to the present case. (Footnote: ⁸⁴) Thus, even if we were to conclude that Al-Khawaja- GC is not consistent with the approach of the Supreme Court in Horncastle, it is for the Supreme Court to decide what to do about it, not us; we have to follow the principles laid down in Horncastle.

It seems to us that there is a difference in approach between the Supreme Court’s decision in Horncastle and the Grand Chamber’s decision in Al-Khawaja. First and foremost, the Supreme Court declined to apply “the sole or decisive” test, at least to the two cases before it. The Grand Chamber confirmed that this test remained part of the Strasbourg jurisprudence, although it accepted that the consequence of concluding that a particular piece of untested hearsay evidence was “sole or decisive” did not automatically mean that the particular trial where that evidence was admitted was unfair.

This difference may be more one of form than substance, however. Thus, the Court of Appeal talked of a conviction being based “solely or to a decisive degree on hearsay evidence admitted under the CJA” (Footnote: ⁸⁵) and the Supreme Court talked of the hearsay evidence being “critical evidence”. (Footnote: ⁸⁶)That may not be very different from the Grand Chamber’s concept of “sole or decisive”. (Footnote: ⁸⁷) Next, the Court of Appeal and the Supreme Court both emphasise that when the untested hearsay evidence is “critical”, the question of whether the trial is fair will depend on three principal factors. First, the English courts accept that there has to be good reason to admit the untested hearsay evidence. To decide this under English law there must be compliance with the statutory code. (Footnote: ⁸⁸) The Grand Chamber necessarily puts this requirement on a more general basis, but it emphasised the need for “justification”. (Footnote: ⁸⁹) Secondly, and we think most importantly, all three courts stipulate that there must be an enquiry as to whether that evidence can be shown to be reliable. (Footnote: ⁹⁰) Thirdly, all three courts are concerned with the extent to which there are “counterbalancing measures” and if so whether they have been properly applied in deciding whether to admit the “critical” untested hearsay evidence or to allow the case to proceed. In the case of England and Wales those “counterbalancing measures” must include all the statutory safeguards in the “code”, (Footnote: ⁹¹) as well as a proper application of common law safeguards, such as proper directions in the summing up. The Grand Chamber emphasised the same thing at paragraph 144 and particularly in its “general conclusion on the sole or decisive rule” at paragraph 147, which we have quoted above.

It seems to us that, consistently with the judgments of the Court of Appeal and Supreme Court in Horncastle, but, we think, in practice also consistently with the approach of the Grand Chamber in Al-Khawaja, we must deal with four questions in order to determine whether the appellant had a fair trial and so determine whether his conviction on count one is safe. The first is: was there proper justification for admitting the untested hearsay evidence in Ms Walker’s statements. Under English law, this must depend on whether the conditions of section 116(1) and (2)(a) were satisfied, although that test is also subject to the “counterbalancing measures” in the statutory “code” and the common law. Secondly, how important are the three untested hearsay statements of Ms Enith Walker in relation to the prosecution’s case against the appellant on count 1? Do they amount to the “central corpus of evidence without which the case could not proceed” on count one, to use Professor Spencer’s phrase. (Footnote: ⁹²) Thirdly, how “demonstrably reliable” are those statements? Fourthly, were the “counterbalancing safeguards” inherent in the common law, the CJA and section 78 of PACE properly applied in this case so as to ensure that the appellant did have a fair trial?

We think, (again, we hope consistently with the approach of the Court of Appeal and the Supreme Court but, also, with that of the Grand Chamber) that all these four issues are interlocking, particularly the latter three. The more central the untested hearsay evidence, the greater the need to ensure that there is proper justification for its admission; and the greater the need to ensure that the untested hearsay evidence is reliable and to ensure that there are adequate “counterbalancing measures” which have been properly applied in this particular case. All three courts agreed that, ultimately, there is only a single test: did the defendant have a fair trial or not.

