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.