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JUDGMENT
R v Horncastle and others (Appellants) (on appeal
from the Court of Appeal Criminal Division)
before
Lord Phillips, President
Lady Hale
Lord Brown
Lord Mance
Lord Neuberger
Lord Kerr
Lord Judge
JUDGMENT GIVEN ON
9 December 2009
Heard on 7, 8 and 9 July 2009
Appellants (Horncastle
and Blackmore)
Appellants (Marquis and
Graham)
Respondent
Tim Owen QC
John Gibson
Janet Reaney
Shaun Smith QC
James Beck
David Perry QC
Louis Mably
(Instructed by The
Johnson Partnership
Solicitors )
(Instructed by The Johnson
Partnership Solicitors )
(Instructed by Crown
Prosecution Service)
Page 2
LORD PHILLIPS, PRESIDENT
This is a judgment with which all members of the court agree.
Introduction
1. Each of the appellants has been convicted on indictment of a serious criminal
offence. Each has had an appeal against conviction dismissed by the Court of Appeal.
Each appeals on the ground that he did not receive a fair trial, contrary to article 6 of the
European Convention on Human Rights (“article 6”) (“The Convention”). The appeal of
each is based on the fact that there was placed before the jury the statement of a witness
who was not called to give evidence. In each case the witness was the victim of the
alleged offence.
2. Mr Horncastle and Mr Blackmore were convicted of causing grievous bodily
harm, with intent, to Mr Peter Rice. Mr Rice made a witness statement to the police about
what had happened to him. He died before the trial of causes not attributable to the
injuries that had been inflicted upon him. His statement was read at the trial. Although
there was other evidence that supported it, the Court of Appeal concluded that the
statement was “to a decisive degree” the basis upon which the appellants were convicted.
3. Mr Marquis and Mr Graham were convicted of kidnapping a young woman called
Hannah Miles. She made a witness statement to the police in which she described what
happened to her. The day before the appellants’ trial she ran away because she was too
frightened to give evidence. Her statement was read to the jury. A considerable body of
oral evidence was also given at the trial. The Court of Appeal held that the appellants’
convictions did not rest on the evidence of Miss Miles “to a decisive extent”. The
appellants challenge that finding.
4. Mr Rice’s witness statement was admitted pursuant to section 116(1) and (2)(a) of
the Criminal Justice Act 2003 (“the CJA 2003”), which makes admissible, subject to
conditions, the statement of a witness who cannot give evidence because he has died.
Miss Miles’ witness statement was admitted pursuant to section 116(1) and (2)(e) of the
CJA 2003, which makes admissible, subject to conditions, the statement of a witness who
is unavailable to give evidence because of fear.
5. The principal issue raised by these appeals is whether a conviction based “solely
or to a decisive extent” on the statement of a witness whom the defendant has had no
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chance of cross-examining necessarily infringes the defendant’s right to a fair trial under
articles 6(1) and 6(3)(d) which provide:
“(1) In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law….
. . .
(3) Everyone charged with a criminal offence has the
following minimum rights:
. . .
(d) to examine or have examined witnesses
against him and to obtain the attendance and
examination of witnesses on his behalf under the
same conditions as witnesses against him.”
6. The appellants submit that an affirmative answer must be given to this principal
issue. In each case it is submitted that the trial judge should have refused to admit the
statement on the ground that it was a decisive element in the case against the appellants.
This the judge could have done, either by “reading down” the relevant provisions of the
2003 Act so as to preclude the admission of hearsay evidence in such circumstances or by
excluding it under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”).
7. In so submitting the appellants rely on a line of Strasbourg cases, culminating in
the decision of the Fourth Section of the European Court of Human Rights (“the
Chamber”), delivered on 20 January 2009, in the cases of Al-Khawaja and Tahery v
United Kingdom (2009) 49 EHRR 1. In each of those applications statements had been
admitted in evidence at a criminal trial of a witness who was not called to give evidence.
The Strasbourg Court held that, in each case, the statement was “the sole or, at least, the
decisive basis” for the applicant’s conviction. The Court reviewed its own jurisprudence
and concluded that this established that the rights of each applicant under articles 6(1) and
6(3)(d) had not been respected. The Court took as its starting point the following
statement in Lucà v Italy (2001) 36 EHRR 807 at paragraph 40:
“…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
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trial, the rights of the defence are restricted to an extent that
is incompatible with the guarantees provided by article 6”.
I shall call the test of fairness that this statement appears to require “the sole or decisive
rule”.
8. The Court of Appeal did not accept that the decision in Al- Khawaja was
determinative of the results of these appeals. It held that, in the circumstances of each of
the appeals, the appellants had received a fair trial and dismissed the appeals.
The approach to this appeal
9. Article 43(1) of the Convention provides that within a period of three months
from the date of judgment of the Chamber any party may, in an exceptional case, request
that the case be referred to the Grand Chamber. Article 43(2) provides that a Panel of 5
judges of the Grand Chamber shall accept the request if the case raises a serious question
affecting the interpretation or application of the Convention or its Protocols, or a serious
issue of general importance. On 16 April 2009 the United Kingdom requested that the
decision of the Chamber in Al-Khawaja be referred to the Grand Chamber. On 5 June
2009 the Panel of the Grand Chamber adjourned consideration of that request pending our
judgment in the present case.
10. Mr Tim Owen QC, for Mr Horncastle and Mr Blackmore, submitted that we
should treat the judgment of the Chamber in Al-Khawaja as determinative of the success
of these appeals. He submitted that this was the appropriate response to the requirement
of section 2(1) of the Human Rights Act 1998 that requires a court to “take into account”
any judgment of the European Court of Human Rights in determining any question to
which such judgment is relevant. He submitted that the decision of the House of Lords in
Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2009] 3
WLR 74 exemplified the correct approach to a decision of the European Court. In that
case the Committee held itself bound to apply a clear statement of principle by the Grand
Chamber in respect of the precise issue that was before the Committee. Mr Owen
submitted that we should adopt precisely the same approach to the decision of the
Chamber in Al-Khawaja.
11. I do not accept that submission. The requirement to “take into account” the
Strasbourg jurisprudence will normally result in this Court applying principles that are
clearly established by the Strasbourg Court. There will, however, be rare occasions where
this court has concerns as to whether a decision of the Strasbourg Court sufficiently
Page 5
appreciates or accommodates particular aspects of our domestic process. In such
circumstances it is open to this court to decline to follow the Strasbourg decision, giving
reasons for adopting this course. This is likely to give the Strasbourg Court the
opportunity to reconsider the particular aspect of the decision that is in issue, so that there
takes place what may prove to be a valuable dialogue between this court and the
Strasbourg Court. This is such a case.
The decision of the Court of Appeal
12. In recognition of the importance of these appeals for English criminal procedure
the Criminal Division of the Court of Appeal sat five strong in a composition that
included the Vice-President and other senior judges with extensive experience of the
criminal process. The court was thus particularly well qualified to consider the questions
at the heart of these appeals. These questions are: (i) whether the regime enacted by
Parliament in relation to the admission of the evidence of an absent witness at a criminal
trial will result in an unfair trial and, if not, (2) whether the Strasbourg jurisprudence none
the less requires the court to apply that regime in a manner contrary to the intention of
Parliament.
13. The Court of Appeal carried out an extensive survey of both domestic and
Strasbourg jurisprudence. They concluded that the statutory regime produced a fair trial
and that the Strasbourg jurisprudence did not require the court to apply that regime in a
manner contrary to Parliament’s intention. I endorse those conclusions and almost all the
reasoning that led to them. I commend the Court of Appeal’s judgment and shall, in
places, borrow from it. This judgment should be read as complementary to that of the
Court of Appeal, not as a substitute for it.
A summary of my conclusions
14. The following are the conclusions that I have reached for reasons that I shall
develop:
(1) Long before 1953 when the Convention came into force the common law
had, by the hearsay rule, addressed that aspect of a fair trial that article 6(3)(d)
was designed to ensure.
(2) Parliament has since enacted exceptions to the hearsay rule that are
required in the interests of justice. Those exceptions are not subject to the sole or
decisive rule. The regime enacted by Parliament contains safeguards that render
the sole or decisive rule unnecessary.
Page 6
(3) The continental procedure had not addressed that aspect of a fair trial
that article 6(3)(d) was designed to ensure.
(4) The Strasbourg Court has recognised that exceptions to article 6(3)(d)
are required in the interests of justice.
(5) The manner in which the Strasbourg Court has approved those
exceptions has resulted in a jurisprudence that lacks clarity.
(6) The sole or decisive rule has been introduced into the Strasbourg
jurisprudence without discussion of the principle underlying it or full
consideration of whether there was justification for imposing the rule as an
overriding principle applicable equally to the continental and common law
jurisdictions.
(7) Although English law does not include the sole or decisive rule it would,
in almost all cases, have reached the same result in those cases where the
Strasbourg Court has invoked the rule.
(8) The sole or decisive rule would create severe practical difficulties if
applied to English criminal procedure.
(9) Al-Khawaja does not establish that it is necessary to apply the sole or
decisive rule in this jurisdiction.
The common law approach to a fair trial
15. The United Kingdom was the first country to ratify the Convention in 1951 and
the Convention came into force in 1953. Since then the Strasbourg Court has repeatedly
had to grapple in judgments relating to article 6 with the requirements of a fair trial.
During the same period England and Wales and the Commonwealth countries that apply
the common law have been involved in the same exercise, largely by means of legislation,
as have the civil law jurisdictions which, in 1953, had a very different approach to the
criminal process.
16. The English criminal process is adversarial. Its focal point is the trial, which is the
judicial part of the process. The investigation into a crime is carried out by the executive,
in the form of the police. The police under the supervision of the independent Crown
Prosecution Service, which is responsible for ensuring the fairness, impartiality and
integrity of the process, charge the defendant with the offence, prepare the case against
him and seek to prove it at the trial. Rules have been laid down to protect the defendant
against unfair treatment during the investigation and preparation for trial. These include
the caution and the right of silence, the entitlement to legal representation, rules
governing questioning by the police, an embargo on questioning a defendant after he has
been charged and an entitlement to know the case against him.
Page 7
17. Two underlying themes have marked the common law approach to a fair criminal
trial. The first has been that the determination of guilt or innocence should be entrusted to
a lay tribunal – the jury in the case of the more serious offences and the magistrates in
most cases of less serious offences. The second has been a reluctance to trust the lay
tribunal to attach the appropriate weight to the evidence placed before them. These
themes have been reflected in the rules governing the trial process.
18. There are two principal objectives of a fair criminal trial. The first is that a
defendant who is innocent should be acquitted. The second is that a defendant who is
guilty should be convicted. The first objective is in the interests of the individual; the
second is in the interests of the victim in particular and society in general. The two
objectives are sometimes in tension and, where they are, the first carries more weight than
the second.
19. English law has different kinds of rules that are designed to ensure a fair trial.
Some relate to the procedure itself, such as the right of the defendant to be informed of
the case against him, to be given any information available to the prosecution that is
relevant to that case, to have legal assistance, to decline to answer questions, to be exempt
from further questioning once charged with a crime, to be tried in public at a single
continuous trial at which all the evidence has to be adduced, to be present at that trial to
confront and cross-examine the witnesses who are called to give evidence, and to be
informed of the identity of those witnesses.
20. Other rules relate to the evidence that can be placed before the tribunal, be it
magistrates or a jury, which is to rule on the defendant’s guilt. These are rules of
“admissibility”. Jury trials are presided over by a judge who acts as gatekeeper as to what
is and what is not permitted to be placed before the jury as evidence. This is an important
safeguard for the defendant. The basic principle is that only the “best” evidence is placed
before the jury, that is, the evidence that is most likely to be reliable. In 1953 this
principle rendered inadmissible almost all “hearsay” evidence. Hearsay evidence is any
statement of fact other than one made, of his own knowledge, by a witness in the course
of oral testimony. Hearsay evidence was inadmissible even if it was a past statement
made by someone who was called to give oral evidence and who could be cross-examined
about it. Furthermore, hearsay evidence was inadmissible, whether it assisted the
prosecution or the defence.
21. There were two principal reasons for excluding hearsay evidence. The first was
that it was potentially unreliable. It might even be fabricated by the witness giving
evidence of what he alleged he had been told by another. Quite apart from this, the weight
to be given to such evidence was less easy to appraise than that of evidence delivered by a
witness face to face with the defendant and subject to testing by cross-examination.
Page 8
22. The admissibility of some categories of evidence was excluded because, although
the evidence was probative, it was thought that the jury could not be trusted not to give
the evidence more weight than it deserved. Its probative value was outweighed by its
potentially prejudicial effect. Such evidence included evidence of a defendant’s previous
bad character or criminal record and psychiatric evidence that suggested that the
defendant might have a propensity to commit an offence of the type charged.
23. Rules governing the admissibility of evidence are important aspects of both
criminal and civil procedure. They have generated lengthy text-books on the law of
evidence. [I am not aware that the civil law systems have a comparable body of
jurisprudence].
24. A third category of rules related to the reasoning permissible in arriving at a
conclusion of guilt. Of these the most fundamental were, and are, first that a defendant is
deemed to be innocent until proved to be guilty. The jury cannot convict simply upon
suspicion of guilt. More fundamentally, a jury cannot convict even if they consider it
more likely than not that the defendant is guilty. They can only convict if they are sure, or
satisfied “beyond reasonable doubt” that the defendant is guilty. But there were many
more directions that a judge was required to give to a jury in relation to the process of
reasoning that was permitted, or not permitted, in reaching their verdict. These sometimes
required the jury to disregard evidence that was probative of guilt in order to guard
against the risk that the jury would attach too much weight to such evidence. Thus the
trial judge had to tell the jury that no adverse inference could be drawn from the fact that
a defendant had elected not to go into the witness box and, in the exceptional case where
the jury learnt that a defendant was a man of bad character, they had to be instructed that
this made it no more likely that he was guilty of the crime charged.
25. There were some circumstances in which common law or statute required the jury
to be told either that they could not convict on the evidence of one witness alone unless
this was corroborated, or that it would be dangerous for them to do so. This again
reflected the perceived danger that a jury would give too much weight to certain
categories of evidence.
26. While some of these rules were designed to guard against the risk of an innocent
man being convicted, others also met the requirement of fairness that called for “equality
of arms” in a procedure that was adversarial.
Exceptions to the rules
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27. Over the past half century it was recognised that the application, without
exception, of some of these rules placed an obstacle in arriving at the truth that could not
be justified. Witness statements were prepared close to the time of the crime that
contained detail that the witness might not remember when called to give evidence
months later. In such cases the hearsay rule might be evaded by permitting the witness to
“refresh his memory” from the statement. Sometimes the rule operated in a way that was
prejudicial to the defendant. Thus the fact that another man had confessed to the crime of
which the defendant was charged was inadmissible. In other circumstances the rule
excluded evidence that was plainly more reliable than the oral testimony of the witness.
While the “best evidence” rule might justify the hearsay rule in relation to a witness who
was available to give evidence, if, for some reason such as death or illness, the witness
was not able to give oral evidence, a statement made by that witness might be the best
evidence available of what had occurred. Sometimes the application of the rules resulted
in the acquittal of defendants who were manifestly guilty – see Myers v Director of
Public Prosecutions [1965] AC 1001.
28. Over the years a host of exceptions were created by the judges or by statute to
these rules, and particularly to the hearsay rule, aimed at addressing these problems. In
relation to civil proceedings the hearsay rule was effectively abolished by the Civil
Evidence Act 1968. In relation to the criminal law, less far reaching changes were made
by the Criminal Evidence Act 1965 and the Police and Criminal Evidence Act 1984. But
these also included the very important general safeguard in section 78(1) of the latter
statute, which remains in force. This provides:
“In any proceedings the court may refuse to allow evidence
on which the prosecution proposes to rely to be given if it
appears to the court that, having regard to all the
circumstances, including the circumstances in which the
evidence was obtained, the admission of the evidence
would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.”
29. More significant changes were made to the hearsay rule in criminal proceedings
by the Criminal Justice Act 1988, but these have been replaced by provisions of the CJA
2003. These provisions largely implemented the recommendations of the Report of the
Law Commission dated 4 April 1997 (Law Com No 245) on “Evidence in Criminal
Proceedings: Hearsay and Related Topics”. In 1995 the Law Commission had published a
Consultation Paper on these topics, in response to a recommendation as to the need for
reform made by a Royal Commission on Criminal Justice in 1993. As the Court of
Appeal observed at paragraph 10, the consultation embraced judges, practitioners,
academic lawyers and other experts and the code enacted pursuant to the Report was:
Page 10
“informed by experience accumulated over generations and
represents the product of concentrated consideration by
experts of how the balance should be struck between the
many competing interests affected. It also represents
democratically enacted legislation substantially endorsing
the conclusions of the expert consideration.”
30. The relevant provisions of the CJA 2003 have been summarised by the Court of
Appeal at paragraphs 11 to 16 and I shall adopt that summary, subject to a small addition.
31. Hearsay is not made generally admissible by this statutory code. The scheme of
the code is as follows:
(i) It preserves certain specified common law categories of admissible
evidence (ss.114(1)(b) and 118).
(ii) It makes specific provision for a limited number of categories of hearsay
where there is special reason to make it admissible (ss.114(1)(a) and (c), 116-117,
119-120 and 127-129).
(iii) It provides for a limited residual power to admit hearsay if the interests of
justice require it (s.114(1)(d) and 114(2)).
(iv) It establishes special stipulations to which hearsay evidence is subject
(ss.121-126).
32. Among the provisions of Part 11, Chapter 2 of the CJA 2003 in the second group
are the following:
(i) by s.116(1) and (2)(a) the statement of a witness who is unavailable
because he is dead is, subject to conditions, made admissible; similar provisions
apply to a witness who is medically unfit, absent overseas and cannot be brought
to the UK, or cannot despite all practicable efforts be found;
(ii) by s.116(1) and (2)(e) the statement of a witness who is unavailable
because he does not give evidence through fear is, subject to conditions, made
admissible;
(iii) by s.116(3) “fear” is to be widely construed and (for example) includes
fear of the death or injury of another person or of financial loss. (This is the
addition I have made to the Court of Appeal’s summary);
(iv) by s.117 the contents of business records maintained by those who can be
expected to have had personal knowledge of the matters recorded are, subject to
conditions, made admissible.
Page 11
33. In relation to a witness who is unavailable because he is dead (or unavailable for
medical reasons or because he is abroad or missing), the conditions for admissibility are
as follows:
(i) the evidence must be such as would be admissible if the witness were
present to give it orally (s.116(1)(a)); and
(ii) the witness must be identified to the satisfaction of the court (s.116(1)(b)).
34. Those same conditions apply also to the case of a witness who does not give
evidence through fear. In that case an important additional condition must be satisfied.
The court must be persuaded to admit the evidence and it must do so only when satisfied
that it ought to be admitted in the interests of justice. In deciding whether or not this is so,
the court must have regard to all relevant circumstances, but in particular to:
(a) the contents of the statement;
(b) any risk that its admission or exclusion will result in unfairness to any
party to the proceedings (and in particular to how difficult it will be to challenge
the statement in the absence of the maker);
(c) the possibility of alternative special measures for the protection of the
witness, such as screens or video-transmitted evidence.
35. The statements of witnesses who are dead, ill, missing, or absent through fear are
examples of hearsay made admissible because the evidence is otherwise unavailable.
Other categories of hearsay are made admissible because, in the ordinary way, they are
likely to be reliable. Business records are made admissible (by s.117 or, where a machine
is involved, s.129) because, in the ordinary way, they are compiled by persons who are
disinterested and, in the ordinary course of events, such statements are likely to be
accurate; they are therefore admissible as evidence because prima facie they are reliable.
So, to be admissible, it must be demonstrated that they are the product of information
gathered by someone with personal knowledge of the matters recorded, and that anyone
through whose hands they have passed has acted in the course of trade, business,
profession or office (s.117(2)), and the court is not to admit them if there is doubt about
their reliability (ss.117(6) and (7) and 129(1)). If the record was compiled for the purpose
of the criminal proceedings, rather than simply in the usual course of business, there is an
additional requirement that the source of the information be absent or will have no
recollection of the material (s.117(5)): that is designed to ensure that if he can attend to
give first-hand evidence he does so. S.127 (preparatory work done by the assistants to
experts) is a further example of hearsay evidence which is prima facie reliable and which
is admissible for either party; its admission is hedged with a similar safeguard providing
for non-admission if the interests of justice point against it. S.128 (confessions by coaccused) is another example of hearsay made admissible (at the suit of the defendant) in
the interests of fairness to the accused and because a confession is prima facie, in the
absence of reason to the contrary, likely to be true; the CJA 2003 preserves a balance
between the competing interests of co-accused by providing for exclusion unless it be
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shown that the confession was not obtained by oppression or anything else likely to
render it unreliable.
36. It follows that both 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. The CJA 2003 goes on, in the
fourth group of its provisions, to lay down special stipulations applicable to all hearsay,
designed to further the same end. They are as follows:
(i) S.124 makes special provision for the admissibility of any material which
it is contended challenges the credibility of an absent witness. The opposing party
is enabled to put in evidence anything which he could have put in if the witness
had been present, but he may also put in material which, if the witness had been
present, could only have been asked of him in cross-examination in circumstances
where his answers would have been final; this puts the challenger to that extent in
a better position than if the witness is present, and is designed to help to
counterbalance the absence of cross-examination of the witness in person. In most
cases also, in addition to the statutory rules, a defendant who is faced with hearsay
evidence will be entitled to ask the court to call upon the Crown to investigate the
credibility of any absent witness and to disclose anything capable of challenging
it. That exercise will ordinarily require the Crown to go considerably beyond what
would otherwise be the duty simply to disclose what is already in its possession
and capable of undermining its case; it will require active investigation of the
bona fides, associates and credibility of the witness, so as to provide the defendant
with, in addition to anything he already knows, everything capable of being found
which can be used to test the reliability of the absentee.
(ii) By s.125 the judge is required to stop any case depending wholly or partly
on hearsay evidence if that evidence is unconvincing to the point where conviction
would, in the judge’s opinion, be unsafe; this is an important exception to the
usual rule of the law of England and Wales that the assessment of the weight of
evidence is exclusively for the jury (see R v Galbraith (1981) 1 WLR 1039).
(iii) S.126 preserves the general power of the judge (which existed at common
law and is enshrined in s.78 of the Police and Criminal Evidence Act 1984) to
exclude any evidence relied upon by the Crown (but not by a defendant) if its
admission would have such an adverse effect on the fairness of the trial that it
ought not to be admitted; the section adds a further obligation upon the judge to
exclude hearsay evidence if its admission would generate satellite disputes which
would cause an undue waste of time such as to outweigh the case for admitting it.
37. It is significant, as the Court of Appeal has pointed out, that the Law Commission
gave special consideration to whether there should be a requirement that hearsay should
not be capable of proving an essential element of an offence unless supported by other
evidence. The Commission was persuaded by the responses to consultation that this
would not be desirable. It would require a complex direction to the jury of a type that had
proved unsatisfactory in relation to other circumstances where the jury used to be directed
Page 13
to look for corroboration of evidence. The Commission concluded that the danger of a
defendant being unfairly convicted on the basis of hearsay evidence alone would be met
by the safeguards that it proposed, in particular that which was subsequently adopted as
section 125 of the CJA 2003.
38. The principal safeguards designed to protect a defendant against unfair prejudice
as a result of the admission of hearsay evidence, seen in the context of the more general
safeguards that apply to every jury trial, can be summarised as follows:
i) The trial judge acts as gatekeeper and has a duty to prevent the jury from
receiving evidence that will have such an adverse effect on the fairness of the
proceedings that it should not be received.
ii) Hearsay evidence is only admissible in strictly defined circumstances. In
essence the judge has to be satisfied beyond reasonable doubt that the prosecution
is not able to adduce the evidence by calling the witness.
iii) Once the prosecution case is closed, the judge must withdraw the case
from the jury if it is based wholly or partly on hearsay evidence and that evidence
is so unconvincing that, considering its importance, the defendant’s conviction
would be unsafe.
iv) The judge has to direct the jury on the dangers of relying on hearsay
evidence.
v) The jury has to be satisfied of the defendant’s guilt beyond reasonable
doubt.
vi) The defendant can apply for permission to appeal against his conviction,
which will be granted where reasonable grounds for appeal are demonstrated. A
failure to comply with the safeguards outlined above, and in particular the
admission of hearsay evidence contrary to the rules on its admissibility, will
constitute such grounds. Where the Court of Appeal finds that there has been such
a failure, the appeal will be allowed unless the court is satisfied that, despite the
shortcoming, the conviction is “safe”.
39. As the Court of Appeal observed at paragraphs 77-78, the CJA 2003 has now been
in force for a number of years and it is clear that the admissibility of hearsay evidence is
being cautiously approached by the courts – see the passages quoted from R v Y [2008] 1
WLR 1683.
40. Sir Robin Auld in his Review of the Criminal Courts of England and Wales
(2001) into the workings of the criminal courts expressed the view, supported by a body
of academic opinion, that the recommendations of the Law Commission did not go far
Page 14
enough. He recommended at paragraph 104 that hearsay should be generally admissible,
subject to an obligation to adduce the “best evidence”, rather than generally inadmissible
subject to specified exceptions as proposed by the Law Commission. But in the event (as
indicated in para 29 above), it was upon the Law Commission’s recommendations that the
2003 Act was essentially based.
Hearsay exceptions in other Commonwealth Jurisdictions
41. Other established common law jurisdictions, namely Canada, Australia and New
Zealand have, by both common law and statutory development, recognised hearsay
evidence as potentially admissible, under defined conditions, in circumstances where it is
not possible to call the witness to give evidence, even where the evidence is critical to the
prosecution case. An analysis of the position in those jurisdictions, prepared by Lord
Mance, is annexed to this judgment as Annexe 1. This demonstrates that, under the
common law and statutory exceptions to the hearsay rule recognised in those jurisdictions
there is no rigid rule excluding evidence if it is or would be either the “sole” or “decisive”
evidence, however those words may be understood or applied. Instead, the common law
and legislature in these countries have, on a principled basis, carefully developed and
defined conditions under which hearsay evidence may be admitted, in the interests of
justice and on a basis ensuring that defendants receive a fair trial. Under the common law
system of jury trial, the conditions relating to the admissibility of evidence combine, to
this end, with the trial judge’s role as gatekeeper in applying them and his general
residual discretion to exclude prejudicial or unfair evidence from going before the jury.
Hearsay in the United States
42. The position in the United States differs markedly from that in this jurisdiction
and in the Commonwealth jurisdictions to which I have referred.
43. In the United States, the Sixth Amendment to the Constitution provides that:
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
Page 15
witnesses in his favour, and to have the Assistance of
Counsel for his defence.”
44. The right under the Sixth Amendment “to be confronted with the witnesses
against him” has recently been interpreted in an absolute sense by the majority of the
Supreme Court in Crawford v Washington 124 S.Ct. 1354 (2004), reversing its previous
decision in Ohio v Roberts 448 U.S. 56; 100 S.Ct 2531 (1980), and in Melendez-Diaz v
Massachusetts 25 June 2009. The majority in the Supreme Court in reaching these
decisions took an “originalist” approach to the Constitution, relying on its view of the
common law position in the late 17th century.
45. The result of these United States decisions is to exclude any “testimonial”
evidence whatever in respect of which there has been or can be no cross-examination.
Testimonial evidence is not precisely defined in these authorities, but includes police
interrogations or prior testimony at a preliminary hearing or former trial (Crawford
p.1374) and, in the light of Melendez-Diaz, certificates of state laboratory analysts stating
that material seized by police and alleged by the prosecution to be connected to a
defendant was a prohibited drug. Business records or statements in furtherance of a
conspiracy were, in contrast, identified in Crawford at p.1367 as “by their nature…not
testimonial”. Crawford also recognised one possible exception to the principle requiring
confrontation in respect of testimonial evidence, that is dying declarations (footnote 6,
p.1367).
46. Article 6(3)(d) has not been interpreted by the Strasbourg Court in the same way
that the US Supreme Court has now interpreted the Sixth Amendment. The Strasbourg
Court has accepted that there are circumstances that justify the admission of statements of
witnesses who have not been subject to “confrontation” with the defendant. The
possibility remains, however, that by propounding the “sole or decisive test” the
Strasbourg Court has condemned as rendering a trial unfair the admission of hearsay
evidence in circumstances where the legislature and courts of this jurisdiction and of
other important Commonwealth jurisdictions (Canada, Australia and New Zealand) have
determined that the evidence can fairly be received. This is a startling proposition and one
that calls for careful analysis of the Strasbourg jurisprudence.
Special measures and anonymity
47. I referred earlier to the recognition at common law of the defendant’s right to
know the identity of the witnesses to be called by the prosecution. This, coupled with the
right of a defendant to know the case to be advanced against him, ensured that he could
make proper preparations to examine the witnesses called at his trial. The right to know
the witnesses’ identities was thus an important element in the right of confrontation.
Page 16
48. Where a witness is not prepared through fear to be seen to give evidence against a
defendant there are two ways in which his evidence may none the less be placed before
the court. If he has previously made a witness statement that statement can be read as
evidence. Alternatively he may be persuaded to give evidence anonymously if special
measures are taken to ensure that he cannot be recognised by the defendant. Similar
issues can arise in respect of each method of adducing evidence and the Strasbourg
jurisprudence sometimes does not draw a distinction between the two. In Al-Khawaja 49
EHRR 1 the Court held that the sole or decisive rule applied equally in the case of each.
Mr Perry QC for the Crown urged that we should not consider anonymous witnesses but
should confine ourselves to the circumstances of these appeals which concern the reading
of statements of absent witnesses. This was the course followed by the Court of Appeal,
who suggested that the Strasbourg jurisdiction dealing with anonymous witnesses did not
necessarily apply to absent witnesses.
49. There is a difference of principle between a witness who cannot be called to give
evidence because, for instance, he is dead or untraceable, and a witness who is able and
available to give evidence but not willing to do so. It might be argued that, where a
witness is in a position to give evidence, fairness demands that his evidence should not be
used if he is not prepared to face the defendant in court without anonymity. But, as I shall
show, both the Strasbourg Court and the United Kingdom Parliament and, indeed, the
Ministers of the Council of Europe have recognised that in some circumstances it is
permissible to allow witnesses to give their evidence anonymously.
50. So far as a sole or decisive rule is concerned, I am not persuaded that there is a
difference in principle between its existence in relation to absent witnesses and its
existence in relation to anonymous witnesses. Each situation results in a potential
disadvantage for the defendant. The extent of that disadvantage will depend on the facts
of the particular case. I cannot see why a sole or decisive test should apply in the case of
anonymous evidence but not in the case of a witness statement. The critical question is
whether, in either case, the demands of a fair trial require that a sole or decisive test
should apply regardless of the particular circumstances and, in particular, regardless of
the cogency of the evidence. Accordingly, I propose to set out the approach of English
law to anonymity.
51. Some witnesses in criminal proceedings are intimidated by giving evidence or by
the prospect of so doing. This is especially true of children and those who are mentally or
physically disabled, but it can also be the case of victims who fear being confronted by
the defendant, particularly in cases of sexual offences. Section 16 of the Youth Justice
and Criminal Evidence Act 1999 makes those who are under 17 or incapacitated eligible
for “special measures” when giving evidence. Section 17 does the same in the case of any
witness if the court is satisfied that the quality of his or her evidence is likely to be
diminished by fear or distress when testifying. Special measures include giving evidence
screened from the defendant or by video link.
Page 17
52. Over the last 20 years judges purported to exercise a common law power to permit
witnesses to give evidence anonymously, sometimes resorting to special measures in
order to conceal their identities, where this was considered necessary in the interests of
justice. In some cases permission was given because of the desirability of not disclosing
the identity of undercover police agents; in others because of fear on the part of the
witness of retaliation by or on behalf of defendants. In R v Davis [2008] UKHL 36;
[2008] AC 1128 this practice was challenged before the House of Lords. The appellant
had been convicted of murdering two men by shooting them at a party. He was identified
as the murderer by three witnesses who had been permitted to give evidence
anonymously, from behind screens, because they had refused, out of fear, to testify
should their identities be disclosed. It was submitted on behalf of the appellant that this
procedure was contrary both to the common law right of a defendant to be confronted by
his accusers and to article 6(3)(d) of the Convention. Both limbs of this argument were
accepted unanimously by the House.
53. Lord Bingham of Cornhill at paragraph 5 of his opinion set out the history of the
“long-established principle of the English common law that, subject to certain exceptions
and statutory qualifications, the defendant in a criminal trial should be confronted by his
accusers in order that he may cross-examine them and challenge their evidence”. He
observed at paragraph 20 that the statutory exceptions to calling a witness in the CJA
2003 did not permit the adducing of a statement by any witness whose name and identity
was not disclosed to the defendant and that the safeguards provided by that Act would be
denied to a defendant who did not know the identity of the witness. Their Lordships held
that it was not open to a judge to depart from the common law rule by allowing a witness
to remain anonymous. While there might well be a need for such a measure in order to
combat the intimidation of witnesses, it was for Parliament not the courts to change the
law.
54. In the course of his concurring judgment Lord Mance carried out an analysis of
the relevant Strasbourg case law. At paragraph 25 Lord Bingham adopted this analysis
and summarised its effect as follows:
“It is that no conviction should be based solely or to a
decisive extent upon the statements or testimony of
anonymous witnesses. The reason is that such a conviction
results from a trial which cannot be regarded as fair. This is
the view traditionally taken by the common law of
England.”
In fact, as I shall show, Lord Bingham slightly overstated Lord Mance’s conclusion.
Page 18
55. As a result of this decision Parliament amended the common law. The Criminal
Evidence (Witness Anonymity) Act 2008 gave the court the power to make a witness
anonymity order in the circumstances and subject to the conditions prescribed by the Act.
Such an order enables a witness to give evidence subject to special measures designed to
protect the identity of the witness being known. Section 4 sets out the conditions for
making such an order:
“(1) This section applies where an application is made for a
witness anonymity order to be made in relation to a witness
in criminal proceedings.
(2) The court may make such an order only if it is satisfied
that Conditions A to C below are met.
(3) Condition A is that the measures to be specified in the
order are necessary–
(a) in order to protect the safety of the witness or
another person or to prevent any serious damage to
property, or
(b) in order to prevent real harm to the public
interest (whether affecting the carrying on of any
activities in the public interest or the safety of a
person involved in carrying on such activities, or
otherwise).
(4) Condition B is that, having regard to all the
circumstances, the taking of those measures would be
consistent with the defendant receiving a fair trial.
(5) Condition C is that it is necessary to make the order in
the interests of justice by reason of the fact that it appears to
the court that–
(a) it is important that the witness should testify, and
(b) the witness would not testify if the order were
not made.
(6) In determining whether the measures to be specified in
the order are necessary for the purpose mentioned in
subsection (3)(a), the court must have regard (in particular)
to any reasonable fear on the part of the witness–
(a) that the witness or another person would suffer
death or injury, or
(b) that there would be serious damage to property,
Page 19
if the witness were to be identified.”

