John Finnis has made many trenchant points in Judicial Power: Past, Present and Future. The following seeks to highlight what can flow from two of them. One is the danger arising from what he calls “inequality of arms”. This takes place, he argues, where the proponents of a movement “for broad social reform … mount judicial proceedings after years of preparation of arguments and evidence”, and confront in court government lawyers who are fresh to the issue and whose hearts may not be in the case. The other is that judges must act “in fidelity to real law applied to proven or admitted facts”. That implies a debate framed by reference to a concrete controversy arising out of those facts. It also implies a duty on the court to adhere to the parameters of the controversy as marked out by the parties and their legal representatives. That duty can only be put aside if the court gives notice of a possible view that that controversy has been ill-defined and that further potentially decisive arguments need to be considered.

The curial resolution of conflicts between competing points of view can only take place in a just way if there is a rough parity in the ability — the talent, the experience, the preparation, the proper forensic zeal — of the competing advocates to deal with the issues arising out of an actual controversy. But what is even more fundamentally undesirable than inequality is incapacity to deal with the crucial point because both sides are in complete ignorance of it until it eventually comes to the parties’ notice for the first time, to their surprise, in the court’s judgment. Here there is not so much “inequality of arms” as mutual disarmament through excusable ignorance.

The Court of Appeal of the Supreme Court of New South Wales has revealed, if not a disposition towards, at least examples of, decisions which turned on points of law never debated between the parties and never raised by the court with the parties.[1] Indeed even more august tribunals have been guilty of this fault.[2] It is obviously an unsatisfactory judicial technique for parties, particularly the losing party, to have had no opportunity to deal with the basis on which the case was lost.[3] It is a fundamental breach of natural justice. It is quite unfair to the loser. And it is equally unfair to the winner. For when the loser appeals, the winner will be deprived of the fruits of its unsatisfactory victory. And the winner will be exposed to the wasted time and squandered costs involved in that successful appeal by the loser to correct an error which was not the winner’s fault, but the court’s. Further, law propounded without notice to or assistance from the parties is not likely to be sound law. Even ultimate appellate courts are extremely busy. Cases rush up. The legal content of some of them is arcane. The legal content of others may be outside fields with which members of the court are familiar. The court is not well placed to work out the law for itself without full assistance from counsel. Counsel can sharpen the definition of issues. They can refine analysis. They can present a representative range of arguments and authorities. Not least, they can point out the undesirable consequences of taking particular courses, whether those consequences are practical difficulties or inconsistency with related doctrines. The adversary posture of the legal representatives is an essential check against curial leaping into the dark — an adventurous but dangerous activity. It is by good disputation that the law should be well known, not just solitary research and personal inspiration unguided by adversary argument.

On these considerations, three fundamental rules of precedent rest. One is that no binding precedent is created when a court follows the practice of “assuming for the purpose of disposing of the particular case, and without any other further consideration on their own part, that the proposition of law relevant to the issue of fact in dispute between the parties had been formulated correctly by counsel by both parties in agreement with each other”.[4] Secondly, even a proposition of law forming part of the ratio decidendi is not binding on later courts where the particular court merely assumed its correctness without argument.[5] The third is that a decision per incuriam is not binding. Relying on this third principle, of course, is not a palatable course for a court facing a “precedent” made by an earlier court higher in the curial hierarchy which is apparently binding but was in fact reached per incuriam.

The dangers in enunciating legal propositions without argument are illustrated by a relatively recent Supreme Court decision — R v Horncastle. One element of the Court’s reasoning rested on the proposition that anonymous evidence is never admissible in English law. Perhaps that proposition was not a decisive element in the reasoning, for there were many other reasons for the Court’s conclusion. But the proposition was a key element. It was never argued by the winning side in the Supreme Court. It was never identified as a relevant issue. The Court never requested assistance about it from counsel for the losing parties (defendants in criminal proceedings challenging their convictions). It is actually incorrect. And it created potential difficulties for later trial judges and panels of the Court of Appeal.

