• In the case of Al-Khawaja v United Kingdom [2012] 54 E.H.R.R. 23, it was held that it would not necessarily breach the right to a fair trial if the sole or decisive basis for a convention was statements and evidence supplied by an absentee witness. However, there had to be sufficient counterbalancing factors, including strong procedural safeguards, to offset the prejudice to a defendant unable to cross-examine that witness.

Facts of the Case

  • D, a doctor, was charged with indecently assaulting two patients, X and Y while they were under hypnosis.
  • X committed suicide before the trial, but she had made a police statement and told two friends about the assault.
  • At trial, the statement was read and evidence was given by the two friends, as well as two women alleging D made improper suggestions during hypnosis consultations.
  • The judge directed the jury that X’s evidence had not been tested in cross-examination, and that there were inconsistencies between the evidence of X and her friends.
  • On 30th November 2004, D was unanimously convicted on both counts and sentenced to consecutive sentences of 15 months and 12 months.
  • D appealed against his conviction, arguing that X’s statement should not have been admitted and the judge failed to give adequate directions as to the disadvantage of this evidence to him.

Issues

  • Did relying on an absent witness as the decisive evidence breach the right to a fair trial by leaving D unable to cross-examine them?

Held by the European Court of Human Rights (Grand Chamber)

  • Finding for C, that the admission of evidence made by an absent witness which formed the sole or decisive basis for a conviction would not always breach the right to a fair trial. There had been sufficient factors to counterbalance D’s inability to cross-examine X, so the conviction was upheld.

Judge Tulkens

  • The European Convention of Human Rights Article 6 enshrined the principle that all evidence against the accused must normally be produced in their presence to allow for their adversarial argument. Where a witness is deceased, official statements must be adduced to allow their evidence to be admitted.
  • X’s statement was decisive against D. Its reliability was supported by the fact that X had told her friends promptly after the events in question, and that there were only minor inconsistencies between her statement and the account given to her friends. There were strong similarities between Xs description and Y’s description, with whom there was no evidence of any collusion.
  • The judge’s direction clarified that, due to X’s absence, her statement should carry less weight and the evidence supporting X’s statement were sufficient counterbalancing factors to allow the jury to conduct a fair and proper assessment of X reliability in the allegations against D.
  • At the preliminary hearing, the judge observed that D was very likely to feel that he had no realistic alternative other than to give evidence to defend himself on the second count relating to Y. Therefore, the reading of X’s statement would not make it very difficult for D to give evidence.
  • “The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6(1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R v Davis, and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case” [147].