Thursday, 15 December 2011

Well there you are: the European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court after all.

In today’s Grand Chamber decision in AL-KHAWAJA and TAHERY v. THE UNITED KINGDOM, the challenge was to UK hearsay law, a law which in certain circumstances allows statements to be admitted in evidence and to play a sole or decisive role in securing a conviction even where they are not made in the course of the trial. The Grand Chamber has now ruled that this does not as such amount to a breach of the Convention’s right to a fair trial (to be found in article 6). The Chamber judgment of the same name which claimed this was wrong; the UK Supreme Court ruling of R v Horncastle [2009] UKSC 14 (with Lord Phillips prominent) which said as much was right, or at least more right than the first version of Al Khawaja and Tahery had been. Of course where such evidence is admitted - with no possibility of cross-examination or testing in open court - then it has to be treated cautiously and where it is the sole or decisive evidence then the court needs to be super careful and check what other safeguards there are to guard against injustice. But crucially there is no automatic breach of article 6.

My colleague at LSE Mike Redmayne is an expert on the law of criminal evidence and with his permission I summarise here his comments to me about the case:

"Well, it’s an interesting judgment. They do a careful job: one of the better ECHR judgments I’ve read. There’s a concurring judgment from Judge Bratza, which sets the context: he welcomes the dialogue with the national court." (I intervene here to set out exactly what Judge Bratza said: "The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring., and thinks this is a sensible way to settle things.") …

Then Mike goes on:

"The majority judgment looks at the law in lots of other common law jurisdictions, giving a more careful review than the Supreme Court did in Horncastle. They also look very closely at the Supreme Court’s arguments, and address them one by one. They don’t concede much. The Chamber judgment was that if hearsay is the sole or decisive evidence against a Defendant, it can’t be used. But the Grand Chamber concede that this is too absolute: exceptionally, hearsay can be sole or decisive and not make a trial unfair. On the facts of the cases, they conclude Al-Khawaja had a fair trial (there was corroborating evidence), but that Tahery did not…. Where that leaves domestic hearsay law is hard to say: but we’re probably left with something like a corroboration rule for hearsay."

The partly dissenting judgments of Judges SAJÓ AND KARAKAŞ show how this case might have gone.

The Convention gives a defendant in a criminal case a specific right (in article 6(3)(d)) "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." On the view of these dissenters, this represents an unqualified right which cannot be turned into just an element in the general test of fairness already set out in Article 6(1) - "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." But this they complain is exactly what the majority have done. Before today "this Court has never stated that fairness can still be achieved [even] if one of the fundamental rights is deprived of its essence." They went on: "With regard to the right to cross-examine witnesses and the related but broader equality-of-arms principle, the Court has systematically and consistently drawn a bright line, which it has never abandoned, in the form of the sole or decisive rule." And then melodramatically but perhaps accurately: "Today this last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness."

Who is right?

There is certainly a change in that the "sole or decisive" rule is dumped but only on account of its inflexibility. It is still the operating assumption and will be hard to rebut. And whatever about the substance of the case, if the minority had won out there would now be quite a lot of political noise about this silly court and the inflexible insensitivity of its rulings and so on. It’s a relief not to be having to listen to all these pontificating sceptics, and know at the back of your mind that maybe, just maybe, they have a point. Things will probably calm down on the Strasbourg front now, so far as the local political temperature is concerned.

Last word to Mike:

"So on a first look the ECHR come out of this pretty well: they’ve played the Supreme Court at its own game, of carefully reasoned argument drawing on comparative resources, and done a good job. They abandon some of the stupid arguments the Chamber made. And the English courts won’t have to concede much."

In other words: a score draw after an entertaining match. Strasbourg and the Human Rights Act live to fight another day!