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The HRA and precedent

By Dave

We’ve been a bit slow on this one, but R v Horncastle [2009] UKSC 14 offers further light on the quarter pounder v royale with cheese debate, which has occupied much of our time this year. J noted that R v Purdy suggested that the UKSC would offer some assistance where a recent judgment was inconsistent with subsequent ECHR judgments (see also Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74, cited by Lord Brown in Horncastle at [118], referring to the wonderful sentence of Lord Rodger: ““Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.”)

Horncastle, however, concerns a rather different situation with potentially more relevance to the ongoing debate about the use of Article 8 as a defence to possession proceedings – the House of Lords in Doherty were not exactly enamoured with the decision in McCann.  So: what should the UKSC do when it disagrees with Strasbourg jurisprudence?

The answer given in Horncastle at para [11] is robust:

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 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.

I cannot claim any knowledge of hearsay evidence in criminal cases – the subject of Horncastle in which the UKSC basically disagreed with ECHR jurisprudence (and, it is fair to say that “disagreed” is putting it mildly, excoriating is also mild but closer to the way in which the UKSC approached the Strasbourg court’s approach in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1) – but the notion of “valuable dialogue” between courts which fundamentally disagree on basic principles seems a little obtuse to me (I’m just thinking about quarter pounders and royales having a nice chat about the metric system).  In Horncastle, this valuable dialogue was facilitated by the Grand Chamber adjourning the UK government’s request for a reference until the UKSC had pronounced its outcome in Horncastle.  On Article 8 cases, though, we do have a consistent line of ECHR opinions (unlike the hearsay opinions,  according to the UKSC) although we await a Grand Chamber pronouncement; it’s just that “our” judges don’t seem to like them.


  1. Crime and Evidence

    Ah you beat me to it NL.

    I was going to post something on this in the next week. As I know a lot about Hearsay. Its a profoundly mind numbing decision but interesting in its aspects of NOT wanting to follow ECHR jurisprudence on the subject matter.

    Al-Khawaja and Tahery v UK (Tahery was refused permission to appeal to the House of Lords so appealed to ECrtHR) held that you cannot base a conviction soley or decisively on hearsay evidence. The facts are particularly weird, but set out the cases of where someone has died, but has given a written statement to the police and secondly where the witness it too frightened to attend court.

    This all boils down to when admitting the hearsay whether or not the evidence can be effectively challenged.

    After speaking to an academic about this, it appears that the Supreme Court really is just waiting for the Grand Chamber to have a sudden whimsical change of mind. The Supreme Court are in effect just holding out, and being very stubborn.

    I can’t imagine how much more litigation this needs in order to sort it out, if the Grand Chamber doesn’t retreat from the initial court’s decision, this could possibly lead to BIG changes in the CJS, lots of defendants are convicted on hearsay evidence, though I’m not sure how many are solely convicted on just that evidence..

    Thank you for your analysis, I’ll try and post something more substantive for you to read, perhaps explaining the hearsay rule?? ( I couldn’t imagine anything more painful)


    • NL

      Hi Stuart, it is Dave’s note, so NL in the plural. I’d have to say we are less interested in criminal hearsay per se than in precedents for a stand- off between the Supreme Court and Strasbourg, as housing law has a big one of its own. I’ll look foward to your post with interest, though.


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