Horncastle & Ors, R v

Factual and Procedural Background

The case consolidates four appeals by the Appellants, each convicted of serious criminal offences and whose convictions were upheld by the Court of Appeal. In two of the trials the prosecution read a statement from Witness A (the alleged assault victim) who died before trial. In the other two trials the prosecution read a statement from Witness B (the kidnapping complainant) who absconded in fear on the eve of trial. The statements were admitted under the Criminal Justice Act 2003 (“CJA 2003”)—section 116(2)(a) for a deceased witness and section 116(2)(e) for a fearful witness. After the Court of Appeal dismissed their appeals, the Appellants sought relief in the Supreme Court, alleging that reliance on the written statements violated article 6 of the European Convention on Human Rights.

Legal Issues Presented

1. Whether, as a matter of domestic law and article 6(1) and 6(3)(d) ECHR, a conviction based “solely or to a decisive extent” on an absent witness’s statement is automatically unfair.
2. Whether trial judges should have excluded the statements by “reading-down” the CJA 2003 or by exercising the discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”).
3. How domestic courts should treat the Fourth Section judgment in Al-Khawaja & Tahery v United Kingdom when applying section 2(1) of the Human Rights Act 1998 (“HRA 1998”).

Arguments of the Parties

Appellants’ Arguments

• Article 6 requires acquittal whenever hearsay is the sole or decisive evidence against the accused (“sole or decisive rule”).
• The trial judges ought to have excluded the hearsay either by construing the CJA 2003 compatibly with article 6 or by applying PACE s.78.
• The Court of Appeal was bound by Al-Khawaja; therefore the Supreme Court should follow it and quash the convictions.

Respondent’s Arguments

• The CJA 2003 contains detailed safeguards—judicial gate-keeping, mandatory directions, and a power to stop the case under s.125—making the “sole or decisive rule” unnecessary.
• Section 2(1) HRA 1998 requires domestic courts to “take into account” European case-law but allows departure where Strasbourg has not fully appreciated domestic procedural safeguards.
• Applying an inflexible “sole or decisive” prohibition would cause severe practical problems in jury trials and undermine the statutory scheme.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading judgment, Judge [Last Name] held that the common-law hearsay rule, now replaced by the CJA 2003, already served the purpose underlying article 6(3)(d). Parliament deliberately rejected any automatic “sole or decisive” prohibition, embedding instead a suite of safeguards:

• Strict admissibility gateways (CJA 2003 ss.116–117).
• Judicial discretion to refuse evidence where fairness demands (PACE s.78 and CJA 2003 s.126).
• A statutory obligation to stop cases resting on unconvincing hearsay (CJA 2003 s.125).
• Directions to the jury warning of the dangers of hearsay, and appellate review on the “safety” test.

The Court examined Strasbourg jurisprudence and concluded that the “sole or decisive rule” emerged without adequate analysis of common-law safeguards and would cause serious practical difficulties—especially in jury trials where determining whether evidence is “decisive” is almost impossible. Section 2(1) HRA 1998 permits domestic courts to depart from Strasbourg where the latter has not appreciated domestic procedure. Accordingly, the Supreme Court declined to follow Al-Khawaja insofar as it mandated an absolute rule, inviting the Grand Chamber to reconsider.

Holding and Implications

APPEALS DISMISSED.

The statements of both Witness A (deceased) and Witness B (fearful) were properly admitted under the CJA 2003; the trials were fair and the convictions safe. The Court affirmed that English law does not incorporate an inflexible “sole or decisive” rule and that the statutory safeguards are adequate to meet article 6 requirements.

Implications: domestic courts may continue to admit hearsay and anonymous evidence in accordance with the CJA 2003 and the Witness Anonymity Act 2008. The judgment signals a “dialogue” with Strasbourg, encouraging the Grand Chamber to revisit and clarify its jurisprudence. No new domestic precedent was set; rather, existing statutory safeguards were validated.