# data[].attributes.body
Discretionary Exclusion in Common Law

s.78 PACE - discretionary exclusion if adverse effect made by it

s.123 CJA - if W who is original evidence is incapable of understanding questions can exclude

s.124 - any evidence that would apply to W's credibility is still admissible despite evidence being admitted as hearsay

s.125 - Evidence is wholy/ partly based on hearsay and is unconvincing in it's importance to D'c case

# data[].attributes.body
Declined to follow Al-Khawaja.

Held: it is a matter for the national courts. Further, the domestic legislation provides a safeguard, as it aims to ensure that hearsay is only admitted when it is fair that it should be (Part 11, Chapter 2 of the 2003 Act).

# data[].attributes.body
Reconciles Horncastle and Tahery and is the leading case on the application of Horncastle.

# data[].attributes.headline
R v (Hicks) v Commissioner of Police of the Metropolis. CA addressed the Q of how domestic courts should deal with decisions of the Strasbourg court interpreted of a provision of the ECHR.

# data[].attributes.subject
R v (Hicks) v Commissioner of Police of the Metropolis. CA addressed the Q of how domestic courts should deal with decisions of the Strasbourg court interpreted of a provision of the ECHR.

# data[].attributes.headline
A conviction based to a "decisive degree" should be understood as indicating evidence of such significance or importance as is likely to be determined of the outcome of the case.

# data[].attributes.subject
A conviction based to a "decisive degree" should be understood as indicating evidence of such significance or importance as is likely to be determined of the outcome of the case.

# data[].attributes.headline
"Solely" refers to a conviction after a trial in which hearsay evidence was the only evidence against the accused

# data[].attributes.subject
"Solely" refers to a conviction after a trial in which hearsay evidence was the only evidence against the accused

# data[].attributes.body
Hearsay is defined as the statement of a person not present in the court adduced to prove its contents but not by a person who can testify to its content. This is complimented by the Criminal Justice Act 2003 (to which all following sections stated are a part of, unless the contrary is noted) ss.114(1), 115(2) and 115(3) which defines hearsay as “a statement not made in oral evidence in the proceedings… as evidence of any matter stated”.

# data[].attributes.body
Article 6(3)(d) ECHR provides that everyone charges with a criminal offence has the right to examine or have examined witnesses against him. Thus a right to confront a witness personally is not absolute since to ‘have examined’ may include a pre-trial examination by an advocate.

# data[].attributes.headline
The Strasbourg Grand Chamber decision in Al-Khawaja and Tahery:  The Grand Chamber (of 17 judges) has issued judgment and held (15 to 2) that there was no violation of Article 6(1) in respect of Mr Al-Khawaja and has held unanimously that there was a violation in respect of Mr Tahery (who was awarded 6000 Euros by way of just satisfaction and 12000 euros for costs and expenses).  The court agreed with the domestic courts and found that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6(1).  Counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence.Article 6 requires an assessment of the overall fairness of criminal proceedings.  The right to examine a witness - Art 6(3)(d) - is based on the principle that, before an accused can be convicted, all the evidence must normally be produced in his/her presence at a public hearing so that it can be challenged.  Two requirements flow from this.  (1) there must be a good reason for non-attendance of the witness.  (2) a conviction based solely or decisively on the statements of an absent witness is generally considered to be incompatible with fairness under Article 6 ( the sole or decisive rule).The sole or decisive rule was not to be applied inflexibly and Strasbourg would not ignore the specifics of the particular legal system concerned.  The court looks at the overall fairness of the proceedings and weighs in the balance the competing interests of the defence, the victim, and witnesses and the public interest in the effective administration of justice. Where a conviction is based solely or decisively on the statement of an absent witness, counterbalancing factors must be in place, including strong procedural safeguards.

# data[].attributes.subject
The Strasbourg Grand Chamber decision in Al-Khawaja and Tahery:  The Grand Chamber (of 17 judges) has issued judgment and held (15 to 2) that there was no violation of Article 6(1) in respect of Mr Al-Khawaja and has held unanimously that there was a violation in respect of Mr Tahery (who was awarded 6000 Euros by way of just satisfaction and 12000 euros for costs and expenses).  The court agreed with the domestic courts and found that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6(1).  Counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence.Article 6 requires an assessment of the overall fairness of criminal proceedings.  The right to examine a witness - Art 6(3)(d) - is based on the principle that, before an accused can be convicted, all the evidence must normally be produced in his/her presence at a public hearing so that it can be challenged.  Two requirements flow from this.  (1) there must be a good reason for non-attendance of the witness.  (2) a conviction based solely or decisively on the statements of an absent witness is generally considered to be incompatible with fairness under Article 6 ( the sole or decisive rule).The sole or decisive rule was not to be applied inflexibly and Strasbourg would not ignore the specifics of the particular legal system concerned.  The court looks at the overall fairness of the proceedings and weighs in the balance the competing interests of the defence, the victim, and witnesses and the public interest in the effective administration of justice. Where a conviction is based solely or decisively on the statement of an absent witness, counterbalancing factors must be in place, including strong procedural safeguards.

# data[].attributes.body
It is doubtful that untested evidence would not breach Article 6 ECHR.

# data[].attributes.headline
Lord Mance's Comments in R (on the App of Chester)

# data[].attributes.subject
Lord Mance's Comments in R (on the App of Chester)

# data[].attributes.body
R (on the application of Chester) (Appellant) v Secretary of State for Justice and McGeoch (Respondent) v The Lord President of the Council and Another (Respondents) provides current guidance for the decision of a court to refuse to follow law from the ECtHR. It states that it would have to involve some “truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for this Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.” Clearly it demonstrates the lengths to which the ECtHR must have misunderstood our law or the importance of the statute required in order to ignore their decisions.

# data[].attributes.body
The first thing to understand is the “sole and decisive” rule created in the lower chamber of the ECtHR in Al Khawaja and Tahery v UK (2009). This is the rule that a conviction basely solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or have examined is incompatible with Article 6 of the Convention.

# data[].attributes.body
A conviction based solely on uncontested evidence (hearsay). The debate is whether or not it automatically breaches Article 6 ECHR.