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Published online by Cambridge University Press: 21 September 2018
AN EXAMPLE OF DIALOGUE: THE HEARSAY SAGA
In the early 2000s, Mr Al-Khawaja was convicted of indecent assault and Mr Tahery of wounding with intent to cause grievous bodily harm. They were both sentenced to custodial sentences in the UK. These convicts have in common that they felt that their trials had been unfair because their conviction was principally based on hearsay evidence. At Mr Al-Khawaja's trial, the statement to the police of a woman who made complaints against him was read to the jury. This woman could not testify at trial because she had passed away. A witness statement in Mr Tahery's case was also read to the jury because the witness feared attending trial. The UK courts to which the applicants complained concluded that their right to a fair trial had not been infringed. Consequently, the two men brought an application to the European Court of Human Rights (Court) in Strasbourg, which decided otherwise. Sitting as a chamber of seven, it held unanimously that the admission of the hearsay evidence at trial was in violation of the right to a fair trial, which is protected by Article 6 of the European Convention on Human Rights (Convention). A little less than three years later, the Court's Grand Chamber concluded upon referral that Mr Tahery's Article 6-rights had been violated and that there had been no violation of Article 6 in respect of Mr Al-Khawaja. The latter ruling was supported by a solid majority of fifteen votes to two and amongst the fifteen was Judge Bratza, who also sat in the chamber that had found a violation in the same case. Why did the Grand Chamber reverse the chamber's judgment in Mr Al-Khawaja's case? And why did Judge Bratza vote, first, for a violation and, then, against finding one in that case? Clues to these questions can be found in a judgment of the Supreme Court of the United Kingdom (UK) in the case of R. v. Horncastle and Others.
The UK Supreme Court spoke after the chamber had decided and before the Grand Chamber considered the case of Mr Al-Khawaja and Mr Tahery anew.
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