Case Commentaries
| DOI | 10.1350/ijep.2009.13.3.325 |
| Published date | 01 July 2009 |
| Date | 01 July 2009 |
| Author | Rosemary Pattenden |
| Subject Matter | Article |
CASE COMMENTARIES
CASE COMMENTARIES
Rule against hearsay—European Court of Human Rights
The European Court of Human Rights (ECtHR) has long insisted that questions of
admissibility of evidence are primarily a matter for regulation by national courts
(e.g. Said v France (1993) 17 EHRR 351 at [43]). In Al-Khawaja and Tahery v United
Kingdom, Application No. 26766/05, 20 January 2009, which the United Kingdom
lost, the ECtHR reduced this generous margin of appreciation by deciding, in
effect, that in criminal trials the rule against hearsay is a fundamental human
right which cannot be modified by domestic legislation.
The applicant Al-Khawaja, a doctor, was convicted on two counts of indecent
assault on female patients and the applicant Tahery on one count of wounding
with intent to do grievous bodily harm. Their applications to the ECtHR were
argued by agreement on the assumption that the convictions depended upon the
jury accepting as truthful an out-of-court statement by an absent witness. In
Al-Khawaja’s case that witness was ST, the complainant, who was dead. In Tahery’s
case, the trial judge ruled that an eyewitness, T, who gave evidence from behind a
screen on the voir dire, was too frightened to testify before the jury. Death and fear
are circumstances that trigger the admissibility of hearsay under the Criminal
Justice Act 2003, s. 116, although in the latter case only if the judge gives leave. The
applicants, relying principally on Luca v Italy (2003) 36 EHRR 46, [2001] Crim LR
747, argued that in admitting the hearsay statement, the trial judge had violated
Article 6(1) and (3)(d) (anyone charged with a criminal offence has the right ‘to
examine or have examined witnesses against him …’). In Luca at [40] the ECtHR
stated:
[W]here a conviction is based solely or to a decisive degree on deposi-
tions that have been made by a person whom the accused has had no
opportunity to examine or to have examined, during the investi-
gation or at the trial, the rights of the defence are restricted to an
extent that is incompatible with the guarantees provided by Article 6.
doi:1350/ijep.2009.13.3.325
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In England, where it is impossible for the defence to examine prosecution
witnesses during the investigation phase, the Court of Appeal has said that Luca
does not prohibit the use of a statement by an unavailable witness even if that
statement is the sole or decisive evidence against a defendant, if counterbalancing
factors are present. The effect of the decision in Al-Khawaja and Tahery is to make
the Luca rule virtually absolute because every one of the numerous counterbal-
ancing factors upon which the government relied, cumulatively or alone, was
found insufficient to offset the prejudice which the ECtHR found to have been
caused to the defence by admission of the out-of-court statement.
Suggested counterbalancing factor ECtHR response
Correct application of statutory
Limited weight since the very issue
admissibility test.
is whether the trial judge and the
Court of Appeal acted compatibly
with Art. 6(1) and (3)(d) (Al-Khawaja
and Tahery v United Kingdom,
Application No. 26766/05, 20
January 2009 at [40]).
Conviction reviewed and found to
Ditto
be safe by the Court of Appeal. (In
Al-Khawaja’s case, the ECtHR said
that the evidence against the
applicant, which included similar
fact evidence, was very strong.)
Admission of ST’s statement did
Even without the statement, the
not compel the applicant to testify.
applicant may have had to testify
to defend himself against a second
count in respect of which ST was
not the complainant. However,
without ST’s statement, the first
count would have been dropped
and so his evidence would not have
extended to the offence alleged
against ST.
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Suggested counterbalancing factor ECtHR response
No suggestion of collusion
Not a counterbalancing factor.
between ST, the second
complainant, and two further
witnesses who were called to give
evidence of similar experiences
with the applicant.
Inconsistencies between ST’s
Defence could only point to one
statement and the testimony of
minor inconsistency.
other witnesses explored in
cross-examination.
Defence able to challenge
How do you challenge credibility
credibility of ST.
on the basis of a minor
inconsistency, ‘particularly [when
ST’s] account corresponded in large
part with that of the other
complainant’ (ibid. at [42])?