Section 5 sets out the matters to be taken into consideration when deciding whether the
considerations in section 4 are satisfied:
“(1) When deciding whether Conditions A to C in section 4
are met in the case of an application for a witness
anonymity order, the court must have regard to–
(a) the considerations mentioned in subsection (2)
below, and
(b) such other matters as the court considers
relevant.
(2) The considerations are–
(a) the general right of a defendant in criminal
proceedings to know the identity of a witness in the
proceedings;
(b) the extent to which the credibility of the witness
concerned would be a relevant factor when the
weight of his or her evidence comes to be assessed;
(c) whether evidence given by the witness might be
the sole or decisive evidence implicating the
defendant;
(d) whether the witness’s evidence could be
properly tested (whether on grounds of credibility or
otherwise) without his or her identity being
disclosed;
(e) whether there is any reason to believe that the
witness–
(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the
circumstances of the case, having regard (in
particular) to any previous convictions of the
witness and to any relationship between the
witness and the defendant or any associates
of the defendant;
(f) whether it would be reasonably practicable
to protect the witness’s identity by any means other
Page 20
than by making a witness anonymity order
specifying the measures that are under consideration
by the court.”
56. Thus Parliament has decreed that the question of whether evidence is or is likely
to be sole or decisive is relevant to the question of whether the court should permit it to be
given anonymously but there is no mandatory rule prohibiting the admission of such
evidence.
Criminal procedure in the civil law jurisdictions
57. In R(D) v Camberwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393 at
paragraphs 10 and 11 Lord Rodger stated:
“…the introduction of article 6(3)(d) will not have added
anything of significance to any requirements of English law
for witnesses to give their evidence in the presence of the
accused…An examination of the case law of the European
Court of Human Rights tends to confirm that much of the
impact of article 6(3)(d) has been on the procedures of
continental systems which previously allowed an accused
person to be convicted on the basis of evidence from
witnesses whom he had not had an opportunity to
challenge.”
58. We have not been referred to the travaux preparatoires to the Convention or to
the reason why paragraph (3)(d) was included in article 6.
59. The continental systems to which Lord Rodger referred are best exemplified by
the French Criminal Procedure, upon which many others were based. This, together with
other continental systems has undergone marked changes over the last fifty years, and is
still facing proposed radical change. The marked difference between that system and the
English system in 1953 was the importance of the inquisitorial phase of the French
process, which, in the case of a serious offence, was the second of the three stages of the
procedure. The first stage was a police investigation, under the supervision of the public
prosecutor (ministère public), that ascertained that a crime had been committed and
identified a suspect. The second stage was a judicial inquiry aimed at ascertaining the
facts and determining whether there was a case against the suspect fit for trial (the
Page 21
“instruction”). This stage was inquisitorial, classically conducted by a “juge
d’instruction”, an examining judge. The third stage was the trial itself.
60. The “instruction” was conducted in private episodically, often over many months,
during which time the suspect might be held in detention. It included repeated
interrogations of the suspect, who seldom exercised his right to remain silent. It included
examination of witnesses in the absence of the suspect and his lawyer, unless the
examining judge chose to arrange a confrontation with the suspect. Interrogations or
examinations were not recorded verbatim, but in the form of a summary of the evidence
given, dictated by the examining judge and recorded by a greffier. In this way a dossier
was built up. This dossier formed the basis of the conduct of the trial by the judge
presiding. The reports of the Strasbourg cases show that evidence given during the
instruction by witnesses whom the defendant had had no chance to question was
frequently used at the trial. There was no bar to the reception of hearsay evidence nor
rules of admissibility designed to prevent the tribunal at the trial from receiving evidence
on the ground that its prejudicial effect outweighed its probative value.
61. Generally speaking the “instruction” was the most significant stage of the criminal
process – all the more so because the “guilty plea” procedure was unknown. In this
jurisdiction a defendant may decide to “plead guilty” at any stage between being charged
and the trial. If he takes this course there will be no trial. Well over 80% of criminal
prosecutions are resolved by a plea of guilty. If a trial takes place, this is because the
defendant contests his guilt. Under the civil law system there is no such procedure. Guilt
must always be proved at the trial. But if the defendant has confessed his guilt in one of
the earlier stages of the procedure and does not retract that confession at his trial, the trial
will be very much a formality.
62. In this jurisdiction there is no judicial investigation, in the course of which a
confrontation can take place between witnesses and the suspect. The investigation into a
crime is carried out by the police, who do not act as judicial officers, although they act
under the supervision of the independent Crown Prosecution Service (para 16 above). If
the police obtain sufficient evidence to justify a prosecution, the defendant must then be
charged. Thereafter he is immune from further questioning unless and until he chooses to
give evidence at his trial.
The Strasbourg jurisprudence prior to Al-Khawaja
63. The wording of article 6(3)(d) suggests that it required a procedure similar to that
which followed from the application in this jurisdiction of the hearsay rule. It appears to
require the witness to give his or her evidence live at the trial and thus to be subject to
examination by or on behalf of the defendant. Some of the early jurisprudence supports
Page 22
this approach. Thus the Court held that the paragraph (3)(d) rights applied at the trial and
not when a witness was being questioned by the police – X v Germany (1979) 17 DR 231
or by the investigating judge – Ferrari-Bravo v Italy (1984) 37 DR 15.
64. But, just as in this jurisdiction it was found that, in some circumstances, justice
required exceptions to the hearsay rule, the Strasbourg Court came to accept that some
exceptions had to be made to the strict application of article 6(3)(d). The Strasbourg
jurisprudence deals with the two situations that raise similar issues of principle: the
admission of evidence of a witness who is anonymous and the admission of evidence in
the form of a statement made by a witness who is not called to testify.
65. The Strasbourg jurisprudence in relation to article 6, and article 6(3)(d) in
particular, has received detailed consideration by courts in this country on a number of
occasions prior to this case. The conclusions reached, prior to the decision of the
Strasbourg Court in Al-Khawaja, were summarised by Lord Bingham in Grant v The
Queen [2006] UKPC 2; [2007] 1 AC 1 at paragraph 17 (Strasbourg references omitted):
“The Strasbourg court has time and again insisted that the
admissibility of evidence is governed by national law and
that its sole concern is to assess the overall fairness of the
criminal proceedings in question…
. . .
The Strasbourg court has been astute to avoid treating the
specific rights set out in article 6 as laying down rules from
which no derogation or deviation is possible in any
circumstances. What matters is the fairness of the
proceedings as a whole.
. . .
the Strasbourg court has recognised the need for a fair
balance between the general interest of the community and
the personal rights of the individual, and has described the
search for that balance as inherent in the whole
Convention…Thus the rights of the individual must be
safeguarded, but the interests of the community and the
victims of crime must also be respected. An example, not
based on the present facts, illustrates the point. In Jamaica,
as in England and Wales, as already noted, the statement of
a witness may be adduced in evidence if he is shown to
have absented himself through fear of the consequences to
him if he gives evidence. In the case of a prosecution
witness, such fear is likely to have been induced by or on
Page 23
behalf of a defendant wishing to prevent adverse evidence
being given. As observed by Potter LJ in R v M (KJ) [2003]
2 Cr App R 322, para 59, echoed by Waller LJ in R v
Sellick [2005] I WLR 3257, paras 36, 52-53, it would be
intolerable if a defendant shown to have acted in such a
way could rely on his human rights under article 6 (or
section 20) to prevent the admission of hearsay evidence.
Where a witness is unavailable to give evidence in person
because he is dead, or too ill to attend, or abroad, or cannot
be traced, the argument for admitting hearsay evidence is
less irresistible, but there may still be a compelling
argument for admitting it, provided always that its
admission does not place the defendant at an unfair
disadvantage.
While, therefore, the Strasbourg jurisprudence very strongly
favours the calling of live witnesses, available for crossexamination by the defence, the focus of its inquiry in any
given case is not on whether there has been a deviation
from the strict letter of article 6(3) but on whether any
deviation there may have been has operated unfairly to the
defendant in the context of the proceedings as a whole. This
calls for consideration of the extent to which the legitimate
interests of the defendant have been safeguarded.”
66. This is, I believe, a fair and accurate summary of a difficult area of Strasbourg
jurisprudence. Article 6(3)(d) is concerned with the fairness of the trial procedure. It
recognises that a fair procedure should entitle the defendant to have examined the
witnesses against him and to obtain the attendance and examination of witnesses on his
behalf. What the article does not deal with is the procedure that 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 at the trial.
On the contrary it may well require that it should be admitted. The Strasbourg Court has
recognised this. As the Court of Appeal in the present case pointed out in paragraph 37 of
its judgment examples of the admission of statements in such circumstances include
death: Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288; illness: Trivedi v United
Kingdom (1997) 89-A DR 136 and impossibility of tracing the witness: Artner v Austria
(Application No 13161/87), 25 June 1992.
67. Thus where a statement has been read of an absent witness, or evidence has been
given anonymously, the Strasbourg Court first considers whether there was justification
for this course. When considering justification the Strasbourg Court properly has regard
to the human rights of witnesses and victims. In Doorson v The Netherlands (1996) 22
EHRR 330 the Court observed:
Page 24
“It is true that article 6 does not explicitly require the
interests of witnesses in general, and those of victims called
upon to testify in particular, to be taken into consideration.
However, their life, liberty or security of person may be at
stake, as may interests coming generally within the ambit of
article 8 of the Convention. Such interests of witnesses and
victims are in principle protected by other, substantive
provisions of the Convention, which imply that Contracting
States should organise their criminal proceedings in such a
way that those interests are not unjustifiably imperilled.
Against this background, principles of fair trial also require
that in appropriate cases the interests of the defence are
balanced against those of witnesses or victims called upon
to testify.”
68. One situation where Strasbourg has recognised that there is justification for not
calling a witness to give evidence at the trial, or for permitting the witness to give that
evidence anonymously, is where the witness is so frightened of the personal
consequences if he gives evidence under his own name that he is not prepared to do so. If
the defendant is responsible for the fear, then fairness demands that he should not profit
from its consequences. Even if he is not, the reality may be that the prosecution are
simply not in a position to prevail on the witness to give evidence. In such circumstances,
having due regard for the human rights of the witness or the victim, as well as those of the
defendant, fairness may well justify reading the statement of the witness or permitting
him to testify anonymously. Claims of justification on such grounds have to be rigorously
examined – see Doorson v The Netherlands (1996) 22 EHRR 330 at paragraph 71, Kok v
The Netherlands (Application No 43149/98), Reports of Judgments and Decisions 2000-
VI, p 597; Visser v The Netherlands (Application No 26668/95), 14 February 2002 at
paragraph 47; Krasniki v Czech Republic (Application No 51277/99), 28 February 2006
at paragraphs 80-81; Lucà v Italy (2001) 36 EHRR 807 at paragraph 40:
“As the Court has stated on a number of occasions, it may
prove necessary in certain circumstances to refer to
depositions made during the investigative stage (in
particular, where a witness refuses to repeat his deposition
in public owing to fears for his safety, a not infrequent
occurrence in trials concerning Mafia-type organisations).”
69. Where the court has found justification for the admission of a statement from a
witness not called, or for a witness giving evidence anonymously, the Court has been
concerned with whether the process as a whole has been such as to involve the danger of
a miscarriage of justice. The exercise has been similar to that conducted by the English
Court of Appeal when considering whether, notwithstanding the breach of a rule relating
to admissibility, the conviction is “safe”. There is, of course, an overlap between
Page 25
considering whether procedure has been fair and whether a verdict is safe, and it is
sometimes difficult to distinguish between the two questions.
70. Doorson v The Netherlands is a particularly informative example of the approach
of the Strasbourg Court to a situation where there was justification both for admitting the
statement of a witness who was not called to give evidence and for hearing the evidence
of two anonymous witnesses whose evidence was not given in the presence of the
defendant. The applicant was convicted of drug trafficking. The justification for admitting
the statement of the witness who was not called was that he had absconded and it was
thus impossible to call him to give evidence. The justification for permitting the two
witnesses to give evidence anonymously and without the defendant being present was that
it was reasonable for them to fear reprisals from the applicant if he discovered that they
had given evidence against him, albeit that there was no evidence that they had ever been
threatened by the applicant.
71. Both the opinion of the Commission and the judgment of the Court suggest that
the primary concern of each when considering whether the admission of the evidence had
rendered the trial unfair was whether the evidence was reliable. So far as the witness who
had absconded was concerned, the Commission held that it could not be regarded as
unfair if the courts took into account the statement that he had made to the police
(paragraph 78). The Court held that it had been permissible for the court to have regard to
the statement “especially since it could consider that statement to be corroborated by
other evidence before it” (paragraph 80).
72. So far as the anonymous witnesses were concerned, the Court of Appeal had
ordered them to be examined by an investigating judge in the presence of the defendant’s
counsel, though not of the defendant. She knew the identity of the witnesses. She reported
that she “had the impression that both witnesses knew whom they were talking about”
and that “her impression had been that the witnesses themselves believed their statements
to be true” (paragraph 32). The Court concluded that:
“in the circumstances the ‘counterbalancing’ procedure
followed by the judicial authorities in obtaining the
evidence of witnesses Y15 and Y16 must be considered
sufficient to have enabled the defence to challenge the
evidence of the anonymous witnesses and attempt to cast
doubt on the reliability of their statements, which it did in
open court by, amongst other things, drawing attention to
the fact that both were drug addicts.”