For some time before R v Horncastle was decided in 2009, there had been tension between the English courts and the European Court of Human Rights (the “European Court”). One point of tension concerned whether the English rules of hearsay evidence complied with Article 6 of the European Convention of Human Rights (the “Convention”). The relevant parts of Article 6 are as follows:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing…

3. Everyone charged with a criminal offence has the following minimum rights:…

(d) to examine or have examined witnesses against him…

R v Horncastle involved two appeals by defendants who contended that their rights to a fair trial had been infringed because hearsay evidence had been the “sole or decisive” evidence against them. The “sole or decisive” test had grown up in decisions of the European Court. In 2009 the latest of those decisions was Al-Khawaja v United Kingdom.[6] Rightly or wrongly, most think that the English law on hearsay evidence is now solely statutory, the principal general statute being the Criminal Justice Act 2003 (“the 2003 Act”). In one of the appeals hearsay had been admitted under s.116(1) and (2)(a) of the 2003 Act. Those provisions permit the reception of evidence emanating originally from an identified deceased declarant. In the other appeal hearsay had been admitted under s.116(1) and (2)(e). Those provisions permit evidence emanating originally from an identified declarant who did not give direct oral evidence through fear. Thus the facts in the R v Horncastle cases did not raise any direct question about anonymous hearsay.

Professional opinion saw R v Horncastle as offering an opportunity for the English courts to resolve the conflict between themselves and the European Court. Resolution of conflict can come from capitulation, compromise or resistance. The Court of Appeal and the Supreme Court in R v Horncastle did not capitulate. They did not compromise. They opted for spirited resistance. Their language exhibits a strong determination both to show that the defendants’ trials had not been “unfair” in a Convention sense and, more generally, that a trial could be fair even though the sole or decisive evidence in favour of a conviction was hearsay. Their language also reveals a desire to blur and soften the more dramatic and radical aspects of the 2003 Act in an attempt to avoid shocking the European Court and to increase the chance of the 2003 Act being held compatible with Article 6(3)(d). Thus the courts strongly stressed many “counterbalancing measures” and safeguards in various aspects of the common law, in s.78 of the Police and Criminal Evidence Act 1984 and in the 2003 Act.

Both the Court of Appeal and the Supreme Court concluded that there had been no unfair trial.

Most reasonable observers who are neither English nor European must have enormous sympathy for the English courts in view of the predicament in which they found themselves. Certainly the present writer does. There are several reasons for sympathy. In the first place, some have doubted the merits of the Convention, or at least its merits as construed over time by the European Court. No one has ever formulated the reasons for experiencing those doubts better than John Finnis. Secondly, it is highly questionable to conclude that Article 6(3)(d), which refers to “witnesses against him”, deals with hearsay evidence of non-witnesses rather than conferring a right to cross-examine persons who are witnesses testifying on oath or affirmation. Thirdly, without undue disrespect to the European Court, it must be hard for modern English judges administering the legal system devised by prior judges and legislatures over lengthy periods in which there was no totalitarian rule in England meekly to accept its pronouncements. That is because its judicial membership pool is made up of persons almost all of whom come from countries which have suffered totalitarian rule within living memory, some as recently as 1989. But for present purposes, let us accept the features of the world which underlie the first three reasons, as, for practical purposes, the English courts had to. The fourth reason is harder to accept.

The English law of evidence has had its critics over the centuries. But few areas of the law have been surveyed periodically by abler minds more intensively than that body of law. Bentham, the mid-nineteenth-century reformers, Stephen, Cross, and Glanville Williams are examples. It is not necessary to believe that the 2003 Act is perfect in order to accept that the relevant issues were subjected to intense thought for long periods in the twentieth century. The mode by which a polity conducts its trials is integrally bound up in its entire legal system. It is a sign and a symbol of the satisfactoriness or unsatisfactoriness of that system. To conclude that the English rules of evidence create unfair trials is a very damaging criticism. The field is inherently one in which English opinions ought to be allowed considerable weight over European views. The accusation by outsiders that the English hearsay position leads to unfair methods of trial is one which the English courts, not surprisingly, worked hard to refute. Most of the reasoning in R v Horncastle is convincing and effective from that point of view, even though overall the picture painted may be a trifle over roseate.

