European Court of Human Rights delivers judgment in the case Al-Khawaja and Tahery v. the United Kingdom

Council of Europe strikes balance on hearsay evidence – and relationship with UK courts

The European Court of Human Rights – the Council of Europe’s judicial body that guarantees human rights for all Europeans – has agreed with UK courts that the use of hearsay evidence does not automatically prevent fair trials.

Grand chamber judgment on 15 December in the case Al-Khawaja and Tahery v. the United Kingdom, which is final, helps to better define the relationship between the UK courts and the European Court of Human Rights, a relationship that has been somewhat fraught in recent years. Reform of the Court is a priority of the current UK chairmanship of the Council of Europe.

The grand chamber judgment today on hearsay evidence has studied with great care past criticisms made by the UK Supreme Court – and it has taken on board a lot of what was said.

In this judgment, the European Court of Human Rights has applied a more flexible approach which takes greater account of the details of the national – English – legal system.

In contrast to the initial chamber judgment, the grand chamber has found no violation in the Al-Khawaja case, despite the fact that the main evidence was the victim’s written statement, because there was additional evidence to back it up.

A balance was struck in Tahery’s case, however. The grand chamber found that there had been an unfair trial, because the only evidence against Tahery was the written witness statement. It was determined to be unfair, because Tahery had no chance to question this witness about exactly what he saw or whether he had any particular motives for saying that Tahery committed a crime.

The principle that a person should be able to cross-examine witnesses at trial came into the Convention from English common law. It was enshrined in English law for centuries and was only changed by the Criminal Justice Act 2003, which came into force in April 2005. Most other common law jurisdictions – and Scotland – have kept it.

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