In the Media

Europe?s human rights judges give ground to Britain over hearsay evidence in trials

PUBLISHED December 16, 2011

Britain won a crucial victory yesterday when European judges admitted that they should not overrule the traditional use of evidence in Britain?s criminal courts.

In a landmark judgment, the European Court of Human Rights said that the use of hearsay evidence in criminal trials ? when witnesses cannot attend in person ? did not breach defendants? human rights. The decision averts a clash between the UK Supreme Court and the Strasbourg court, which had previously ruled that the use of such evidence was a breach of the right to a fair trial. Senior UK judges had warned that if this ruling was upheld, it threatened to ?change the way the entire system of criminal justice in this country works?.

But yesterday the Grand Chamber, or appeal court, of the European Court of Human Rights said that the use of hearsay evidence did not automatically breach defendants? human rights.

In clear recognition of the furore in recent months over Strasbourg rulings, the European court seemed to take a step back and acknowledge the importance of local legal systems. It would not be right, they said, for them to ignore the rules of evidence of a particular legal system. The Strasbourg decision came from UK Government appeals in two cases where men had been jailed in the UK mainly or wholly on the basis of witness statements. The European judges upheld the conviction of one defendant but dismissed the other, ruling that hearsay evidence can be used but only with adequate safeguards to ensure the fairness of trials.

They ruled that the conviction of Imad al-Khawaja, 55, a consultant physician at Brighton General Hospital, for indecent assault against two women patients did not violate his human rights.

The key evidence was delivered in the form of a written statement by one of the victims who had committed suicide before the trial began.

The European judges ruled that the trial judge had been ?quite clear about its [the evidence?s] significance? and made clear that it should carry less weight because the jury had not seen, heard or cross-examined the witness. There was no breach of article six of the Human Rights Convention, which covers the right to a fair trial.

However, in the case of Ali Tahery, 36, an Iranian based in London who was sentenced to more than 10 years in jail for stabbing another man, the judges unanimously concluded that there had been a violation of his human rights.

The prosecution had rested on the read-out evidence of the only witness who had seen Mr Tahery but who did not attend court in person out of fear. The trial judge?s warning to the jury, although clear and forcible, had not sufficiently counterbalanced the difficulties caused to the defence by the admission of the untested evidence, the European judges said. They awarded Mr Tahery £15,000 in costs and damages.

Ministers are understood to have no plans to change the law in the light of the ruling. Kenneth Clarke, the Secretary of State for Justice, said: ?The Government will consider the implications of the legal issues in this case. UK courts have broad powers to exclude evidence they believe to be unfair ? including strong safeguards designed to ensure fairness.?

Lord Pannick, QC, a leading barrister and cross-bench peer, said: ?The Khawaja judgment on hearsay evidence shows that the Strasbourg Court is alive to concerns expressed by our senior judges about matters of fundamental importance to our criminal justice system.?Jodie Blackstock, director of criminal and EU justice policy at Justice, the human rights group, said: ?The ability to confront one?s accuser is a fundamental principle of our common law.

?This judgment underlines the importance of that principle. Courts must ensure that they approach the admission of hearsay evidence with more careful scrutiny than previously, otherwise the defendant will be placed at an unfair disadvantage.?

Dominic Raab, the Conservative MP for Esher & Walton, said that the judges at the European Court of Human Rights ?should be focused on serious abuses of fundamental rights, not tinkering with finer points of evidential rules in a mature democracy?.