The reference of Al-Khawaja and Tahery v United Kingdom to the Grand Chamber of the European Court had been adjourned pending the outcome of the Supreme Court hearing in R v Horncastle. After R v Horncastle, the hearing in Al-Khawaja and Tahery v United Kingdom took place. The Grand Chamber modified its “sole or decisive” rule.[7] It held that the mere fact that a particular piece of hearsay evidence was the sole or decisive evidence against the accused did not automatically lead to an unfair trial in England, providing the “counterbalancing measures” and safeguards in R v Horncastle were rigorously applied. This represented no small success for the strenuous efforts of the Court of Appeal and the Supreme Court in R v Horncastle. For present purposes, however, it is necessary to note a darker phenomenon. On the strength of what the English courts had said in R v Horncastle, the Grand Chamber positively asserted that anonymous hearsay was inadmissible in English law: “the admission of statements of a witness who is not only absent but anonymous is not admissible”.[8] In that respect the Grand Chamber had been led into error.

The structure of the Supreme Court’s reasons for judgment in R v Horncastle is as follows. Lord Phillips of Worth Matravers PSC wrote what may be called the primary judgment. It was unanimous. It rested in considerable measure on the Court of Appeal’s judgment, delivered by Thomas LJ. To the Supreme Court’s primary judgment there were four “Annexes”. Each of these Annexes dealt with particular aspects of hearsay. Like the primary judgment, they seem to have been joined in by all judges. Annex 4 was prepared by Lord Judge CJ. One function of that Annex was to demonstrate that had the hearsay cases in the European Court which found a violation of the Convention been English prosecutions, there would have been an acquittal. Another function of the Annex was to demonstrate that in some cases English law gave better protection than the Convention. Some of the European cases had centred on the reception of anonymous hearsay. That was a matter of considerable sensitivity to the European Court, and not without reason. Against that background Lord Judge CJ discussed eighteen European Court cases. The second of them concerned the reception of statements by anonymous out-of-court declarants. It was Kostovski v Netherlands,[9] where the statements were made to the police and to examining magistrates, but the makers did not testify at trial. Lord Judge CJ said in the key paragraph of Annex 4 that the case would not have come to trial in England, and if it had, it would have been stopped. He said that evidence of that kind was “inadmissible”.[10] What Lord Judge said in that paragraph was referred to seven times later in the Annex in support of the view that had numerous other particular European Court cases turning on anonymous hearsay been tried in England the evidence would have been inadmissible.[11] And what Lord Judge CJ said in that paragraph was specifically adopted in the judgment of Lord Phillips to support the idea that the English rules of admissibility provided protection at least equal to that of the European Court.[12] Lord Phillips did this in the light of the following perception: “the justification for the sole or decisive test would appear to be that the risk of an unsafe conviction based solely or decisively on anonymous or hearsay evidence is so great that such a conviction can never be permitted”.[13]

The view that anonymous hearsay is inadmissible in English law had been asserted by Thomas LJ in the Court of Appeal. He said: “The [2003 Act] is concerned with identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses”.[14] By “anonymous witnesses” his Lordship did not mean “persons before the court giving testimony under oath or affirmation who wish to remain anonymous”. Instead he meant “hearsay declarants”, for that is what the 2003 Act is concerned with. And Lord Phillips of Worth Matravers PSC, too, said more than once that anonymous hearsay was admissible. Thus he said:

the statutory exceptions to calling a witness in the [2003 Act] did not permit the adducing of a statement by any witness whose name and identity [were] not disclosed to the defendant and … the safeguards provided by that Act would be denied to a defendant who did not know the identity of the witness.[15]

Again “statement by any witness” meant statement by a hearsay declarant. Actually the only safeguard lost because of the anonymity of hearsay is that created by s.124(2), permitting the reception of evidence on credibility. If one does not know who the hearsay declarant is, it is hard to attack the personal credibility of the declarant as distinct from pointing to the effect on reliability of the circumstances in which the person is said to have spoken or written.

Neither in the Court of Appeal or in the Supreme Court was any authority cited for the proposition that anonymous hearsay is inadmissible under the 2003 Act. In neither court was any analysis of the Act conducted from that point of view.

In this respect, there were two flaws in the approach of the Court of Appeal and the House of Lords.

One was that some reliance was placed on a line of cases concerned with the Criminal Evidence (Witness Anonymity) Act 2008 (“the 2008 Act”). But that 2008 Act was not concerned with the anonymous hearsay of non-witnesses (i.e. evidence reported to the court in reliance on what an absent declarant said). The 2008 Act concerned evidence from persons testifying before the court on oath or affirmation, but who wanted to give their evidence anonymously. That is not hearsay evidence. Some of the authorities before and after the 2008 Act had said that the 2003 Act did not permit the reception of anonymous hearsay.[16] Those dicta were not correct. And they, too, did not proceed from any close analysis of the 2003 Act.

