Absent Witnesses and the UK Supreme Court: Judicial Deference as Judicial Dialogue?

Abstract

This article analyses the position of absent witness evidence under the UK Criminal Justice Act 2003 after significant European and domestic case law on the topic. It argues that flexibility in the hearsay regime under the 2003 Act and a permissive approach by appellate courts has increased the potential for fair trial violations in recent years. Moreover, the UK Supreme Court decision in R v Horncastle preserves domestic courts' authority to determine the meaning of European rights and selectively defer to Parliament. This area of the law demonstrates the scope that the domestic system retains for divergence from European standards.

Transnational Evidence and Multicultural Inquiries in Europe

“…Playing the UK Supreme Court at its own game, the Grand Chamber produced a comprehensive and detailed review of the authorities in this area, analysing the reasoning of the UK Court of Appeal, 46 the UK Supreme Court 47 and the approach adopted by common law 41 O'Brian (2011), p. 94. 42 Requa (2010), pp. 209 and 230.…”