Use of hearsay evidence does not automatically prevent a fair trial, rules Strasbourg

15 December 2011 by

Al-Khawaja and Tahery v United Kingdom (15 December 2011) – read judgment

The Grand Chamber of the European Court of Human Rights has ruled today that convictions based on statements from witnesses who could not be cross examined in court did not violate the applicants’ rights under Article 6(3) (d) to obtain attendance and examination of witnesses  fair trial.

This latest predicted clash between Strasbourg and UK courts has therefore not come about, as the Court has essentially agreed with the domestic courts that a conviction based solely or decisively on the statement of an absent witness does not automatically result in a breach of Article 6.

It should be noted at the outset that the principle against hearsay and the relevant provisions against Article 6 apply to criminal trials only. There is no difficulty with the use of hearsay evidence in civil trials, which represent the vast majority of cases litigated.

A brief account of the facts was given in Joshua Rozenberg’s post published earlier. The following detailed summary is based on the Court’s press release.


While working as a consultant physician Al-Khawaja was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. One of the complainants, ST, committed suicide (taken to be unrelated to the assault) before the trial. Prior to her death she had made a statement to the police.

At the trial it was decided that ST’s statement should be read to the jury. The judge stated that the contents of the statement were crucial to the prosecution on count one as there was no other direct evidence of what had taken place. The defence accepted that if the statement were read to the jury at trial they would be in a position to rebut it through the cross-examination of other witnesses.

During the trial, the jury heard evidence from a number of different witnesses, including the other complainant and two of ST’s friends in whom she had confided promptly after the incident. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence. In his summing up, the trial judge reminded the jury that they had not seen ST give evidence or be cross-examined and that the allegations were denied.

Mr Al-Khawaja was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15-month custodial sentence on the first count and a 12-month custodial sentence on the second count, to run consecutively.

Ali Tahery

On 19 May 2004 during a gang fight he allegedly stabbed another Iranian, S., three times in the back and was subsequently charged with wounding with intent and attempting to pervert the course of justice by telling the police that he had seen two black men carry out the stabbing.

When witnesses were questioned at the scene, no-one claimed to have seen the applicant stab S. Two days later however one of the witnesses, T., made a statement to the police that he had seen Mr Tahery stab S.

During Tahery’s trial the prosecution applied for leave to read T’s statement on the ground that he was too frightened to appear in court. The trial judge allowed his written statement to be admitted as evidence but warned the jury about the danger of relying on T’s evidence, as it had not been tested under cross-examination. The applicant was convicted of wounding with intent to cause grievous bodily harm and sentenced to 10 years and three months imprisonment.

Al-Khwaja and Tahery complained to the Strasbourg Court that their rights under Articles 6(1) and 6(3)(d) had been violated.

In the Chamber judgment in 2009 the Court joined the cases and held unanimously that the applicants had indeed been denied a fair trial. In 2010 the case was referred  to the Grand Chamber at the request of the United Kingdom Government.  JUSTICE submitted third-party comments.

Judgment of the court

The Court held that Article 6 mainly requires it to assess the overall fairness of criminal proceedings. The right to examine a witness contained in Article 6 (3)(d) is based on the principle that, before an accused can be convicted, all the evidence must normally be produced in his/her presence at a public hearing so that it can be challenged. Two requirements follow from that principle. First, there has to be a good reason for non- attendance of a witness. Second, a conviction based solely or decisively on the statement of an absent witness is generally considered to be incompatible with the requirements of fairness under Article 6 (“the sole or decisive rule”).

For the second requirement the Court took the same view as the British courts, and found that the sole or decisive rule should not be applied in an inflexible way, ignoring the specificities of the particular legal system concerned. To do so would transform the rule into a blunt and indiscriminate instrument that ran counter to the Court’s traditional approach to the overall fairness of proceedings, namely to weigh in the balance the competing interests of the defence, the victim, and witnesses, and the public interest in the effective administration of justice.

In Al-Khawaja’s case the judge’s direction as well as the evidence offered by the prosecution had enabled the jury to conduct a fair and proper assessment of the reliability of ST’s allegations against Mr Al-Khawaja. There had been no violation of Article 6 in his case. Tahery’s conviction on the other hand had been  based solely on the statement of an absent witness, and there had been insufficient counterbalancing factors to compensate for these difficulties. It ordered the government to pay Tahery 6,000 euros  in respect of non-pecuniary damage, as well as costs and expenses.

A full analysis of this judgment will follow.

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  1. cidermaker says:

    That is an eminently sensible outcome, particularly in the context of so-called ‘death-bed’ confessions.

  2. ObiterJ says:

    Thank you – a good post. Strasbourg’s “sole or decisive” rule has survived. The greater difficulty will be applying it in practice. However, the Criminal Justice Act 2003 should now be applied in the light of this ruling which, let it be remembered, the UK actually asked for. Contrary to what some seem to be suggesting, the ECtHR judgment does not give the 2003 Act a totally clean bill of health.

    In my opinion, the government would do well to return to the actual recommendations of the Law Commission in law Com 245 (1997). When the CJA 2003 was enacted, some of the safeguards suggested by the Commission were conveniently (to government) left out. However, I do not for a moment think that they will revisit the Law Com report.

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