Case Note on R v Horncastle and Others (Appellants) (on appeal from the Court of Appeal Criminal Division)

The Facts

• Two parties have gone to the court of appeal to make an appeal on their cases. The first appellants are Mr. Horncastle and Mr. Blackmore, who was brought to book for causing bodily harm to Mr. Rice, who was not able to give his statement before the jury during the trial because he passed on before the due date. He, however, had a written statement on what transpired on a fateful day, and his witness statement was read to the jury. The Court of Appeal agreed with the court in the use of the written statement by Mr. Rice in the decision to convict the two (Phillips, 2009, p. 2).
• The two cases against the two groups of appellants went on without the victims coming to the courts to give their statement. In the case of Mr. Horncastle and Mr. Blackmore, the Complainant Mr. Rice died before going to the court to give an account of what happened to him, while the other case, the witness who was also the victim Hannah Miles, never appeared before the court because she ran away a day before the trial.
• The other appellants, Mr. Marquis and Mr. Graham, faced charges for allegedly kidnapping a young woman by name Hannah Miles, who wrote a statement at the police station, describing, what happened to her. The statement was read at the trial in the absence of the complainant, who was the victim.
• The two witness statements were approved by the court of appeal on the basis that the victims were not present to give their statements, based on the Criminal Justice Act 2003 (The CJA, 2003). Mr. Rice was dead and this was admissible due to section 116(1), and (2) (a) of CJA 2003, and Hannah Miles section 116(1), and (2) (e) of the CJA 2003, admissible due to fear.
• The appellants were, to some extent, not given a fair hearing according to articles 6(1), and 6(3) (d) because they had no chance of cross examining of the complainants.
• On the 20th of January 2009, Strasbourg Court, in the cases of Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 established that the rights of the defendants were not respected because there were no witnesses at the stand (Phillips, 2009, p. 3). This was due to the Fourth Section of the European Court of Human Rights.

The Approach to the Cases

• The two appellants, Mr. Horncastle and Mr. Blackmore demanded, through their lawyer Mr. Tim Owen QC, that the court of appeal should base their judgment on the pending case of the Al-Khawaja and Tahery v the United Kingdom, which currently at the grand chambers (Phillips, 2009, p. 4).
• The two demanded that the court of appeal use this case both as a determinative and success of the appeal, based on the fact that the court dismissed this case due to disrespect of the rights of the defendants.
• To support his argument, Mr. Tim Owen QC provided that it was appropriate to respond to section 2(1) of the Human Rights Act 1998 that demands that any court should take into consideration the decision or judgment of the European Court of Human Rights. This applies to, when a case is relevant to the case, handled by the European Court of Human Rights, hence, demanding the same approach, as that of the Chamber in Al-Khawaja (Dugdale, 1966, p. 76).
• Lord Phillips, however, held that the court was under no obligation to act, according to the proceeding of the Strasbourg Court, because the two courts have clearly different principles when it comes to handling domestic cases. By declining to put into consideration the decision of the Strasbourg Court, the Appeal Court created a good chance for dialogue between the two courts to discuss the issue about the respect or disrespect of a defendant rights during the absence of a witness, who made a statement.
• The approaches that could apply in these cases can be the common law approach to the fair trial, which was first put into use in the United Kingdom in 1963. This law has caused a lot of strain to the Strasbourg Court because it differs from article 6 in the terms, provided for the fair trial. However, the English trial system is adversarial in nature, and focuses on the trial and not on the investigation process that is carried out by the executive wing, in this case by the police. The defendants, in this case, get protection and fair hearing because of the presence of a judge, who determines, whether the evidence brought forth is sufficient or not and whether it is fit to be used in the trial (Phillips, 2009, p. 4).
• The hearsay approach can be used in this case, if the statements, written by the victims, were not according to their knowledge or the statements were written, based on what the victims said before interrogation at the station (Phillips, 2009, p. 7).

The decision of the Court of Appeal

• The decision, made by the Court of Appeal to dismiss the cases of appeal, was brought by the four. Each appellant, convicted on indictment of criminal offences, came about after the Criminal Division of the Court of Appeal with five strong judges sat. These judges have extensive experience in the criminal justice, and this qualified them to listen to the appeal of the appellants (Phillips, 2009, p. 5).
• Before making the decision, a lot of things and extensive researches were carried out by the Court of Appeal on cases, handled locally and in the Strasbourg jurisprudence. The demands of the appellants to the court to apply the decision of the Strasbourg jurisprudence was dismissed because the statutory regime used provided a fair trial. This is because applying the regime of the Strasbourg jurisprudence, in this case, would be contrary to the Parliament’s meaning.
• The hearsay rule issue did not affect the trail because article 6(3) (d) was designed in such a way that it ruled out any possibility of statements that were made without the knowledge of the victim or the witness (Phillips, 2009, p. 46). This, further, made the hearsay a part of the fair trial with the enacted exceptions by the parliament regime, by creating safeguards against the sole or decisive rule. To further support the decision to dismiss, the appeal is the recognition of the court of Strasbourg, to the exceptions of to article 6(3) (d), which needs consideration for justice to prevail (Phillips, 2009, p. 5).

Implications

The appeal against the decision of the jury during the trial raises the question on whether the differing provisions of the Strasbourg jurisprudence and the domestic laws provide fair trials to its defendants. The appellant claims in his statement to the jury that they did not reason adequately and relied on anonymous witnesses. This links the whole appeal case and the jury’s decision to the decisive or sole judgment (Phillips, 2009, p. 21).

• However, the domestic position differs with this provision, stating that the procedures for creating the witness statement follow strict procedures that shield the defendant. The absence of a witness and the provisions of article 6(3) (d) are put to the test with this ruling (Phillips, 2009, p. 69-70). An example of a case, where the breach was committed against article 6(3)(d), was in the Sadak and Others v Turkey (2003) 36 EHRR 431, where some witnesses refused to come to the witness stand for fear of sectarian aggression (Phillips, 2009, p. 69). The ECtHR put that sometimes the court has to use evidence, collected during the investigation as long as no one made the statement due to fear, imposed by the concerned parties (Phillips, 2009, p. 69).
• The publication of the Committee of Ministers of the Council of Europe was in 1997, in regard to intimidation of witnesses, providing that evidence, collected during a pretrial, had to have additional evidence, brought before the jury to convict the defendants. However, there have been cases in the Strasbourg jurisprudence; like in the case of Grant v The Queen where the court did not establish, whether the witness statements were hearsay. These questions are based on the credibility of the decision, the decisive or sole evidence, used in the trial.

Conclusions

The conclusion of the president, in regard to the appeal case, brought to the Court of Appeal, stems from the common law, which, through article 6(3) (d), addresses the aspect of fair trial in a hearsay case of witness statement (Phillips, 2009, p. 7). The court of Strasbourg in its rulings have caused a dilemma on whether they maintain clarity in their decision, based on the decisive or sole rule because they consider it an underlying principle that guides the decisions of the jury (Glenn, 2005, p. 57). This raises the question as to whether the Strasbourg Court decision to approve the rule makes its judicial process fair. However, this case cannot use the Al-Khawaja decision to make its judgment because the Court of Appeal does not use the decisive or sole rule in their judicial process, while the Strasbourg jurisprudence uses it.