All flourishing Christian organisations need to steer a careful course between mammon and morality.
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
Thursday, 19 January 2012
Wednesday, 18 January 2012
Abu Qatada v UK
First Article 3.
In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.
Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.
Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.
The weight to give them is quite another matter.
The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course - and I agree critically - the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.
Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.
Now Article 6.
This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.
The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.
But….
How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?
Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an a la carte menu from which only the bits agreeable to their previously identified positions are to be selected?
Does such partisanship do the advocacy of human rights any favours?
In the Abu Qatada case the European Court of Human Rights has ruled that he is not likely to be tortured or ‘ill-treated’ in Jordan if he is returned there to face the authorities.
Now this is, ultimately, a question of judgment for the court, based on an assessment of probability on the current facts. It could theoretically arise in a case involving Sweden or Norway just as much as it does in relation to Jordan or (for that matter) Libya or Egypt. It doesn’t come up because it never even occurs to anyone that such ill-treatment might occur. The thought, though, is uppermost when these other places are the likely recipients of expelled European residents.
Memoranda of Understanding are just devices for rebutting the inference of likely ill-treatment that is made simply on the basis of the record of countries like these. It is neither logical nor fair to rule them out as evidence simply because their having been volunteered proves irretrievable bad faith.
The weight to give them is quite another matter.
The Strasbourg court has rejected such memoranda in the past. In Abu Qatada, the court accepted that the facts before it (including of course - and I agree critically - the memoranda agreed by the British and the Jordanians as to how the applicant would be treated) did not give rise to the ‘real risk’ of ill-treatment necessary for their jurisdiction to prohibit the removal to kick in. As the Court says ‘its only task is to examine whether the assurances obtained in a particular case are sufficient to remove any real risk of ill-treatment’.
Commentators critical of this ruling have to accept that what they are doing is questioning a judgment of the court on the facts. If the Government were to do this, no doubt the human rights activists would be furious.
Now Article 6.
This ruling is a very strong one and worth defending if this case goes further up the Strasbourg hierarchy, as it may well do.
The Court found that Abu Qatada has successfully ‘discharged the burden that could be fairly imposed on him of establishing the evidence against him [in Jordan] was obtained by torture’ and that he has also therefore shown that there would be ‘a real risk of a flagrant denial of justice if he were deported to Jordan.’ This strikes me as a strong finding and a reflection of how torture (of anyone) should never be allowed to pay.
But….
How can this Article 6 ruling be gratefully received by commentators (based as it is on a finding of a set of facts) while the court’s other ruling on Article 3 (equally based on a finding of facts) is rejected?
Are the critics allowing their feelings to run away with them, turning the Strasbourg court into an a la carte menu from which only the bits agreeable to their previously identified positions are to be selected?
Does such partisanship do the advocacy of human rights any favours?
Wednesday, 11 January 2012
St Paul's - reflections on the court ruling on eviction
All flourishing Christian organisations need to steer a careful course between mammon and morality.
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
On the one hand there is the wealth, power and influence that flow out of such success, especially if it is millennia old (as with the Roman Catholic church) or backed by the state (as with Anglicanism): how can one bite the hand that feeds one if the food is so good and one’s corpulent body now so dependant? On the other hand there is the unsettling example of Jesus himself – uninterested in money; contemptuous of luxury and of worldly power; devoted to the needy (or as we would say today the disadvantaged).
Some churches solve this problem by assimilating mammon to morality - the good are good because they are rich, and vice versa. This is too obviously special pleading for the more thoughtful faiths for whom, however, the problem remains: how can they be rich and radical at the same time?
These churches usually manage to side-step this dilemma by using their knack of fine rhetoric to call upon others to act. A prime example is the Report Value and Values: Perceptions of Ethics in the City Today issued by the St Paul’s Institute in November last year, an excellent critique of the ethical emptiness of global capital out of the mouths of financial services practitioners themselves.
