- Farook’s written statement is hearsay within the meaning of the Criminal Justice Act 2003 (the CJA), s 115(2) and (3)(a). It will not be admissible unless one of the statutory exceptions applies (see CJA s 114(1)). See The Modern Law of Evidence (MLE) 13th ed at pp352-353.
- As Farook says he is too frightened to attend trial and give oral evidence, the relevant exception the prosecution will rely on to admit his statement is CJA, s 116(2)(e). This provision permits the hearsay statement of a witness to be admitted with the leave of the judge where the witness is unavailable through fear. See MLE 13th ed at pp378-382.
- According to s 116(3), ‘fear’ is to be widely construed so that it includes fear not just of death or personal injury to self or another, but also, for example, fear of financial loss. It can be inferred from the question that Farook’s fear concerns his personal safety. See MLE 13th ed at pp378-379.
- Under CJA, s 116(4), the court will grant leave to admit Farook’s statement if it is in the interests of justice having regard to factors set out in s 116(4)(a)-(d). These factors are (a) the statement’s contents; (b) the risk of unfairness to any party arising from admission or exclusion, in particular how difficult it is to challenge the statement; (c) whether special measure might address the witness’s fear; and (d) any other relevant circumstances. Applying these factors to the facts in the question, the statement’s contents are highly probative. It is not clear the extent to which Tom will be able to challenge the statement, as he will obviously not be able to challenge Farook by cross-examination. However, he will be able to admit any evidence of Tom’s bad character (for example any convictions, his gang membership) and any other evidence which is relevant to Farook’s credibility - see CJA, s 124(2)(a) and (b). See MLE 13th ed at pp398-400.
- An issue that arises is that Farook’s statement will be the ‘sole or decisive’ evidence in the case. A conviction which is based wholly or mainly on hearsay evidence could potentially breach of Article 6(3)(d) and Article 6(1) if there are insufficient procedural safeguards and counterbalancing factors to permit a fair assessment of the reliability of the hearsay evidence.
- The facts of the question are based on the case of Tahery (see UK v Al Khawaja and Tahery) and from that case the following principles apply: (i) art 6(3)(d) normally requires an accused to have an adequate opportunity to challenge and question witnesses against him; (ii) there must be a good reason for the witness’s non-attendance; (iii) if the witness is in fear because of the accused, then the witness’s hearsay statement may be admissible even if it is sole or decisive; (iv) there should be objective grounds for fear, supported by evidence; (v) all available alternatives such as special measures must be impracticable or inappropriate; (vi) a conviction based on sole or decisive hearsay will not automatically breach Art 6(1) provided that there are strong procedural safeguards and counterbalancing measures. Under the CJA, the safeguards are the tests for admissibility, the admissibility of evidence relating to the absent witness’s capability and credibility, the duty to stop the case where evidence is unconvincing and various exclusionary discretions. The exclusionary discretion under PACE 1984, s78 is a further safeguard. Judicial warnings about hearsay evidence are also ‘counterbalancing’. See MLE 13th ed at pp 401-404 and 404-405.
- In Tahery, there was a breach of Art 6(1) and 6(3)(d) on the facts of the case because neither T’s ability to give evidence or judicial warnings were sufficient to address the unfairness to T from the admission of a sole or decisive hearsay statement. The absent witness was the sole witness against T and T had no witnesses he could call on to contradict the witness. See MLE 13thed at pp 402-403.
- The ‘sole or decisive’ rule is the name given to the principle developed in European jurisprudence that a breach of Article 6 occurs where a conviction is based solely or to a decisive degree on statements or depositions made by a witness who the accused has had no opportunity to question, unless the witness has been kept from giving evidence by fear induced by the accused. See Luca v Italy (2003) 36 EHRR 807 and Al-Khawaja and Tahery v UK (2009) 49 EHRR 1: see MLE 13th ed at pp355-358.
- An issue has arisen as to whether a breach of Article 6 occurs if, in a criminal case in the UK, an accused’s conviction is based solely or to a decisive degree on hearsay admitted under the hearsay provisions of the Criminal Justice Act 2003. This was considered by the Supreme Court in R v Horncastle  2 AC 373, SC. In Horncastle, the Supreme Court affirmed an earlier decision of the Court of Appeal in R v Horncastle  2 Cr App R 230 (15), in which it was stated that the safeguards in the 2003 Act concerning the admissibility of hearsay represented a ‘carefully crafted code’ which ensured that hearsay evidence, including sole or decisive hearsay evidence, would only be admitted if fair. It was held that the decision in Al-Khawaja and Tahery v UK (2009) 49 EHRR 1 did not require a sole or decisive rule to be applied in the UK in order for a trial to comply with the requirements of fairness under Article 6. See MLE 13th ed at pp355-357.