Page 26
73. Although, as I have shown, the Strasbourg Court has accepted that in exceptional
cases failure to comply with the strict requirements of article 6(3)(d) will not invalidate
the fairness of the trial, the Court has not acknowledged this in terms. 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 (1989) 12 EHRR 434 as an example of the language used. The phraseology
is almost standard form in cases dealing with article 6(3)(d).
74. The recital of the relevant legal principles begins with this statement:
“It has to be recalled at the outset that the admissibility of
evidence is primarily a matter for regulation by national
law. Again, as a general rule it is for the national courts to
assess the evidence before them.
In the light of these principles the Court sees its task in the
present case as being not to express a view as to whether
the statements in question were correctly admitted and
assessed but rather to ascertain whether the proceedings
considered as a whole, including the way in which evidence
was taken, were fair.
This being the basic issue, and also because the guarantees
in article 6(3) are specific aspects of the right to a fair trial
set forth in paragraph (1), the Court will consider the
applicant’s complaints from the angle of paragraphs (3)(d)
and (1) taken together.”
This passage indicates that the fairness of a trial has to be assessed on a case by case
basis, viewing each trial as a whole, and that an inability on the part of a defendant to
cross-examine the maker of a statement that is admitted in evidence will not necessarily
render the trial unfair.
75. The Court in Kostovski went on to say this:
“In principle, all the evidence must be produced in the
presence of the accused at a public hearing with a view to
Page 27
adversarial argument. This does not mean, however, that in
order to be used as evidence statements of witnesses should
always be made at a public hearing in court: to use as
evidence such statements obtained at the pre-trial stage is
not in itself inconsistent with paragraphs (3)(d) and (1) of
article 6, provided the rights of the defence have been
respected. As a rule, these rights require that an accused
should be given an adequate and proper opportunity to
challenge and question a witness against him, either at the
time the witness was making his statement or at some later
stage of the proceedings.”
There are two points to make in respect of this passage. The first is that the phrases “in
principle” and “as a rule” reflect the fact that the Strasbourg Court has recognised that the
requirements of article 6(3)(d) are not absolute or inflexible. The second point is that the
proposition that “an accused should be given an adequate and proper opportunity to
challenge and question a witness against him, either at the time the witness was making
his statement or at some later stage of the proceedings” (emphasis mine) reflects
Strasbourg jurisprudence which appears to dilute the protection that article 6(3)(d) would
otherwise supply. One of the objects of the right of a defendant to cross-examine
witnesses is to give the trial court the chance of “observing their demeanour under
questioning and thus forming its own impression of their reliability” – see Kostovski at
paragraph 43. The aim is “adversarial argument” at a “public hearing” – see Kostovski at
paragraph 41. These objects will not be achieved by granting the defendant or his lawyers
an opportunity to confront or question witnesses in the course of the inquisitorial
investigation by the investigating judge. The words that I have emphasised, repeated
again and again in the Strasbourg jurisprudence, appear to suggest that a right to
challenge a witness at the investigatory stage of the criminal process will be enough to
satisfy article 6(3)(d). This exemplifies the danger that repeated repetition of a principle
may lead to its being applied automatically without consideration of whether, having
regard to the particular facts of the case, its application is appropriate. The true position
is, I suggest, that where possible the defendant should be entitled to examine witnesses at
the trial but that, where this proves impossible, the fact that the defendant had a right to
challenge the witness at the investigatory stage is a relevant factor when considering
whether it is fair to rely on the witness’ deposition as evidence at the trial – see, for
instance, Lucà v Italy (2001) 36 EHRR 807.
The sole or decisive rule
76. The sole or decisive rule entered the Strasbourg jurisprudence in Doorson v The
Netherlands where, having found justification for admitting the statement of an absent
witness and for the anonymity of two witnesses, the Court added:
Page 28
“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.”
77. The seeds of the sole or decisive rule would seem to be found in a series of earlier
cases, details of which are set out in Annexe 2 to this judgment. In most of these cases
there had been a failure to comply with the requirements of article 6(3)(d) for which there
was no justification. The Court none the less considered it relevant to consider the impact
of the evidence in question on the applicant’s conviction when deciding whether this had
rendered the trial unfair in violation of article 6(1). The inference was that if the evidence
had not had a significant effect on the outcome of the trial, there would be no violation of
article 6(1). The sole or decisive test propounded in Doorson went a significant step
further. It stated that, even where there was justification for not calling a witness, basing a
conviction solely or decisively on the evidence of that witness would be unfair.
78. In 1997 the Committee of Ministers of the Council of Europe published
Recommendation No R (97) 13 concerning “Intimidation of Witnesses and the Rights of
the Defence”. This included “measures to be taken in relation to organised crime”. The
measures dealt with different methods of protecting witnesses from the risk of reprisals,
or accommodating their fear of such reprisals. These included admitting evidence of pretrial statements made before a judicial authority and preserving the anonymity of
witnesses. In relation to anonymity, the Ministers recommended “When anonymity has
been granted the conviction shall not be based solely or to a decisive extent on the
evidence of such persons”. The recommendation would seem to have been derived from
the Strasbourg jurisprudence, for the preamble to the Recommendation recites:
““Bearing in mind the provisions of the European
Convention on Human Rights and the case-law of its
organs, which recognise the rights of the defence to
examine the witness and to challenge his/her testimony but
do not provide for a face to face confrontation between the
witness and the alleged offender;”
79. In his review of the Strasbourg jurisprudence in Grant v The Queen Lord
Bingham did not address the question of whether the admission of hearsay evidence was
subject to the “sole or decisive” test. That question was considered by the Court of
Appeal in R v Sellick [2005] EWCA Crim 651; [2005] 1 WLR 3257. In that case the trial
judge had permitted the statements of witnesses to be read pursuant to sections 23 and 26
of the 1988 Act on the ground that they had not given evidence through fear. Waller LJ
reviewed the Strasbourg authorities and summarised the position as follows:
Page 29
“50. What appears from the above authorities are the
following propositions. (i) The admissibility of evidence is
primarily for the national law. (ii) Evidence must normally
be produced at a public hearing and as a general rule article
6(1) and (3)(d) of the Convention require a defendant to be
given a proper and adequate opportunity to challenge and
question witnesses. (iii) It is not necessarily incompatible
with article 6(1) and (3)(d) of the Convention for
depositions to be read and that can be so even if there has
been no opportunity to question the witness at any stage of
the proceedings. Article 6(3)(d) is simply an illustration of
matters to be taken into account in considering whether a
fair trial has been held. The reasons for the court holding it
necessary that statements should be read and the procedures
to counterbalance any handicap to the defence will all be
relevant to the issue, whether, where statements have been
read, the trial was fair. (iv) The quality of the evidence and
its inherent reliability, plus the degree of caution exercised
in relation to reliance on it, will also be relevant to the
question whether the trial was fair.
51. The question is whether there is a fifth proposition to
the effect that where the circumstances would otherwise
justify the reading of the statement where the defendant has
had no opportunity to question the witness at any stage of
the trial process, the statement must not be allowed to be
read if it is the sole or decisive evidence against the
defendant. Certainly at first sight para 40 of Lucà v Italy 36
EHRR 807 seems to suggest that in whatever circumstances
and whatever counterbalancing factors are present if
statements are read then there will be a breach of article 6
of the Convention, if the statements are the sole or decisive
evidence. Furthermore there is some support for that
position in the previous authorities. But neither Lucà v Italy
nor any of the other authorities were concerned with a case
where a witness, whose identity was well known to a
defendant, was being kept away by fear, although we must
accept that the reference to Mafia-type organisations and
the trials thereof in para 40 of Lucà v Italy shows that the
court had extreme circumstances in mind.
52. The question we have posed to ourselves is as follows.
If the European court were faced with the case of an
identified witness, well known to a defendant, who was the
sole witness of a murder, where the national court could be
sure that that witness had been kept away by the defendant,
or by persons acting for him, is it conceivable that it would
hold that there were no ‘counterbalancing’ measures the
court could take which would allow that statement to be
read. If care had been taken to see that the quality of the
Page 30
evidence was compelling, if firm steps were taken to draw
the jury’s attention to aspects of that witness’s credibility
and if a clear direction was given to the jury to exercise
caution, we cannot think that the European court would
nevertheless hold that a defendant’s article 6 rights had
been infringed. In such a case, as it seems to us, it is the
defendant who has denied himself the opportunity of
examining the witnesses, so that he could not complain of
an infringement of article 6(3)(d), and the precautions
would ensure compliance and fairness in compliance with
article 6(1). We for our part see no difficulty in such a clear
case.
53. More difficulty arises in cases where it is not quite so
clear cut, but the court believes, to a high degree of
probability, that identified witnesses are being intimidated
for and on behalf of the defence, and where the court is sure
to the criminal standard of proof that witnesses cannot be
traced and brought before the court (Butterfield J’s state of
mind on Lee in the instant case). In our view, having regard
to the rights of victims, their families, the safety of the
public in general, it still cannot be right for there to be some
absolute rule that, where compelling evidence is the sole or
decisive evidence, an admission in evidence of a statement
must then automatically lead to a defendant’s article 6
rights being infringed. That would lead to a situation in
which the more successful the intimidation of the witnesses,
the stronger the argument becomes that the statements
cannot be read. If the decisive witnesses can be ‘got at’ the
case must collapse. The more subtle and less easily
established intimidation provides defendants with the
opportunity of excluding the most material evidence against
them. Such an absolute rule cannot have been intended by
the European court in Strasbourg.”
In R v Davis Lord Mance analysed the Strasbourg jurisprudence in relation to anonymous
witnesses and summarised his conclusions as follows:
“89. In his submissions for the Crown Mr Perry suggested
that any requirement that anonymous evidence should not
be the sole or decisive basis for conviction derived from the
authorities on pretrial statements by (identified) witnesses
who were not called for cross-examination at trial. That
submission derives possible support from the citation in
Kok, Visser and Krasniki of authorities which deal with that
subject matter, rather than with anonymous witnesses. But
Page 31
it does not mean that a similar principle is inappropriate in
relation to anonymous witnesses who are available for such
cross-examination as is possible at trial. Whatever its
origin, the requirement has been deployed without drawing
this distinction, which is probably less real in those civil
law countries with procedures involving use of an
investigating magistrate than it is in the United Kingdom.
Further, in Krasniki the requirement was applied to one
anonymous witness who was called at trial. It is
considerably less certain, for the reasons I have mentioned
in paras 84-86 above, that there is an absolute requirement
that anonymous testimony should not be the sole or
decisive evidence, or whether the extent to which such
testimony is decisive may be no more than a very important
factor to balance in the scales. I doubt whether the
Strasbourg court has said the last word about this.”
80. The Court in Doorson v The Netherlands gave no explanation for the sole or
decisive rule. It was not a rule that was relevant on the facts of that case, so an English
jurist might suggest that it was mere obiter dicta which need not be afforded much
weight. But the rule was propounded repeatedly in subsequent cases, and it is necessary to
consider these in order to attempt to deduce the principle underlying the rule. I have set
out a brief analysis of a number of the decisions in an attempt to identify the governing
principle. This forms Annexe 3 to this judgment.
81. It is clear from these cases that a failure to comply with article 6(3)(d), even if
there is no justification for this, does not automatically result in a violation of article 6(1).
It is necessary to consider whether the failure has affected the result. If it has not, no
question of a violation of article 6(1) arises – see X v United Kingdom (1992) 15 EHRR
CD 113; Craxi v Italy (Application No 34896197), 5 December 2002. Where there has
been a failure to comply with article 6(3)(d) for which there is no justification, the Court
has found a violation of article 6(1) where the evidence may have contributed to the
applicant’s conviction – Lüdi v Switzerland (1992) 15 EHRR 173; Taxquet v Belgium
(Application No 926105), 13 January 2009.
82. In the majority of cases there has been a failure to comply with article 6(3)(d)
which has not been justified and the evidence in question has been the sole or decisive
basis of the applicant’s conviction. A violation of article 6(1) has naturally been found in
such cases.
83. Where there is justification for a failure to comply with the requirements of article
6(3)(d) because, for instance, it is impossible in fact or law to procure the presence of the
witness for cross-examination, the Court has been concerned with the reliability of the
Page 32
evidence in question. In two cases which preceded Doorson, no violation of article 6(1)
was found where the evidence in question was the principal evidence, but where it was
supported by other evidence: Asch v Austria (Application No 12398/86), 29 April 1991
and Artner v Austria (Application No 13161/87), 25 June 1992.
84. Ferrantelli and Santangelo v Italy 23 EHRR 288 was a case decided soon after
Doorson. The sole or decisive test was not mentioned. The applicants were convicted of
being party to the murder of two police officers committed by V. The principal evidence
against them consisted of statements made by V. There was no confrontation between V
and the applicants. V committed suicide before the trial. In these circumstances there was
justification for reading his statements. The Court found that the applicants had had a fair
trial and that there had been no violation of articles 6(1) and article 6(3)(d). In so finding
it had regard to the fact that the trial court had conducted detailed analysis of the
statements and found them to be corroborated.
85. In Doorson itself, which was primarily an anonymity case, the Court found that it
had been acceptable to have regard to a statement of a witness whose attendance could
not be procured “especially since it could consider that statement to be corroborated by
other evidence before it”.
86. No explanation was given in Doorson in respect of the principle underlying the
sole or decisive test first propounded by the Court in that case, and, so far as I am aware,
the Strasbourg Court has not subsequently explained why a conviction based in part on
the evidence of a witness who was not called, or who was anonymous, need not offend
article 6(1) and (3)(d), while, on the contrary, if the evidence is sole or decisive the article
will be violated. I have concluded, however, that the Strasbourg Court has drawn the
distinction on the premise that a conviction based solely or decisively upon the evidence
of a witness whose identity has not been disclosed, or who has not been subjected to
cross-examination, or both, will not be safe. I have reached this conclusion for a number
of reasons. First because there is nothing intrinsically objectionable or unfair in having
regard to the statement of a witness where it is simply not possible to call that witness to
give the evidence in question. Secondly because of the general emphasis that the
Strasbourg Court understandably places on the reliability of evidence. Thirdly because the
approach evidenced by the passage quoted from Kok in Annexe 3 seems to treat reliability
as being the relevant factor and finally because I have not been able to identify any
convincing alternative rationale for the sole or decisive test.
Practicality
87. One of the reasons why the Court of Appeal was not prepared to accept that the
sole or decisive rule applied to English criminal law was the fact that the application of
Page 33
that rule would give rise to severe practical difficulties under our system. Two questions
arise in relation to practicability. (1) How easy is it for the trial court itself to apply the
sole or decisive test? (2) How easy is it for an appeal court, or for the Strasbourg Court, to
determine whether the test has been properly applied? The Strasbourg Court has
repeatedly emphasised that it is not its task to rule on admissibility but to consider
whether the trial as a whole has been fair. When considering articles 6(1) and 6(3)(d)
Strasbourg is concerned not with whether a statement ought to have been admitted in
evidence by the trial court but with the use the trial court has made of the evidence. The
sole or decisive test permits a court to take the evidence into account but not to base a
conviction solely or decisively upon it.
88. In a dissenting opinion in Van Mechelen v The Netherlands (1997) 25 EHRR 647
Judge van Dijk expressed the view that the sole or decisive test “is difficult to apply,
because if the testimony of anonymous witnesses is used by the court as part of the
evidence, that will always be because the court considers it a ‘decisive’ part of that
evidence.” This comment raises the question of what is meant by “decisive”. Under
English procedure no evidence should be admitted unless it is potentially probative. In
theory any item of probative evidence may make all the difference between conviction
and acquittal. It may be the vital piece of evidence which tilts the scales enough to satisfy
the tribunal beyond reasonable doubt that the defendant is guilty. Is such a piece of
evidence to be treated as decisive? In Al-Khawaja at paragraph 39 the Court relied, as
indicating that a statement was decisive, on the statement of the Court of Appeal in
Tahery that it was “both important and probative of a major issue in the case. Had it not
been admitted the prospect of a conviction would have receded and that of an acquittal
advanced”.
89. Whatever be the precise definition of “decisive”, the duty not to treat a particular
piece of evidence as “decisive” is hard enough for a professional judge to discharge. In
theory he can direct himself that he must not convict if the relevant statement is decisive,
and state in a reasoned judgment that he has complied with that direction. In practice such
a course will often not be easy. As for the Court of Appeal or the Strasbourg Court, it will
often be impossible to decide whether a particular statement was the sole or decisive basis
of a conviction.
90. In the case of a jury trial, a direction to the jury that they can have regard to a
witness statement as supporting evidence but not as decisive evidence would involve
them in mental gymnastics that few would be equipped to perform. If the sole or decisive
test is to be applied in the context of a jury trial, the only practical way to apply it will be
a rule of admissibility. The judge will have to rule inadmissible any witness statement
capable of proving “decisive”. This will be no easy task – see the judgment of the Court
of Appeal at paragraphs 68 to 70. If “decisive” means capable of making the difference
between a finding of guilt and innocence, then all hearsay evidence will have to be
excluded. In Trechsel’s lengthy analysis of this area of the law in Human Rights in
Criminal Proceedings the author advances precisely this proposition at p 298.
Page 34
Discussion
91. The sole or decisive test produces a paradox. It permits the court to have regard to
evidence if the support that it gives to the prosecution case is peripheral, but not where it
is decisive. The more cogent the evidence the less it can be relied upon. There will be
many cases where the statement of a witness who cannot be called to testify will not be
safe or satisfactory as the basis for a conviction. There will, however, be some cases
where the evidence in question is demonstrably reliable. The Court of Appeal has given a
number of examples. I will just give one, which is a variant of one of theirs. A visitor to
London witnesses a hit and run road accident in which a cyclist is killed. He memorises
the number of the car, and makes a statement to the police in which he includes not
merely the number, but the make and colour of the car and the fact that the driver was a
man with a beard. He then returns to his own country, where he is himself killed in a road
accident. The police find that the car with the registration number that he provided is the
make and colour that he reported and that it is owned by a man with a beard. The owner
declines to answer questions as to his whereabouts at the time of the accident. It seems
hard to justify a rule that would preclude the conviction of the owner of the car on the
basis of the statement of the deceased witness, yet that is the effect of the sole or decisive
test.
92. As I have suggested earlier, the justification for the sole or decisive test would
appear to be that the risk of an unsafe conviction based solely or decisively on
anonymous or hearsay evidence is so great that such a conviction can never be permitted.
Parliament has concluded that there are alternative ways of protecting against that risk
that are less draconian, as set out in the 1988 and 2003 Acts (and now, with regard to
anonymous witnesses, the 2008 Act). When the Strasbourg decisions are analysed it is
apparent that these alternative safeguards would have precluded convictions in most of
the cases where a violation of article 6(1) and (3)(d) was found. In particular the
legislation does not permit the admission of the statement of a witness who is neither
present nor identified. Where the witness is unavailable but identified, or present but
anonymous, the respective Acts provide the safeguards to which I have referred earlier
against the risk that the use of the witness’ evidence will render the verdict unsafe and the
trial unfair.
93. Lord Judge has subjected many of the Strasbourg decisions to which I have
referred, together with a number of others, to a detailed analysis. He has, for the most part
chosen cases in which the Strasbourg Court held that article 6(1) taken together with
article 6(3)(d) had been violated. Under our domestic principles of admissibility in almost
all of these cases the relevant evidence would have been ruled inadmissible and the
defendant would not have been convicted. The cases suggest that in general our rules of
admissibility provide the defendant with at least equal protection to that provided under
the continental system. Lord Judge’s analysis is annexed to this judgment as Annexe 4.
Page 35
94. Before Al-Khawaja, while the Strasbourg Court had repeatedly recited the sole or
decisive test, there had, as the Court of Appeal observed, been no case where that test had
been applied so as to produce a finding of a violation of article 6(1) and (3)(d) in a case
where there had been justification for not calling a witness and where the evidence was
demonstrably reliable. Nor had the sole or decisive rule ever been applied or cited in an
application in relation to the criminal process in this jurisdiction. Thus no consideration
had been given as to whether it was necessary or appropriate to apply that rule having
regard to the safeguards inherent in our system. It is time to turn to consider Al-Khawaja.
Al-Khawaja
95. In Al-Khawaja 49 EHRR 1 the Court heard two applications together. Mr AlKhawaja had been convicted on two counts of indecent assault on female patients. The
first had made a statement to the police providing details of the assault, but subsequently
committed suicide for reasons unconnected to the assault. Her statement was admitted
under the 1988 Act. Mr Tahery was convicted of wounding with intent. An Iranian had
been stabbed in the back in a brawl. Another Iranian made a statement to the police
saying that he had seen Mr Tahery inflict the wound. He subsequently refused to give
evidence because of fear. The judge gave permission for his statement to be read pursuant
to section 116(2)(e) of the 2003 Act. Appeals by each applicant were dismissed by the
Court of Appeal. Each applicant complained to the Strasbourg Court that his rights under
article 6(3)(d) had been violated.
96. In the section of its judgment dealing with the merits the Court began by setting
out “general principles applicable to both cases”. This section began:
“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 (Application No
51277/99), 28 February 2006, para 75). 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 (see para
[25] above), as illustrations of matters to be taken into
account when considering whether a fair trial has been held
(see Barberà v Spain (1987) 9 EHRR CD101, paras 67 and
68; Kostovski v The Netherlands, (1989) 12 EHRR 434,
para 39).”
Page 36
97. I find it impossible to reconcile this paragraph with statements of principle that the
Strasbourg Court has regularly made in respect of the interrelationship between articles
6(1) and 6(3)(d), as quoted from Kostovski at paragraph 75 (above). These statements
indicate that the fairness of a trial has to be assessed on a case by case basis, viewing each
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. The
statement of principle in the opening passage in Kostovski is notably absent from the
judgment in Al-Khawaja. That which replaces it is at odds with the approach in the
individual Strasbourg cases to which I have referred.
98. The Court went on to add:
“Equally, even where those minimum rights have been
respected, the general right to a fair trial guaranteed by
article 6(1) requires that the Court ascertain whether the
proceedings as a whole were fair.”
This proposition is unexceptionable. What is puzzling is that the Court should cite
Unterpertinger v Austria in support of it, for that was a case where the Court found that
both articles 6(1) and 6(3)(d) had not been satisfied.
99. I now come to the crucial passages in Al-Khawajia. At paragraph 36 the Court
said:
“Whatever the reason for the defendant’s inability to
examine a witness, whether absence, anonymity or both, the
starting point for the Court’s assessment of whether there is
a breach of article 6(1) and (3)(d) is set out in Lucà … at
para 40:
‘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(1)
and (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 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
Page 37
the guarantees provided by article 6 [references
omitted].’”
100. The first point to be made about this citation from Lucà is that neither of the
propositions that it contains is axiomatic. For reasons that I have already given, an
opportunity to challenge a deposition when made, whether the opportunity is taken or not,
will not necessarily render it fair at the trial simply to read the deposition if the maker can
be called to give evidence.
101. The second proposition incorporates the sole or decisive test. That test is not the
corollary of the first proposition. It is not to be found in article 6(3)(d). It has, as I have
shown, been developed in the jurisprudence of the Strasbourg Court.
102. In both Al-Khawaja and Tahery the statements admitted in evidence were central
to the prosecution case but were, in each case, supported by other evidence. The Court of
Appeal had held, in each case, that there was no reason to doubt the safety of the
conviction. In Al-Khawaja, the Court of Appeal, citing Sellick, had held that the
Strasbourg case law did not require the conclusion that, in the circumstances of that case,
the trial would be unfair. The Strasbourg Court’s response appears in paragraph 37 of its
judgment:
“The Court notes that in the present cases the Government
relying on the Court of Appeal’s judgment in Sellick (see
paragraph 25 above), argue that this Court’s statement in
Lucà and in other similar cases is not to be read as laying
down an absolute rule, prohibiting the use of statements if
they are the sole or decisive evidence, whatever
counterbalancing factors might be present. However, the
Court observes that the Court of Appeal in Sellick was
concerned with identified witnesses and the trial judge
allowed their statements to be read to the jury because he
was satisfied that they were being kept from giving
evidence through fear induced by the defendants. That is
not the case in either of the present applications and, in the
absence of such special circumstances, the Court doubts
whether any counterbalancing factors would be sufficient to
justify the introduction in evidence of an untested statement
which was the sole or decisive basis for the conviction of an
applicant. While it is true that the Court has often examined
whether the procedures followed in the domestic courts
were such as to counterbalance the difficulties caused to the
defence, this has been principally in cases of anonymous
witnesses whose evidence has not been regarded as decisive
Page 38
and who have been subjected to an examination in some
form or other.”
103. There are two points to be made about this passage. The first is that the Court
appears to have accepted that the sole or decisive rule does not apply so as to preclude the
reliance on the statement of a witness who refuses to testify because of fear induced by
the defendant. The second is that the Court 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 other circumstances. The Court made it quite
plain, however, that compliance with the statutory regime under which the statements in
the two appeals had been admitted carried “limited weight” – paragraph 40.
104. The Court must surely have been correct to recognise that the sole or decisive rule
does not apply where a defendant has induced such fear in a witness that the witness
refuses to testify. A defendant can never be heard to complain of the absence of a witness
if he has been responsible for that absence. It is, however, notoriously difficult for a court
to be certain that a defendant has threatened a witness, for if the threat is effective the
witness is likely to be too frightened to testify to it. The Strasbourg Court has recognised
that anonymity can be justified where a witness is too frightened to be identified, even
where the defendant has not himself induced the fear – Doorson, Kok and Visser. There
are strong reasons of policy why the evidence of such a witness should be received,
subject to adequate safeguards, and this is recognised by section 116 of the 2003 Act.
105. The sole or decisive rule was first propounded in Doorson as an obiter
observation, without explanation or qualification. It has since frequently been repeated,
usually in circumstances where there has been justification for finding breaches of article
6(1) and (3)(d) without reliance on the test. If applied rigorously it will in some cases
result in the acquittal, or failure to prosecute, defendants where there is cogent evidence
of their guilt. This will be to the detriment of their victims and will result in defendants
being left free to add to the number of those victims.
106. The Court of Appeal in this case, comprising five senior judges with great
experience of the criminal jurisdiction, referred to the manner in which the 2003 Act is
working in practice and concluded that provided its provisions are observed there will be
no breach of article 6 and, in particular, article 6(3)(d), if a conviction is based solely or
decisively on hearsay evidence – paragraph 81. The court thus differed from the doubt
expressed in Al-Khawaja as to whether there could be any counterbalancing factors
sufficient to justify the introduction of an untested statement which was the sole or
decisive basis for a conviction.
Page 39
107. I concur in these conclusions reached by the Court of Appeal and the reasons for
those conclusions so clearly and compellingly expressed. The jurisprudence of the
Strasbourg Court in relation to article 6(3)(d) has developed largely in cases relating to
civil law rather than common law jurisdictions and this is particularly true of the sole or
decisive rule. In the course of the hearing in Al-Khawaja, Sir Nicolas Bratza observed that
both parties had accepted the sole or decisive test which appears in Lucà and other cases
as an accurate summary of the Court’s case law. He asked whether there was any
authority of the Court which gave any scope for counterbalancing factors in a sole or
decisive case. Mr Perry for the Government conceded that he was not aware of any direct
authority on the point. The Court then applied the sole or decisive rule in reliance on the
pre-existing case law. But as I have shown that case law appears to have developed
without full consideration of the safeguards against an unfair trial that exist under the
common law procedure. Nor, I suspect, can the Strasbourg Court have given detailed
consideration to the English law of admissibility of evidence, and the changes made to
that law, after consideration by the Law Commission, intended to ensure that English law
complies with the requirements of article 6(1) and (3)(d).
108. 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. In so concluding I have taken careful account of the Strasbourg jurisprudence. I
hope that in due course the Strasbourg Court may also take account of the reasons that
have led me not to apply the sole or decisive test in this case.
The individual appeals
109. Although the principal ground of appeal was that the sole or decisive rule had not
been applied, counsel for the appellants in each appeal also argued that, quite apart from
this rule, the relevant statements should not have been admitted. In the case of Horncastle
and Blackmore the argument was that the deceased victim’s statement was inherently
unreliable. In the case of Marquis and Graham it was argued that the fear that had led to
Miss Miles running away because she was too frightened to give evidence had been
induced, not by the defendants, but by alarmist warnings given by the police and that, in
these circumstances, it was unjust to put her statement in evidence.
110. These points received careful consideration by the Court of Appeal. I have found
no basis for differing from the court’s conclusion that they were without merit.
Accordingly I propose simply to rely upon the reasoning of the Court of Appeal in
dismissing these grounds of appeal.
Page 40
111. For the reasons that I have given I would dismiss these appeals.