The other flaw was that closer analysis of the 2003 Act would have revealed several methods by which anonymous hearsay may be received. Counsel interested in achieving the result reached by the Court of Appeal and the Supreme Court — compatibility with the Convention — would have been attracted by the idea that the 2003 Act did not make anonymous hearsay admissible, just as the courts were. If true, that idea would have reinforced the benign character of English law and its compatibility with the European Court’s distaste for anonymous hearsay. But so far as can be gleaned from the reports of the argument in the Supreme Court, that idea did not occur to counsel. If it occurred to them, they did not pursue it. For they do not seem to have been recorded as having advocated it. Nor, despite the prominent role the idea played in the Supreme Court’s reasoning, did the Supreme Court raise it with counsel for the parties who lost on this issue — the convicted defendants.

The statements in R v Horncastle about anonymous hearsay were followed in R v Ford.[17] A police officer arrived at a scene where, for the second time, there had been a shooting through the front windows of the house. A woman handed him a piece of paper bearing a car registration number and a note that she had “heard gun shots and saw them getting into this car but I didn’t want to get involved”. She then left. She was never traced. This was evidence of a type which the Court of Appeal in R v Horncastle[18] viewed as sincere and often reliable. The Court of Appeal in R v Ford, for its part, said that “if the trial judge had power to let in this evidence there were very strong reasons for her to do so”.[19] There was nothing to suggest that the declarant had any motive to lie, or any connection with the wrongdoers. The statement was in writing. It was handed to the police. It came very soon after the events in issue. The police officer could have testified about the woman’s sobriety and manner. The car number stated on the piece of paper was the number of a car later shown to have been occupied by four persons connected with the shooting. Yet the piece of paper was held inadmissible.

Counsel for the defence cited R v Mayers and passages from R v Horncastle. The Court of Appeal said, in an ex tempore judgment: “hearsay evidence is of course admissible under the 2003 Act, but if anonymous evidence, whether hearsay or not, is to be admitted that can only be done by reference to the provisions of the [2008 Act].”[20] The Court of Appeal declined to draw a distinction between a person giving direct evidence on oath or affirmation whose identity was being withheld and an out-of-court declarant whose identity is not known at all. This repeats the errors about the 2003 Act stated in cases concerning the 2008 Act which the Supreme Court followed in R v Horncastle.

What, then, is wrong with what the Court of Appeal and the Supreme Court in R v Horncastle said about anonymous hearsay?

The first weakness is the reliance by the Supreme Court on s.116(1)(b) of the 2003 Act. That provides that an out of court declarant must be identified if a statement of that declarant is to be admitted under s.116. But that requirement applies only to evidence tendered under s.116. It is not a general requirement for the admissibility of hearsay under the 2003 Act.

The other and related weaknesses is that there are several areas through which anonymous hearsay can be admitted despite s.116(1)(b).

The first avenue of admissibility is s.114(1)(d). It provides that hearsay evidence may be admitted if the court is satisfied that it is in the interests of justice. It is true that one of the factors listed in s.114(2) as going to the interests of justice is the apparent reliability of the maker of the statement: s.114(2)(e). It is also true that another relevant factor is the amount of difficulty involved in challenging the statement: s.114(2)(h). Obviously it can be difficult to challenge the statement of an anonymous declarant, or assess the reliability of an anonymous declarant, save by reference to the circumstances in which the statement was said to have been heard by the witness. But possible unreliability and difficulties in challenge are only to which regard may be had. They are not strict criteria barring the reception of anonymous hearsay. And there is no factor listed in s.114(2) equivalent to s.116(1)(b). For what it is worth, the Law Commission considered that under its proposal for a s.114(1)(d) inclusionary gateway, the “declarant need not … be identified”.[21] A tender by an accused person of a hearsay statement could be in the interests of justice (because, for example, it might assist that accused person to raise a reasonable doubt). It would be strange if the tender, otherwise in the interests of justice, were to fail on the ground that it was anonymous. And since s.114(1)(d) applies to prosecution tenders as well as defence tenders, anonymity cannot be an objection in relation to prosecution tenders either. There was in fact Court of Appeal authority, neither cited to nor dealt with by the Supreme Court, holding that anonymous hearsay was admissible under s.114(1)(d).[22]

