On 15th December 2011, the European Court of Human Rights issued its final judgment in Al-Khawaja and Tahery v. United Kingdom1. Sitting as a 17-judge Grand Chamber, it partially reversed its own Chamber decision2 on a reference from the British Government, and laid down a new framework for the consideration of when it will be unfair to admit hearsay evidence in a criminal trial.
Under consideration were the convictions of two defendants in English courts: Imad Al-Khawaja had been convicted on 30th November 2004 at the Crown Court at Lewes of two counts of indecent assault, and Alireza Tahery had been convicted on 29th April 2005 at the Crown Court at Blackfriars of a single count of wounding with intent. Al-Khawaja's appeal against conviction was dismissed by the Court of Appeal on 3rd November 20053, and Tahery was denied leave to appeal by the same court on a renewed application on 24th January 20064. Both applied to the Strasbourg court, claiming their rights under Article 6(1) (the right to a fair trial) read in conjunction with Article 6(3)(d) (the right to examine witnesses) had been violated by the admission of hearsay evidence at their trials in reliance on provisions of the Criminal Justice Acts 1988 and 2003.
In the initial seven-judge Chamber judgment, delivered on 20th January 2009, the court held that the provisions of Article 6(3) constituted express guarantees and could not be read as illustrations of matters to be taken into account when considering whether a fair trial had been held. Following its own decision in Luca v. Italy5, it held that, whatever the reason for a defendant's inability to examine a witness, the starting point was that it was inconsistent with a defendant's Article 6 rights for a conviction to be based solely or to a decisive degree on the evidence of that witness. Applying this "sole or decisive" test to both cases, it held that the counterbalancing factors relied on by the British Government in each case were insufficient, and therefore found a violation of Article 6 in respect of both defendants.
However, later that year, in R. v. Horncastle and another; R. v. Marquis and another; R. v. Carter, first the Court of Appeal on 22nd May6 and then the Supreme Court on 9th November7 declined to follow the Chamber decision in Al-Khawaja, and dismissed appeals against conviction by four defendants convicted on the basis of the hearsay evidence of absent witnesses. In the Supreme Court, the President, Lord Phillips of Worth Matravers, held that, although domestic courts were required by the Human Rights Act 1998 to take account of the Strasbourg jurisprudence in applying principles that were clearly established, on rare occasions, where a court was concerned that a Strasbourg judgment did not sufficiently appreciate or accommodate some aspect of English law, it might decline to follow that judgment. He held that the Chamber's judgment was such a case, concluding that the European case law lacked clarity in its assessment of exceptions to the strict application of Article 6(3), and criticising the "sole or decisive" test as impractical and unnecessary when applied to common law jurisdictions.
In reconsidering the issue of fairness in its Grand Chamber judgment, the Strasbourg court effectively introduced a new three-stage test:
- Is there a good reason for the non-attendance of a witness?
- If there is, is the evidence of the absent witness the sole or decisive evidence against the defendant?
- If it is, are there sufficient counterbalancing factors in place?
It pointed out that stage 1 fell to be considered before the "sole or decisive" test was applied, and that there could be a breach of Article 6 even where the evidence was not sole or decisive where no good reason was shown for the failure to have the witness examined. As to the application of the test, it held that it was plain that there would be a good reason where the witness had died, but that absence owing to fear called for closer examination. It drew a distinction between fear attributable to threats or other actions of the defendant (or those acting on his behalf or with his knowledge and approval) and that attributable to a more general fear of what would happen if the witness were to give evidence (including fear attributable to the notoriety of the defendant or his associates).
If it was more general fear, the witness's subjective fear would not suffice, and the court would have to conduct appropriate enquiries to determine both whether there were objective grounds for that fear and, if there were, whether those grounds were supported by evidence. It further emphasised that, where a witness has not been examined at any stage, admitting his witness statement in lieu of live evidence must be a measure of last resort, and that before a witness could be excused attendance on the grounds of fear the court must be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable.
However, if was fear attributable to threats or other actions of the defendant (or those acting on his behalf or with his knowledge and approval), it held in effect that stages 2 and 3 fell away, and that it would be appropriate to adduce the evidence of the absent witness even if it were the sole or decisive evidence. It said that to allow the defendant to benefit from the fear he had engendered in witnesses would be incompatible with the rights of witnesses and victims, that no court could be expected to allow the integrity of its proceedings to be subverted in this way, and that a defendant who had acted in this way (or who was aware of and approved of others acting in this way) must be taken to have waived his right to have such witnesses examined under Article 6(3)(d).
As to stages 2 and 3, the court effectively conceded the criticism levelled at its previous jurisprudence by the Supreme Court (which had been reinforced by the submissions of the British Government), and held that the admission of a hearsay statement that is the sole or decisive evidence against a defendant would not automatically result in a breach of Article 6. However, it emphasised that in such circumstances the proceedings would have to be subjected to the most searching scrutiny, and that the admission of such evidence would constitute a very important factor to balance in the scales and would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case would be whether there were such factors, including measures that would permit a fair and proper assessment of the reliability of that evidence to take place. It concluded that this would permit a conviction to be based on such evidence only if it were sufficiently reliable given its importance in the case.
In applying this new test to the cases before it, the court held that, in principle, the safeguards contained in English law (viz. the 1988 and 2003 Acts, supported by section 78 of the Police and Criminal Evidence Act 1984 and the common law) were strong safeguards designed to ensure fairness. In Al-Khawaja's case, one of the complainants had died before the trial. However, her evidence was supported by two friends to whom she had also made her complaint (with only minor inconsistencies), as well as the evidence of the second complainant (who gave a similar account despite there being no evidence of collusion). It held, reversing its earlier ruling, that in those circumstances the complainant's statement had been properly admitted and that there had been no breach of Article 6.
However, in Tahery's case, a witness (not the complainant) refused to testify due to fear not attributable to Tahery, and his evidence was both uncorroborated and decisive (he being the only witness who claimed to have seen the commission of the offence). It held that the decisive nature of that witness's evidence, in the absence of strong corroborative evidence, meant that the jury had been unable to conduct a fair and proper assessment of the reliability of that evidence, and that there were therefore insufficient counterbalancing factors to compensate for the difficulties caused to Tahery by the admission of that witness's statement. The court therefore upheld its earlier ruling that there had been a breach of Article 6 in his case. It is accordingly clear that the new test established in this case must be applied most carefully if unfairness is to be avoided.
1. The Times, 22nd December 2011
2. 49 E.H.R.R. 1(1)
3. R. v. Al-Khawaja  1 W.L.R. 1078 ( EWCA Crim. 2697)
4. R. v. Tahery, unreported ( EWCA Crim. 529)
5. 36 E.H.R.R. 807(46)
6.  2 Cr.App.R. 230(15) ( EWCA Crim. 964)
7.  2 A.C. 373 ( UKSC 14)
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