Page 41
ANNEXE 1
(Prepared by Lord Mance – see paragraph 41).
1. In Canada, the Supreme Court addressed the question of the admission of hearsay
evidence on three occasions, in R v Khan [1990] 2 SCR 531; R v Smith [1992] 2 SCR 915
and R v Rockey [1996] 3 SCR 829. It noted that the “purpose and reason of the Hearsay
rule is the key to the exceptions to it”, drawing in this connection on the well-known
American text, Wigmore on Evidence (2nd ed. 1923). Wigmore went on to point out that
the theory of the hearsay rule was that “the many possible sources of inaccuracy and
untrustworthiness which may lie underneath the bare untested assertion of a witness can
best be brought to light and exposed, if they exist, by the test of cross-examination”, but
that, in circumstances in which a statement is free from this risk or in which crossexamination is impossible, it may be possible under certain conditions to contemplate its
use without cross-examination.
2. The Supreme Court of Canada in R v Smith, at p 930, referred to the approach
along these lines first adopted in R v Khan “as the triumph of a principled analysis over a
set of ossified judicially created categories”. It held that, in addition to the basic
requirement of relevance, hearsay evidence might be admitted if there was sufficient
necessity and its reliability could be sufficiently verified by the judge before it was put
before the jury. In R v Khan evidence was thus admitted of an infant complainant’s
description to her mother shortly after the event of a sexual assault upon her, in
circumstances where the infant was not permitted to testify at trial.
3. In R v Smith these tests were satisfied in relation to the contents of two of the
critical three telephone calls made by the deceased to her mother shortly before death.
However, in relation to the third call, although there was no problem about satisfying the
test of necessity in view of her death, a careful review by the Court of the circumstances
surrounding the call gave rise to apprehensions about its reliability, and a possibility that
what had been said might have been mistaken or intended to deceive the mother. The
contents of this call could not therefore safely be admitted in the absence of crossexamination. The conviction was set aside and a fresh trial ordered. R v Rockey was
another case, like R v Khan, where the accused was charged with sexual assault on an
infant (aged two and a half), who had made a number of statements about the incident.
The Court was, after examination of the circumstances, satisfied that the requirements of
both necessity and reliability were met. It found, with regard to necessity, that the infant
though by now aged five, could not have given evidence in any meaningful sense, and
would anyway have been traumatised by doing so. Reliability was not an issue on the
appeal. If (which the Court did not decide) there was any error in the judge’s directions to
the jury, it was immaterial. It is right to add that, in this case (in contrast to R v Khan and
R v Smith), there was also strong surrounding evidence inculpating the accused.
Page 42
4. In Australia in the case of Bannon v The Queen (1995) 185 CLR 1, the High Court
of Australia noted the Canadian decisions. Brennan CJ at p 12 expressed the view (obiter)
that the approach they took should not be adopted in Australia. The other judges, Deane J
at pp 12-13, Dawson, Toohey and Gummow JJ at pp 24-25 and 28 and McHugh J at pp
40-41 said that it was unnecessary to decide whether it should be adopted, although
McHugh J also went further and said that “Adoption of the Canadian principle would
undoubtedly have beneficial effects on the law of evidence”. The case was actually
decided on the basis that the evidence in question could not on any view be regarded as
reliable and was rightly excluded from being put before the jury.
5. As McHugh J also noted, the federal Australian Parliament had enacted the
Evidence Act 1995, and New South Wales had adopted comparable legislation. The
federal Evidence Act 1995 contains a careful set of provisions regulating the admission of
hearsay evidence. The starting point under s.59(1) is that hearsay evidence is generally
excluded:
“59(1). Evidence of a previous representation made by a
person is not admissible to prove the existence of a fact that
it can reasonably be supposed that the person intended to
assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.”
There follow a number of specific exceptions, including:
“65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person
who made a previous representation is not available to give
evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a
previous representation that is given by a person who saw,
heard or otherwise perceived the representation being made,
if the representation:
(a) was made under a duty to make that
representation or to make representations of that
kind; or
(b) was made when or shortly after the asserted fact
occurred and in circumstances that made it unlikely
that the representation is a fabrication; or
Page 43
(c) was made in circumstances that make it highly
probably that the representation is reliable; or
(d) was:
(i) against the interests of the person who
made it at the time it was made; and
(ii) made in circumstances that make it likely
that the representation is reliable. …
66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person
who made a previous representation is available to give
evidence about an asserted fact.
(2) If that person has been or is to be called to give
evidence, the hearsay rule does not apply to evidence of the
representation that is given by:
(a) that person; or
(b) a person who saw, heard or otherwise perceived
the representation being made;
if, when the representation was made, the occurrence of the
asserted fact was fresh in the memory of the person who
made the representation.”
The scheme of the Australian statute is both nuanced and circumscribed, with a view to
ensuring the overall fairness of the proceedings.
6. The admissibility of hearsay evidence has also been addressed in New Zealand. In
1980 the legislature enacted the Evidence Amendment Act (No.2) 1980. S.3 enabled the
admission of out of court statements made by a maker with personal knowledge of the
contents who is unavailable to give evidence, provided that the statement was not made in
contemplation of criminal proceedings (and would not otherwise be inadmissible therein).
S.18 gave the trial judge a discretion to exclude any such statement from the jury, and
s.19 enabled an appellate court to exercise an independent discretion on any appeal to it
on the issue of admissibility. The operation of these statutory provisions was considered
by the Court of Appeal in R v Hovell [1987] 1 NZLR 610. In that case, an 82 year old
woman gave to a detective shortly after the event a detailed written account of
indecencies perpetrated on her by a disguised intruder whom she was unable to describe
in any detail. There was medical and scientific evidence corroborating recent sexual
Page 44
activity. The next year, before the defendant’s arrest, she died. Her statement was
admitted in evidence. On appeal, it was submitted that it should have been excluded under
s.18, in that “it would be contrary to the interests of justice not to exclude a statement
dealing with facts of such central importance to the case” (p.612). The Court of Appeal
dismissed the appeal, holding that there was no basis for limiting the admission of such
statements “to less serious cases or to peripheral evidence”, that the Act had its own
safeguards for an accused, that it could not seriously be suggested that the complainant’s
account was “a fabrication, or that a woman of that age in those circumstances would
complain of rape and the other sexual indignities if she had in fact consented”, that the
trial judge had rightly concluded that the identity of the assailant was the only issue for
the jury and that the trial would be fought around the alibi claimed by the accused. The
appeal was thus dismissed.
7. R v Baker [1989] 1 NZLR 738 concerned the common law principle whereby
evidence of out of court statements may be admitted to show the maker’s state of mind,
where this is a relevant issue. The defendant was accused of having raped and then shot
his estranged wife before attempting to commit suicide. His explanation was that she had
invited him around to shoot stray cats, and that, after inviting him to consensual sex, she
had then taken his gun and shot first him, then herself. To rebut this account, the
prosecution wished to adduce evidence from several witnesses of statements made by the
deceased in the previous month and as late as the afternoon before her death as to her
extreme fear of the accused – which made it implausible to suggest that she would have
invited him round to shoot stray cats or invited him to have sex. The trial judge refused to
admit the statements, and the prosecution appealed. Giving the main judgment in the
Court of Appeal allowing the appeal, Cooke P said (at p.741) that “At least in a case such
as the present it may be more helpful to go straight to basics and ask whether in the
particular circumstances it is reasonably safe and of sufficient relevance to admit the
evidence notwithstanding the dangers against which the hearsay rule guards”.
8. R v Baker and the later case of R v Bain [1996] 1 NZLR 129 were considered in R
v Manase [2001] 2 NZLR 197, as were also the Canadian and Australian cases to which I
have already referred. This was another case of an infant (aged three and a half) who was
the alleged victim of sexual violation by rape and otherwise. She had made statements to
her mother and a receptionist, which she could not now remember having made, as well
as making certain drawings in the receptionist’s presence. The trial judge had admitted
evidence from the mother and receptionist about these statements and drawings. The
Court of Appeal, reviewing the Canadian authorities, concluded that they had in practice
diluted too far the concept of necessity (p.202). It noted certain recognised categories of
exception to the hearsay rule, such as dying declarations and statements made as part of
the res gestae. In other cases, the Court said, it was necessary to develop criteria for
identifying when the rule might be displaced. I note, in parenthesis, that this is also the
approach adopted by the federal Australian Evidence Act 1995 (above).
9. The criteria which the Court developed involved three distinct requirements:
under the three distinct headings of relevance (although, as the Court noted, this is “an
Page 45
affirmation and a reminder of the overriding criterion for the admissibility of all and any
evidence”), inability (which the Court indicated should be approached strictly) and
reliability. In relation to this last criterion, the Court said:
“30. …The hearsay evidence must have sufficient apparent
reliability, either inherent or circumstantial, or both, to
justify its admission in spite of the dangers against which
the hearsay rule is designed to guard. We use the expression
‘apparent reliability’ to signify that the judge is the
gatekeeper and decides whether to admit the evidence or
not. If the evidence is admitted, the jury or judge, as trier of
fact, must decide how reliable the evidence is and therefore
what weight should be placed on it. If a sufficient threshold
level of apparent reliability is not reached, the hearsay
evidence should not be admitted. The inability of a primary
witness to give evidence is not good reason to admit
unreliable hearsay evidence.
31. As a final check, as with all evidence admitted before a
jury, the Court must consider whether hearsay evidence
which otherwise might qualify for admission should
nevertheless be excluded because its probative value is
outweighed by its illegitimate prejudicial effect.”
Reviewing the facts of R v Manase, the Court of Appeal concluded that there was a lack
of sufficient apparent reliability in the primary utterances and drawings to qualify them
for admission as hearsay. The appeal was therefore allowed.
Page 46
ANNEXE 2
(See paragraph 77)
1. In Unterpertinger v Austria (1986) 13 EHRR 175 at paragraph 33 the Court held
that there had been a breach of article 6(1), taken together with the principles inherent in
paragraph (3)(d) where the conviction was based “mainly” on statements of two witnesses
that had been read. The witnesses had exercised a legal right, as members of the
applicant’s family, to refuse to testify against him.
2. In Bricmont v Belgium (1989) 12 EHRR 217 at paragraph 82 the Court held that it
was necessary to determine “to what extent” convictions had been based on accusations
made by a witness whom the applicant had been unable to cross-examine, where the
Court had not found justification for this.
3. In Kostovski v The Netherlands (1989) 12 EHRR 434 in finding a violation of
article 6 the Court remarked at paragraph 44 that “the Government accepted that the
applicant’s conviction was based ‘to a decisive extent’ on the anonymous statements”.
The Court did not find justification for the procedures adopted, albeit that it recognised
that “the growth in organised crime doubtless demands the introduction of appropriate
measures” – paragraph 44.
4. In Windisch v Austria (1990) 13 EHRR 281 the Court held that there had been a
violation of paragraph (3)(d) taken together with paragraph (1) of article 6 where the
court had “relied to a large extent” on identification evidence in the form of statements to
the police of two anonymous witnesses. They had been promised anonymity by the police
because of fear of reprisals.
5. In Delta v France (1990 16 EHRR 574 at paragraph 37 the Court found that there
had been a breach of paragraph (3)(d) taken together with paragraph (1) of article 6 where
statements of two witnesses had been “taken into account…decisively…as the file
contained no other evidence”. There was no justification for the failure to procure the
attendance of the witnesses.
6. In X v United Kingdom (1992) 15 EHRR CD 113 the Commission found that a
complaint under article 6(1) and (3)(d) was manifestly ill-founded where it related to
evidence given by anonymous witnesses where “far from being the only item of evidence
on which the trial court based its decision to convict, the evidence in question did not
Page 47
implicate the applicant at all.” The identity of the witnesses had been concealed because
of fear of reprisals.
7. In Lüdi v Switzerland (1992) 15 EHRR 173 the Court found a violation of
paragraph (3)(d) in conjunction with paragraph (1) of article 6. The applicant had been
convicted of drug trafficking. The evidence admitted at the trial had included reports
made by an anonymous undercover police agent. While the Court found that there was
justification for anonymity it ruled that this need not have precluded a procedure that
permitted the witness to be questioned. The Swiss Government had argued that there had
been no breach of article 6(1) and (3)(d) because the conviction had not been based to a
decisive extent on the agent’s evidence. The Court observed at paragraph 47 that, while
the Swiss courts did not reach their decisions solely on the basis of the agent’s statements,
“these played a part in establishing the facts which led to the conviction”.
8. In Saïdi v France (1993) 17 EHRR 251 the Court found that there had been a
violation of article 6(1) and (3)(d). The applicant was convicted of drug dealing on the
sole evidence of statements made to the police by three of his customers, who were
identified. The Court did not find that there was any justification for failing to call them.
Page 48
ANNEXE 3
(See paragraph 80)
1. In Van Mechelen v The Netherlands (1997) 25 EHRR 647 the applicants had been
convicted of attempted manslaughter and murder, where the only evidence of positive
identification was supplied by anonymous police officers whose evidence was not taken
in the presence of the applicants or their counsel. The Court did not find that the
procedure adopted was justified but, having cited the sole or decisive test as set out in
Doorson, added at paragraph 63 that the conviction of the defendants was based “to a
decisive extent” on the evidence of the police officers.
2. In Craxi v Italy (Application No 34896/97), 5 December 2002 the applicant was
convicted solely on the basis of statements of co-defendants who exercised their rights
not to give evidence. The Court held that there had been a violation of article 6(1) and
(3)(d). Statements of one witness were read on the ground that he was untraceable. The
Court held that these statements had not contributed to the applicant’s conviction, so there
was no need to consider his complaint that their admission had violated article 6(3)(d).
3. In Kok v The Netherlands (Application No 43149/98), Reports of Judgments and
Decisions 2000-VI, p 597 the Court found the applicant’s complaint of a violation of
article 6(1) and (3)(d) to be manifestly ill-founded. The evidence placed before the court
included a statement made by an informer. His identity was not disclosed in order to
protect him from reprisals and the Strasbourg Court held that there was justification for
this. In applying the sole or decisive test, the Court said this:
“The Court therefore concludes that in the present case the
applicant’s conviction was not based exclusively or to a
decisive extent on the evidence of the anonymous witness.
In the Court’s view, in assessing whether the procedures
involved in the questioning of the anonymous witness were
sufficient to counterbalance the difficulties caused to the
defence due weight must be given to the above conclusion
that the anonymous testimony was not in any respect
decisive for the conviction of the applicant. The defence
was thus handicapped to a much lesser degree.”
4. In Lucà v Italy 36 EHRR 807 the applicant had been convicted on the sole basis of
a statement of a co-accused, who had exercised his right not to give oral evidence and
whom neither the applicant nor his counsel had had the right to question. The Court held
that there had been a violation of articles 6(1) and 6(3)(d).
Page 49
5. In PS v Germany (2001) 36 EHRR 1139 the applicant had been convicted of
sexual assault on an 8 year old girl on the basis of statements that she had made which
were the only direct evidence of his guilt, so that the conviction was based on the
statements “to a decisive extent”. She was not called to give evidence and the Court found
that there were shortcomings in the procedure that had been used. The Court held that
there had been a violation of paragraph (3)(d) taken in conjunction with paragraph (1) of
article 6.
6. In Visser v The Netherlands (Application No 26668/95), 14 February 2002 the
applicant’s conviction had been based to a decisive extent on the statement of an
anonymous witness who was not called to give evidence. The Court held that justification
for this had not been demonstrated and that there had been a violation of articles 6(1) and
6(3)(d). The court recited the sole or decisive test. It also recited the passage from Kok,
which I have quoted above.
7. In Birutis and others v Lithuania (Application Nos 47698/99 and 48115/99), 28
March 2002 the applicants had been convicted of taking part in a prison riot. A number of
anonymous statements were admitted in evidence. The Court held that there was
justification for the anonymity, but found a failure to take steps that were available to
check the reliability of the statements. The Court found that one of the applicants had
been convicted solely on the basis of such statement evidence, but that in the case of the
other two such evidence had not been sole or decisive, but that the anonymous statements
“were among the grounds” upon which their convictions were based – paragraph 32. A
violation of article 6(1) and (3)(d) was found in the case of each applicant.
8. In Krasniki v Czech Republic (Application No 51277/99), 28 February 2006 the
applicant was convicted of drug offences on the basis of the statement of an anonymous
witness. The Court found a violation of article 6(1) and (3)(d) taken together. The Court
was not satisfied that the anonymity was justified and also held that the applicant had
been convicted solely or at least to a decisive extent on the anonymous evidence. Once
again the Court recited the passage that I have cited from Kok: paragraph 79.
9. In Taxquet v Belgium (Application No 926/05), 13 January 2009 the applicant had
been convicted of murder and attempted murder at a trial where the statement of an
anonymous witness had been admitted. The Court was not satisfied that anonymity was
justified. The Court was unable to determine whether the conviction was “based on
objective evidence, or solely on the information supplied by the anonymous witness,
or…solely on the statement by one of the co-defendants accusing him”. The Court found
a violation of articles 6(1) and 6(3)(d).
Page 50
ANNEXE 4
(Prepared by Lord Judge – see paragraph 93)
1. In this annexe references to the “Domestic Position” refer to the position in
England and Wales. With one or two exceptions, this document only addresses cases
cited to the House in which the ECtHR found the European Convention on Human Rights
(“the Convention”) to have been violated. In relation to the non-violation cases, the
purpose behind their inclusion is that they illustrate that the absence of a violation of
article 6 entitlements may nevertheless produce a conviction which would be regarded
domestically as unsafe.
Contents
Case Reference Category of Witness Paragraph
Unterpertinger v Austria (1986) 13 EHRR 175

