Absent Witnesses - Al-Khawaja Revisited

Article by Peter Fitzgerald, pupil at 6 Kings Bench Walk

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...