CASE OF AL-KHAWAJA AND TAHERY v. THE UNITED KINGDOM
Violation of Article 6 - Right to a fair trial
Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä
7. The applicant was born in 1956 and lives in Brighton. 8. While working as a consultant physician in the field of rehabilitative medicine, the applicant was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. One of the complainants, S.T., committed suicide (taken to be unrelated to the assault) before the trial but, several months after the alleged assault, had made a statement to the police. 9. On 22 March 2004, a preliminary hearing was held to determine whether S.T.'s statement should be read to the jury. The judge stated that the contents of the statement were crucial to the prosecution on count one as there was no other direct evidence of what took place; “putting it bluntly, no statement, no count one.” The defence accepted that if the statement was read to the jury at trial they would be in a position to rebut it through the cross-examination of other witnesses and expose inconsistencies in their evidence. The judge considered that this represented a route by which S.T.'s statement and/or her credibility could be challenged; however, he went on to underline the importance of the need for the trial judge to give directions to the jury as to the status of the evidence. The judge allowed the evidence to be admitted at trial. 10. The jury heard evidence from a number of different witnesses and the defence were given the opportunity to cross-examine other witnesses who had produced similar fact evidence, including the second complainant who had produced supportive evidence. In his summing up, the trial judge directed the members of the jury, on two separate occasions, as to how they should regard the read statement of the deceased complainant. The judge stated in his summing up: “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.” 11. The judge later stated: “...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. 12. The applicant was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to a 15 month custodial sentence on the first count and a 12 month custodial sentence on the second count, to run consecutively. 13. The applicant appealed against his conviction to the Court of Appeal. The appeal centred on the pre-trial ruling to admit S.T.'s statement as evidence. It was also submitted that, in his summing up, the trial judge did not give adequate directions to the jury as to the consequential disadvantage of this evidence to the applicant. 14. On 6 September 2005 the appeal was dismissed. The Court of Appeal concluded on 3 November 2005 that the applicant's right to a fair trial had not been infringed. With regard to the admission in evidence of the statement of the deceased complainant, the court held that it was not necessarily incompatible with Article 6 §§ 1 and 3 (d). Relying on Doorson v. the Netherlands, judgment of 26 March 1996, Reports of Judgments and Decisions 1996II p 66, the court held that admissibility of evidence is primarily a matter of domestic law. It then found: “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.” 15. The court also considered that the applicant had been able to attack the accuracy of the deceased complainant's statement by exploring the inconsistencies between it and the evidence given by witnesses and experts. Turning to the issue of the trial judge's summing up, the court stated: “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.” 16. The Court of Appeal refused leave to appeal to the House of Lords but certified that a point of law of general public importance was involved in the decision. 17. On 30 November 2005 the applicant petitioned the House of Lords on the point of law certified by the Court of Appeal. On 7 February 2005 the House of Lords refused the petition. 18. The applicant was born in 1975. On 19 May 2004 he was involved in a fight with S. during which it is alleged that the applicant stabbed S. three times in the back. The applicant was charged with wounding with intent and also with attempting to pervert the course of justice by telling the police that he had seen two black men stab S. When witnesses were questioned at the scene, no-one claimed to have seen the applicant stab S. Two days later, however, one of the witnesses, T., made a statement to police that he had seen the applicant stab S. In S.'s statement to the police, it is clear that he did not see who stabbed him. Both S. and T. were members of the Iranian community in London. 19. On 25 April 2005 the applicant's trial began at Blackfriars Crown Court. On 26 April (the second day of trial) the prosecution made an application for leave to read T.'s statement pursuant to section 116(2) (e) and (4) of the Criminal Justice Act 2003 (the “CJA 2003”). The prosecution argued under the CJA 2003 that T. was too fearful to attend trial before the jury and that he should qualify for special measures. The trial judge heard evidence from a police officer conducting the case who testified that the Iranian community was close-knit and that T.'s fear was genuine. The trial judge also heard evidence from T. himself who gave evidence to the judge from behind a screen. In ruling that leave should be given for the statement to be read to the jury, the trial judge stated: “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.” 20. T.'s witness statement was then read to the jury in his absence. The applicant also gave evidence. The judge, in his summing up, warned the jury about the danger of relying on the evidence of T. He stated: “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. 21. The applicant's appeal was referred directly before the full Court of Appeal. The applicant argued that the inability to cross-examine T. infringed his right to a fair trial. The appeal judges were satisfied that if they were to refuse leave, under the CJA 2003, to have T.'s statement read at trial there would be unfairness to the prosecution and that, were they to grant it, there would be no unfairness to the applicant. The Court of Appeal acknowledged, however, that the Crown accepted that T.'s statement was “both important and probative of a major issue in the case...and had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced.” The court upheld the reasoning at first instance, stating that there was available not only cross-examination of other prosecution witnesses but also evidence from the applicant himself and the potential for evidence from other bystanders in order to prevent unfairness. It was also stated that the trial judge had explicitly warned the jury in detail as to how they should treat this evidence and properly directed them as to how they should consider it in reaching their verdict. Although the applicant maintained that even a proper direction by the judge could not cure the unfairness, the Court of Appeal held that the jury was informed of all matters necessary to its decision-making process. The applicant's sentence was reduced to seven years' imprisonment. Leave to appeal on conviction was refused on 24 January 2006. 22. At the time of the trial judge's ruling and the trial in Mr Al-Khawaja's case, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. Section 23 of the 1988 Act provides for the admission of first hand documentary hearsay in a criminal trial: “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.” 23. The following legislative provisions of the Criminal Justice Act 2003 were drafted as a means to tackle crime by providing special measures to protect witnesses who have a genuine fear of intimidation and repercussions. The Act entered into force in April 2005. 24. Section 116 (2)(e) of the Criminal Justice Act 2003 (cases where a witness is unavailable) states that: “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.” 25. This Court's judgment in Lucà v. Italy, no. 33354/96, § 40, ECHR 2001II was considered by the Court of Appeal in R. v. Sellick and Sellick [2005] EWCA Crim 651, which concerned two defendants who were alleged to have intimidated witnesses. Leave was given by the trial judge to have the witnesses' statements read to the jury. The defendants appealed on the ground that the admission of the statements breached Article 6 § 1 read with 3 (d) of the Convention. The Court of Appeal dismissed the appeal. In considering the relevant case-law of this Court, at paragraph 50 of its judgment, it stated that what appeared from that case-law were the following propositions: “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.”