Absent, identified 2
Bricmont v Belgium (1989) 12 EHRR 217 Absent, identified 6
Kostovski v The Netherlands (1989) 12 EHRR 434 Absent, anonymous 10
Windisch v Austria (1990) 13 EHRR 281 Absent, anonymous 14
Delta v France (1990) 16 EHRR 574 Absent, identified 17
Lűdi v Switzerland (1992) 15 EHRR173 Absent, anonymous 21
Saïdi v France (1993) 17 EHRR 251 Absent, identified 26
Doorson v The Netherlands (1996) 22 EHRR 330 Combination 31
Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288 Absent, identified 41
Van Mechelen and others v The
Netherlands
(1997) 25 EHRR 647 Anonymous
“present”
46
AM v Italy (1999) (Application No
37019/97)
Absent identified 55
Lucà v Italy (2001) 36 EHRR 807 Absent identified 60
PS v Germany (2001) 36 EHRR 1139 Absent Identified 65
Visser v The Netherlands (2002) (Application No
26668/95)
Anonymous, present
in part
70
Birutis and others v Lithuania (2002) (Application Nos
47698/99 and 48115/99)
Anonymous, absent 76
Sadak and others v Turkey (2003) 36 EHRR 431 Absent, identified 82
Krasniki v Czech Republic (2006) (Application No
51277/99)
Anonymous, absent,
present
86
Taxquet v Belgium (2009) (Application No
926/05)
Absent, anonymous 91
Unterpertinger v Austria (1986) 13 EHRR 175
2. This case involves known, absent witnesses; the applicant was convicted of
causing actual bodily harm to his step-daughter on 14 August 1979 and grievous bodily
harm (a fractured thumb) on 9 September 1979. During the first incident the applicant
Page 51
himself received injuries. The police were informed by a neighbour. His wife was
questioned as a suspect, and his step-daughter as a “person involved”. They made
statements about the incident. Shortly afterwards the second incident occurred. The
applicant’s wife received treatment for her injuries. The injury and incident were reported
to the police by the hospital. In due course statements from the applicant and his wife
were supplied by the hospital to the police. A judicial investigation into both incidents
took place. During the investigation the wife gave an account of both incidents. She was
later acquitted of criminal involvement in the first incident. When the wife and stepdaughter were informed by the trial court of their right to refuse to testify against the
applicant, they did so. This meant that their oral testimony was not available at trial, and
indeed the interview conducted with the wife during the judicial investigation was also
excluded. The prosecution adduced the earlier statements to the police by the wife and
step-daughter. Evidence which was said to undermine their credibility was not admitted,
although the statements in relation to the first incident had been obtained when they were
questioned as a “suspect” and a “person involved” respectively.
3. Following a finding by the Commission that there was no violation, the ECtHR
held that the applicant’s rights under articles 6(1) and 6(3)(d) were breached. The
applicant was “convicted on the basis of ‘testimony’ in respect of which his defence rights
were appreciably restricted” (para 33).
Domestic Position
4. This trial would simply not proceed on this basis, and if it did, any conviction
would be quashed.