Ms Danielle Cooper, who both advised the appellant at the stage when leave to appeal out of time was sought and obtained as well as appearing before us, advanced four grounds of appeal. She argued them with conspicuous conciseness and clarity. Ground one is the general one, viz. that the admission of the three hearsay statements of Ms Walker pursuant to section 116(2)(a) of the CJA caused the trial of the appellant to be unfair and contrary to the appellant’s rights in Article 6(1). The three more particular grounds are: that the judge should have excluded the three statements pursuant to section 78 of PACE because the admission of that evidence had such an adverse effect on the fairness of the proceedings such that they ought not to have been admitted: ground 2. Next, at the latest by the conclusion of all the evidence in the case the judge should have stopped the case and directed the jury to return a verdict of not guilty in relation to count 1, pursuant to section 125 of the CJA: ground 3. Lastly, the judge failed adequately to direct the jury on the dangers of relying on hearsay evidence: ground 4.

In oral argument, Ms Cooper emphasised the importance of Ms Walker’s three statements for the prosecution’s case on count 1. Further, in her submission the first two statements, at least, were not reliable for the following reasons: (1) Ms Walker was a heroin addict. Ms Cooper pointed out that in Horncastle the Court of Appeal had described drug users as belonging to a category who might be thought to be very unreliable as witnesses. (Footnote: ⁹³) (2) Ms Walker had made a false complaint and had also given an untrue reason for not telling the police about the rape when seen by WPC Baldwin on the night of the alleged rape (viz. that she was subject to an ASBO). (3) There were manifest inconsistencies between her account to Ms Cook of the incident in 2004 and that set out in her 7 October 2005 statement. (4) There was no rational explanation of the 2 ½ year delay in making a statement alleging the rape by the appellant. (5) Although Ms Walker had identified the appellant on an identity procedure, that was after a well publicised civil injunction had been imposed on the appellant and a photograph of him as the man thought to be the “serial rapist” had been produced to all female sex workers in the Edgbaston area in order to minimise their risk.

Ms Cooper submitted that the three statements of Ms Walker should have been excluded by the court, exercising its power under section 78 of PACE, although she accepted that this had not been argued below. The statements were too unreliable and so it was unjust to admit them. She submitted that the test under section 78 and the “interests of justice” tests in section 114(2) of the CJA that a Court had to consider before permitting hearsay evidence to be admitted pursuant to section 114(1)(d) were similar and the “check list” in section 114(2) was a useful guide when deciding whether the court should exclude hearsay evidence sought to be admitted under section 116(1)(a).

In the alternative, Ms Cooper submitted that the judge erred in not accepting the submission of counsel for the defence at the close of the prosecution case that there was no case to answer on count 1 or that the jury should be directed to acquit pursuant to section 125. In that regard, Ms Cooper submitted that the two tests were different, but accepted that this court had stated (Footnote: ⁹⁴) that the standard required for section 125 is not higher than that required for a submission of no case pursuant to R v Galbraith. Lastly, Ms Cooper submitted that the judge had failed to give any warning to the jury about the dangers of untested hearsay evidence and that failure was not mitigated by the reference to the agreed facts on the credibility (or lack of it) of Ms Walker’s statements.

For the Crown, Mr Andrew Jackson submitted that the key issue was whether Ms Walker’s statements were sufficiently reliable to be admissible. He submitted that they had to be assessed in the context of the overall evidence that was adduced by the prosecution in relation to count 1. He emphasised: (1) the appellant accepted that he had encountered Ms Walker that night and they had discussed the question of sex. (2) Therefore the suggestion of collusion as to identification was irrelevant; the issue was whether he had had vaginal intercourse without consent as Ms Walker had alleged. (3) The evidence of Ms Toogood and the 999 call. (4) the fact that the police found the appellant running away from the scene after they had responded to the 999 call and there was evidence he had struggled. (5) Ms Walker was found in the vicinity by WPC Baldwin and was upset.

