The latest from the European Court of Human Rights

Last month, the Grand Chamber of the European Court of Human Rights decided Al-Khawaja and Tahery v United Kingdom. This is an obviously important decision, and I have thought to write a post about it, but I haven't had time. So I've asked William E. O’Brian, Jr., an American lawyer who is an Associate Professor of Law at the University of Warwick in England and who has in interest in confrontation matters, to do a write-up. Here it is, with a short follow-up commentary by me following.

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Al-Khawaja and Tahery v United Kingdom, (Nos 26766/05 and 2228/06, decided December 15, 2011) is a new and very important decision from the Grand Chamber of the European Court of Human Rights on confrontation. It contains for the first time a discussion of the Crawford case and its progeny, along with a discussion of similar cases from various other common law jurisdictions. Below I will briefly summarize the history of the case and the most important aspects of the new ruling. I have published several pieces comparing ECHR and UK law with US law on these matters before this decision, which I would be happy to share with those interested in knowing more.

Al-Khawaja was convicted of indecent assault on two women, one of whom committed suicide prior to his trial; her statement to the police was read at trial. Tahery was convicted of wounding with intent; the only witness to the altercation that was able to identify the defendant refused to testify at his trial due to fear, and his statement to the police was read at trial. Both appealed unsuccessfully in the English courts, and brought cases before the ECHR alleging that the use of their police statements at trial violated Article 6 § (3)(d) of the European Convention on Human Rights, which guarantees defendants in criminal cases the “minimum right”, inter alia, to “examine or have examined the witnesses against him.”

Previous decisions of the ECHR had interpreted this right fairly robustly, but had (in my own view) undermined this position by refusing to find violations in several cases where there was other evidence against the accused in addition to the hearsay evidence that was challenged. The leading case prior to this one was Luca v Italy, 36 EHRR 46 (2003), where the court held that a conviction based primarily on the statement of a co-accused to the police and prosecutor violated the Convention, because the conviction was based solely or to a decisive degree on statements that the accused had had no opportunity to examine. The original chamber that heard Al-Khawaja and Tahery invoked this “sole or decisive test” to find a violation in both cases. Al-Khawaja and Tahery v UK, 49 EHRR 1 (2009).

The UK government sought and obtained a Grand Chamber rehearing (more or less analogous to an en banc rehearing in a US Court of Appeals, although a Grand Chamber is final). Its position was bolstered by a unanimous judgment of the UK Supreme Court in R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, in which the UK Supreme Court rejected various similar appeals, refused to follow the chamber decision, and subjected the “sole or decisive test” to withering criticism. In effect, the Grand Chamber decision furnished an opportunity for the ECHR to respond to the UK Supreme Court’s scathing attack on its previous confrontation jurisprudence.

The applicants argued that there were three possible approaches to the issues: (1) the “rigid and literal” approach of Crawford, (2) the chamber approach, under which untested hearsay could sometimes be used at trial but could not be the “sole or decisive” evidence against the defendant, and (3) the Horncastle approach, under which the defendant’s opportunity to examine the witness was simply a matter to be considered in determining whether the defendant had a fair trial overall. Applicants did not argue for the Crawford approach, undoubtedly because they did not need to, as it was reasonably clear, although not conceded by the UK, that the untested evidence was decisive in both cases.

The Grand Chamber decided that there were two requirements to avoid a violation. First, there must be a good reason for the non-attendance of a witness, and a violation can be found if there is no good reason for non-attendance even if the evidence in question is not “sole or decisive.” Second, if the conviction is based solely or to a decisive degree on evidence that the defendant has been unable to examine or have examined, the rights of the defendant may have been unduly restricted. But the Grand Chamber (see paragraph 147) rejected a rule that in such a case there has automatically been a violation. Instead, it held that cases where the untested evidence is the sole or decisive evidence require that the proceedings be subjected to “the most searching scrutiny,” including whether sufficient counterbalancing factors were in place to permit a fair and proper assessment of the reliability of the evidence. It rejected most of the UK Supreme Court’s arguments, which essentially asserted that other procedural safeguards provided in English law obviated the need for such scrutiny, but also decided that an inflexible rule finding an automatic violation whenever a conviction was based solely or decisively on hearsay “would transform the rule into a blunt and indiscriminate instrument.”

