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Al-Khawaja & Tahery v. United Kingdom (Eur. CT. H.R.)
Published online by Cambridge University Press: 20 January 2017
On December 15, 2011, the Grand Chamber of the European Court of Human Rights (‘‘ECtHR’’) issued its final ruling in Al-Khawaja & Tahery v. United Kingdom. This highly anticipated ruling reexamined the United Kingdom’s laws that allowed convictions based primarily on the statement of a witness unavailable for cross-examination. This is the second time the ECtHR has visited this issue, after the U.K. courts declined to follow the earlier ECtHR’s decision that found that the U.K. law violated the European Convention on Human Rights (‘‘European Convention’’).
* This text was reproduced and reformatted from the text available at European Court of Human Rights website (visited March 21, 2011) http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=897148&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649.
1 Al-Khawaja & Tahery v. United Kingdom, App. Nos. 26766/ 05 & 22228/06 (Eur. Ct. H.R. 2011) (Grand Chamber), available at http://echr.coe.int.
2 See R. v. Horncastle, [2009] UKSC 14 (appeal taken from [2009] EWCA Crim 9640), available at http://www.supremecourt.gov.uk/docs/uksc_2009_0073_judgment.pdf; see also Al-Khawaja, supra note 1, ¶ 1.
3 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), available at http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=8&DF=4/25/2006&CL=ENG [hereinafter European Convention].
4 Article 6 of the European Convention is entitled ‘‘Right to a fair trial.’’ Article 6 §1 guarantees that ‘‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .’’ Article 6 § (3)(d) provides that ‘‘[e]veryone charged with a criminal offence has the following minimum rights: . . . to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.’’
5 Al-Khawaja & Tahery v. United Kingdom, App. Nos. 26766/ 05 & 22228/06 (Eur. Ct. H.R. Jan. 20, 2009) (Section Chamber), available at http://hudoc.echr.coe.int/sites/eng.
6 The Council of Europe was created by the Statute of the Council of Europe, available at http://www.conventions.-coe.int/Treaty/Commun/QueVoulezVous.asp?NT=001&CM=8&DF=12/07/2012&CL=ENG. Article 1(a) of the Statute states that ‘‘[t]he aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.’’
7 See European Convention, supra note 3, art. 19; see also Profile: European Court of Human Rights, BBC News (Feb. 7, 2012), http://news.bbc.co.uk/2/hi/europe/country_profiles/4789300.stm.
8 See, e.g., Profile: European Court of Human Rights, supra note 7.
9 European Convention, supra note 3, art. 48.
10 Id. art. 53.
11 Prior to the enactment of the Human Rights Act, litigants had to go directly to the ECtHR to vindicate their rights under the European Convention. See Alice, Donald, Jane, Gordon & Philip, Leach, The uk and the European Court of Human Rights (2012)Google Scholar, available at http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/2012/ECHR83ECtHR.pdf.
12 Examples of judges and politicians publicly espousing these views include, Lord Irvine of Lairg (Labour Lord at the time of the Human Rights Act’s introduction) Lord Phillips (President of the U.K. Supreme Court), Dominic Raab (Conservative Member of Parliament), Jack Straw (Member of Parliament and Home Secretary at the time the Human Rights Act was introduced), and Lord Judge (the Lord Chief Justice) among others. See Donald et al., supra note 11; see also Tom Whitehead, Courts Need Not be Bound by Europe, Says Top Judge, Telegraph (Oct. 20, 2011), available at www.telegraph.co.uk/news/uknews/law-and-order/8836487/Courtsneed-not-be-bound-by-Europe-says-top-judge.html.
13 See Donald et al., supra note 11, at 115-19.
14 See, e.g., Conor Gearty, Al-Khawaja & Tahery v. United Kingdom, U.K. Const. L. Grp. (Jan. 9, 2012), http://ukconstitutionallaw.org/2012/01/09/conor-gearty-al-khawajaand-tahery-v-united-kingdom/.