Mr Jackson also submitted that the defence had the means available to attack the credibility of Ms Walker generally. In particular it had the agreed statement of facts, the differences between Ms Cook’s record of Ms Walker’s statement about the 2004 incident and the differences between Ms Walker’s evidence and that of Ms SES concerning the phone box.

Mr Jackson further submitted that although the wording of section 125 of the CJA is different from the formula of Lord Lane CJ in Galbraith, the effect is the same. It is, he submitted, inconceivable that a submission on the second limb of Galbraith would fail, but would succeed on section 125. The judge was correct to reject both submissions.

Lastly, Mr Jackson submitted that there were no significant omissions in the summing up of the judge. Accordingly the appellant had a fair trial and his conviction was safe.

The first question is whether there was proper justification for admitting the untested hearsay evidence in the three statements. If Ms Walker had been alive to give oral evidence, the substance of her three statements would have been admissible as evidence that was relevant to counts 1 and 2. She was identified to the court’s satisfaction and she had died by the time of the trial. So, by virtue of the statutory conditions set out in section 116(1) and (2)(a) there was proper justification for admitting the statements as hearsay evidence, subject to the issue of sufficient “counterbalancing measures”.

The three statements of Ms Walker, and especially the first one of 7 October 2005, were very important in relation to the prosecution’s case against the appellant. We would say that they were central. Without the statement of 7 October 2005, the case against the appellant on count 1 could not have proceeded.

How reliable were those statements, in particular that of 7 October 2005? The first thing to note must be that the jury did not find that statement reliable so far as count 2 is concerned because they acquitted the appellant of that charge. The prosecution’s evidence on that consisted, effectively, of the statement of 7 October 2005 and the evidence from Ms Cook. (Ms SES’s evidence was derived from Ms Walker). Secondly, Ms Walker was a heroin addict and, so, to use the Court of Appeal’s words in Horncastle (Footnote: ⁹⁵) “…might be thought to belong to a category of the potentially very unreliable[witness]”. Thirdly, Ms Walker had demonstrated not long before the alleged rape in March 2003 that she was not reliable because she made her false allegation of a sexual assault in January 2003, which was then withdrawn a day later. Ms Walker had been prepared to make this false allegation in a section 9 CJA 1967 form of statement where she attested to its truth and claimed to understand the consequences of giving an untrue statement. Fourthly, Ms Walker claimed that the reason that she had not told WPC Baldwin about the attack was fear of being in breach of her ASBO, when she was not, in fact, subject to one at that time. Even if in October 2005 Ms Walker could not be expected to recall the date when the ASBO had been imposed, it clearly could not in fact have been the reason for not saying anything to the police as at March 2003, because she was not subject to an ASBO then. There must have been some other reason for not saying anything, despite the fact that Ms Walker was, according to WPC Baldwin, very upset when the police officer encountered her that night. Fifthly, the statement was made in October 2005 and there was no explanation whatsoever for the two and a half year delay in making it.

We accept that we have to balance against those matters that the facts that (a) the appellant admitted that he had encountered Ms Walker that evening; (b) Miss Toogood’s evidence of hearing a scream of “rape” supported Ms Walker’s account; and (c) the actions of the appellant when he was found by the police (running away and struggling) suggest possible foul play.

The question is whether, on the central issue of whether the appellant had non-consensual sexual intercourse with Ms Walker that evening, her principal statement can be “shown to be reliable”, to use Lord Phillips’ words in Horncastle. (Footnote: ⁹⁶)We are not satisfied that it can be. The only directly supporting evidence is Ms Toogood’s account of hearing a scream of “rape”. That is not enough to convince us that the statement is shown to be reliable, given the other contrary factors.

We are not even satisfied that the third statement, dealing with the identification, can be shown to be reliable, in the sense that this was a truly independent identification, given the publicity that had been given to the identity of the alleged rapist.