On the actual cases, the Court seems to have essentially split the baby, finding a violation in Tahery but not in Al-Khawaja. It relied in the latter case on the “similar fact” evidence of the other victim, along with the evidence that the deceased victim made similar statements to friends prior to her suicide, taken together with warnings delivered by the judge on the dangers of relying on her evidence in light of defendant’s inability to cross-examine, found that these provided sufficient counterbalancing factors. Two judges dissented, essentially arguing that the court should continue to adhere to the rule that a conviction based solely or decisively on untested evidence could not stand.

A few additional observations are in order.

First, the ECHR has not adopted a dividing line between “testimonial” and non-testimonial hearsay, but all of its cases have involved testimonial hearsay and at least one English court has held that Article 6 § (3)(d) only applies to such hearsay. The opinion in Al-Khawaja tends to use terms like “hearsay,” “untested evidence” and “absent witnesses” more or less interchangeably (see for example paragraph 147 of the majority judgment). The only references to the “testimonial” issue are in passages discussing Crawford and its progeny.

Second, the decision notes with approval previous indications in English decisions that there would be an exception for cases where the defendant’s own actions prevented the witness from testifying. In neither case was this a factor, however, as in Al-Khawaja it was conceded that the victim’s suicide was unrelated to the assault, and in Tahery’s case there was no evidence that the witness’s fear of testifying was due to threats or other actions by the defendant.

Third, both the majority and the dissenters adopt fairly narrow definitions of when evidence is decisive. The majority held that it should be understood as “evidence of such significance or importance as is likely to be determinative of the outcome of the case.” (paragraph 131). The dissent’s definition was even narrower, defining decisive evidence (in footnote 1 to the dissent) as “evidence without which the prosecuting authorities could not bring a case.”

Fourth, although no one argued for a Crawford approach, the dissenters do, in footnote 5, defend the Crawford rule against UK Government attacks on it as “absolutist and anachronistic,” while noting that it is “more exacting than our standard.”

Fifth, it is unclear to me why the court found that the victim’s statements to her friends in Al-Khawaja provided support for the police statement evidence that was challenged; there is no discussion of why those statements fare any better. The court does not view itself as laying down rules of evidence, but rather as ensuring that the trial is fair, and it may therefore believe that multiple incidents of hearsay may be sufficiently reliable to base a conviction on even if no one of them would be. Or it may be that these statements were not challenged because the parties assumed they were not testimonial, although the ECHR jurisprudence nowhere says that only testimonial hearsay is subject to Article 6 § (3)(d).

I have argued at length in favor of a robust approach along the lines of Crawford (but without the gloss of Giles), and am of course disappointed with the Grand Chamber ruling. But it is nowhere near as bad as the UK Supreme Court’s decision in Horncastle. The chief difficulty is that by leaving results ultimately subject to a balancing test, albeit a much stronger one than the UK courts wanted to employ, the ECHR may have let itself in for a large volume of future cases, whereas the previous Chamber judgment provided a much more bright line rule, although still subject to disputes over whether the evidence was “decisive” in individual cases.


William E. O’Brian Jr.
Associate Professor of Law
University of Warwick

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I agree generally with Bill's analysis, and will offer just a few brief follow-up comments. First, as I have noted before, it is ironic that the courts in England – where the confrontation right reached fruition and which long proclaimed that right as one of the great advantages of its system as compared to those of continental Europe – now has to be dragged into enforcing the right by a court sitting in France.

Second, I think one reason why the European Court developed a theory of confrontation without a very clear textual basis for it is that most of the nations within its jurisdiction do not have a law of hearsay. Hearsay law tends to clutter the analysis, because hearsay is a very broad category and any rule excluding all or virtually all hearsay would be impractical. So it is unfortunate that in this decision, the European Court has been led into using the language of hearsay, presumably because it was reviewing a UK decision. It would be much better if the court focused on the fact that the right that it has developed under the Convention concerns not a general law of hearsay but rather the conditions under which the testimony of witnesses may be received.

Third, if it had done that, I think the court would not be so ready to dismiss the Crawford approach. As Bill points out, the balancing approach that the court adopts is a recipe for future difficulty. Recognizing that the confrontation right applies only to statements that are testimonial in nature – but that as to those it expresses a fundamental procedural right that is applied categorically – is not only a more principled approach but an entirely practical one as well.