The UK supreme court in Horncastle lost sight of a fundamental common law principle. The ruling of the European court of human rights' grand chamber in the case of Imad al-Khawaja will help to remind them of its importance.
"Let my accuser come face to face and be deposed!'' cried Sir Walter Raleigh at his trial for high treason in 1603. His complaint was that he had been deprived of a centuries-old common law right: that of an accused person to confront and cross-examine the witnesses against him or her.
This idea of "face-to-face'' confrontation has long been one of the most basic safeguards of the common law right to a fair trial. When asked to decide between competing accusations of treason, for instance, Shakespeare's Richard II declares that "face to face/ And frowning brow to brow, ourselves will hear/ The accuser and the accused freely speak". And the King James Bible tells us that it "is not in the manner of the Romans to condemn a man to die unless he has his accuser face to face''.
So important was this common law right to cross-examine the witnesses against you that it became the basis for the "confrontation clause'' in the sixth amendment of the US Bill of Rights, as well as the right to cross-examine witnesses under the International Covenant on Civil and Political Rights and the European convention on human rights.
Would you know any of this if you read the judgment of the UK supreme court in R v Horncastle, in which the court invited the Strasbourg court to "think again'' concerning its ruling in the al-Khawaja case? Probably not. For reasons best known only to themselves, the supreme court decided that the provisions of the Criminal Justice Act 2003 that allowed the use of hearsay were a more important feature of English law than the venerable common law right of confrontation upheld by the European court.
To be fair, the old hearsay rule – probably the most convoluted rule in the English law of evidence – was sorely in need of reform. But it was ultimately designed to prevent a very basic kind of injustice: ie people being convicted on the basis of testimony that had not been subject to cross-examination. To read the supreme court's judgment in Horncastle, by contrast, you might think that this amounted to nothing more than a right to be convicted on the basis of uncross-examined testimony that a high court judge sitting alone found sufficiently plausible.
There is, of course, nothing wrong with the core principle highlighted by the supreme court in Horncastle. It is surely right that the court ask Strasbourg to think again if it believes Strasbourg got the law wrong. Indeed, this has already happened several times since the Human Rights Act came into force, although without any the fuss that seems to have accompanied al-Khawaja. If, for example, the European court were ever to make a ruling that restricted abortion rights, you would certainly hope that our supreme court would challenge Strasbourg's analysis.
What is genuinely bizarre was the supreme court's choice of subject matter. It did not go to bat on behalf of a fundamental common law principle. Instead, it went to bat against it, on behalf of the same dodgy piece of legislation that eroded the right of trial by jury and raised the maximum period of pre-charge detention from seven to 14 days.
What does this all this show? First of all, it shows that just because Britain's judges are unanimous about something, that does not mean they are right. Indeed, when it comes to human rights, it would hardly be the first time in recent years that they have been wrong. If it had been left to the UK courts, for instance, we would still have stop and search without reasonable suspicion under the Terrorism Act 2000, and the indefinite retention of the DNA of people neither charged nor convicted of a criminal offence. In both cases, no less than 13 UK judges apiece declared that there was no human rights violation. The European court of human rights was the only court to recognise that indefinite retention of innocent people's DNA and stop and search without reasonable suspicion were genuine breaches of fundamental rights.
The Strasbourg court is not perfect. No court is. But the problems of the court are grossly exaggerated, at least as far as the UK is concerned. Unelected judges? Actually, theirs are elected, ours aren't. Judges from tiny jurisdictions ruling over larger countries? True, but then the supreme court always has two judges from Scotland (population 5 million) and one from Northern Ireland (1.75 million) and nobody doubts their quality.
A huge backlog of cases? Again true, but most of those end up being ruled inadmissible in any event. The number of cases against the UK has never been large by comparison with those from Russia and Turkey, for instance. Most striking is how much value for money the court delivers on what is, on a per capita or per case basis, a shoestring budget compared with your average county court in England and Wales.
The irony here is that the common law right of confrontation is exactly the kind of right that UK courts should be expected to defend, the kind of traditional liberty that you might expect to be at the heart of any British bill of rights worth the name. Although the grand chamber somewhat fudged its application of the "sole or decisive'' rule in one of the complaints in al–Khawaja, it nonetheless rejected the UK government's wholesale attack on its jurisprudence.
Once again, it has fallen to the European court of human rights to protect a right that is apparently better understood abroad than at home. The court's role should be celebrated by anyone who values the common law. The fact that it probably won't be shows just how febrile the UK debate on rights has become.
Eric Metcalfe is a barrister at Monckton Chambers. He was previously director of human rights policy at JUSTICE, which intervened in Al Khawaja before the European court of human rights
