Information Note on the Court’s case-law No. 147

December 2011

Al-Khawaja and Tahery v. the United Kingdom [GC] - 26766/05 and 22228/06

Judgment 15.12.2011 [GC]

Article 6

Article 6-3-d

Examination of witnesses

Convictions based on statements by absent witnesses: no violation; violation

Facts – The first applicant (Mr Al-Khawaja), a consultant physician, was charged with two counts of indecent assault on two female patients. One of the patients, ST, died before t he trial, but had made a statement to the police prior to her death which was 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 the 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, includin g the other complainant and two of the dead witness’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. The first applicant was convicted on both counts.

The second applicant (Mr Tahery) was charged, inter alia , with wounding with intent following a g angland stabbing. None of those questioned at the scene claimed to have seen the applicant stab the victim, but two days later one of those present, T, made a statement to the police implicating the second applicant. At the trial, the prosecution applied f or permission to read out T’s statement on the ground that he was too frightened to appear in court. The trial judge granted that application after finding on the basis of evidence from both T and a police officer that T was afraid of giving evidence (alth ough his fear was not caused by the second applicant) and that special measures, such as testifying behind a screen, would not allay his fears. T’s witness statement was then read to the jury in his absence. The second applicant also gave evidence. The jud ge, in his summing up, 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 and his conviction was upheld on appeal.

Both applicants lodged applications with the Europea n Court complaining that their convictions had been based to a decisive degree on statements from witnesses they had been unable to cross-examine in court and that they had therefore been denied a fair trial. In a judgment of 20 January 2009 a Chamber of t he Court held unanimously in both cases that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d) of the Convention on the grounds that the loss of the opportunity to cross-examine the witnesses concerned had not been effective ly counterbalanced in the proceedings.

Law – Article 6 § 1 in conjunction with Article 6 § 3 (d): Article 6 § 3 (d) enshrined the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a pu blic hearing with a view to adversarial argument. Exceptions to this principle were possible but must not infringe the rights of the defence. As a rule, this required that the accused should be given an adequate and proper opportunity to challenge and ques tion a witness against him, either when that witness made his statement or at a later stage of the proceedings. Two consequences followed from this general principle.

First, there had to be a good reason for admitting the evidence of an absent witness. Goo d reason existed, inter alia , where a witness had died or was absent owing to fear attributable to the defendant or those acting on his behalf as, in this latter case, the defendant had to be taken to have waived his rights under Article 6 § 3 (d). Where t he witness’s absence was due to a general fear of testifying not directly attributable to threats by the defendant or his agents, it was for the trial court to conduct appropriate enquiries to determine whether there were objective grounds, supported by ev idence for that fear. Before a witness could be excused from testifying on grounds of fear, the trial court had to be satisfied that all available alternatives, such as witness anonymity and other special measures, would be inappropriate or impracticable.

Second, a conviction based solely or to a decisive degree on the statement of an absent witness whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, would generally be considered incompat ible with the requirements of fairness under Article 6 (“sole or decisive rule”). This was not, however, an absolute rule and was not to be applied in an inflexible way, ignoring the specificities of the particular legal system concerned, as that would tra nsform the rule into a blunt and indiscriminate instrument that ran counter to the traditional way in which the Court approached the issue of the overall fairness of the proceedings, namely to weigh in the balance the competing interests of the defence, th e victim, and witnesses, and the public interest in the effective administration of justice. Accordingly, even where a hearsay statement was the sole or decisive evidence against a defendant, its admission as evidence would not automatically result in a br each of Article 6 § 1. At the same time where a conviction was based solely or decisively on the evidence of absent witnesses, the Court had to 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 was whether there were sufficient cou nterbalancing factors in place, including measures that permitted a fair and proper assessment of the reliability of that evidence to take place.

In that connection, the Court considered that the domestic law had contained strong safeguards designed to ens ure fairness*. As regards how those safeguards were applied in practice, it considered three issues in each case: whether it had been necessary to admit the statements of the absent witnesses; whether untested evidence of the absent witnesses had been the sole or decisive basis for each applicant’s conviction; and whether there had been sufficient counterbalancing factors including strong procedural safeguards to ensure that each trial, judged as a whole, was fair.

(a) The first applicant’s case – It was n ot in dispute that ST’s death had made it necessary to admit her statement if her evidence was to be considered. The judge had been quite clear about its significance (“no statement, no count one”) and it had therefore to be regarded as decisive. The relia bility of that evidence was supported by the fact that there were only minor inconsistencies between ST’s statement to the police and the account she had given promptly after the alleged incident to two friends, who had both given evidence at the trial. Mo st importantly, there were strong similarities between her description of the alleged assault and that of the other complainant, with whom there was no evidence of any collusion. In a case of indecent assault by a doctor on his patient during a private con sultation where only he and the victim were present, it would be difficult to conceive of stronger corroborative evidence, especially when each of the other witnesses was called to give evidence at trial and their reliability was tested by cross-examinatio n. Although the judge’s direction to the jury was found to be deficient on appeal, the Court of Appeal also held that it must have been clear to the jury from that direction that ST’s statement should carry less weight because they had not seen or heard he r. Having regard to that direction, and the evidence offered by the prosecution in support of ST’s statement, the Court considered that the jury had been able to conduct a fair and proper assessment of the reliability of ST’s allegations against the first applicant. Against this background, and viewing the fairness of the proceedings as a whole, there had been sufficient factors to counterbalance the admission in evidence of ST’s statement.

Conclusion : no violation (fifteen votes to two).

(b) The second ap plicant’s case – Appropriate enquiries had been made to determine whether there were objective grounds for T’s fear and the trial judge was satisfied that special measures would not allay it.

T was the only witness who had claimed to see the stabbing and h is uncorroborated eyewitness statement was, if not the sole, at least the decisive evidence against the applicant. It was obviously evidence of great weight without which the chances of a conviction would have significantly receded. Neither the trial judge ’s conclusion that no unfairness would be caused by admitting T’s statement since the applicant was in a position to challenge or rebut it himself or by calling other witnesses, nor the judge’s warning to the jury to approach T’s evidence with care, could be a sufficient counterbalance to the handicap under which the defence had laboured. Even though he had given evidence denying the charge, the applicant had been unable to test the truthfulness and reliability of T’s evidence through cross-examination and, since T was the sole witness apparently willing or able to say what he had seen, the applicant was not able to call any other witness to contradict his testimony. Further, no matter how clearly or forcibly expressed, a warning by the judge in his directio n to the jury of the dangers of relying on untested evidence could not be a sufficient counterbalance where an untested statement of the only prosecution eyewitness was the only direct evidence against the applicant.

The decisive nature of T’s statement in the absence of any strong corroborative evidence in the case meant the jury were unable to conduct a fair and proper assessment of the reliability of T’s evidence. Examining the fairness of the proceedings as a whole, the Court concluded that there had no t been sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T’s statement.

Conclusion : violation (unanimously).

Article 41: EUR 6,000 to the second applicant in respect of non-pecuniary damage.

* These included specific rules defining the circumstances in which an absent witness’s statement could be admissible in evidence, a requirement to consider alternative measures to allow a witness absent through fear to give live evidence, discreti on to exclude an absent witness’s statement and an obligation to stop the proceedings if the case against the accused was based “wholly or partly” on a hearsay statement so unconvincing that a conviction would be unsafe. In addition, the trial judge was re quired to give the jury the traditional direction on the burden of proof and direct them as to the dangers of relying on a hearsay statement.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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