What is the consequence of this conclusion? In our view, if counsel for the defence had had the benefit of the judgments of the Court of Appeal and Supreme Court in Horncastle and that of the Grand Chamber in Al-Khawaja, he would have been bound to have made a submission that even though Ms Walker’s hearsay statements satisfied the conditions in section 116(1) and (2)(a), the court should exercise its power to exclude them, pursuant to section 78 of PACE. If, as we have concluded, those statements were central to the prosecution’s case on counts 1 and 2 and if, as we have concluded, they are not shown to be reliable, then we think it must follow that the admission of that untested hearsay evidence would have had such an adverse affect on the proceedings that the court ought not to have admitted the statements. If the court were to have considered all the factors set out in section 114(2) of the CJA as a kind of checklist, we think that, inevitably, the scales would have come down firmly in favour of excluding the statements.

We do not accept the submission that the question of reliability and the credibility of Ms Walker’s evidence should have been left to the jury. It seems to us that the clear effect of the judgments of the Court of Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it can be admitted. That is also the view of the Grand Chamber of the ECtHR. That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA.

Further, even if that view be wrong, we have concluded that the judge should have acceded to the defence submission made pursuant to section 125 of the CJA. The judge erred in stating that the evaluation of the untested hearsay evidence of Ms Walker was a matter for the jury. First, under section 125(1)(a) the judge had a duty to decide whether the case against the appellant on count 1 was based wholly or partly on Ms Walker’s statements. It plainly was based at least partly on her statements; in fact they were central to the prosecution case. Secondly, under section 125(1)(b) the judge then had to decide whether the evidence was so “unconvincing” that, considering its importance to the case against the appellant on count 1, his conviction of the offence would be unsafe.

It seems to us that when the judge is considering whether the untested hearsay statement falls foul of section 125(1)(b), he has to have uppermost in his mind whether the statement has been shown to be reliable in the light of all the other evidence then adduced. If an untested hearsay statement is not shown to be reliable and it is a statement that is part of the central corpus of evidence without which the case on the relevant count cannot proceed, then we think that the effect of the decisions in Horncastle and Al-Khawaja – GC is that the statement is almost bound to be “unconvincing” such that a conviction based on it will be unsafe. In our view, the principal statement of Ms Walker, untested hearsay that it was, was sufficiently unconvincing that, considering its importance to the case against the appellant on count 1, his conviction on that count would be unsafe.

We are not convinced that the test in section 125 and that in Galbraith will necessarily be the same. When there is a submission of no case to answer, the judge does not have to satisfy himself that the relevant evidence has been shown to be reliable before leaving the case to the jury. Under Galbraith, provided the evidence gets over the threshold tests set out in that case, issues of reliability and the importance of particular pieces of evidence are quintessentially jury issues. But under section 125, given the approach of the courts in Horncastle and that of the Grand Chamber in Al-Khawaja, it seems to us that the judge is duty bound to make his assessment of reliability and importance of the hearsay evidence that has been admitted, before making his decision on whether to let the case proceed or not.

Therefore, in this case, we have concluded that the judge should have stopped the case in respect of count 1. Given the centrality of Ms Walker’s statements to count 1, we think that the judge would have been bound to direct the jury to acquit the appellant of that charge.

These conclusions means that we do not need to consider in detail Ms Cooper’s further submission on the failings of the summing up. However, we think it important to reiterate the statement made in Blackstone’s Criminal Practice (2012 Ed) para F 16.26. The learned authors emphasise the requirement that a jury be reminded that a hearsay statement admitted under Chapter 2 of Part 11 of the CJA will not (usually) have been verified on oath; it will certainly not have been tested by cross-examination. The judge should identify and point out the specific risks of relying on that evidence and should invite the jury to scrutinise it with particular care. The jury’s attention should be drawn to the context in which the statement was made and to all the other evidence in relation to it. If there are discrepancies between the hearsay statement and the evidence of other witnesses the jury’s attention should be specifically drawn to them.