Jurors given a (deficient) warning
The ECtHR was not persuaded that
that they had neither seen nor
‘any more appropriate direction
heard ST testify.
could effectively counterbalance
the effect of an untested statement
which was the only evidence
against the applicant’ (ibid.).
Trial judge considered a special
‘[T]he fact that alternative
measures direction for T.
measures are found to be
inappropriate does not absolve
domestic courts of their
responsibility to ensure that there
is no breach of Article 6 §§1 and
3(3)’ (ibid. at [46]).
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Suggested counterbalancing factor ECtHR response
Tahery
Applicant could rebut statement
No effective rebuttal:
by giving evidence or calling
(1) ‘the very problem was that
bystanders as witnesses.
there was no witness, with the
exception of T., who was
apparently able or willing to say
what he had seen’ (ibid.);
(2) the applicant’s right to testify
does not counterbalance loss of
opportunity to cross-examine the
only prosecution eyewitness
against him.
Jurors given correctly phrased
A clear warning is not ‘a sufficient
warning to approach hearsay
counterbalance where the
evidence with care and reminded
witness’s untested statement was
that the applicant was not
the only direct evidence against
responsible for the witness’s fear.
the applicant’ (ibid.).
This is how the ECtHR summed up its position:
[I]n the absence of … special circumstances, the Court doubts whether
any counterbalancing factors would be sufficient to justify the intro-
duction in evidence of an untested statement which was the sole or
decisive basis for the conviction of an applicant. (ibid. at [37])
By ‘special circumstances’, the ECtHR had in mind the facts of R v Sellick [2005]
EWCA Crim 651 where the trial judge was satisfied that the witness was kept from
giving evidence through fear induced by the defendant.
The ECtHR took the opportunity to criticise the Court of Appeal’s whole approach
to Article 6(3).
[Article 6(3)(d)] is one of the minimum rights which must be accorded
to anyone who is charged with a criminal offence. As minimum
rights, the provisions of Article 6 § 3 constitute express guarantees
and cannot be read, as it was by the Court of Appeal in Sellick … as
illustrations of matters to be taken into account when considering
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whether a fair trial has been held … Equally, even where those
minimum rights have been respected, the general right to a fair trial
guaranteed by Article 6 § 1 requires that the Court ascertain whether
the proceedings as a whole were fair. (ibid. at [34])
Al-Khawaja and Tahery has implications not only for the application of the hearsay
rule in England, but also for the Criminal Evidence (Witness Anonymity) Act 2008
which gives trial judges a discretion to permit witnesses to give evidence without
revealing their identity to the defence. As the ECtHR noted, the question of
compliance with Article 6(1) and (3)(d) arises in two contexts: where the prose-
cution seeks to read a statement by an absent witness and where a witness is
available, but wants to give evidence anonymously.
Whatever the reason for the defendant’s inability to examine a
witness, whether absence, anonymity or both, the starting point for
the Court’s assessment of whether there is a breach of Article 6 §§ 1
and 3(d) is set out in Lucà … (ibid. at [36])
The implication is clear: if defence cross-examination of a witness who gives
decisive evidence is hampered by the fact that the witness’s identity has not been
revealed to the defence, the trial is likely to be unfair.
When is a witness’s evidence decisive? The UK government argued that in a jury
trial it is often impossible to determine whether a conviction was based solely or
to a decisive extent on an out-of-court statement. This argument made no
headway. What mattered, as far as the ECtHR was concerned, was the importance
that the trial judge and Court of Appeal attached to the statement:
[T]he Court cannot overlook the finding of the trial judge in
Al-Khawaja that ‘no statement, no count one’. Nor can it overlook the
finding of the Court of Appeal in Tahery that T’s statement was ‘both
important and probative of a major issue in the case. Had it not been
admitted the prospect of a conviction would have receded and that of
an acquittal advanced.’ Having regard to each of these findings, the
Court too will proceed on the basis that S.T.’s statement in Al-Khawaja
and T’s statement in Tahery were the sole, or at least, the decisive basis
for each applicant’s conviction. (ibid. at [39])
A month before his retirement as a Law Lord, Lord Hoffmann gave a lecture for the
Judicial Studies Board in which he uses Al-Khawaja and Tahery as an example of the
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ECtHR succumbing to the temptation to act as if...
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