E-Regulator: Al Khawaja and Tahery v The United Kingdom (26766/05 and 2228/06) - European Court of Human Rights (Grand Chamber)
16th January 2012
Date of decision: 15 December 2011
A conviction based “solely or to a decisive extent” on the statement of a witness, whom the defendant has had no chance of cross-examining, does not automatically infringe his right to a fair trial, as long as there are sufficient safeguards.
In 2004/2005, Dr Al-Khawaja and Mr Tahery (“A and T”) were convicted in the criminal courts. At their respective trials, the statement of an absent witness was admitted as hearsay evidence and read out to the jury (in A’s case, the witness had died and in T’s, the witness was too afraid to attend).
A and T argued at the Court of Appeal that the admission of the statements had breached their right to a fair trial under Article 6 of the European Convention on Human Rights because they had had no opportunity to cross-examine the witnesses.
The appeals failed resulting in A and T taking their case to the European Court of Human Rights (“ECtHR”) in 2009, contending that the settled case law (established in Doorson v Netherlands  22 E.H.R.R. 330) was that a conviction based “solely, or to a decisive degree” on depositions made by a person whom the accused had had no opportunity to examine was incompatible with Article 6.
The Lower Chamber agreed. A and T’s Article 6 rights had been breached because the statements of the absent witnesses constituted the “decisive” evidence against them. The counterbalancing factors in each case did not mitigate the difficulties caused to the defence by the inability to cross-examine the makers of the statements.
That same year, in a similar case (R v Horncastle  UKSC 14), the Supreme Court declined to follow the ECtHR decision in Al-Khawaja. Lord Phillips ruled that “a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason.”
He said that the common law had, by the hearsay rule, already addressed the aspect of a fair trial that Article 6 was designed to ensure. The statutory regime (enacted in the Criminal Justice Act 2003) contained safeguards to ensure fair trials by way of exceptions to the hearsay rule. The application of the “sole and decisive” rule would, in his view, “create severe practical difficulties if applied to English criminal procedure.”
The ECtHR was asked to clarify the law and last month, the Grand Chamber conceded that whilst the “sole or decisive” rule should still be applied, it should not be applied inflexibly. Where a hearsay statement is the sole or decisive evidence against a defendant, its admission in evidence will not automatically breach Article 6. However, in such cases the Court “must subject the proceedings to the most searching scrutiny.”
The Grand Chamber departed from the finding of the Lower Chamber and determined that there had in fact been no breach of A’s Convention rights. The statement of the deceased witness was corroborated by two witnesses who had given evidence at trial, and it must have been clear to the jury that in consequence of A’s inability to cross-examine the absent witness, the statement should carry less weight.
However, the Grand Chamber maintained that T’s rights had been violated. The account of the absent witness was uncorroborated and the defence was unable to call any evidence to contradict it. The warning given by the trial judge to the jury, drawing the jury’s attention to the dangers of relying on untested evidence, was not enough to mitigate against the statement being the only direct evidence against T.
This case is seen by some as a victory for the Supreme Court, in that Strasbourg has essentially “back-tracked” on the ruling of the Lower Chamber, which was seen as excessively rigid. Nevertheless, prosecutors should continue to be scrupulous if intending to rely on the statements of absent witnesses, especially where their evidence is crucial to the case.
Sophie Lister, Solicitor