Criminal Law Review - Al-Khawaja and Tahery v United Kingdom: human rights PDF

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Criminal Law Review 2012

Case Comment Al-Khawaja and Tahery v United Kingdom: human rights Ian Dennis Subject: Criminal evidence. Other related subjects: Human rights Keywords: Admissibility; Criminal evidence; Deceased persons; Hearsay evidence; Right to examine witnesses; Right to fair and public hearing; Vulnerable and intimidated witnesses Legislation: European Convention on Human Rights 1950 art.6 Case: Al-Khawaja v United Kingdom (26766/05) [2012] 2 Costs L.O. 139 (ECHR (Grand Chamber)) *Crim. L.R. 375 AK was charged with two offences of indecent assault. One complainant committed suicide before the trial, having made a statement to the police. The trial judge allowed the statement to be read to the jury, applying the Criminal Justice Act 1988, and the defence attempted to rebut it by other evidence. The Court of Appeal dismissed AK's appeal against conviction, finding that the trial as a whole was fair and in accordance with art.6, although the judge should have given a stronger warning to the jury about the potential disadvantage flowing from the absence of the deceased witness: Al-Khawaja (Imad) [2005] EWCA Crim 2697; [2006] 1 Cr. App. R. 9. T was charged with wounding with intent and attempting to pervert the course of justice. One witness had made a statement to the police, identifying T, but refused to give evidence for fear of reprisals. The trial judge, applying the Criminal Justice Act 2003, allowed the statement to be read out in court, and warned the jury that the defence had been deprived of the opportunity to cross-examine its maker. The Court of Appeal dismissed the appeal: Tahery (Alireza) [2006] EWCA Crim 529. Both applicants alleged a violation of their rights under art.6(1) and (3)(d). The European Court of Human Rights, Fourth Section, unanimously found a violation in both cases. It held that a conviction should not be based either solely or to a decisive extent on the impugned evidence, even if counterbalancing measures are taken at the trial. In these cases, neither the counterbalancing measures taken, nor any other directions from the judge, could effectively ensure a fair trial when untested statements were, in effect, the only evidence against the applicants. Subsequently, the Supreme Court considered the Strasbourg approach to these issues in its judgment inHorncastle (Michael Christopher) [2009] UKSC 14. It found that the Strasbourg Court had not fully understood the stance of English law, and it suggested that the “sole or decisive” rule would present English courts with profound difficulties and might lead to injustice. *Crim. L.R. 376 Held, unanimously finding that there had been a violation of art.6(1) in conjunction with art.6(3)(d) in the case of T, and finding by 15 votes to 2 that there had been no such violation in the case of AK, that the “sole or decisive” principle is not an inflexible rule. It is, however, an important principle, and the Grand Chamber does not accept the four criticisms advanced by the Government (at [129]-[146]). Where a hearsay evidence is the sole or decisive evidence against a defendant, its admission in evidence will not automatically result in a breach of art.6(1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (at [147]). In the case of AK, the majority concluded that the jury was able to conduct a fair and proper assessment of the reliability of the evidence, in the light of the nature of the judge's summing-up, and despite the difficulties caused to the defence. In the case of T, the nature of the statement was eyewitness evidence, and this witness was the only person claiming to have seen the stabbing. The Grand Chamber unanimously concluded that in this case a judicial warning to the jury, however clearly or forcibly expressed, could not be a sufficient

counterbalance where an untested statement of the only prosecution eyewitness was the only direct evidence against the applicant (at [164]).