But by the time this Report came out, the Occupy LSX camp had arrived at St Pauls, sparking a crisis of identity for the great Cathedral that supports this ‘challenging and well-resourced space for conversation’ (as the Archbishop of Canterbury had described the Institute in June 2010).
With eviction proceedings to remove the camp having yesterday produced a judgment against the occupy group, things are likely to get worse before they get better for the cathedral. At the back of everyone’s mind will be the feeling that a rare opportunity has been missed for an heroic religious engagement, for action as well as words.
It had all begun so promisingly.
The camp had only arrived at St Pauls in October last year when the stock exchange proved impenetrable. The police did not initially act, and the Cathedral itself – in the ebullient and civil libertarian form of the Canon Chancellor Giles Fraser – was positively supportive. Services continued. The talk was of a presence until Christmas. Early compromises allowed visits to the Cathedral to continue. The peaceful nature of the protest was acknowledged by all, the atmosphere good. Treated with respect and properly self-regulated, given as Giles Fraser was later to say on Newsnight ‘nice cups of Anglican tea … and a warm embrace’, a camp such as this might well have grown into a benign witnesses to the need for radical change, as the anti-nuclear Greenham common women had done a generation before. And what a gift this would have been to a Church about to launch its critique of city capitalism.
Faced with an open goal, the senior church authorities promptly turned tail and shot into their own net.
The talk was suddenly all of health and safety and of the risk of fire. The advice of professionals in these fields was immediately accepted, leading first to closure of the Cathedral (soon shown to be quite unnecessary) and then to a legal action launched with the intention of expelling the protestors. When the latter action was suspended the more hard-nosed Corporation of London took on the job of clearing out the protestors, the custodians of the Cathedral whispering encouragement while trying to look the other way. By then the Cathedral had lost both Fraser and the Dean himself, Graeme Knowles.
The law appeared stacked against the protestors from the outset and the judgment yesterday can have come as no surprise, with both highways and planning law being deployed by the City to legitimise its effort to get the protestors removed, not just from the areas all around the Cathedral but from the Cathedral land as well.
Of course the protestors pleaded the right to freedom of expression under the Human Rights Act but that measure ws always unlikely greatly to assist. The European Court of Human Rights has been reluctant to extend its protection to those who invade private property in the effort to get heard, and the same has now proved to be true (so far as this case is concerned) of deliberate efforts to obstruct the highway for the same purpose. Lindblom J had the job of assessing the proportionality or reasonableness of the disruption as against its value as speech - and here again the background hostility of the Cathedral was likely to weigh heavily against the Camp.
With this ruling handed down, the case is already shaping up to resemble the Dale Farm debacle, with endless litigation, media summits, appeals, further clarifications of court orders and - eventually - a nasty moment when the camp is physically dismantled by the authorities.
If and when this does come about, the Cathedral will have been primarily responsible. Had it adopted Fraser’s line, the protestors would probably be gone by now (as they had always intended), the Institute’s report on the city would be a widely admired and much read document, and the church’s commitment to economic justice would have been given a tremendous boost.
Instead....
We have this spectacle of a great cathedral acting not as a focus for Christian action but as a grand religious NIMBY.
The chance to undo this damage will not come about - opportunities of the sort offered by the Occupy movement are rare. No doubt there will be many more remarks such as that of the Revd Michael Hampel, Canon Precentor who commented of the Value and Values report that "Action is a crucial goal of the protest camp outside St Paul’s Cathedral. We hope that the telling findings of this report can provide a solid foundation for future engagement and highlight issues where action might be of mutual concern for all sides of the debate.” This kind of comment is so within the comfort zone of the Church to be indistinguishable from complacency.
At Mass at the start of January celebrating the Epiphany, Catholic Christians had Psalm 71:
‘For he shall save the poor when they cry and the needy who are helpless. He will have pity on the weak and save the lives of the poor.’
What kind of an epiphany has St Paul’s offered the world this Christmas season?
Monday, 9 January 2012
Al-Khawaja and Tahery v UK
Surprise – or no surprise at all? The European Court of Human Rights has decided not to precipitate a crisis of authority between itself and the UK Supreme Court.
