Al-Khawaja & Tahery v UK: Lord Irvine vindicated

by Carl Gardner on December 15, 2011

In his lecture last night, Lord Irvine invited British judges to become more assertive in deciding human rights cases for themselves, agreeing or disagreeing with the European Court of Human Rights, as they see fit. Today’s judgment from the European Court in Al-Khawaja & Tahery v UK vindicates, at least in part, Lord Irvine’s claim that such assertiveness might succeed in influencing the Strasbourg court.

The case was about whether it breaches the Article 6 Convention right to a fair trial if, when a witness in a criminal trial is unable or unwilling to give live evidence, either because she is dead, or because he is afraid of reprisals, his or her witness statement is accepted as evidence instead. The fairness issue is, of course, that the witness cannot be cross-examined; his or her evidence cannot be fully challenged or undermined by the defence. When the court gave its initial chamber judgment, it effectively ruled that Article 6 would be breached if a conviction was based

solely or to a decisive degree

on the witness statement.

The UK Supreme Court could not accept the apparently absolute nature of this principle, and in Horncastle [2009] UKSC 14 it refused to follow it. Lord Phillips said, referring to section 2 of the Human Rights Act 1998,

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.

Well, now the Grand Chamber has looked again at Al-Khawaja & Tahery, and has accepted, at least in part, and by a majority of fifteen to two, the Supreme Court’s criticisms. The key paragraphs are 146 and 147:

It would not be correct, when reviewing questions of fairness, to apply [the “sole or decisive”] rule in an inflexible manner. Nor would it be correct for the Court to ignore entirely the specificities of the particular legal system concerned .. To do so would transform the rule into a blunt and indiscriminate instrument ..

The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 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 .. 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.

A partial retreat by Strasbourg, then, from an apparently inflexible rule to a principle requiring “the most searching scrutiny”; and a result for the assertive judicial approach tried in Horncastle and recommended by Lord Irvine last night.

There remains a problem, though. While making this principled retreat by a majority, the court nonetheless unanimously found a breach in Tahery’s case, and awarded him €6,000 in damages and €12,000 in costs. It’s not easy to see why the court should have decided by a majority that Al-Khawaja’s trial was fair, and Tahery’s unfair: the only relevant differences seem to be that in Al-Khawaja’s case, there was additional hearsay evidence of what the deceased had said to her friends, which largely backed up her witness statement; and another woman said she’d suffered a similar indecent assault by Al-Khawaja.

The European Court’s approach to Tahery’s case, in which the one witness who told police he saw Tahery stab the victim was too afraid to give evidence, causes real concern. Although it does not seem that the threats to the witness in this case came from Tahery, on the ECtHR’s approach, intimidation of crucial eye witnesses is allowed to succeed – on human rights grounds.

Given Lord Irvine’s speech last night it’s worth considering what impact this case has in domestic law, in any event. Tahery gets a minor windfall (€6,000, while not a big sum of damages, is a non-trivial amount for most convicted criminals), but his conviction stands. More importantly, if Lord Irvine’s assertive approach is taken seriously, domestic courts in future cases in this area should rely on Horncastle – not on this new judgment from Strasbourg.

Because this is an “application breach” type of case – in other words, what is complained about is a not a systematic breach of Convention rights automatically caused by UK law, as for instance in the case of prisoners’ voting, but merely that a particular ruling on evidence in one case was unfair – there is little or no risk of any ongoing stand-off or “dialogue” between Strasbourg and the UK courts developing into a major question of international human rights compliance.

{ 5 comments… read them below or add one }

1 ObiterJ December 15, 2011 at 19:28

Thank you for the link to Lord Irvine’s speech.

Al-Khawaja and Tahery v UK does not, in my view, entirely support Lord Irvine’s “national courts should do what they wish” approach. (That seems to me to be his approach). The view of Lord Phillips – (cited above) – was clear that instances where the Supreme Court will not follow the ECtHR are likely to be rare.

It is not entirely easy to see why Al-Khawaja was not a breach and Tahery was. The “sole or decisive rule” – which now hovers over the Criminal Justice Act 2003 – is not going to be too easy to apply in practice.

From a law enforcement viewpoint, it does seem singularly unfortunate that the witness (T) was intimidated and did not give evidence through fear. In future cases, such a situation might well prevent a conviction where one is entirely merited.

This litigation has not got us out of the woods yet !

2 ayesha December 16, 2011 at 05:09

so this means Tahiri had his article 6 rights ro fair trial breached? and evidnce based was solely hearsay? thus conviction overturned?

3 Carl Gardner December 16, 2011 at 10:46

(1) Yes; (2) I”m not sure it was “solely” hearsay, but (according to the ECtHR) the “decisive” evidence was hearsay, i.e. in T’s statement; (3) no: the conviction is not quashed. The ECtHR judgment doesn’t have automatic consequences in domestic law.

4 Jim Nately December 19, 2011 at 10:57

I can’t help but wonder if the difference between Al-Khawaja & Tahery was a product of the different context of the two cases weighing heavily on the minds of the Strasbourg judges.

Obviously, there was nothing that could have been done to secure the presence of the witness in Al-Khawaja. In Tahery, there were some steps that could have been taken to get the witness to testify—albeit potentially unreasonable ones. Doubtless led by policy considerations, the CJA2003 permits parties not to take these steps & simply rely upon a statement.

I suppose if one adopts a proportionality assessment, considering the import of the evidence (in terms of its function in sending the applicant to prison) against the opportunity for the state to do something other than rely upon the statement, there’s a clear gulf between Al-Khawaja & Tahery. The legal boundary must lie somewhere in that gulf. But Strasbourg certainly left the question of where to draw that line up to the national courts.

Whether that’s a good thing (i.e. leaving such questions of balance up to the national courts) or a bad thing (i.e. promulgating unclear judgments leading to further litigation) is, I suppose, up to oneself.

5 Morton December 27, 2011 at 20:25

I’d like British Judges to become more assertive, not just for Human Rights, but for all decisions and judgements.

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