A second avenue of admissibility for anonymous hearsay is s.117. Section 117 relates to business records. Section 117 requires that where the statement tendered was prepared for criminal proceedings, the conditions of s.116(2) have to be satisfied. But it does not require satisfaction of s.116(1)(b). And it does not require satisfaction of any equivalent to s.116(1)(b). Section 117(2)(c) reveals that s.117 contemplates the reception of multiple hearsay. The experience of businesses often is that the original makers of statements in records may leave their employment a long time before it is desired to prove those statements in litigation, and also that after their departure, and indeed before it, they may no longer be identifiable. Further, some business records are likely to be contributed to by many people, in circumstances where it is quite unclear which parts were created by which particular employees. Some business records are copied several times after their initial creation. Consider Myers v Director of Public Prosecutions.[23] That was the case which led to the widening of exceptions to the hearsay rule in criminal cases. Employees not called as witnesses created records of the numbers stamped on car engines. The House of Lords held the records inadmissible at common law. That result was almost universally seen as unpalatable. It has always been assumed that the Criminal Evidence Act 1965, the lineal descendant of which is s.117 of the 2003 Act, effectively reversed Myers v Director of Public Prosecutions and made the evidence admissible. Yet it was anonymous hearsay. It would be strange if after all these years the outcome in Myers v Director of Public Prosecutions were to have revived.

Incidentally, the document rejected in R v Ford[24] could have satisfied s.117, though this avenue of admissibility appears not to have been argued before or dealt with by the Court of Appeal in that case. The document was received in the course of an occupation (that of a police officer): s.117(2)(a). It may reasonably be supposed that the declarant had personal knowledge: s.117(2)(b). It is true that the document was created for a criminal investigation, so that one of the five conditions listed in s.116(2) would have had to have been satisfied: s.117(4)(a) and (5)(a). But s.116(2)(d) was satisfied: the declarant could not be found. The declarant appeared to have “capability” under s.123(2). Section 117(6)-(7) permitted the Court to exclude the statement for unreliability. But for reasons given earlier there were significant factors pointing to reliability.

Despite the statements excluding anonymous hearsay in R v Horncastle, in R v Twist Hughes LJ said: “there may be some forms of anonymous hearsay which are nevertheless admissible, such as business records”.[25] With respect, his Lordship was perfectly correct to say that. He did not endeavour to reconcile what he said with R v Horncastle. That was a tactful course, though not an entirely satisfactory one.

A third avenue of admissibility for anonymous hearsay concerns some of the “rules of law” which are “preserved” by s.118(1). One renders admissible published works dealing with matters of a public nature — paragraph 1(a) of s.118(1). Another renders admissible public documents — paragraph 1(b) of s.118(1). Another renders admissible certain types of reputation referred to in paragraphs 2 and 3 of s.118(1), for the opinions of anonymous persons can be an ingredient in reputation. Yet others are the res gestae categories described in paragraph 4 of s.118(1). Since the widening of the exception for spontaneous statements in Andrews v R[26] the statements of various unidentifiable declarants which were not admissible in earlier times may now be admissible pursuant to paragraph 4(a).[27] Another rule of law preserved by s.118(1) which may permit the admissibility of anonymous hearsay relates to the admissions of agents: paragraph 6. Thus in R v Twist[28] Hughes LJ also said: “there may be some forms of anonymous hearsay which are nevertheless admissible, such as … the statement of an unidentified agent of the defendant”. Again, with respect, this was correct, tactful, but irreconcilable with what was said in R v Horncastle.

A further avenue for the reception of anonymous hearsay is agreement pursuant to s. 114(1)(c). As a matter of practice it is difficult to imagine that the accused would often agree to a prosecution tender of anonymous hearsay, but it is possible. And the prosecution might well agree, for its own purposes and indeed possibly out of fairness, to a defence tender of anonymous hearsay.

Yet another possible avenue for the reception of what the common law regarded as anonymous hearsay arises in relation to unintended implied assertions. At common law, according to R v Kearley, statements of anonymous callers and visitors suggestive of drug dealing were inadmissible.[29] The construction of s.114 of the 2003 Act adopted in dicta in R v Singh[30] is that the common law ban on unintended implied assertions no longer exists. Hence, according to R v Singh, what was traditionally thought of as hearsay is admissible, despite the anonymous character of the source.

