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.