Information Note on the Court’s case-law No. 180
December 2014
Horncastle and Others v. the United Kingdom - 4184/10
Judgment 16.12.2014 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-d
Examination of witnesses
Convictions based on statements by absent witnesses: no violation
Facts – In November 2007 the first and second applicants, Mr Horncastle and Mr Blackmore, were convicted of causing grievous bodily harm with intent by a unanimous jury verdict. Their victim had given a written statement to the police identifying his attackers but had died before trial from an unrelated illness. The statement was admitted in evidence against both applicants.
In May 2008 the third and fourth applicants, Mr Marquis and Mr Graham, were convicted of kidnapping a woman during a burglary. During the kidnapping they threatened to harm her. The victim and her husband initially made written statements to the police but later refused to appear as witnesses at trial because they feared for the safety of their families. The victim’s statement was admitted in evidence against the two men but the judge refused to admit the statement of her husband.
All the applicants’ appeals against conviction were dismissed.
Law – Article 6 § 1 in conjunction with Article 6 § 3 (d): The Court applied the principles set out in Al-Khawaja and Tahery v. the United Kingdom. The Grand Chamber ruled in that case that when the evidence of an absent witness is the sole or decisive basis for a conviction, sufficient counterbalancing factors which permit an assessment of the reliability of the evidence are required. The Court must decide whether there was a good reason for the witnesses’ non-attendance; whether the witness statements were “sole or decisive”; and, if so, whether there were nonetheless adequate counterbalancing measures to protect the applicants’ right to a fair trial.
(i)  First and second applicants – The victim’s death had made it necessary to admit his witness statement as hearsay evidence.
As to whether the statement was sole or decisive, the starting point was the judgments of the domestic courts. The trial judge, in his summing up, said that the prosecution case depended upon the evidence of the victim. The Court of Appeal identified substantial evidence independent of the victim’s statement but also accepted that the statement was “to a decisive degree” the basis of the applicants’ convictions. However, in the Court’s view, it was more than arguable that the strength of the other incriminating evidence in the case, in particular the first and second applicants’ admissions that they were present at the victim’s flat that night, meant that the victim’s statement was not “decisive” in the sense of being determinative of the outcome of the case.
Even assuming, however, that the victim’s statement was “decisive”, there were sufficient counterbalancing factors to compensate for any difficulties caused to the defence by its admission, including the legislative framework regulating the circumstances in which hearsay evidence could be admitted and the possibility for the applicants to challenge its admission. The safeguards contained in the law were applied appropriately. The applicants were able to lead evidence to challenge the reliability of the statement and the victim’s credibility. When taken with the strength of the other prosecution evidence in the case, the provisions of the law as applied in the applicants’ case enabled the jury to conduct a fair and proper assessment of the reliability of victim’s statement.
Conclusion: no violation (unanimously).
(ii)  Third and fourth applicants – The trial judge had undertaken appropriate enquiries concerning the level of the victim’s fear to demonstrate the need to admit her written statement.
As to whether that statement was sole or decisive nature the Court considered it significant that the Court of Appeal did not consider the evidence of the victim to a decisive extent. Extensive independent evidence existed in the case including undisputed CCTV footage putting the third applicant outside the victim’s home at the time of the kidnapping, undisputed telephone record data showing calls from the victim’s phone and from the phone of the fourth applicant to the victim’s partner on the night of the kidnapping and evidence that the two applicants had checked into a hotel with the stolen car in their possession. There was also other witness evidence including the victim’s father and the police officer who had listened to the ransom calls. 
Accordingly, in the light of the other strong incriminating evidence, it could not be said that the victim’s statement was of such significance or importance as to be likely to determine the outcome of the case against the third and fourth applicants. It was therefore not the sole or decisive basis of their convictions. In these circumstances, it is not necessary to examine whether there were sufficient counterbalancing factors permitting a fair and proper assessment of the reliability of the statement).
Conclusion: no violation (unanimously).
(See Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Information Note 147)

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