Unfair Consequences: How the Reforms to the Rule Against Hearsay in the Criminal Justice Act 2003 Violate a Defendant’s Right to a Fair Trial Under the European Convention on Human Rights

Abstract

For years, judges and legislatures in common-law jurisdictions have struggled to develop effective and equitable rules regarding the admissibility of hearsay statements. Particularly in criminal cases, in which a defendant’s very liberty is often at stake, governments have endeavored to strike the balance between the prosecution’s need for probative evidence against the accused and the defendant’s right to cross-examine those who have made statements against him. Parliament attempted to achieve such parity when it passed the Criminal Justice Act 2003, a watershed piece of legislation that significantly liberalized the admissibility of hearsay statements in English and Welsh criminal trials. Because the Act allows the jury to convict the defendant based on uncorroborated hearsay evidence alone, however, it contravenes the defendant’s right to a fair trial under the European Convention on Human Rights.