In the long awaited Grand Chamber decision of Al-Khawaja and Tahery v United Kingdom, decided shortly before Christmas (15 December 2011), 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 these statements are not made in the course of the trial.
An earlier chamber ruling in the case had found against the UK on exactly this point.
It may be worth pausing briefly to remind ourselves of what the Convention says about fair trials. The general guarantee of fairness is in Article 6(1) - ‘In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing.’ Article 6(3)(d) then adds further meat to this by giving a defendant the right ‘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.’
Given these express rights, it might be thought not to have been too surprising that the Chamber of seven had found a breach, indeed had done so unanimously. But the ruling had created quite a storm in Britain. For many it crystallised much of what was wrong with Strasbourg: inflexible, ill-informed about the common law and (for all their talk of margins of appreciation and the like) insensitive to local expertise. The Supreme Court had even disowned it, in R v Horncastle [2009] UKSC 14. Politicians waded in. The popular press - already hostile because of the commercial damage HRA-based privacy law has done them – became even more hostile still. Everyone waited for the ‘verdict’ of the Grand Chamber whose hearing had taken place as long ago as May 2010. That whole year passed and then as 2011 drifted by concern grew. Had the judges forgotten? Were they too scared to act?
Now we know the reason for the long wait: the court was taking especial care. The Grand Chamber has now ruled that these Article 6 entitlements do not inevitably lead to a breach of the Convention where statements of the sort allowed in under UK law play this kind of sole or decisive role. The Chamber was wrong; the UK Supreme Court 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 so as properly to guard against injustice. But crucially there is no automatic breach of Article 6. Fifteen of the judges shared this opinion, with only two dissentients taking the purist line which had proved so attractive to the Chamber first time round. To these two (Judges Sajó and Karakaş) the ‘last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness’ – melodramatic perhaps but not less true on that account. On any reading it’s a large-scale watering down of Article 6(3)(d).
The practical effect of this was that Mr Al-Khawaja’s application was dismissed while that of Mr Tahery was upheld: the differences in facts between the two cases meant that the reliance on hearsay in the first was acceptable, but in the second was not.
One of the features of human rights law is its insistence on crossing subject-boundaries while seeming to remaining firmly within public law. It must sometimes be irritating to specialists in other fields to see human rights muscling in on their patch in this way. What do our criminal lawyers think about the ruling? It is a little too early to be sure, but if Horncastle is any guide, they will be delighted. My colleague at LSE Mike Redmayne (our resident expert on the law of criminal evidence) is fairly relaxed about the outcome, seeing in it the probable ‘development of something like a corroboration rule for hearsay.’ Mike goes on:
"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."
The wider importance of the ruling is also obvious to those whose interests lie more in human rights law rather than in criminal procedure.
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. (Accused persons escaping justice through reliance on the death of their victims or their terrified refusal to testify are rarely the most attractive of characters.) 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.
There has been much talk recently about how the Supreme Court should deal with Strasbourg judgments, with judges and politicians as well as academics weighing in.
But this case is a reminder to us all that there is another question as well – about how the Strasbourg court should react to local judgments. Thinking this through is probably what took the court so long: on the one hand it did not want simply to surrender jurisdiction to an anarchy of local tribunals. On the other, well - what did it know about hearsay law in England (and much else, elsewhere as well, you might well say)?
The enduring importance of Al-Khawaja and Tahery may well lie in the short concurring of Nicolas Bratza, the UK judge, in the course of which he remarked:
"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 [in Horncastle] was referring."
If the UK does indeed drift out of all our Europes in the coming difficult years - not impossible given the composition of the current Conservative parliamentary party and the rise of English nationalism – it will be nearly as much of a loss to continental Europe as it undoubtedly will be on the ‘home front’. As Horncastle shows, Europe needs a UK that is engaged, but in a practical, sensible and intellectual rigorous way.
Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.
