SEPARATE OPINION OF JUDGE DE GAETANO

1. I voted with the majority in this case because I am satisfied that, taking the proceedings as a whole, there was no unfairness in breach of Article 6. The prosecution did all that was reasonable in the circumstances to trace JH so that he could give evidence viva voce at the trial. All the evidence was carefully examined both by the trial court and by the Court of Appeal. JH ’ s statements made to the police were not the only evidence incriminating the applicant. More critically, the applicant did not seek to challenge JH ’ s statements (§§ 20, 62).

2. However I would not have relied to the same extent as the judgment does on the Grand Chamber judgment of Al-Khawaja and Tahery ( see §§ 53 et seq. of the instant case). The judgment in Al ‑ Khawaja and Tahery seems to revolve to some extent around a very specific statutory definition of what is “hearsay evidence”, a definition that has replaced the previous peculiar common-law definition (or definitions) (see, for example, the Privy Council decision in Subramaniam v. The Public Prosecutor [1956] WLR 965 at 970); and this seems to be so notwithstanding what is s tated by the Grand Chamber at § 126. Even among common-law jurisdictions there is divergence as to what hearsay evidence exactly encompasses – compare and contrast s. 114(1) of the [English] Criminal Justice Act 2003 with s. 59(1) of the New South Wales Evidence Act 1995. Moreover the Grand Chamber also had before it a plethora of procedural safeguards (under the Police and Criminal Evidence Act 1984, the Criminal Justice Act 1988 and the Criminal Justice Act 2003 among others) to counterbalance the possible prejudice of hearsay evidence or evidence which cannot be directly tested in open court, which are not necessarily found in other jurisdictions. Finally , as was correctly hinted by the third-party intervenor in Al-Khawaja and Tahery (§ 114 of that judgment), the question of the admissibility or otherwise of hearsay evidence is not necessarily bound up with the principle of confrontation, which is what Art. 6(3)(d) is all about.

3. In the instant case it is not readily appreciated why JH ’ s statements should be regarded as hearsay evidence, as suggested in § 53, instead of merely unsworn documentary evidence. While it is true that the admissibility of evidence is primarily a matter for regulation by national law and by the domestic courts ( Van Mechelen and Others v. The Netherlands 23 April 1997, no. 21363/93, § 50; Doorson v. The Netherlands 26 March 1996, no. 20524/92, § 67), it is also true that well established procedural rules which in essence enshrine the m inimum right guaranteed in Art. 6(3)(d) should not be lightly abandoned or, worse, whittled down to the point where that minimum right becomes illusory.

[1] . JH was born in 1989.