R v Horncastle [2009] UKSC 14; [2010] 2 AC 373

Key point

  • The Supreme Court asserted that while it is ‘required to take into account’ Strasbourg jurisprudence under s2(1) Human Rights Act 1998 (HRA), it was not bound to do so and on rare occasions, they will refuse to do so


  • The defendant was convicted of inflicting grievous bodily harm with intent
  • The victim’s statement was relied upon by the prosecution ‘to a decisive extent’; however, due to her fear she absconded and died
  • The Criminal Justice Act 2003 provides for judges to allow evidence to be presented in a way where hearsay evidence is allowed if a witness is unavailable due to prescribed reasons under s116(2)(a) and 116(2)(e)
  • The defendant appealed on the basis that there was a violation of the ‘sole and decisive rule’ in Al-Khawaja, where the ECtHR held that there was a violation of Articles 6(1) and 6(3)(d) when a statement was the sole and decisive basis of conviction, and the witness was not present for cross examination

Held (Supreme Court)

  • Appeal dismissed
  • The court found that there was no breach of Article 6, despite the victim’s statement being the ‘sole or decisive’ basis of conviction as the evidence was compliant with the domestic regime under Criminal Justice Act 2003

Lord Philips

Scope of s2(1) HRA 1998

  • ‘The requirement to ‘take into account’ will normally require application of principles in Strasbourg jurisprudence by national courts: [11]
  • ‘There will, however, be rare occasions where the domestic 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 the domestic 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 the domestic court and the Strasbourg court. This is such a case.’: [11]

Current case

  • ‘Jurisprudence of the Strasbourg court in relation to article 6(3)(d) has developed largely in cases relating to civil law rather than common law jurisdictions and this is particularly true of the sole or decisive rule.’ [107]
  • ‘Case law appears to have developed without full consideration of the safeguards against an unfair trial that exist under the common law procedure’ (now enshrined in statute): [107]

Lord Brown

  • ‘The better view may therefore be that no such absolute principle emerges from the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1. In this event the stuffing falls out of these appeals and they must fail: the domestic legislation on hearsay evidence was faithfully followed in the courts below; there was nothing unfair about admitting the relevant statements and the convictions can be seen to be perfectly safe.’: [116]


  • Horncastle iterates a similar principle as determined in Re P (Northern Ireland), where the courts demonstrate the prioritisation of domestic courts’ interpretation of Convention rights in specific circumstances, highlighting a departure of the previous approach of strictly following ECHR jurisprudence under the Ullah principle