Case of European Court of Human Rights, December 15, 2011 (case Al-Khawaja and Tahery v. the United Kingdom [GC])

Resolution Date:December 15, 2011

No violation of Art. 6-1+6-3-d Violation of Art. 6-1+6-3-d Non-pecuniary damage - award


Information Note on the Court’s case-law No. 147

December 2011

Al-Khawaja and Tahery v. the United Kingdom [GC] - 26766/05 and 22228/06

Judgment 15.12.2011 [GC]

Article 6

Article 6-3-d

Examination of witnesses

Convictions based on statements by absent witnesses: no violation; violation

Facts – The first applicant (Mr Al-Khawaja), a consultant physician, was charged with two counts of indecent assault on two female patients. One of the patients, ST, died before the trial, but had made a statement to the police prior to her death which was 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 had taken place. The defence accepted that if the statement were read to the jury at the trial they would be in a position to rebut it through the cross-examination of other witnesses. During the trial, the jury heard evidence from a number of different witnesses, including the other complainant and two of the dead witness’s friends in whom she had confided promptly after the incident. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence. In his summing up, the trial judge reminded the jury that they had not seen ST give evidence or be cross-examined and that the allegations were denied. The first applicant was convicted on both counts.

The second applicant (Mr Tahery) was charged, inter alia, with wounding with intent following a gangland stabbing. None of those questioned at the scene claimed to have seen the applicant stab the victim, but two days later one of those present, T, made a statement to the police implicating the second applicant. At the trial, the prosecution applied for permission to read out T’s statement on the ground that he was too frightened to appear in court. The trial judge granted that application after finding on the basis of evidence from both T and a police officer that T was afraid of giving evidence (although his fear was not caused by the second applicant) and that special measures, such as testifying behind a screen, would not allay his fears. T’s witness statement was then read to the jury in his absence. The second applicant also gave evidence. The judge, in his summing up, warned the jury about the danger of relying on T’s evidence, as it had not been tested under cross-examination. The applicant was convicted and his conviction was upheld on appeal.

Both applicants lodged...

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