Common sense judgment balances protection of witnesses with the rights of the accused

15 December 2011

Today the European Court of Human Rights found that the use of hearsay evidence does not automatically prevent a fair trial. The Grand Chamber judgment in the case of Al-Khawaja and Tahery v UK held that while there had been a violation of article 6 – the right to a fair trial – in respect to Tahery, there had been no violation in Al Khawaja. The judgment in part overturns an earlier judgment by one of the Court’s chambers and follows the Supreme Court’s consideration of the same issue in the case of R v Horncastle.

The two cases concerned convictions that had been based on statements from witnesses that could not be cross examined in court. The case of Tahery involved a stabbing during a gang fight.  Those at the scene could not identify who the attacker was and neither could the victim.  Two days later, a witness made a statement to the police that Mr Tahery was the perpetrator.  The witness, a fellow Iranian, feared reprisal from his community and would not give evidence in court – although there was no suggestion that the fear stemmed from Mr Tahery.  He was convicted of wounding with intent to cause grievous bodily harm and sentenced to 10 years imprisonment. Without the uncorroborated and unchallenged eye witness statement chances of conviction would have been slim.

Mr Al-Khawaja was a consultant physician who was charged with two counts of indecent assault on two female patients who were under hypnosis.  Before the trial but after making a statement to the police, one of the victims committed suicide.  The statement was read out to the jury although in his summing up the judge reiterated to the jury that they had not seen this evidence cross-examined.  Mr Al-Khawaja was convicted by a unanimous verdict on both counts of indecent assault and sentenced to a 27-months imprisonment.

James Welch, legal director for Liberty, said:

"Strasbourg’s change of heart shows the importance of its dialogue with our Supreme Court.  This is only possible because the Human Rights Act requires both courts to apply the same principles. Without the Human Rights Act we’d have been left with the earlier inflexible judgment. This common sense decision balances our common interest in convicting the guilty with a defendant’s right to question his accusers. It is in the best tradition of the fair trial values that Britain exported to the world."  

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1. The full judgment can be found here