Chapter 6 key debates

Hearsay evidence

Topic

A review of the Grand Chamber judgment in Al-Khawaja and Tahery (2011) and the European Court of Human Rights judgment in Ellis, Simms and Martin (2012)

Author

B deWilde

Viewpoint

The abandonment of the absolute application of the ‘sole and decisive rule’ in relation to the admissibility of hearsay evidence and the opening up of the possibility of basing a conviction on anonymous witness statements has diminished the right to examine witnesses. Although the ECtHR has stressed the need for counterbalancing factors, the nature of these is not clear. The author argues that the right to a fair trial implies the right to question decisive witnesses, and if this is not possible or desirable the defendant should be acquitted.

Source

‘A Fundamental Review of the ECHR Right to Examine Witnesses in Criminal Cases’ (2013) 17/2 E&P 157

Topic

The principles underpinning reform of the hearsay rule

Authors

P Roberts and A Zuckerman

Viewpoint

The hearsay sections in the CJA 2003 have flaws, including poor drafting, but overall they are progressive, and entrust the judges with discretion to operate the statute within the dictates of common sense and justice. Clear judicial directions to the jury are vital and, in particular, in the cases where hearsay is adduced by the prosecution, compliance with Art 6 and the common law require the judge to draw attention to problems associated with hearsay evidence.

Source

Criminal Evidence (OUP, 2010) pp432–441

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