We are, of course, very conscious that the judge in this case did not have the benefit of the Court of Appeal and Supreme Court’s judgment in Horncastle, nor that of the ECtHR’s Grand Chamber in Al-Khawaja. But nevertheless we think we should note that in his summing up the judge did not specifically invite the jury to scrutinise the evidence in the hearsay statements with particular care. The judge did not point out specifically the risks of relying on untested hearsay statements which were central to the prosecution case on count 1. The judge did not draw the jury’s attention specifically to the discrepancies between what Ms Walker had said in her October 2005 statement about the 2004 incident and what had been recorded by Ms Cook in the statement made (and signed by Ms Walker) on 19 February 2004. Nor was there a specific warning about the discrepancy between Ms Walker’s statement on the 2004 incident and Ms SES’s evidence (Footnote: ⁹⁷) that she had never been in a phone box with Ms Walker when there was a further allegation of rape.

In all these respects we have concluded that the “counterbalancing measures” that are contained in the provisions of Chapter 2 of Part 11 of the CJA and in the common law were not properly applied in this case. Accordingly, for all these reasons we must conclude that, in relation to count 1, the appellant did not have a fair trial and his rights under Article 6(1) were infringed.

The appellant’s conviction on count 1 is therefore unsafe. The appeal must be allowed and the conviction on count 1 must be quashed.

As a consequence of this conclusion, we have been asked to exercise our powers under section 4 of the Criminal Appeals Act 1968 (as amended) in relation to the sentences of 10 years imprisonment imposed on the appellant in respect of each of his convictions for rape on Counts 13 and 14. These are the convictions for the oral and vaginal rape of Ms SES. The rapes occurred on the same occasion.

The facts, very briefly, are these: Ms SES worked as a prostitute to pay for her drug habit. In September 2005 she was approached by a man who asked her how much it would be for sex. She agreed a price and followed him to a car park where there was some conversation and the man smoked some cannabis. The man then pushed Ms SES and held her with something in her back which she could feel through her coat. She said that she thought it might have been a knife and that he later said “I will cut you”. She said that she performed oral sex on the man (wearing a condom) because she believed that she might be stabbed if she refused. She said that she asked for money and that he said that he would give her £5. She said that the man then pushed her further into the bushes and raped her vaginally from behind although only partially because she had her hand in the way to stop him. She said that he ejaculated and she did not know what had happened to the condom. She said that she did not shout or scream because she thought he might stab her and that when she walked away she dialled 999.

The police responded to the 999 call. Ms SES was found by the police to be very scared and crying. She was examined by a doctor later that day and there was no evidence that either supported or refuted an allegation of sexual assault. No used condom was ever found and no semen detected on vaginal swabs, her coat, tights or knickers. However DNA from the appellant and Ms SES was detected on the front inside of the appellant’s shorts.

It is submitted that the starting point for these offences is 5 years imprisonment concurrent for each one. It is accepted that the fact that there were two offences on the same occasion and that there was the suggestion of the threat of the use of a knife constitute aggravating features so that the starting point must be higher. As against that, however, it is said that there had been an agreement to perform sexual acts before the offences occurred. It is also emphasised that the appellant was only 19 at the time of the offences and of previous good character.

When the judge passed sentence he emphasised the seriousness of the offences against the victims. He concluded that the offences were “planned and deliberate” offences; he also concluded that the appellant had deliberately gone out armed with a knife. Now, as a result of our conclusion, we have to consider the seriousness of the two offences, on the same occasion, against a single victim, as well as the mitigating factors.

The starting point for a single offence of rape would be 5 years. However, these were two offences which were committed one immediately after the other. The judge was correct to emphasise the seriousness of their effect on the victim. She may have been prepared to engage in consensual sex for money but that does not mean she was prepared to undergo the ordeal she must have suffered. The threat of the knife (to which the judge specifically referred) is another aggravating factor; so also is the fact that the appellant ejaculated after the vaginal rape. Although the appellant was previously of good character and only 19 at the time of the offences, he can claim no discount, having disputed these matters at the trial.

We have given very careful consideration to the question of whether the sentence for the two offences of rape should be reduced from that of 10 years passed by the judge. In the end we have concluded that the sentences should not be disturbed. They are appropriate sentences in all the circumstances of the case.