Would the result in R v Horncastle have been different if the error about anonymous hearsay not been made? The error was not an insignificant part of the reasoning, but there were many other grounds for the result which were impeccable. And would the result in Al-Khawaja and Tahery v United Kingdom have been different if that error had not been adopted? That is a hard question. For correction of the error takes away one of the countervailing measures a somewhat suspicious and grudging European Court relied on.

The erroneous statements about the inadmissibility of anonymous hearsay in R v Horncastle in strictness create difficulties for later trial courts and for the Court of Appeal. It has been seen that in R v Ford the Court of Appeal followed those statements. But it has also been seen that in R v Twist there was concentration on construing the legislation rather than being limited to what the Supreme Court said. An example of anonymous hearsay actually being received — as res gestae — under the 2003 Act is R v Collis.[31] The accused was charged with hitting someone on the head with a bottle outside a pub. A woman ran into the pub and said: “That guy has just bottled him and he hadn’t done anything. Look at me, I’ve got glass all over me”. The woman was unidentifiable and untraceable. The Court of Appeal held that the evidence was admissible as part of the res gestae. There is an argument that anonymous hearsay should not be received automatically as res gestae, but only received under s.114(1)(d), and after close analysis of its reliability in the light of the s.114(2) factors. However, whether desirably or not, the 2003 Act does permit reception independently of s.114(1)(d).[32]

For many reasons, it is obvious that the error in R v Horncastle was not deliberate. How, then, did it arise? Partly by following mistakes in earlier authorities, partly by a want of close analysis, partly from velleity and partly from so strong a desire to repel the Strasbourg invasion that all available geese were seen as swans. The apparent goal in R v Horncastle was to soften the extent to which hearsay was admissible in English law and make its reception seem both uncommon and benign. Thus the language of Lord Phillips of Worth Matravers PSC is soothing.[33] Hearsay is “not made generally admissible”. It makes “specific provisions for a limited number” of exceptions. Section 114(1)(d) creates only “a limited residual power”. So the legal error about anonymous hearsay marches in step with the fundamental aim of calming the European Court with these emollient words. But the fundamental source of the error was that the issue had not been debated by adversary parties. It had not been raised by those parties. And the Supreme Court had not raised it with them. In all the circumstances — the length of the judgments, the importance of the need to defend the English position, the subtlety of the point overlooked, the complexity and technicality of the legislation — what happened was understandable. But the case illustrates how extreme vigilance has to be employed to prevent slipping into the danger of deciding a case against a party on an issue not raised with it by its opponent or by the court.

The opportunity to offer these thoughts arising out of John Finnis’s remarkable lecture is valuable. For all his professional life he has displayed, without peer, the fundamental qualities which that lecture reveals: probity, rigour, tenacity, and what has been an at times lonely integrity.

Hon. John Dyson Heydon AC QC was a Justice of the High Court of Australia from 2003 to 2013. He was University Medallist in History in the University of Sydney, Rhodes Scholar, the Vinerian Scholar, and then a Tutorial Fellow in Law at Keble College, Oxford, before being appointed Professor of Law, and later Dean, at the University of Sydney Law School. Before being raised to the High Court of Australia he was from 2000 a Justice of Appeal in New South Wales.

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[1] See the decisions which led to the successful appeals in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 and Friend v Brooker (2009) 239 CLR 129.

[2] The reliance by the High Court of Australia on a point disclaimed by one party in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231 led to the reversal of that decision by the Privy Council: Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd [1980] 3 All ER 257 at 260 and 262.

[3] Rahimtoola v Nizam of Hyderabad [1958] AC 379 at 398, 404 and 410.

[4] Baker v R [1975] AC 774 at 787 per Lords Diplock, Simon of Glaisdale, Cross of Chelsea and Sir Thaddeus McCarthy. See also at 788.

[5] R v Warner (1685) 1 Keb 66 at 67; 83 ER 814 at 815 (“an hundred presidents sub silentio, are not material”); National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 at 405-406,407 and 408; Barrs v Bethell [1982] Ch 294 at 308; Re Heatherington (decd) [1990] Ch 1 at 10; Archer v Howell (1992) 7 WAR 33 at 46; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]-[25] and [33]-[39]; Markisic v Commonwealth (2007) 59 NSWLR 737 at [56]; CSR Ltd v Eddy (2005) 226 CLR 1 at [13].

