Strasbourg's ruling on hearsay evidence could change its relationship with UK
The European court of human rights is considering a challenge by the UK supreme court to its ban on hearsay evidence
Once again I find myself challenging the so-called legal expert and legal commentator Joshua Rozenberg. The ECtHR's rulings do not change its relationship with any of the 47 Member States within the Council of Europe. Therefore, to claim otherwise is plainly false. It is the UK's relationship with the Court that has changed over the years. For example, choosing to ignore implementing those decisions of the Court it thought it should not have lost.
It is not just the headline which is wrong but also the subheading. The Court is not considering a challenge by the UK Supreme Court, simply because the Court only has jurisdiction to consider challenges by individuals from Member States or Member States challenging other Member States.
The UK has challenged the Chamber decision in Al-Khawaja and Tahery v. the United Kingdom upon appeal to the Grand Chamber. The UK Supreme Court has no jurisdiction to challenge the ECtHR, simply because the latter is the highest court in Europe.
It may well be that Joshua Rozenberg is not guilty of writing the headline and subheading because in his first paragraph he writes: "On Thursday, the grand chamber of the European court of human rights will deliver a judgment that could mark a turning point in the UK's relationship with the Strasbourg court". This accords with my view that rather than the Court's relationship it is the UK's relationship that is in question.
It is disgusting that the Court has taken 18 months to reach a decision which it could, in my view, have been reached in 18 days. It is arguable that the Court itself is guilty of procrastination.
Joshua Rozenberg states: "Traditionally, the English courts have not permitted hearsay evidence: a witness was not allowed to give evidence of what he heard someone say to him. That was because it was difficult for the jury to assess the value of an absent witness's evidence. But English law now permits a number of exceptions in the interests of justice. These are not reflected in the wording of the human rights convention".
I fail to see how denying somebody a fair trial can be in the interests of justice. I beg to differ with Joshua Rozenberg if he is stating that Article 6 of the Convention does not reflect the need for a fair trial. If he is stating that the English law exceptions are not reflected in the Convention then I agree with him. But, I would go further and state that English law is contrary to Article 6 and therefore incompatible with the Convention. Joshua Rozenberg needs to realise that those who pull their punches do not win fights. He needs to learn to call a spade a spade.
Joshua Rozenberg continues: "What the Strasbourg judges have been asked to decide is whether two defendants in unrelated cases received fair trials in the crown court. They were both convicted even though their lawyers had not been able to cross-examine witnesses who had given written evidence against them".
In my view, it is bleeding obvious that they did not receive fair trials given that hearsay was accepted as evidence even though their lawyers could not cross-examine the witnesses.
In my view, s.2 of the HRA 1998 is incompatible with the Convention because it only requires a court to take into account an ECtHR decision whereas Article 44(1) states that the Grand Chamber decision is final. And Article 46 (1) states that the decisions are binding on Member States. The problem is that a Chamber decision is not binding until either the individual or Member State indicate no intention to appeal the decision to the Grand Chamber. Therefore whilst the courts are required to take into account the Khawaja ruling, they are not bound to follow it.
In Horncastle and Rice "the supreme court declined to follow the Strasbourg case. Dismissing the appeals, Lord Phillips, the president, said that exceptions to the hearsay rule had been approved by parliament.
"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," Phillips acknowledged.
"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. This is such a case"."
It is not clear whether Lord Phillips is corrupt, too senile or too stupid to be a judge.
If the Grand Chamber had already decided and ruled on the issue then it is irrelevant that exceptions to the rule had been approved by Parliament. Parliament would be under an obligation to remove the offending exception to be compatible with the Convention. Had the Grand Chamber made its decision then and the Supreme Court refused to follow it on the basis of this judgment by Lord Phillips it would be acting unlawfully. "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".
It is arrogant of Lord Phillips to assume he has the jurisdiction to give the ECtHR another opportunity to reconsider its decision. Come Thursday, if the ECtHR upholds its original decision then the UKSC must follow the decision or it will be acting unlawfully.
Having said this given David Cameron's stupid performance on Friday when he exercised the veto and walked away from the EU, it may not be too long before the UK withdraws from the EU. Then I can see the UK withdrawing from the Council of Europe and ignoring any obligations under the Convention. If this happens, pity anyone foolish enough to stay in this country under a Cameron dictatorship.
No comments:
Post a Comment