5. The oral testimony of both the wife and the step-daughter is admissible. Both were
available to give evidence, and they should have been called. Neither fell within the
admissibility provisions in section 116. Any attempt to use the section 114(1)(d) route
would have failed the “interests of justice” test. The statements before the trial court from
the wife were incomplete, because her account to the investigating judge was not
available. Yet every pre-trial statement of any witness should be available for crossexamination purposes. In any event, however, the applicant was prevented from
challenging the credibility of the witnesses, or calling evidence to undermine it. No
measures whatever were available or could be or were taken to protect the applicant’s
position. A conviction on the basis of the evidence admitted in this case would be unsafe:
in reality there would have been no trial.
Bricmont v Belgium (1989) 12 EHRR 217

Page 52
6. This conviction involved a known absent witness, the Prince of Belgium. He
could not be summoned as a witness in the absence of a specific Royal decree. The trial
court found that there was “a clear and inexplicable want of diligence in seeking the
truth” (para 28) and noted that “the persons best placed to provide information had been
neither summoned nor examined as witnesses…” (para 28(a)). The applicant was
acquitted of criminal charges brought against him on the basis of financial
mismanagement.

7. The acquittal was appealed by the prosecution. The Court considered “regrettable
that evidence had been taken from the Prince in an unusual manner…” nevertheless, by
allowing the prosecution to use the written statement of the alleged victim of the fraud
without producing him for cross-examination because he was old and ill, the applicant
was convicted.
8. The ECtHR held that in relation to the charges which had not been subject to the
confrontation, there had been a violation of article 6(1) and (3)(d) taken together.
Domestic Position
9. Ignoring the complicating factor that in Belgium the victim’s status as a member
of the Royal Family gave him special privileges in the proceedings, which would not
have been the case here, the admission of his untested evidence would have been highly
unusual. The prosecution would have had to persuade the court that his written statement
should be admitted under section 116(2)(b). In practical reality such an application would
have been very surprising, and if made, would have failed the interests of justice test.
There was no sufficient explanation for the inability of the witness to give oral testimony,
and the trial court itself had serious reservations about the reliability of the evidence
adduced from the complainant. If the Court of Appeal concluded that there had been a
“want of diligence in seeking the truth” which was “inexplicable” or that the judge
misdirected himself in relation to the “interests of justice” any conviction would be
quashed as unsafe.
Kostovski v The Netherlands 12 EHRR 434
10. This case concerned absent, anonymous witnesses. The applicant was convicted
by the District Court, and, later, the Amsterdam Court of Appeal of conducting an armed
robbery. The applicant’s conviction was based to a decisive extent on the statements of
anonymous witnesses. Anonymous statements were made to the police and examining
magistrates. The examining magistrate invited questions for him to put to the witness; of
Page 53
the 14 questions submitted by the applicant’s lawyers, only 2 were answered, on the basis
that the remaining 12 may have breached the anonymity of the witness. The witnesses
were not examined at trial. The witnesses’ identities were not known either to the
examining magistrates or to the trial courts. The magistrates testified that, on the basis of
their assessments, the anonymous witnesses were “not unreliable” and “completely
reliable”.
11. The ECtHR held there had been a violation of articles 6(1) and 6(3)(d) taken
together. At paragraphs 41 and 42, the Court noted that the use of statements acquired at
the pre-trial investigative stage was not “in itself inconsistent with paragraphs (3)(d) and
(1) of article 6” providing the defence had the opportunity to challenge and question a
witness, but that, on this occasion, “the nature and scope of the questions it could put [via
the examining magistrates earlier in the proceedings] was considerably restricted by
reason of the decision that the anonymity of the authors of the statements should be
preserved”. It is significant that the Court ascribed the problems associated with
anonymous witnesses to the “decision” to render the witnesses anonymous; this suggests
that the process by which the court arrived at the decision to grant anonymity was flawed,
rather than the fact of anonymity per se.
12. The Court recognised the policy in favour of the use of anonymous evidence (para
44) but held that the general problems of anonymity were compounded by the absence of
the anonymous witnesses at trial, and the subsequent admission of their evidence as
hearsay – see para 43. However, in concluding that paragraphs (1) and (3)(d) of article 6
of the Convention had been breached, it is significant that the Court noted that “the right
to a fair administration of justice… cannot be sacrificed to expediency”(emphasis added);
by contrast, the “relevant considerations” for the granting of anonymity, in section 5 of
the 2008 Act, would not, on any reading, permit the granting of an order for reasons of
“expediency”.
Domestic Position
13. This case would not come to trial. If it did, it would be stopped. This evidence was
“anonymous hearsay”. The relaxation of some of the rules against the use of anonymous
witnesses under the Criminal Evidence (Witness Anonymity) Act 2008 does not extend to
witnesses who are not only anonymous but also absent. In R v Mayers [2008] EWCA
Crim 2989; [2009] 1 Cr App R 403, para 113, the Court of Appeal (Criminal Division)
addressed an application by the Crown that a written statement by an anonymous absent
witness should be admitted in evidence and read to the jury, and summarised the
principle:
Page 54
“…we are being invited to re-write the [Criminal Evidence
(Witness Anonymity) Act 2008] by extending anonymous
witness orders to permit anonymous hearsay evidence to be
read to the jury. We cannot do so. Neither the common law,
nor the [Criminal Justice Act 2003], nor the 2008 Act,
permits it.”
In short, such evidence is inadmissible.
Windisch v Austria (1990) 13 EHRR 281
14. The applicant was convicted of burglary on the basis of the anonymous, absent,
testimony of two witnesses who had seen him in the vicinity of the area of the burglary,
although they did not witness the crime itself. The witnesses were assured of anonymity
by the police at the investigative stage, and their identity was kept from the Regional
Court and the Supreme Court. On appeal, the Supreme Court refused the applicant’s
request to have the witnesses summoned, on the basis that he had not established how the
witnesses would be identified sufficiently to allow the summonses to be served.

15. The ECtHR noted, at para 31, that although the anonymous absent witnesses had
not witnessed the crime itself, their testimony became the “central issue during the
investigation and at the hearing”, and that the trial court relied, “to a large extent” on
their testimony. Earlier in the judgment, at para 28, the Court stated that “being unaware
of their identity, the defence was confronted with an almost insurmountable handicap: it
was deprived of the necessary information permitting it to test the witnesses’ reliability or
cast doubt on their credibility.” As such, the evidence involved “such limitations on the
rights of the defence” that there had been a violation of para (3)(d), taken together with
para (1), of article 6.
Domestic Position
16. See paragraph 13 (above): the evidence would not be admissible.

Page 55
Delta v France (1990) 16 EHRR 574
17. This matter concerned an absent, identified witness. The applicant was convicted
at the Paris Criminal Court, and, subsequently, at the Paris Court of Appeal and the Court
of Cassation of the robbery of jewellery from two identified teenage girls. Upon being
searched following his arrest, nothing incriminating was found on the applicant. The
victims were the only witnesses, and, having provided statements to the police, failed to
respond to court summons to attend as witnesses at the applicant’s trial. No reasons were
given for their failure to do so. At the trial of first instance, the trainee barristers
representing the applicant made no submissions in relation to the absent witnesses.
18. In upholding the conviction, the Paris Court of Appeal held that the absent
witnesses’ statements “satisf[ied] the Court that the defendant was guilty of the offences
charged and [made] the requested examination of the witnesses unnecessary” (para 20).
The Court of Cassation refused to intervene in the “appeal court’s final assessment of all
the evidence adduced” and dismissed the appeal.
19. The ECtHR noted, at para 37, that neither the applicant nor his counsel ever had
an adequate opportunity to examine witnesses whose evidence was taken into account
“decisively at first instance and on appeal, as the file contained no other evidence. They
were therefore unable to test the witnesses’ reliability or cast doubt on their
credibility…” The Court concluded that there had been a breach of article 6(3)(d) taken
together with para (1).
Domestic Position
20. The absence of the crucial witnesses for the prosecution was unexplained and
unjustified. No attempt was made to trace them or compel their attendance, or to justify
the reading of their statements. No countervailing measures to protect the interests of the
defendant were or could be taken. An application for this evidence to be read would have
failed the interests of justice test. Therefore if the case had proceeded to trial it would
have been stopped, but if that safeguard had failed, and the case had resulted in a
conviction, the conviction would have been quashed.
Lűdi v Switzerland (1992) 15 EHRR 173
21. This case concerned an anonymous, absent witness. The applicant was convicted
of drug trafficking offences on the basis of the evidence of an absent and unidentified
Page 56
undercover police officer, operating with requisite official authorisation. The undercover
officer initiated a series of meetings with the applicant in which, the officer testified, the
applicant offered to sell large quantities of cocaine. The applicant was convicted by the
District Court and, subsequently, by the Bern Court of Appeal and the Federal Court. In
order to preserve his anonymity, the undercover officer was not called at trial; the court
considered that telephone intercept records and the reports of the undercover agent were
sufficient to establish the applicant’s criminality.
22. The Commission stated (at para 87) that the applicant did not have the opportunity
to challenge and question the undercover officer, and noted that, while the applicant was
convicted partly on the basis of his own admissions, those admissions were made when
the applicant was confronted with intercept evidence by the undercover officer which he
was unable to challenge in the trial proceedings. The Commission concluded that there
was a breach of article 6(3)(d) taken together with article 6(1).
23. The ECtHR noted the operational requirement of law enforcement agencies to
undertake intrusive and covert surveillance, but found that it would have been possible to
preserve the anonymity of the undercover officer while simultaneously affording the
applicant the opportunity to question him, or cast doubt on his credibility (para 49). This
failure constituted a breach of article 6.
Domestic Position

24. See paragraph 13 (above): the evidence would not be admissible.
25. In this particular case it is possible to go a little further: there was no reason to
conceal the appearance of the undercover police officer from the applicant who had met
him under his assumed identity on a number of occasions. So a witness anonymity order
to preserve the true identity of the officer would nevertheless not prevent him from
testifying in court, and therefore cross-examined and challenged on the applicant’s behalf.
It has already been recognised that:
“In relation to police officers the normal problem is not
quite the same as that envisaged by orders for witness
anonymity which were considered at the trial of Davis.
These witnesses may well be known to the defendant by a
false identity, or are using a false identity. Knowledge of
their true identities can rarely be of any importance to the
defendant, who can advance whatever criticisms of the
Page 57
evidence, or indeed the conduct of the officers, while they
continue to be known by their false identities” (R v Mayers
[2009] 1 Cr App R 403, para 31).

Effectively, the approach domestically and in Strasbourg would have been identical.
It is unnecessary to address the admissibility of the telephone-tap evidence: it is, to put it
no higher, extremely unlikely that this evidence would have been admissible.
Saïdi v France (1993) 17 EHRR 251

26. This case involved identified, absent witnesses. The applicant was convicted in
the Nice Criminal Court and, later, the Court of Appeal and Court of Cassation of the
involuntary homicide of a fellow drug user, who died following the administration of
drugs provided by the applicant. During the judicial investigation for that and other drugsrelated charges, the applicant was remanded in custody; one of the reasons for the
detention at the time was the need to arrange witness confrontations. During his
detention, the applicant was identified through a two-way mirror by suspects detained by
the police on other charges relating to drugs (see para 10) as the person responsible for
providing them – and the deceased – with drugs. At trial and before the Court of Appeal,
the applicant was convicted on the basis of statements made by these witnesses, who were
absent from the trial. There was no positive attempt to conceal their identity nor to discuss
the possibility of using other special measures, and on appeal no specific request was
made for a confrontation. Nevertheless, stress was laid on Saïdi’s behalf on the
inadequacy of the investigation and the absence of any confrontation between him and his
accusers. The Court of Cassation refused to interfere with the verdicts below.

