CASES OF AL-KHAWAJA AND TAHERY
v. THE UNITED KINGDOM
(Application nos. 26766/05 and 22228/06)
20 January 2009
Referral to the Grand Chamber
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Al-Khawaja and Tahery v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Päivi Hirvelä, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
There appeared before the Court:
(a) for the
Mr J. Grainger, Agent,
Mr D. Perry QC, Counsel,
Ms L. Clapinska,
Mr S. Jones,
Mr M. Lindley,
Ms A. Sharif, Advisers;
(b) for the applicant
Mr J. Bennathan QC, Counsel for Mr Al-Khawaja,
Ms R. Trowler, Counsel for Mr Tahery.
The Court heard addresses by Mr Bennathan and Mr Perry and their answers to a question put by Judge Bratza.
I. THE CIRCUMSTANCES OF THE CASES
A. Mr Al-Khawaja
“It is very important that you [the jury] bear in mind when considering her [S.T.'s] evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence cross-examined [by applicant's counsel], who would undoubtedly have had a number of questions to put to her.”
“...bear in mind...that this evidence was read to you. The allegation is completely denied...you must take that into account when considering her evidence.”
On three occasions the jury asked for clarification of points raised in the read statement of S.T.
“Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick [see relevant domestic law below] we do not consider that the case law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6(3)(d) that a person charged shall be able to [have] the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is 'whether the proceedings as a whole, including the way the evidence was taken, were fair' - Doorson, paragraph 19. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph.”
“We consider that it would have been better if the judge had stated explicitly that the appellant was potentially disadvantaged by the absence of [S.T.] and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of [S.T.'s] statement being in evidence in her absence, and that this is not a factor which might make the appellant's trial unfair and in breach of Article 6. We should also say that overall the evidence against the appellant was very strong. We were wholly unpersuaded that the verdicts were unsafe.”
B. Mr Tahery
“I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear; and I base that not only on his oral testimony, but also upon my opportunity while he was in the witness box to observe him. I therefore have to look, having looked at the contents of the statement, to any risk its admission or exclusion will result in unfairness to any party to the proceedings. I am satisfied that there would be an unfairness caused by its exclusion; but I am equally satisfied that no unfairness would be caused by its admission. And in doing so, I have taken into account the words of the statute [Section 116 (2)(e) of the Criminal Justice Act 2003, see relevant domestic law below]; in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence. Challenge of a statement does not always come from cross-examination. Challenge of a statement can be caused by evidence given in rebuttal; by either the defendant, if he chooses to do so, or by any other bystander - and we know that there were some - who were on the street at that time. Consequently I am satisfied that the defendant's evidence, if he chooses to give it, would be sufficient to rebut and to challenge the evidence that is contained in that statement. I have further considered other relevant factors, and I have also offered to the witness whilst he was in the witness box behind screens the possibility of him giving evidence with the same special measures in place. He told me his position would not change; that he could not give evidence before a jury, and the reason that he could not was because he was in fear. Having taken all those matters into account in those circumstances, I am satisfied that this is the type of case which Parliament envisaged might require a statement to be read.”
“That evidence, as you know, was read to you under the provisions that allow a witness who is frightened, it is not a question of nerves it is a question of fright, fear, for his statement to be read to you but you must be careful as to how you treat it. It is right, as has been pointed out by the defence, that they were deprived of an opportunity to test that evidence under cross-examination. It is right also that you did not have the advantage of seeing the witness and his demeanour in Court...You must ask yourselves 'can we rely upon this statement? Is it a statement which we find convincing?' It is only if you are satisfied so that you are sure that what is in the statement has accurately depicted what happened that night and what the witness saw, that you could rely upon it. That goes for any witness. It is only if you find that the evidence is compelling and satisfies you so that you are sure that you act upon it. So you must always ask yourselves 'is the statement he made reliable?' You must bear in mind also, importantly, that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear.”
On 29 April 2005, the applicant was convicted by a majority verdict, principally of wounding with intent to cause grievous bodily harm, and later sentenced to nine years' imprisonment to be served concurrently with a term of fifteen months' imprisonment for doing an act intended to pervert the course of justice.
Leave to appeal on conviction was refused on 24 January 2006.
II. RELEVANT DOMESTIC LAW
A. Primary legislation applicable to Al-Khawaja
“23.-...a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if-
(2)(a) the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness...
25.-(1) If, having regard to all the circumstances-
(a) the Crown Court-
(i) on a trial on indictment;
(ii) on an appeal from a magistrates' court; or
(iii) on the hearing of an application under section 6 of the [1987 c. 38.] Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates' court to Crown Court); or
(b) the criminal division of the Court of Appeal; or
(c) a magistrates' court on a trial of an information,
is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard-
(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them.”
B. Primary legislation applicable to Tahery
“In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if...through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.”
Section 116 (4) states:
“Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-
(a) to the statement's contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence) ...
(d) to any other relevant circumstances.”
C. R v. Sellick and Sellick
“i) The admissibility of evidence is primarily for the national law;
ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;
iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.
iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”
The Court of Appeal then stated:
“The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.”
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
A. The parties' submissions
1. The applicants
“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...
3. Everyone charged with a criminal offence has the following minimum rights:
(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”
2. The Government
A. Admissibility of each application
1. General principles applicable to both cases
“If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6 §§ 1 and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 [references omitted].”
“Even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.”
2. The Court's approach to the present cases
3. Al-Khawaja's case
4. Tahery's case
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
This comprised GBP 5,571.47 (inclusive of VAT) for approximately forty-five hours' work by Ms Trowler and GBP 3,050 (inclusive of VAT) for approximately sixteen hours' work by Mr Bennathan, both of which sums included attendance at the hearing and travelling time to Strasbourg. Mr Tahery's solicitor's costs and expenses were GBP 2,423.56 (inclusive of VAT) which covered costs of GBP 1,734.16 for approximately fifteen hours' work and GBP 689.40 in expenses. Mr Al-Khawaja's solicitor submitted a bill of costs for GBP 1,637.95.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3(d) of the Convention in respect of Mr Al-Khawaja;
4. Holds that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3(d) of the Convention in respect of Mr Tahery;
(a) that the respondent State is to pay each of the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to be converted into pounds sterling at the rate applicable at the date of settlement;
(b) that the respondent State is to pay the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 14,198 (fourteen thousand one hundred and ninety-eight euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 2,300 (two thousand three hundred euros;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicants' claims for just satisfaction.
Done in English, and notified in writing on 20 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Josep