In the long awaited Grand Chamber decision of Al-Khawaja and Tahery v United Kingdom, decided shortly before Christmas (15 December 2011), 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 these statements are not made in the course of the trial.
An earlier chamber ruling in the case had found against the UK on exactly this point.
It may be worth pausing briefly to remind ourselves of what the Convention says about fair trials. The general guarantee of fairness is in Article 6(1) - ‘In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing.’ Article 6(3)(d) then adds further meat to this by giving a defendant the right ‘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.’
Given these express rights, it might be thought not to have been too surprising that the Chamber of seven had found a breach, indeed had done so unanimously. But the ruling had created quite a storm in Britain. For many it crystallised much of what was wrong with Strasbourg: inflexible, ill-informed about the common law and (for all their talk of margins of appreciation and the like) insensitive to local expertise. The Supreme Court had even disowned it, in R v Horncastle [2009] UKSC 14. Politicians waded in. The popular press - already hostile because of the commercial damage HRA-based privacy law has done them – became even more hostile still. Everyone waited for the ‘verdict’ of the Grand Chamber whose hearing had taken place as long ago as May 2010. That whole year passed and then as 2011 drifted by concern grew. Had the judges forgotten? Were they too scared to act?
Now we know the reason for the long wait: the court was taking especial care. The Grand Chamber has now ruled that these Article 6 entitlements do not inevitably lead to a breach of the Convention where statements of the sort allowed in under UK law play this kind of sole or decisive role. The Chamber was wrong; the UK Supreme Court 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 so as properly to guard against injustice. But crucially there is no automatic breach of Article 6. Fifteen of the judges shared this opinion, with only two dissentients taking the purist line which had proved so attractive to the Chamber first time round. To these two (Judges Sajó and Karakaş) the ‘last line of protection of the right to defence is being abandoned in the name of an overall examination of fairness’ – melodramatic perhaps but not less true on that account. On any reading it’s a large-scale watering down of Article 6(3)(d).
The practical effect of this was that Mr Al-Khawaja’s application was dismissed while that of Mr Tahery was upheld: the differences in facts between the two cases meant that the reliance on hearsay in the first was acceptable, but in the second was not.
One of the features of human rights law is its insistence on crossing subject-boundaries while seeming to remaining firmly within public law. It must sometimes be irritating to specialists in other fields to see human rights muscling in on their patch in this way. What do our criminal lawyers think about the ruling? It is a little too early to be sure, but if Horncastle is any guide, they will be delighted. My colleague at LSE Mike Redmayne (our resident expert on the law of criminal evidence) is fairly relaxed about the outcome, seeing in it the probable ‘development of something like a corroboration rule for hearsay.’ Mike goes on:
"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."
The wider importance of the ruling is also obvious to those whose interests lie more in human rights law rather than in criminal procedure.
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. (Accused persons escaping justice through reliance on the death of their victims or their terrified refusal to testify are rarely the most attractive of characters.) 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.
There has been much talk recently about how the Supreme Court should deal with Strasbourg judgments, with judges and politicians as well as academics weighing in.
But this case is a reminder to us all that there is another question as well – about how the Strasbourg court should react to local judgments. Thinking this through is probably what took the court so long: on the one hand it did not want simply to surrender jurisdiction to an anarchy of local tribunals. On the other, well - what did it know about hearsay law in England (and much else, elsewhere as well, you might well say)?
The enduring importance of Al-Khawaja and Tahery may well lie in the short concurring of Nicolas Bratza, the UK judge, in the course of which he remarked:
"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 [in Horncastle] was referring."
If the UK does indeed drift out of all our Europes in the coming difficult years - not impossible given the composition of the current Conservative parliamentary party and the rise of English nationalism – it will be nearly as much of a loss to continental Europe as it undoubtedly will be on the ‘home front’. As Horncastle shows, Europe needs a UK that is engaged, but in a practical, sensible and intellectual rigorous way.
Horncastle set Strasbourg a test which having pleaded special needs and asked for more time, it has now triumphantly passed.
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