DIALOGUE
In the case of Horncastle,[47] the UK Supreme Court's unnecessarily lengthy judgments dealt with reference to hearsay evidence from witnesses. The case involved absentee witnesses who had died before trial or who were absent through fear of giving open testimony.
The decision was that there is no requirement in English law that a conviction cannot be based on the sole or decisive evidence of an absent witness. In England a conviction based on that sole or decisive evidence is available as for any other absent witness. Lord Phillips and his colleagues seemed to make their decision in conflict with the case of DavisJ in which Lord Bingham had acted upon the presumption that there cannot be a fair trial within Article 6 of the European Convention with an anonymous witness providing written testimony which is the sole or decisive evidence. Horncastle was directly in conflict with the Strasbourg jurisprudence. The Supreme Court was conscious that it was making a plea for a reexamination by the Grand Chamber of the European Court of Justice, which did so, modifying its earlier application of the ‘sole and decisive’ test. A qualification of that ruling could be departed from in a suitable case. Strasbourg’s second thoughts were found acceptable. Judicial dialogue appeared to succeed. But should it have offered a sensible compromise between the two systems upholding a right to a fair trial? Here then was the nub of the problem - a difference in attitude between the binary modes of criminal trial, both judiciaries talking at cross-purposes. The UK Supreme Court based itself on the reliability thesis, which encompassed the criminal justice philosophy of the criminal justice process actively assisting in the general aim of crime control. Given the absence of the witness, the jury could properly look to other evidence to feel confident that the account of the witness is in fact reliable, having regard to the safeguards in the Criminal Justice Act 2003 about anonymous witnesses. By contrast with the English system, which is geared to the courts exercising the public interest in controlling crime, the mode of trial in most of Western Europe is linked to the overriding principle of due process in Article 6 of the Convention. The procedural rule of fairness in the criminal trial overrides, if it does not exclude, any other purpose than the trial. Public policy on criminality is the function of the enforcement agencies outwith the courtroom.Each mode of criminal trial reasonably functions to legitimise the difference in principle towards anonymous witnesses. The European qualification to the UK Supreme Court’s plea for a rethink may bring the binary systems closer. But we shall have to await the outcome of criminal justice cases. If the European Court of Human Rights can be said to have abandoned the full effect (if any effect) of the ‘sole and decisive’ rule, it may be argued that it too proceeds upon the principle of reliability of testing. In which case, has ‘due process’ taken a step towards a unified system of criminal justice within the Council of Europe? The relationship between due process and the test of overall reliability of testimony may still have
9 R vDavis [2008] UKHL 36. to be fought out. In which case, there is much to be debated in the administration of criminal justice within the European Union. The present difficulty is not lessened, because in many of the concurring judgments in Horncastle and in other cases since the modified pronouncement in the modification at Strasbourg, there is the respectable opinion that what is said in Strasbourg can properly be ignored in London. To ‘take account’ of Strasbourg, because that court speaks the last word (except for special circumstances), simply perpetuates conflict: hardly a recipe for dialogue and compatibility.