27. The Commission noted (at para 44), that the applicant had been accused by “his
habitual [drug] clients and by the very persons who carried out some of his deliveries.” It
also noted that the applicant was found guilty on the sole basis of the statements of his
accusers, and continued, “the applicant should have been given the opportunity of being
confronted with his accusers and thus enabled to put his own questions and comments
about their statements.” It concluded that there had been a violation of article 6.

28. Before the ECtHR, France argued that oral testimony was not required because (i)
the file against the applicant was complete and confrontations would have served little
purpose; and (ii) of the general difficulty of obtaining testimony from drug addicts, who
may be fearful of reprisals arising from their cooperation with the authorities, made
organising confrontations a sensitive matter. However no specific assertion was advanced
that any of the witnesses was in fear of the applicant, or indeed his colleagues.
Page 58
29. The ECtHR found (at para 44) that the convicting courts referred to no evidence
other than the statements obtained prior to trial after the two-way mirror identification. It
also noted that the convicting courts themselves highlighted the relationship the witnesses
bore to the applicant, namely that they were some of his regular customers and were those
responsible for delivering consignments of drugs to other users. The failure to enable the
applicant to examine the witnesses either at the investigative stage or at trial constituted a
breach of article 6(1) and (3)(d).
Domestic Position
30. This evidence would not be admitted. There was no good reason why the key
witnesses could not be called and cross-examined. Many witnesses in this class of case
are reluctant to give evidence, but that does not constitute a sufficient basis for allowing
hearsay evidence and disabling the defendant from challenging the evidence. In these
cases witnesses are expected to give evidence: witness reluctance does not provide a
sufficient basis for their absence, and in any event many of the concerns expressed by
witnesses can be addressed by special measures. The crucial point is that the evidence of
these witnesses was in issue, they were closely involved in the same drugs related
question, and the circumstances in which their purported identifications took place
required close examination. No countervailing measures offering appropriate protection
to the applicant’s interests were available. The interests of justice required their oral
testimony or the exclusion of their evidence.
Doorson v The Netherlands (1996) 22 EHRR 330
31. This case concerned a combination of absent, identified, and anonymous
witnesses. The applicant was convicted before the Amsterdam Regional Court and, later,
by the Court of Appeal and the Supreme Court of drug trafficking. The applicant was
identified from a photograph as a drug dealer by a number of witnesses who were known
to be drug users.
32. Six of the witnesses who identified the applicant remained anonymous; the
identity of a further two was disclosed. At first instance trial, the defence applied
unsuccessfully for the court to summon the anonymous witnesses. Of the two identified
witnesses, only one appeared at trial, initially testifying that he did not recognise the
applicant. The witness subsequently purported to recognise the applicant when presented
with the photograph from which he originally recognised him, though later admitted that
he could not be sure, and that the reason he identified him to the police was in order to be
reunited with his confiscated drugs. The evidence of a second absent but identified
witness was read. The defence also questioned the failure of the prosecution to disclose
Page 59
details arising from identification of the applicant from photographs. The applicant was
convicted.
33. The Court of Appeal requested the investigatory judge (who had been a member
of the court in an earlier constitution of the Regional Court) to re-examine the need for
the witnesses’ continued anonymity and to question them on the applicant’s behalf. Two
of the six anonymous witnesses attended the hearing before the investigatory judge. Their
anonymity was upheld. They were questioned extensively by the judge and the
applicant’s lawyer. They re-identified the applicant from photographs put to them. In
view of this questioning, and the fact it was not possible to secure the attendance of the
remaining witnesses, the investigatory judge and Court of Appeal refused the applicant’s
request to re-summon all anonymous witnesses. The Court of Appeal and, later, the
Supreme Court, upheld the conviction.
34. The Commission found by a majority there had been no breach of the Convention.
35. In summary, the conviction was based on (a) the oral evidence of one prosecution
witness who deposed at trial, and retracted his statement to the police: (b) two anonymous
witnesses who deposed orally and whom the defence could cross-examine: (c) one
witness who made a statement to the police and then disappeared.
36. The ECtHR found there was no breach of article 6(1) and (3)(d). In relation to
anonymous witnesses, it articulated the following doctrine, at para 76,
“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…”
37. The Court continued that evidence obtained from witnesses, at para 76,
“under conditions in which the rights of the defence cannot
be secured to the extent normally required by the
Convention should be treated with extreme care. The Court
is satisfied that this was done in the criminal proceedings
leading to the applicant’s conviction, as is reflected in the
express declaration of the Court of Appeal that it had
Page 60
treated [the anonymous testimony] ‘with the necessary
caution and circumspection’.”

The Court held that the testimony from the absent but identified witness caused the
applicant no unfairness because it was impossible to trace the witness, and the evidence
was corroborated by other evidence before the court (para 80). In conclusion, therefore,
the Court considered, “None of the alleged shortcomings considered on their own lead the
Court to conclude that the applicant did not receive a fair trial. Moreover, it cannot find,
even if the alleged shortcomings are considered together, that the proceedings as a whole
were unfair…”
Domestic Position
38. See paragraph 13: the anonymous witnesses did not give oral testimony at trial.
Their evidence would not be admissible. The evidence of the witness who retracted his
statement would have been judged by the jury. Given that the statement he made
incriminating the applicant was rejected, the reliability of his allegations against the
applicant would have been in serious doubt.

39. In relation to the identified witness who disappeared his written statement might
have been admitted under section 116(2)(d) of the 2003 Act if the court had been satisfied
all reasonably practicable steps had been taken to find him. However given that the
witness was a known drug user, and the allegation against the applicant was drug
trafficking, the absence of any opportunity for the defence to challenge the evidence
would probably have led the court to exclude it.
40. A conviction would be most unlikely: and the case would probably be stopped.

Ferrantelli and Santangelo v Italy (1996) 23 EHRR 288
41. This matter involved an absent, identified witness. The applicants, who were aged
17 and 18 at the time of the offence, were convicted of the murder of two police officers
following statements provided to the police by a co-accused. The co-accused died before
trial and before the applicants had the opportunity to examine him. During police
questioning, the applicants admitted involvement in the attacks, but gave conflicting
accounts and later claimed ill-treatment. Three trials took place. The applicants were
convicted 16 years following their initial arrest.
Page 61
42. The Commission upheld the applicants’ complaints that there was excessive
delay, in breach of article 6(1), and that the reliance on the statements of the deceased coaccused was objectionable. The Commission held that the admission of the deceased’s
statements was not per se objectionable, but that, at para 51, given the confession
evidence taken with the evidence of the deceased co-accused constituted “the
fundamental grounds for their conviction”, there was a breach of article 6(1) of the
Convention.
43. The ECtHR held that the delay amounted to a breach of article 6, in relation to the
length of the proceedings, but that the reliance on the statement of the deceased coaccused was compatible with the right to a fair trial contained in paragraphs (1) and (3)(d)
of article 6. The reasoning for the latter conclusion appears to be because the Government
could not be held responsible for the deceased’s death, and the fact that his evidence was
corroborated by the applicants’ admissions to the police, other circumstantial evidence,
and the lack of an alibi for either of them (see para 52).
Domestic Position
44. Although this is a “non-violation” case, it is worth noting that domestically, a trial
taking place 16 years after the initial arrest of the defendants would almost certainly lead
to an abuse of process argument, reinforced by the fact of prejudice to the defendants
from their inability to cross-examine a co-accused whose statements to the police were
relied on in support of the allegation against them.

45. For the same reason, given the absence of any opportunity for the defendants to
test the accounts of the deceased co-accused, although section 116(2)(a) provides that the
statement of an identified, absent witness may be admitted as hearsay evidence where the
witness is dead, admission in these circumstances would be likely to fail the interests of
justice test under the 2003 Act and the fairness test under section 78(1) of the 1984 Act.
In practice therefore the outcome of this case would have coincided with the decision of
the Commission rather than the ECtHR itself.
Van Mechelen and others v The Netherlands (1997) 25 EHRR 647
46. This case involved anonymous absent witnesses. The applicants were convicted of
armed robbery and attempted murder on the basis of anonymous statements from police
officers. The police officers were questioned by the investigatory judge in the shielded
presence of the applicants and their lawyers who could hear but not see them. The officers
did not testify at trial.
Page 62
47. The Commission held by a majority that there had been no violation of article 6(1)
and (3)(d), noting, at para 77, that “article 6 does not grant the accused an unlimited right
to secure the appearance of witnesses in court” and, at para 79, that the applicants were
suspected of having committed serious offences of violence.
48. Although anonymous testimony was received by an investigatory judge, it had
been possible to challenge that evidence, (para 82) the Commission concluded that the
applicants’ convictions “did not solely rest on the statements by these unidentified
witnesses”, and continued to outline corroborative evidence, including tapped telephone
conversations (para 84).
49. The ECtHR noted that special considerations apply where witnesses seeking
anonymity were members of the police force of the State. The Court stated at para 60 that
it had not been explained “to the Court’s satisfaction” why it was necessary to resort to
what it termed “such extreme limitations” and “why less far-reaching measures were not
considered”. The Court implied that it was not opposed to anonymous police testimony
per se but that under the circumstances of the case, it had not been persuaded it was
necessary; “in the absence of further information, the Court cannot find that the
operational needs of the police provide sufficient justification [for anonymity]”.
50. The alleged threat of reprisals arising from testimony had not been assessed
properly; anonymity was granted simply on the basis of the seriousness of the crime
committed (para 61). Accordingly, the Court found that the convictions of the applicants
were “based ‘to a decisive extent’ on… anonymous statements” and concluded that the
proceedings “taken as a whole” were not fair (paragraphs 63 and 65), and there was a
breach of article 6(1) taken together with article 6(3)(d).
Domestic Position
51. Before considering whether it would be legally possible to apply for mass police
anonymity, it is useful to consider whether such an application would actually be made,
and whether those responsible for the application would deem such an application to be
reasonable. In August 2008, the Director of Public Prosecutions issued Guidance on
Witness Anonymity1
which states, under the section titled Considering whether to make an
application,

1
http://www.cps.gov.uk/publications/directors_guidance/witness_anonymity.html#_08
Page 63
“Prosecutors must also be able to show that any fear
expressed by the witness that they, or any other person,
would suffer death or injury, or that there would be serious
damage to property, if they were identified to the defendant,
is reasonable” (emphasis added).
In this case it is open to very serious question whether an application for police
anonymity would be made at all.
52. The Criminal Evidence (Witness Anonymity) Act 2008 contains no specific
statutory provision relating to the anonymity of police officers: see para 25 (above) for
further comment.
53. In the result, the conditions which would permit consideration to be given to the
making of witness anonymity orders in this case were not established. Even on the basis
that the justification for anonymity could be justified, the witnesses would nevertheless
have been required to give oral testimony at trial, probably with the protection of special
measures for them, which kept open the possibility of cross-examination and challenge on
behalf of the defendant. Incidentally, the views of the investigating judge about the
credibility of the witnesses would be irrelevant and inadmissible: all decisions on
credibility are the exclusive function of the jury on the basis of the evidence before them.

54. In reality, from the point of view of a trial before the jury, the way in which the
evidence in the present case was actually presented – that is, critical evidence from
anonymous witnesses who were not present at trial – would, even if permitted, have
resulted in the quashing of any conviction. In effect, see paragraph 13: the evidence
would not be admissible.
AM v Italy (Application No 37019/97), 14 December 1999
55. The applicant was convicted of sexually assaulting G during a school trip G made
to Italy. On his return to the United States G provided a detailed account of what took
place to a US police officer. His father confirmed in interview that the child had made the
complaint. G’s mother and G’s psychotherapist provided written statements confirming
that G had recited to them the allegations against the applicant. The record of the account
given by G and the other statements were used in evidence against the applicant. This
case involved absent but identified witnesses. The international rogatory letter issued by
the authorities in Italy explicitly asked the authorities in the USA to arrange for the
witnesses to be questioned without a defence lawyer being present.
Page 64
56. The ECtHR concluded, at para 26,
“in convicting the applicant… the domestic courts relied
solely on the statements made in the United States before
trial and the applicant was at no stage in the proceedings
confronted with his accusers…”
57. There was a breach of article 6(1) taken together with article 6(3).
Domestic Position
58. Section 116(2)(c) of the CJA 2003 permits the admission of hearsay evidence
where “the relevant person is outside the United Kingdom and it is not reasonably
practicable to secure his attendance”. Before evidence can be introduced in this way it is
necessary to show (a) that all reasonable steps have been taken to secure the presence of
the witness; and (b) why those steps have failed. Moreover, assuming that this hurdle is
cleared, it would then be necessary for the prosecution to show why other methods by
which the evidence could be given, such as by means of a live link, would be
impracticable.
59. Assuming that none of these steps to enable the jury to see the witness, or to
enable the witness to be confronted by the defence could be taken, the starting point is
that the statements of the father, mother and psychotherapist all constitute multiple
hearsay obtained in circumstances where the investigating authorities expressly sought to
arrange for the absence of a defence lawyer. In the circumstances of this case, that would
have been likely to produce a decision under section 78 of the Police and Criminal
Evidence Act 1984 excluding the evidence. But, if such an order were not made on the
basis that the defendant’s lawyer did not press sufficiently for the opportunity to be
present, the admission of the evidence would have been questioned as a step inconsistent
with the interests of justice and section 78 would also have been engaged in the context of
the adverse effect on the fairness of proceedings resulting from the admission of this
evidence. The reality is that (a) the defendant could not defend himself against the
allegations and (b) the jury would have no basis for making any assessment about the
credibility and reliability of the makers of the statement. If the judge admitted the
evidence he would have had to give the jury such clear directions about the dangers of
convicting on the basis of such remote and untested evidence, that either (a) an acquittal
would have been inevitable or (b) the Court of Appeal would quash the conviction on the
basis, first, that the evidence should never have been admitted and, second, because the
consequent conviction was unsafe.
Page 65
Lucà v Italy (2001) 36 EHRR 807
60. This case involved an absent, but identified, witness. The applicant was convicted
of drugs offences by the Locri Criminal Court and, later, the Court of Appeal and the
Court of Cassation. An acquaintance of the applicant from the drugs world, N, made
statements to the police, whilst detained as a suspect himself, which implicated the
applicant. Italian law deemed N to be a “person accused in connected proceedings”
against the applicant and, accordingly, N was permitted to refuse to testify. Further
domestic provisions, triggered by N’s testimonial immunity, allowed the prosecution to
read N’s statement to the Court.
61. Before the ECtHR the Italian Government argued that the domestic provisions
highlighted the tension between the right of a co-accused to remain silent, the right of the
accused to question a witness against him, and the right of the judicial authority not to be
deprived of evidence obtained during the investigation. In its summary of the facts, the
ECtHR, at para 14, stated “as a result [of the testimonial immunity provisions], the
accused was deprived of any opportunity of examining [N] or of having him examined.”
62. It was irrelevant that the statements had been made by a co-accused rather than a
witness; this illustrates the principle, found in many judgments relating to article 6(3)(d),
that the term “witness” has an autonomous meaning within the Convention system. N, a
co-accused, was therefore a witness for these purposes. Accordingly, the Court was not
“satisfied that the applicant was given an adequate and proper opportunity to contest the
statements on which his conviction was based” and there had been a breach of article 6(1)
and (3)(d).
Domestic Position
63. Although described as a “co-accused”, it appears from the judgment that the
witness was an accused in a related but separate case. That said, he was entitled to and
would have been warned that he was not obliged to give evidence which might
incriminate him in any offence. Assuming that he elected not to give evidence, any oral
statement he made during the police investigation would not have been admissible. An
application could have been made for any written statement, taken in proper form, to be
read to the jury. The evidence would not have been admissible under section 116, but the
prosecution might have argued for its admissibility under section 114(1)(d).
64. In exercising his discretion whether to admit the evidence, the judge would have
been alert to the dangers of admitting a statement made by a suspect who had exercised
Page 66
his right not to incriminate himself, and thus avoiding any challenge or crossexamination. That consideration would then bear on issues of the potential unreliability of
the maker of the statement, and the difficulties faced by the defendant, unable to meet the
allegation head on, and the prejudice which would be likely to be occasioned to him. All
these would provide overwhelming reasons against permitting the statement of the
witness to be read. If nevertheless admitted, the judge would have been required to give
the clearest possible warnings against the jury relying on this evidence, but if the jury had
convicted, the Court of Appeal could almost certainly question whether (a) the decision to
admit the evidence was correct: (b) whether the warnings to the jury were in sufficiently
clear terms: and (c) whether the conviction was nevertheless a safe one. In short, a
conviction might in theory have been open: in reality there would have been none, and the
prosecution would almost certainly have failed to persuade the court to admit the
evidence in the first place, and any conviction would be regarded as unsafe.
PS v Germany (2001) 36 EHRR 1139
65. This case involved an absent, identified witness. The applicant was convicted of a
sexual offence against an 8 year old girl, S. The applicant was her private music teacher.
Her father reported to the police that the applicant had abused her during a music lesson.
S and her mother were questioned at the police station. S confirmed her father’s
allegation. Her mother stated that S had been very disturbed after her music lesson and
that she had later confided in her mother, presumably that she had been assaulted. At trial
a request on the applicant’s behalf for a psychological expert opinion regarding the
credibility of S’s complaints was rejected. The court believed that it was not reasonable to
hear the evidence from the complainant herself, on the basis that her recollection had
been repressed and if she were reminded of it, or required to remember it, her personal
development would be seriously impaired.
66. The Regional Court dismissed an appeal against conviction. The applicant’s guilt
was established on the basis of the statements made by the complainant’s mother and the
police officer as well as a psychological expert opinion on S’s credibility which was
prepared for the appeal process. There was medical evidence before the Regional Court
confirming the likely deterioration of S’s health if she gave evidence of the assault.
67. Following the alleged sexual assault, S and her mother were questioned at a police
station. The parents of S provided statements to the police as to her condition and state
immediately following the assault, but did not allow her to testify at trial on account of
the distress that it would cause her to recount the events in court. The trial court refused
the applicant’s request to appoint an expert to determine the credibility of S’s statements,
holding that its own professional experience in evaluating statements made by children
was sufficient. The trial court also noted that if S were to be examined as a witness, rather
than contributing to a further clarification of the facts, it would, by contrast, seriously
impair her personal development.
Page 67
68. The ECtHR concluded that a conviction based on this evidence involved “such
limitations on the rights of the defence” that the trial was unfair. No counterbalancing
measures could be taken to address the limitations on the rights of the defence, and the
decision of the District Court to refuse to hear the oral testimony of the child or to appoint
the expert requested by the defence were “rather vague and speculative”. There was,
accordingly, a violation of article 6(1) and (3)(d).
Domestic Position
69. This conviction of a sexual offence against a child was based on the hearsay
evidence of her mother, a police officer, and a psychological expert, who all reported
what the child had said. There was no evidence to suggest that the child could not have
been called, subject to special protective measures, as a prosecution witness. Therefore,
apart from the mother’s evidence of her daughter’s condition on her return home after the
music lesson, none of the material on which this conviction was based would be admitted.
The child’s accounts to the police and her mother and the expert were hearsay. The
evidence of the expert about the child’s credibility would also have been inadmissible; in
effect such evidence would usurp the responsibility of the jury.
Visser v The Netherlands (Application No 26668/95), 14 February 2002
70. This case involved a conviction for kidnapping, based to a decisive extent on the
evidence of an anonymous witness who was not called to give evidence on the basis of
his/her fear of reprisals from the applicant’s co-accused. Six years after the offence was
committed, as the case progressed through the system, the anonymous witness was
questioned before an investigatory judge, and his counsel was given a limited opportunity
to provide questions for the judge to put to the witness.
71. The ECtHR found, para 47, that the investigatory judge did not show how he
assessed the reasonableness of the personal fear of the witness “either as this had existed
when the witness was heard by police or when s/he was heard by the investigating judge
nearly six years later.” Moreover “…an examination into the seriousness and wellfoundedness of the reasons for the anonymity of the witness when it decided to use the
statement before the investigating judge in evidence…” was not carried out.
72. The ECtHR did not appear to object to the use of anonymous witnesses per se;
rather it was the case that, at para 48,
Page 68
“In these circumstances the Court is not satisfied that the
interest of the witness in remaining anonymous could
justify limiting the rights of the defence to the extent that
they were limited…” (emphasis added).
Domestic Position
73. See paragraph 13: the evidence of any absent anonymous witness would not be
admissible. The evidence of a witness who gives oral testimony at trial may be given
anonymously. Before such evidence can be admitted at all, a robust analysis of the need
for his or her anonymity is required by the Criminal Evidence (Witness Anonymity) Act
2008. The prosecutor must, unless the court directs otherwise, inform the court of the
identity of the witness (section 3(2)). The court must be satisfied that the measures
proposed are necessary: that if adopted they would be consistent with the defendant
receiving a fair trial: and that without an anonymity order, the witness would not testify
(section 4). The court must examine the credibility of the witness, and whether and if so
how it could be properly tested without disclosure of his or her identity (section 5).
Thereafter, even with the use of special measures, such as screening, the defence would
be enabled to challenge the evidence.
74. In short, for this evidence to be admitted the judge would have had to make a
reasoned finding that the necessary conditions were satisfied.
75. It is highly unlikely that a domestic court would find that the necessary conditions
were satisfied, but in any event in accordance with the reasoning of the ECtHR, if a
proper examination of the facts or a reasoned decision about whether to admit this
evidence were lacking, the conviction would be unsafe.