Commentary This is a landmark decision, not just for the law of evidence but for human rights law in general. If the Grand Chamber had upheld the “sole or decisive” rule, as applied by the Fourth Section of the court, the Supreme Court of the United Kingdom would have faced a major issue of whether to accept the decision. The consequences of acceptance for cases involving hearsay or anonymous witness evidence would have been profound. The consequences of non-acceptance could have been even more profound, with constitutional and political implications. Accordingly, the sighs of relief in Parliament Square and the Strand when this judgment was handed down can be imagined. The European Court has backed away from open confrontation with the English courts. As the concurring opinion of Judge Bratza makes clear, the Grand Chamber has recognised the necessity for dialogue between national courts and the European Court on the application of the Convention which Lord Phillips referred to in Horncastle. It is this recognition which led the Grand Chamber to reexamine the safeguards in the English hearsay legislation and the criticisms in Horncastle of the “sole or decisive” rule. The express statement of the majority (at [146]) that the rule should not be applied inflexibly, without regard to the relevant specific provisions of national law, will be widely welcomed. Its effect is to allow English courts to continue to apply the Criminal Justice Act 2003 and the Coroners and Justice Act 2009 in a fact-sensitive way, without the anxiety that hearsay or anonymous evidence would necessarily have to be excluded once it reached a certain level of importance. *Crim. L.R. 377 A warning shot? This is not to say that Strasbourg has given English hearsay law an unrestricted blessing. The judgment merits careful scrutiny and a number of points need to be made. First, it is true that the Grand Chamber has stated in terms that, where a hearsay statement is the sole or decisive (in the sense of “likely to be determinative of the outcome of the case”: at [131]) evidence against the defendant, its admission will not automatically result in a breach of art.6(1). However, the judgment also makes clear that where a conviction is based on such evidence the court must “subject the proceedings to the most searching scrutiny”. Strong procedural safeguards will be required and there must be sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of the evidence. That this is not simply a matter of rhetoric is shown by the different results in the two cases considered by the Grand Chamber. In AlKhawaja the conviction is upheld on the basis that the “decisive” hearsay statement of the deceased victim was supported by the facts that she made prompt complaint to two friends, who both gave evidence at the defendant's trial, and that there were “strong similarities” between her statement and the evidence of a second alleged victim. In Tahery, where the statement of the fearful witness was the only eyewitness evidence of a stabbing, and was not corroborated as to the identity of the defendant as the assailant, the court considered that the defendant's ability to give evidence in denial and the trial judge's careful warning about the dangers of relying on untested evidence were not sufficient counterbalancing factors for D's inability to cross-examine the eyewitness. Accordingly, the finding of a violation of art.6(1) was upheld. There may well be a message here that trial judges should not be too liberal in admitting prosecution hearsay in “the interests of justice” under ss.114(1)(d) or 116(4) of the 2003 Act. The judgment may therefore reinforce the current trend in English case law to approach s.114(1)(d) in particular, with caution. First, the court will need to be satisfied that there is a good reason for the non-attendance of a witness, even if the evidence of the absent witness is not sole or decisive ([120]). Secondly, the more important the hearsay evidence, the more astute trial judges will need to be to ensure that the defendant's inability to cross-examine the absent witness is adequately compensated for. The return of corroboration? In this connection the significance attached in the judgment to the presence or absence of corroborative evidence should be noted. The court does not go as far as saying that corroboration is necessary where a hearsay statement is sole or decisive, and the judgment should not be read as laying down a requirement for it. But it was plainly treated as a very important factor to put in the balance of fairness in admitting or excluding the hearsay statements in the two cases. Moreover, the court suggested (at [131]) that corroboration affects the assessment of whether the hearsay is “decisive” in the first place: “Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence;

the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive.” For this to be the case the other evidence will need to be corroboration in the old Baskerville (G) [1916] 2 K.B. 658 sense of independent evidence that itself tends to implicate the accused in the commission of the crime charged. Where the other evidence, tends to support the truth of the statement of the absent witness, but is not independent of it (for example, a prompt complaint by the alleged victim of the offence) the hearsay statement will plainly be “decisive”. It would not be desirable to reintroduce all the technicalities of the common law of corroboration into the assessment of hearsay, but trial judges who want to keep on the right side of art.6 *Crim. L.R. 378 might be well advised to include the availability of corroboration as a relevant factor in deciding whether to admit or exclude hearsay under the 2003 Act. Report by Andrew Ashworth Commentary by Ian Dennis Crim. L.R. 2012, 5, 375-378 © 2015 Sweet & Maxwell and its Contributors...