ECHR Judgment in Al-Khawaja and Tahery

In a careful and balanced judgment, the European Court of Human Rights has disagreed with the Supreme Court’s analysis of the use of hearsay evidence and found a breach of the right to a fair trial in the case of the applicant tried under the current English act of parliament. This judgment is bound to lead to a re-examination of how the Courts allow the prosecution to adduce evidence from absent witnesses.

Joel Bennathan QC argued both cases in front of the Grand Chamber. He prepared the case working closely with Tahery's Counsel, Beccy Trowler, of Doughty Street Chambers.

Strasbourg has disagreed with the Supreme Court and found that calling the decisive evidence by way of a read statement meant the applicant Mr Tahery was denied a fair trial.

Joel Bennathan QC commented

"The history is that a lower chamber of the ECHR found, in 2009, that both Dr Al-Khawaja and Mr Tahery had been denied a fair trial because during their respective cases the prosecution had been allowed to read a witness statement by a crucial and disputed witness. The Court of Appeal and then the Supreme Court considered that judgment in a hearsay case already in the appeals system, Horncastle, and, in effect, rejected the judgment of the lower chamber and asked the Grand Chamber to overturn the Al-Khawaja and Tahery decision.

Today we heard the result. This is a compromise judgment.

The Grand Chamber of the ECHR reasserts the need for a rule forbidding the use of hearsay evidence where it would be the "sole or decisive evidence" in a prosecution, and goes through the Supreme Court arguments against such a rule and refutes them, more or less line-by-line. Then the ECHR softens its stance, in theory at least, by agreeing that it need not be a completely inflexible rule and changes its finding on one applicant, Al-Khawaja, but upholds the finding of a violation of the right to a fair trial in the case of Tahery.

This will not end here. The Court of Appeal are bound to consider this judgment and almost certainly the Supreme Court will do the same. The English Courts have set their face very firmly against the "sole and decisive" test, but it is very hard, assuming we remain in the European Convention, to ignore all together a finding of a violation of the fair trial provisions. My best guess is that one way or another prosecutions based wholly or chiefly on absent witnesses will become extremely rare after this latest decision."

Read the Judgment

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