15 Horncastle, supra note 2, ¶ 11.
16 Al-Khawaja, supra note 1.
17 Judge Bratza also acknowledged reversing his own opinion, having voted in the lower court judgment as the U.K. National Judge. Al-Khawaja, supra note 1 (Bratza, J., concurring).
1 We agree with the Supreme Court that insufficient guidance may have been given concerning the concept of ‘‘decisive evidence’’. This shortcoming is partly the result of the case-specific approach of this Court’s jurisprudence, which is intended to respect national legislative and judicial sovereignty, and is partly due to the assumption that such definitions are best developed within the context of the national legal system. This approach is in accordance with the subsidiarity principle. With the intention of responding to the request, the present judgment provides a definition.
In our view, ‘‘decisive’’ evidence is reasonably taken to mean evidence without which the prosecuting authorities could not bring a case. A higher standard is likely to revert to an absolute bar on hearsay. A lower standard invites abuse. Moreover, where testimony is such that without it there could be no prosecution, let alone conviction, failure to afford an adequate opportunity to cross-examine the witness restricts the defence to a far greater extent than in cases where other evidence independently supports the conviction. The sole or decisive test operates here as a backstop on Article 6 § 3 (d), so as to guarantee that the exception does not undermine the principle and that any resulting conviction does not rest ultimately or exclusively on hearsay.
2 The travaux préparatoires indicate that, there, paragraphs 1 and 3 were considered separately.
3 Some of the concurring opinions use the expression ‘‘Article 6 § 3 (c), read in conjunction with Article 6 § 1’’. Another standard formula that is used is: ‘‘As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaint under Article 6 §§ 1 and 3 (d) taken together’’ (see Gossa v. Poland , no. 47986/99, § 51, 9 January 2007).
4 See the criticism by Stefan, Trechsel in Human Rights in Criminal Proceedings, OUP, 2005, 313 Google Scholar.
5 In its submissions to the Grand Chamber the Government mischaracterise the Crawford holding as absolutist and anachronistic. Justice Scalia’s references to the Framers’ concerns about the trial of Sir Walter Raleigh are, on the contrary, where one finds the principle behind the rule. Albeit more exacting than our standard, Crawford is hardly absolutist. The US exclusionary rule applies only to testimonial statements and recognises what were already well-known exceptions at the time of the Republic’s founding (see Davis v. Washington, 547 U.S. 813 (2003)). The unavailability of a witness and an adequate prior opportunity to cross-examine the witness will, taken together, suffice to satisfy the confrontation requirement under current US law. In Davis and Hammon, both domestic violence cases, the Supreme Court explained that ‘‘[s]tatements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose ... is to enable police assistance to meet an ongoing emergency,’’ but they ‘‘are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation’s] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution’’ (547 U.S., at 822).
6 See Lord Bingham’s statement: ‘‘As my noble and learned friend Lord Rodger of Earlsferry suggested ... ‘the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused’. It may well be (this was not explored in argument) that the inclusion of article 6(3)(d), guaranteeing to the defendant a right to examine or have examined witnesses against him, reflected the influence of British negotiators. It is in any event clear, as my noble and learned friend observed in the same case, para 11, that ‘An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge’’’ (R v. Davis, paragraph 24).
7 See Trechsel, op cit., 313. For reliance on the sense of justice of the judge on the admissibility of untested hearsay see the wording of Part 11, Chapter 2 of the Criminal Justice Act 2003, Section 116:
‘‘...
(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence).’’
8 We would recall the statement of the judge at the preliminary hearing: ‘‘putting it bluntly, no statement, no count one.’’ See further his instructions to the jury (paragraphs 15 and 16).
9 In a sad sequel to the judicial efforts to ensure fairness, 33 days after the Lords’ ruling, Parliament authorised by law what the Lords had held to be eminently contrary to common law and the principles of a fair trial, in a matter that the Lords had considered settled by this Court’s case-law. A year later the Supreme Court was convinced (in a different context and on the basis of earlier laws) that the principles reaffirmed by the late Lord Bingham were satisfied in a comparable context with lesser guarantees, notwithstanding the concerns expressed by him and his fellow judges. So it goes.