European court of human rights upholds British doctor's indecent assault conviction in landmark ruling
Hearsay evidence can be used as the sole means of securing a criminal conviction where no other evidence is available, the European court of human rights (ECHR) has ruled.
The landmark decision, reversing a previous finding by the court, avoids a head-on judicial collision between the UK supreme court in London and the judges in Strasbourg.
The decision from the grand chamber of the ECHR, which deals with appeals against rulings, shows that the court has listened to objections raised in London and refined its position in the face of strong objections from British lawyers.
It is, however, only a partial vindication for the British government. The European court upheld the conviction of one appellant, Imad al-Khawaja, and said that his right to a fair trial had not been breached. But in a second case, that of Ali Tahery, it ruled that his conviction for stabbing had been unfair because "there had not been sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the admission of hearsay evidence". The UK was ordered to pay him ?18,000 (?15,000) in costs and damages.
Hearsay evidence is defined in law as "a statement not made in oral evidence" during the court proceedings. It includes statements submitted where the witness is not available to appear in court and be cross-questioned. In the al-Khawaja case the witness had died.
Ministers and the supreme court had eagerly awaited the Strasbourg judgment for two years. It resulted from a challenge to the original finding by the UK's most senior judges, who felt that the original decision threatened to undermine the authority of the UK's criminal courts.
The protracted delay in delivering the decision stoked up political resentment against Strasbourg. The court has been struggling to deal with a massive backlog of unresolved cases.
If the decision on al-Khawaja had gone the other way it would have provoked an outburst of anti-Strasbourg sentiment within senior legal circles and among government ministers.
Welcoming the decision, James Welch, legal director for Liberty, said: "Strasbourg's change of heart shows the importance of its dialogue with our supreme court. This is only possible because the Human Rights Act requires both courts to apply the same principles.
"Without the Human Rights Act we'd have been left with the earlier inflexible judgment. This commonsense decision balances our common interest in convicting the guilty with a defendant's right to question his accusers. It is in the best tradition of the fair trial values that Britain exported to the world."
The decision was announced the day after one of the architects of Britain's Human Rights Act, Lord Irvine, warned that UK courts had been slavishly following the jurisprudence of the European court of human rights.
Urging the supreme court to reassess its relationship with Strasbourg, he said it was the "constitutional duty" of judges to reject Strasbourg decisions they felt were flawed, in favour of their own judgments.
In a speech organised by the Bingham Centre for the Rule of Law and hosted by UCL's Judicial Institute, Irvine said that section two of the Human Rights Act, which governs the prominence given to Strasbourg jurisprudence, had been misinterpreted and therefore human rights case law had developed on a false premise.
In its decision on al-Khawaja, the ECHR grand chamber said there had been no breach of his rights under article six of the European convention of human rights, which guarantees the right to a fair trial.
Al-Khawaja, 53, is a British national living in Brighton. "While working as a consultant physician he was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis," the judgment said.
"One of the complainants, ST, committed suicide (taken to be unrelated to the assault) before the trial. Prior to her death she had made a statement to the police.
"At the trial it was decided that ST's statement should be read to the jury. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence.
"In his summing up, the trial judge reminded the jury that they had not seen ST give evidence or be cross-examined and that the allegations were denied.
"Mr Al-Khawaja was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15-month custodial sentence on the first count and a 12-month custodial sentence on the second count, to run consecutively." That trial, the Strasbourg court said, had been fair.