[6] (2009) 49 EHRR 1. The line of authority began in Doorson v Netherlands (1996) 22 EHRR 330.

[7] (2011) 54 EHRR 23.

[8] (2011) 54 EHRR 23 at [148].

[9] (1989) 12 EHRR 434 at [43]-[44].

[10] R v Horncastle [2009] UKSC 14; [2010] 2 AC 373, Annex 4 [13].

[11] See R v Horncastle [2010] 2 AC 373, Annex 4, [24], [38], [54], [73], [80], [89] and [96].

[12] [2010] 2 AC 373 at [93].

[13] [2010] 2 AC 373 at [92].

[14] [2010] 2 AC 373 at [48]. See also [51].

[15] [2010] 2 AC 373 at [53]. See also [92]-[93].

[16] For example, R v Davis [2008] UKHL 36; [2008] 1 AC 1128 at [20]; R v Mayers [2008] EWCA Crim 2989; [2009] 1 WLR 1915 at [113].

[17] [2010] EWCA Crim 2250; ably discussed by David Ormerod at [2011] Criminal Law Review 475 at 477. See also R v Fox [2010] EWCA Crim 1280.

[18] [2010] 2 AC 373 at [62].

[19] R v Ford [2010] EWCA Crim 2250 at [16].

[20] [2010] EWCA Crim 2250 at [17].

[21] Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com No 245, 1997) [8.143].

[22] R v Isichei (2006) 170 JP 753; [2006] EWCA Crim 1815 at [41]. This perfectly satisfactory case received what is known as rougher than usual handling in R v Mayers [2008] EWCA Crim 2989; [2009] 1 WLR 1915 at [105]. But it was unconvincing handling. In R v Mayers the Court of Appeal (Lord Judge CJ, Leveson LJ, Forbes, Openshaw and Burnett JJ) said that prosecution counsel, in arguing for the admissibility of anonymous hearsay evidence under the 2003 Act, “relied somewhat half-heartedly on the slender, indeed flimsy, foundation provided by R v Isichei …, which touches transiently on the point, at para [15] … The attention of the court was however not there focussed on the admissibility of anonymous hearsay”. It is true that the court was not focused on the admissibility on anonymous hearsay in para [15], because para [15] had nothing to do with the point. Paragraphs [38] and [41], however, did. The question was whether two “girls” (university students) could give evidence that a white man with whom they were traveling in a taxi said that he had rung someone called Marvin, and had then suggested that they go to the Press Club. “Marvin” was the accused’s name. The “girls” later went to the Press Club. They testified that the accused let them into the Press Club, and, after they left it, robbed them. That anonymous hearsay was involved was made plain in [38], for it is there said that “the white man who had allegedly made the reference to Marvin has not been traced” and thus what he said was an anonymous hearsay declaration of the fact that he had spoken to Marvin. The Court of Appeal (Auld LJ, Gibbs J and Sir Michael Wright), after discussing an argument based on s. 115, which it ended up not deciding, said: “whatever the position, it seems to us that the evidence about that was clearly admissible in the interests of justice under s. 114(1)(d) as part of the story of a common sense series of events, the one leading from the other” (at [41]). In this respect the Court of Appeal agreed with the trial judge. The accused’s appeal based on the reception of the anonymous hearsay was dismissed.

[23] [1965] AC 1001.

[24] [2010] EWCA Crim 2250; [2011] Crim LR 475.

[25] [2011] 2 Cr App R 17 at [22].

[26] [1987] AC 281.

[27] For example, R v Gibson (1887) 18 QBD 537 and Teper v R [1952] AC 480.

[28] [2011] 2 Cr App R 17 at [22].

[29] [1992] 2 AC 228.

[30] [2006] 2 Cr App Rep 12 at [14]-[15]: an unconvincing construction for various reasons, but widely supported by commentators.

[31] [2012] EWCA Crim 1682.

[32] See generally Barnaby v Director of Public Prosecutions [2015] 2 Cr App R 4.

[33] [2010] 2 AC 373 at [31]-[32] (emphasis added).