Title of Case comment: Documentary Hearsay: How Far Can You Go?

Completion date: 27 June 2002

The Court of Appeal upheld the trial judge’s ruling, at a preliminary hearing, that the video-recorded evidence of an 81 year old victim of an indecent assault was admissible pursuant to Section 23 of the Criminal Justice Act 1988 ("CJA 1988"), as she had, since the video recording, deteriorated into senility as a result of Alzheimer’s disease. On one view, the case is likely to have a very short shelf-life, since the provisions of Part II the Youth Justice and Criminal Evidence Act 1999 ("YJCEA 1999") are due to be brought into force towards the end of July, and they will allow much broader use of video-recorded testimony. However, since those provisions are likely to be the subject of attack from defendants on the basis that they are incompatible with their human rights, this case may provide an interesting insight into the approach the courts are likely to take to such defence arguments.

The Appellant’s argument in this case was based, inter alia, on Article 6(3)(d) of the European Convention on Human Rights (the right to examine witnesses). The trial judge had considered in particular Sections 23 and 26 of the CJA 1988. In short he ruled that it was "in the interests of justice" to admit the evidence. This is the test for admission set out in Section 26 of the CJA 1988. Having so ruled, he further ruled that if a judge applied Section 26 of the CJA 1988 (and also Section 78 of the Police and Criminal Evidence Act 1984) correctly, then there should be no infringement of Art. 6.

Essentially, the Court of Appeal agreed. They started with the principle that the admissibility of evidence is a matter for domestic law; the concern of the European Court, and it follows the ECHR itself, "is whether the proceedings as a whole, including the way in which evidence was taken, were fair". The test of "in the interests of justice" in Section 26 of the CJA 1988 inevitably involves a balance between the interests of the defendant on the one hand and the interests of the prosecution, and in particular prosecution witnesses, on the other. The prosecution in the present case had argued before the Court of Appeal that the European Court had previously held that there is an obligation to protect victims. This principle is found, for example, in X and Y v The Netherlands (1986) 8 EHRR 235; Doorson v Netherlands ibid; and A v UK (1998) 27 EHRR 611. In Doorson v Netherlands, the European Court stated that the rights of victims and witnesses are protected by Art. 8 and other substantive provisions and, it continued, "principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify." In the present case, although the Court of Appeal does not say so, it seems that this passage, which was cited to the Court, articulates a principle which formed the basis of the Court’s affirmation of the trial judge’s ruling that the test "in the interests of justice", if applied properly, is unlikely to be incompatible with Art. 6. The Court of Appeal said, "The important point that has to be remembered in this regard is that a victim, or possible victim, has rights which have to be balanced against those of a defendant." But surely, the right to a fair trial is absolute! This has always been understood to mean that it cannot be balanced against other rights. The best solution available to this conundrum is to focus on the concept of fair trial above all else. Any other principles can be balanced one with the other, provided that at no stage is the fairness of the trial imperilled: Brown v Stott [2001] 2 WLR 817. Thus, the defendant’s right to have the witness against him cross-examined is not absolute: see the decision of the Commission in Trivedi v UK (1997) EHRLR Issue 5, at 521. As with so many "rights" the defendant may seek to rely upon under the umbrella of Art. 6, the assessing in advance of whether the use of Section 23 of the CJA 1988 or the provisions of the YJCEA 1999 are unfair is not amendable to an easy test. Two features which have generally been held to be important in this area are: first, the strength of the other evidence against the defendant; and secondly, the extent to which the defendant has had the chance to challenge the evidence in some way other than direct cross-examination. In the present case, this seems to have been by calling medical evidence as to the reliability of the witness/victim when she made the video recording.

Some might say that one consequence of the lack of any precise test, with reliance being placed on the ultimate test of the fairness of the trial, is that it is only in the clearest cases of unfairness that the defence is likely to succeed!