We recently acted in this important hearsay evidence case which eventually, after 8 years of litigation, reminds both the Court of Appeal and the legal profession of the importance of looking behind the hearsay provisions of the Criminal Justice Act 2003.
The history:
• Tahery convicted of S.18 GBH at Crown Court in 2005 receiving a 9 year
sentence.
In 2006, Court of Appeal reduces sentence to 7 years but refuses leave to
Appeal against Conviction.
In 2009, the ECHR ( having joined the Appeal with the case of Al-Khawaja),
found that Mr Tahery’s trial was unfair and a breach of Article 6.
In 2009, the UK Government appeals the decision of the ECHR and relies upon the CA judgement in Horncastle (2009). The ECHR refers the linked cases of Al-Khawaja and Tahery to its Grand Chamber with a decision deferred until after the delivery of the Judgement of the Supreme Court in the Appeal of R v Horncastle.
In December 2011, the Grand Chamber unanimously held that there had been a violation of Article 6 in the trial of Mr Tahery through the admission of a hearsay statement, and awarded him 6,000 Euros and costs.
In 2012, an application was made to the CCRC who in December 2012 referred Mr Tahery’s case to the Court of Appeal on the basis that there was a real possibility that his GBH conviction was unsafe.
On 6th June 2013, the CA quashed Mr Tahery’s conviction as unsafe, and
Gave its written judgement on 27.06.2013.
The Issue.
The victim was stabbed in the back 3 times whilst Mr Tahery ( according to the victim) was standing in front of him and a number of other persons were standing around him. The victim gave evidence but did not say that Mr Tahery stabbed him. During the trial, the Crown made an application under the hearsay provisions for the statement of a witness to be read, the statement alleged that the witness had seen Mr Tahery stab the victim in his back. The CC Judge found the absent witness was in fear although there was no evidence that it was Mr Tahery ( or anyone acting on his behalf) who had brought this about. The CC Judge allowed the admission of the hearsay statement from the absent witness.
The defence at the time and throughout the appeal process argued that the admission of hearsay evidence which was decisive, uncorroborated and unreliable and could not be effectively tested by cross-examination was wrong and unfair.
In 2006, the Court of Appeal chose to reject the above argument but thankfully after 2 successful hearings in the ECHR, was persuaded to look at the facts of the case again and recognised a number of consequences of the decision to admit the hearsay evidence. That the hearsay evidence was decisive and unsupported by other evidence. That, there was no evidence available to the defence to challenge the hearsay statement. That, no fair assessment of the reliability of the hearsay evidence could be made by a jury. That, there was no proper opportunity for the defence to rebut the hearsay evidence. The cumulative effect of which was to render the trial unfair and finally a quashing of Mr Tahery’s conviction.
The case was handled by Martyn Fisher who instructed Rebecca Trowler QC at Doughty Street Chambers
