Hearsay and Human Rights: Al‐Khawaja in the Grand Chamber

AuthorMike Redmayne
Publication Date01 Sep 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00927.x
CASES
Hearsay and Human Rights: Al-Khawaja in
the Grand Chamber
Mike Redmayne*
This note analyses the European Court of Human Rights’ Grand Chamber judgment
in Al-Khawaja and Tahery vUnited Kingdom, and gives it a cautious welcome. The note sug-
gests how English Courts might respond to the judgment and concludes by assessing justifi-
cations for strong confrontation rights and the wider political context of the Grand Chamber’s
decision.
INTRODUCTION
The simple story is that in Al-Khawaja and Tahery vThe United Kingdom1
(Al-Khawaja), a case described by one senior judge as having ‘a potentially huge
constitutional implication’,2the European Court of Human Rights (ECtHR)
backed down in the light of criticisms of its case law in the UK Supreme Court.
Compromise won out over conflict, easing the relationship between the UK and
the Council of Europe at a critical time.3Some will say that in accepting
compromise the ECtHR also ensured that pragmatism won out over human
rights. Perhaps so. But before assessing that claim, we need to fill out the story
behind Al-Khawaja in less simple terms.
THE BACKGROUND TO THE GRAND CHAMBER JUDGMENT
The dispute at the heart of Al-Khawaja relates to Article 6 of the European
Convention on Human Rights (ECHR), which guarantees the right to a fair
trial.Article 6(3) goes on to specify certain ‘minimum rights’as components of a
fair trial, including,in 6(3)(d), the defendant’s right ‘to examine or have examined
*Law Department, London School of Economics.I am g rateful toAndrew Choo for comments.
1Al-Khawaja and Tahery vThe United Kingdom (2012) 54 EHRR 23.
2 Lord Judge,LCJ. See JointCommittee on Human Rights, Human Rights Judgments: Oral Evidence,15
November 2011 at Q78 (HC 873-ii).
3 The influence that the ECtHR has on English law is currently controversial,especially in the wake
of the Court’s decision on voting rights for prisoners (Hirst vUnited Kingdom [2005] ECHR 681).
Around the time the decision in Al-Khawaja was handed down,the United Kingdom took over
chairing the Council of Europe, with an agenda to reform the Court.Meanwhile, a Bill of Rights
Commission is sitting to consider how human rights should be protected in the UK in future.For
an overview of these developments, see Ken Clarke’s evidence before the Joint Committee on
Human Rights, 20 December 2011 (HC1726-i).
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(5) MLR 865–893
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA

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