Birutis and others v Lithuania (Application Nos 47698/99 and 48115/99), 28 March 2002
76. This case involves the use of anonymous, absent witnesses resulting in the
conviction of three applicants, A, B, and C, for taking part in a prison riot. The evidence
against A and B included testimony given by other co-accused, circumstantial evidence,
in addition to the statements of a variety of anonymous witnesses, believed to be fellow
inmates at the prison. The Regional Court referred to the statements of 17 and 19
anonymous witnesses when convicting A and B respectively. When convicting C, the
Regional Court referred solely to the statements by six anonymous witnesses recorded by
the prosecution during the pre-trial investigation.
Page 69
77. The ECtHR noted that anonymous evidence may be appropriate in some cases,
especially in the instant cases, where prisoners may fear testifying against fellow
detainees. However, it noted, at para 30, that “this circumstance, as such, could not justify
any choice of means by the authorities in handling the anonymous evidence.” At para 31
the ECtHR noted that applicant C was convicted solely on the basis of anonymous
evidence; although he had been permitted to question three other witnesses in open court
during the trial, the domestic courts did not base his conviction on any evidence given by
those witnesses.
78. The Court noted that the convictions of applicants A and B were not “based
solely, or to a decisive extent, on the anonymous evidence” but that because there were a
high number of anonymous statements, “the trial court effectively demonstrated that the
statements in question were among the grounds upon which the first and second
applicants’ conviction was based” (para 32). As such, the Court looked for
counterbalancing measures to offset the handicap suffered by the defence; it did not find
adequate measures.
79. The Court noted at paragraphs 33 and 34 that A and B had alleged that there were
inconsistencies in the anonymous statements. There was a basis to suspect the authorities
had collaborated with the makers of the statements to implicate the applicants; this was
evidenced by the fact that the witnesses who did testify at trial sought to retract their
original statements implicating the applicants, claiming they had been made under
pressure from the prison authorities. In fact, the trial courts held that their original
testimony was more reliable, and discarded the revised testimony. Despite these genuine
concerns as to the credibility of the anonymous witnesses, A and B were not permitted to
question them. The domestic courts did not avail themselves of their statutory power to
question the witnesses. In addition, there was no scrutiny by the courts of the decision to
grant anonymity. As such, “the handicaps on the first and second applicants’ defence
rights were not counterbalanced by the procedures followed by the domestic judicial
authorities…” There was a breach of article 6.
Domestic Position

80. The prosecution case against some defendants depended exclusively on
anonymous hearsay evidence, and against others, largely of anonymous hearsay, that is
anonymous absent witnesses. See paragraph 13: the evidence would not be admissible.
81. Assuming that any individual witness were available to be called at trial, an
application for his anonymity would have required the process identified in paragraph 73
(above) to be engaged. It was essential that the defendant should have the opportunity of
challenging this evidence, not least because, by definition, they would almost certainly
Page 70
(as prisoners, unless individuals of good previous character on remand) have had previous
criminal convictions, which the defendant might have wished to explore before the jury.
Assuming that this case had proceeded before the jury on the basis of the process before
the regional court in Lithuania, even if the judge had admitted any of this evidence, he
would have been required to give the jury a most solemn warning about the dangers of
relying on evidence which the defendant could not test, and assuming that the jury
disregarded his warnings, the overwhelming likelihood is that without any further
evidence (and as far as we can see there was none which the jury could have relied on)
the convictions would be unsafe.
Sadak and others v Turkey (2003) 36 EHRR 431
82. The applicants were former Turkish parliamentarians convicted of membership of
an armed gang, on account of their involvement in the Peoples’ Democratic Party, which
the domestic courts held to be “separatist activity” linked to a paramilitary campaign for
the creation of a separate Kurdish state (para 17). Legal argument took place as to the
classification of their offences under terrorism or treason provisions; different charges
were brought in the course of the proceedings. The applicants were acquitted of treason
charges, which attracted the death penalty.

83. At trial, the prosecution had refused to call some witnesses on account of their
fear of sectarian violence; others were not requested by the applicants at trial. The case
therefore involved known, absent witnesses. Argument before the ECtHR addressed, inter
alia, whether the absence of those witnesses breached article 6(3)(d).
84. The ECtHR noted that in some circumstances, “the judicial authorities may find it
necessary to use statements obtained at the preparatory investigation stage…provided the
accused has had an adequate and sufficient opportunity to challenge the statements at the
time they were made or at a later date…” However, the Court stated that the domestic
court gave a “determining weight” to certain statements made by witnesses which the
applicants were not able to examine or challenge.
Domestic Position
85. Assuming that it was established that the witnesses were fearful of giving
evidence within the context of section 116(2)(e) of the 2003 Act, the additional
admissibility criteria in section 116(4) would have to be addressed. The application to
adduce this evidence would fail, first, because there had been no adequate investigation
into the reasons why the witnesses’ attendance at court to give oral testimony, if
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necessary using special measures available for fearful witnesses, was justified, and,
second, because the admission of this evidence, given the difficulty faced by the
defendant seeking to challenge it, would be likely to produce an unfair trial.
Krasniki v Czech Republic (Application No 51277/99), 28 February 2006
86. This case concerns anonymous witnesses, one present and one absent from trial.
The applicant was convicted of drugs offences. During the pre-trial judicial investigation,
two anonymous witnesses, both of whom were drug users, were questioned. The
applicant’s lawyer was permitted to ask questions relating to, amongst other matters, why
the witnesses sought anonymity. In reply they stated they were in fear of reprisals for
speaking to the authorities, and one of them owed money for drugs. One of the
anonymous witnesses testified at trial, but, because the other could not be located, her
testimony was read to the court. The testimony alleged that drugs had been purchased
from the applicant.
87. Before the ECtHR, the applicant argued that the need for anonymity had not been
tested properly and the authorities should have made greater efforts to assess the
witnesses’ fear of reprisals. The applicant also challenged the prosecution’s failure to
disclose the criminal record of one of the anonymous witnesses who was, it emerged,
being held in the same prison as the applicant. He also highlighted discrepancies between
some aspects of the testimony of the witnesses that should have led to the prosecution
assessing the witnesses’ credibility in further depth.
88. The Court held that there had been a breach of article 6(1) and (3)(d), and noted,
at para 81, that the authorities had attempted to approach the anonymous testimony with
some caution, but that it was not clear how the investigating officer and the trial judge
assessed the reasonableness of the personal fear of the witnesses in relation to the
applicant. The conclusion at para 83 was that,
“the Court is not satisfied that the interest of the witnesses
in remaining anonymous could justify limiting the rights of
the applicant to such an extent…
Domestic Position

89. See paragraph 13: the evidence of an anonymous absent witness would not be
admissible.
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90. In any event, so far as the witness who gave oral evidence, but anonymously, no
proper foundation for his anonymity was established. The strict conditions in the 2008
Act were not met: his evidence, too, would therefore not have been admitted.
Taxquet v Belgium (Application No 926/05), 13 January 2009
91. This case concerns an absent, anonymous witness. The applicant was convicted of
being a principal party to the 1991 murder and attempted murder of a Belgian government
minister and his partner respectively. An anonymous informant, whose identity was
known only to the police, provided detailed information implicating several of the 8
people who would be the co-defendants in the case. Only one aspect of the information
implicated the applicant.
92. At trial before the Assize Court, the applicant unsuccessfully applied for an
investigating judge to question the original anonymous witness. In refusing the request,
the Assize Court held that the information had “no probative value as such. In the present
case it simply constituted information capable of giving fresh impetus or a new slant to
the investigation and leading to the independent gathering of lawful evidence.” The
Assize Court also stated that the court was unaware of the identity of the witness in any
event and “regardless of the grounds [for maintaining anonymity] relied upon by the
investigating authorities… it does not appear useful for establishing the truth and would
delay the proceedings needlessly…” (para 12).
93. Before the Chamber, the applicant complained that his article 6 rights had been
breached in relation to: (i) the inadequate reasoning given by the jury; and (ii) the reliance
on anonymous witnesses. It appears that this is the first reported instance at Strasbourg of
the “sole or decisive” test being linked to the extent to which the jury are obliged to give
reasons for their conclusions. In holding that the applicant’s article 6 rights were
breached, the Chamber appears to have considered the issues being interrelated. It may
be helpful to quote the summary of the applicant’s position in full, taken from para 55,
“The applicant contended that the question of the
anonymous witness testimony took on particular
significance in his case as it was linked to the preceding
complaint concerning the lack of reasoning in the Assize
Court’s judgment. In order to be able to find that a witness
statement had played a decisive role in a person’s
conviction, it was necessary to know the reasons for the
decision, but in the present case none had been given. If the
reasoning had been known, it might have been possible to
identify the information received anonymously as having
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been a decisive factor, or the sole factor, in establishing his
guilt.”
94. The ECtHR did not rule out the use of anonymous statements per se, rather, it
stipulated the process by which the informant’s anonymity should be granted. No such
process was followed in the instant case. At para 64 the Court stated,
“anonymous statements should be examined by a judge
who knows of the identity of the witness, has verified the
reasons for granting anonymity and is able to express an
opinion on the witness’s credibility in order to establish
whether there is any animosity between the witness and the
accused.” (Emphasis added).
95. In relation to whether the evidence of the anonymous informant was sole or
decisive, the Court stated that the Government had “not produced anything to show that
the finding of the applicant’s guilt was based on other real evidence, on inferences drawn
from the examination of other witnesses or on other undisputed facts” (para 66). It
concluded that the applicant’s misgivings in relation to the use of the anonymous witness
were justified, and accordingly, there was a violation of article 6(1) and (3)(d) of the
Convention.
Domestic Position
96. See paragraph 13: the statement of an absent anonymous witness would not be
admissible. Even if present, anonymity is only permitted under strict conditions and
subject to countervailing safeguards for the defendant. In any event, on the basis of this
evidence, this case would not have proceeded to trial. Any conviction would have been
unsafe.
LORD BROWN
112. I am in full agreement with the judgment of Lord Phillips. I wish, however, to
add a few paragraphs of my own.
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113. These appeals are of the utmost importance. If the Strasbourg case law does
indeed establish an inflexible, unqualified principle that any conviction based solely or
decisively on evidence adduced from an absent or anonymous witness is necessarily to be
condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the
Convention, then the whole domestic scheme for ensuring fair trials – the scheme now
enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous
evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 – cannot stand and
many guilty defendants will have to go free. It is difficult to suppose that the Strasbourg
Court has in fact laid down so absolute a principle as this and, indeed, one exception to it,
at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a
witness absent as a result of the defendant’s own intimidation. But if this is recognised
(and, as others have pointed out, this exception itself involves difficulties of proof) why
not recognise other exceptions too provided only and always that the procedures honour
the ultimate imperative of a fair trial? That, after all, is the overarching principle for
which the great bulk of Strasbourg jurisprudence on article 6 stands.
114. Given, moreover, the recognition of even one exception, what justification can
there be for an otherwise absolute principle? It cannot then be said to be mandated simply
by the language of article 6(3)(d). Nor, indeed, do I understand the Strasbourg Court ever
to have suggested this.

115. Nor can Strasbourg readily be supposed to have intended the sort of practical
problems and anomalies identified by the Court of Appeal (paragraphs 61-63 and 68-71)
that must inevitably flow from any absolute principle of the kind here contended for.
Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous
must the Court be to ensure that it can be fairly adduced and is likely to be reliable. In this
connection there can be no harm in using the concept of “sole or decisive” so long as it is
used broadly – as it is in the 2008 Act with regard to anonymous witnesses and, indeed, in
the control order context where it relates rather to the allegations made against the suspect
than the evidence adduced in support. Understood and applied inflexibly, however, the
concept would involve insoluble problems of detailed interpretation and application.
116. The better view may therefore be that no such absolute principle emerges from
the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom (2009) 49
EHRR 1. In this event the stuffing falls out of these appeals and they must fail: the
domestic legislation on hearsay evidence was faithfully followed in the courts below;
there was nothing unfair about admitting the relevant statements and the convictions can
be seen to be perfectly safe.
117. I recognise, however, the distinct possibility that the Strasbourg Court in AlKhawaja really did intend to lay down an absolute principle along the lines here
contended for and it may be, indeed, that the outcome of that very case itself tends to
support such a view. In this event the question then arises: what should this Court do?
Should we accept and apply this absolute principle with the inevitable result that these
appeals must be allowed or should we instead decline to follow the Strasbourg decision in
Al-Khawaja and in effect join with the United Kingdom Government in inviting the
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Grand Chamber to overrule it (the Grand Chamber panel having adjourned the UK’s
request for such a reference until the pronouncement of our decision on these appeals)?
118. I have not the least doubt that the latter course is to be preferred. This case seems
to me a very far cry from Secretary of State for the Home Department v AF (No 3) [2009]
3 WLR 74 where the House of Lords was faced with a definitive judgment of the Grand
Chamber in A v United Kingdom (2009) 49 EHRR 625 on the very point at issue and
where each member of the Committee felt no alternative but to apply it. Lord Rodger put
it most succinctly (at para 98):
“Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the
case is closed.”
119. Moreover not merely was the Strasbourg ruling in A clear and authoritative but,
whatever view individual members of the Committee may have taken about it (and it is
evident that, whilst many agreed with it, others did not), it expressed an entirely coherent
view.
120. The contrasts with the present situation are striking. In the first place, we are
faced here not with a Grand Chamber decision but rather with the possible need for one.
Moreover, not merely is the Court’s ruling in Al-Khawaja not as authoritative as a Grand
Chamber decision, but it is altogether less clear than was the decision in A. Indeed, as I
have already suggested, it is far from certain that Al-Khawaja stands for any absolute
principle of the sort here contended for. I would reject the appellant’s argument that not
merely is the Court’s judgment in Al-Khawaja clear but, unlike the position in A, it is
supported by a whole stream of consistent earlier Strasbourg case law and consequently
more, rather than less, authoritative than the ruling in A. For the reasons fully elaborated
by the Court of Appeal and now by Lord Phillips, I cannot accept that the earlier cases
support, still less compel, an absolute principle such as Al-Khawaja is now said to stand
for.
121. Accordingly, in agreement both with Lord Phillips and with the judgment of the
Court of Appeal, I too would dismiss these appeals and express the hope that the Grand
Chamber will clarify the law upon hearsay evidence and recognise that our domestic
legislation is compatible with article 6.