Al-Khawaja and Tahery v United Kingdom [2009]

Al-Khawaja and Tahery v United Kingdom [2009] is a landmark judgment by the European Court of Human Rights (ECtHR) concerning the application of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). The case involves two separate but related applications brought by individuals who had been convicted in the UK, and it addresses issues related to the admission of hearsay evidence and the right to confront witnesses in criminal proceedings.

Background: The applicants, Al-Khawaja and Tahery, had been convicted of serious criminal offences in the UK. In their trials, the prosecution had relied on hearsay evidence, including statements made by witnesses who did not testify in court. The applicants argued that the admission of this hearsay evidence violated their right to a fair trial under Article 6 of the ECHR, in particular Article 6(3)(d)

Article 6 of the ECHR: Article 6 of the ECHR guarantees the right to a fair trial, which includes several elements such as the right to a public hearing, the right to be informed promptly of the nature and cause of the accusation, and the right to examine or have examined witnesses against the accused.

Hearsay evidence: The applicants argued that the use of hearsay evidence, without the opportunity to cross-examine the witnesses who made the statements, violated their right to examine witnesses. They contended that the circumstances in their cases were exceptional and that the admission of such evidence was unfair.

The unavailability test: The ECtHR established a test to determine whether the admission of hearsay evidence violates the right to a fair trial. It recognised that there could be situations where a witness is genuinely unavailable to testify, and in such cases, the use of hearsay evidence might be permissible. However, the court emphasised that the unavailability must be established in a fair and proper manner.

Assessment of the applicants' cases: The ECtHR assessed the circumstances of Al-Khawaja and Tahery and found that in both cases, there had been a violation of their right to a fair trial under Article 6. The court concluded that the admission of the hearsay evidence against them had not been justified, and the unavailability of witnesses had not been established to a sufficient degree.

Procedural safeguards: The ECtHR emphasised the importance of effective procedural safeguards to ensure that hearsay evidence is admitted fairly and in accordance with the right to a fair trial. It noted that the domestic courts should carefully assess the circumstances in each case to determine whether the use of hearsay evidence is necessary and proportionate.

Appeal: The case was appeal to the Grand Chamber of the ECtHR, which is the court of final appeal for ECHR cases, as Al-Khawaja and Tahery v United Kingdom (2011). The Chamber ruled that the decisive nature of hearsay statement in the absence of any strong corroborative evidence in the case meant the jury were unable to conduct a fair and proper assessment of the reliability of the hearsay evidence. The Chamber examined the fairness of the proceedings as a whole and concluded that there had not been sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of the hearsay statement.

In summary, the cases are significant because they clarified the ECtHR's approach to the admission of hearsay evidence in criminal trials under the ECHR. They underscored the importance of balancing the rights of the accused to confront witnesses with the need to protect witnesses who are genuinely unavailable. The cases highlighted the requirement for a careful and fair assessment of the circumstances in each case to determine whether the use of hearsay evidence is compatible with the right to a fair trial.