ECtHR and Hearsay Evidence, Tahery wins, Al-Khawaja loses!

Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings.

European Court finds that use of hearsay evidence does not automatically prevent a fair trial. The cases concerned the applicants' complaint that their convictions had been based on statements from witnesses who could not be cross examined in court and that they had therefore been denied a fair trial.

The Court agreed with the domestic courts and found that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6 § 1. However, counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence.

Grand Chamber judgment in the case AI-Khawaja and Tahery v. the United Kingdom (application nos. 26766/05 and 22228/06), which is final', the European Court of Human Rights held that there had been:

In respect of Mr AI-Khawaja No violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) (right to obtain attendance and examination of witnesses) of the European Convention on Human Rights, [Mr. Al-Khawaja basically lost as there were there were other witnesses and other victims.]

In respect of Mr Tahery A violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention. [Please be clear though ECtHR has found Mr. Tahery's trial was unfair the conviction will not be quashed]

Ali Tahery is an Iranian national who was born in Tehran in 1975 and lives in London. 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.

Mr Tahery was tried before Blackfriars Crown Court in April 2005. During the 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, who heard evidence from both T and a police officer, found that T was afraid of giving evidence although his fear was not caused by Mr Tahery. The judge also found that special measures, such as testifying behind a screen, would not allay his fears and allowed his written statement to be admitted as evidence.

T's witness statement was then read to the jury in his absence. Mr Tahery also gave evidence. The judge, 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. On 29 April 2005, the applicant was convicted by a majority verdict, principally of wounding with intent to cause grievous bodily harm, and later sentenced to 10 years and three months imprisonment.

Mr Tahery appealed, arguing that his right to a fair trial had been infringed because he was not able to have T cross-examined. The Court of Appeal acknowledged that the prospect of a conviction would have receded - and that of an acquittal advanced - had T's evidence not been admitted. It found nevertheless that any unfairness had been prevented by the cross-examination of other prosecution witnesses, the evidence from Mr Tahery himself and the possibility he had of calling bystanders. Furthermore, the trial judge had given the jury explicit directions on how to treat the statement in question. Further leave to appeal was refused.

Decision 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 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.

Therefore, the Court found that if a conviction is based solely or decisively on the statement of an absent witness, counterbalancing factors must be in place, including strong procedural safeguards. However, the conviction would not automatically result in a breach of Article 6 § 1.

The Court considered three issues: first, whether it had been necessary to admit the witness statements of T; second, whether the untested evidence had been the sole or decisive basis for the applicant's conviction; and third, whether there had been sufficient counterbalancing factors including strong procedural safeguards to ensure that the trial had been fair.

Tahery: T had been the only person who claimed to have seen the stabbing and his uncorroborated eyewitness statement had been, if not the sole, at least the decisive evidence against Mr Tahery. Without it, the chances of a conviction had been slim.

The Court found that neither the fact that Mr Tahery could challenge T's statement himself nor the trial judge's warning to the jury in his summing up sufficiently counterbalanced the difficulties caused to the defence by the admission of the untested evidence. Mr Tahery could not have T, the only witness willing to say what he had seen, cross-examined about the details of his statement or his motives for making it. Although the judge's warning was clearly and forcibly expressed, it was not sufficient to counterbalance the unfairness caused by allowing the untested statement of the only prosecution witness with the only direct evidence against Mr Tahery be read out in court.

The Court considers that appropriate enquiries were made to determine whether there were objective grounds for T's fear. The trial judge heard evidence from both T and a police officer as to that fear. The trial judge was also satisfied that special measures, such as testifying behind a screen, would not allay T's fears. Even though T's identity as the maker of the incriminating statement was publicly disclosed, the conclusion of the trial judge that T had a genuine fear of giving oral evidence and was not prepared to do so even if special measures were introduced in the trial proceedings, provides a sufficient justification for admitting T's statement.

The Court notes that when those present at the scene of the stabbing were originally interviewed, no-one claimed to have seen the applicant stab S, and S himself had not seen who had stabbed him, although initially he presumed it was the second applicant. T had made his statement implicating the applicant two days after the event. He was the only witness who had claimed to see the stabbing. His uncorroborated eyewitness statement was, if not the sole, at least the decisive evidence against the applicant for that reason. It was obviously evidence of great weight and without it the chances of a conviction would have significantly receded. Even though the testimony may have been coherent and convincing on its face it cannot be said to belong to the category of evidence that can be described as "demonstrably reliable" such as a dying declaration or other examples given by the Court of Appeal and Supreme Court in their Horncastle and others judgments (see paragraphs 53 and 60 above).

161. Such untested evidence weighs heavily in the balance and requires sufficient counterbalancing factors to compensate for the consequential difficulties caused to the defence by its admission. Reliance is placed by the Government on two main counterbalancing factors: the fact that the trial judge concluded that no unfairness would be caused by the admission of T's statement since the applicant was in a position to challenge or rebut the statement by giving evidence himself or calling other witnesses who were present, one of whom was his uncle; and the warning given by the trial judge to the jury that it was necessary to approach the evidence given by the absent witness with care.

However, the Court considers that neither of these factors, whether taken alone or in combination, could be a sufficient counterbalance to the handicap under which the defence laboured. Even if he gave evidence denying the charge, the applicant was, of course, unable to test the truthfulness and reliability of T's evidence by means of cross-examination. The fact is that T was the sole witness who was apparently willing or able to say what he had seen. The defence was not able to call any other witness to contradict the testimony provided in the hearsay statement.

The other evidence was that given by the victim S who did not know who had stabbed him, although initially he presumed it was the applicant. His evidence was circumstantial in nature and largely uncontested by the applicant. He gave evidence of the fight and the applicant's actions after the stabbing (see paragraph 32 above). While this evidence corroborated some of the details of T's testimony, it could only provide at best indirect support for the claim by T that it was the applicant who had stabbed S.

It is true that the direction in the judge's summing up to the jury was both full and carefully phrased, drawing attention to the dangers of relying on untested evidence. However the Court does not consider that such a warning, however clearly or forcibly expressed, could be a sufficient counterbalance where an untested statement of the only prosecution eyewitness was the only direct evidence against the applicant.

The Court therefore considers that the decisive nature of T's statement in the absence of any strong corroborative evidence in the case meant the jury in this case 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 concludes that there were not sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of T's statement. It therefore finds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention in respect of Mr Tahery.

The Court therefore concluded that there had not been sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the admission of hearsay evidence and held unanimously that there had been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (d).

Article 41 (just satisfaction):The Court held that the United Kingdom was to pay Mr Tahery 6,000 euros (EUR) in respect of non-pecuniary damage, and EUR 12,000 for costs and expenses.