- In R v Horncastle  2 AC 373, SC, Lord Phillips stated a number of principles concerning the sole or decisive rule which are set out in MLE 13th ed at pp355-358. It was stated that, (a) the exceptions to the hearsay rule are not subject to a ‘sole or decisive’ rule - such a rule is unnecessary because of the safeguards in the hearsay provisions (the statutory requirements that need to be meet before hearsay is admitted and the discretion to exclude hearsay evidence: see ss 114(1)(d), s 116, s 117, s 118, s123, 124, 125 and 126); (b) the sole or decisive rule was introduced into Strasbourg jurisprudence without a proper discussion of the principle underlying it or whether it could be justified as an overriding principle which should cover both common law and continental jurisdictions;(c) English Law would in almost all cases reach the same decision about the admissibility of hearsay evidence as the Strasbourg court, where the latter had invoked the rule; (d) the rule would create excessive practical difficulties if applied in English criminal procedure because, in the context of a jury trial, the judge would have to rule inadmissible any witness statement capable of proving decisive, which would be no easy task; and (e) it would often be impossible for the Court of Appeal to decide whether a particular statement was the sole or decisive basis of a conviction in the absence of reasons being given for a jury’s verdict.
- The decision in R v Horncastle is open to criticism. It created conflict of legal (and political) authority as between the Strasbourg court and the Supreme Court of the UK. It resulted in the Strasbourg court’s decision in Al Khawaja and Tahery (2009) 49 EHRR 1 being referred back to the Grand Chamber of the Strasbourg court at the request of the UK government. In Al Khawaja and Tahery v UK (2012) 54 EHRR 23, the Grand Chamber held that the admissibility of evidence is a matter for regulation by national law and the national courts and its only concern was to review whether proceedings were fair. It held that the rule was not an absolute rule and a conviction based on sole or decisive hearsay might not be a breach of Article 6 if, in the circumstances of the case, there are sufficient counter-balancing measures and safeguards. See MLE 13th ed at pp356-357.
- The Grand Chamber made some criticisms of the Supreme Court’s approach in Horncastle. The Grand Chamber stated that the same standard of review is applied under Art 6(1) and (3)(d) ‘irrespective of the legal system from which a case emanates’ and the justifications for the ‘sole or decisive’ rule are still valid (deliberate lies, inaccuracy, and avoiding an accused being placed in a position where he is effectively deprived of a real chance of defending himself because he is unable to challenge the case against him). Further, the rule does not create severe practical difficulties for English criminal procedure in respect of deciding whether hearsay evidence is ‘decisive’ because judges in common law systems are frequently asked to assess the strength and reliability of prosecution evidence. Similarly, such a rule would not create difficulties for appellate courts in deciding whether a statement was the sole or decisive basis for a conviction, because, again, appellate judges are experienced in deciding whether evidence was wrongly admitted at trial and whether, if it was, a conviction was still safe.
- More fundamental criticisms have been advanced by academic writers. Requa, for example, regards the hearsay provisions and the decisions in Horncastle as part of a permissive trend which increases the potential for violations of Article 6 and an illustration of the scope domestic systems have for divergence from European standards. See MLE 12th edn. Additional Reading, p 354: Requa, ‘Absent Witnesses and the UK Supreme Court: judicial deference as judicial dialogue?’ (2010) 14 E&P 208. Hoyano regards the Grand Chamber’s decision in Al Khawaja as a political capitulation in the face of the Supreme Court’s decision in Horncastle, criticises the use of the idea of ‘balancing’ to erode fundamental rights, and argues that that the sole or decisive rule should be reinstated as part of a ‘bedrock’ or ‘bottom line’ for the right to a fair trial. See MLE 13th ed, Additional Reading, p411: Hoyano, ‘What is Balanced on the Scales of Justice? In Search of the Right to a Fair Trial’  Crim LR 4.
- However, any divergence between the principles stated in the decisions in Horncastle and the Grand Chamber’s decision in Al Khawaja and Tahery will make little difference in practice in day to day criminal trials where cases involve sole or decisive hearsay. Differences are more a matter of form than substance, as was noted in R v Riat  1 WLR 2592, CA.
- Requa notes that R v Horncastle was an illustration of a permissive trend in respect of Article 6, and arguably this trend is being encouraged by further developments in Strasbourg jurisprudence. The decision the Grand Chamber’s decision in Al Khawaja and Tahery v UK must be seen in the light of a subsequent decision of the Grand Chamber in Schatschaschwili v Germany  ECHR 1113. In Schatschaschwili v Germany, it was held that where hearsay evidence was significant but it was unclear whether it was sole or decisive, there was still a need to consider whether there were counterbalancing measures which were sufficient to permit a fair and proper assessment of the evidence (see also Price v UK  ECHR 15602/07). However, the effect of recent decisions of the European Court of Human Rights is that there is no longer (necessarily) a requirement for a good reason for the absence of the witness, although a good reason for the witness’s absence is an important factor. This represents a significant dilution of the principles in Al Khawaja and Tahery v UK and goes much further than R v Horncastle. The effect is that sole or decisive evidence from a reluctant witness may in principle be admitted, provided there are sufficient counterbalancing measures. This occurred in Seton v UK  ECHR 318. See MLE 13th ed at pp358-359.