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Hearsay evidence

A power to admit hearsay evidence in disciplinary proceedings is not necessarily incompatible with The European Convention on Human Rights.

Article 6(3) of the Convention provides that ‘everyone charged with a criminal offence has the following minimum rights: … (d) to examine or have examined witnesses against him…’

Despite the reference to ‘a criminal offence’ it has been held that this provision is of equal application to disciplinary proceedings: Albert and LeCompte v Belgium (1983) 5 EHRR 533.

The European Court of Human Rights has held that:

’... the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.
The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, Art. 6(1) and (3)(d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage.
As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Art. 6(1) and (3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has no opportunity to examine or to have examined, whether during the investigation or at the trial the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Art.6.’ Luca v Italy (2003) EHRR 46.

See also Xhabri, R v. [2005] EWCA Crim 3135 and Cole & Anor v R. [2007] EWCA Crim 1924.

 

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