Reliance on Witness Statement where Cross-Examination not Available may Violate Right to a Fair Hearing

Al-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009) The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and that evidence is the sole or decisive basis for convicting the accused violates the right to a fair trial provided in arts 6 § 1 and 6 § 3(d) of the European Convention on Human Rights.


The judgment concerned two applications against the United Kingdom under art 34 of the European Convention on the basis that admitting into evidence a witness statement where the witness would not be giving evidence in person violated the right to a fair trail and the right to cross-examine witnesses in art 6 of the Convention.

The first applicant, Mr Al-Khawaja, was charged with two counts of indecent assault.  One of the complainants made a statement to the police, but committed suicide prior to the trial.  After a preliminary hearing determining its admissibility, the complainant's statement was put before the jury with the trial judge's caution that it had not been possible to cross-examine the witness.  The applicant was convicted.  His appeal was dismissed and he was refused leave to appeal to the House of Lords.

The second applicant, Mr Tahery, allegedly stabbed his victim in the back three times and was charged with wounding with intent.  A witness who made a statement to the police saying that he saw the stabbing was too afraid to give evidence before a jury.  The trial judge ruled that his witness statement could be read and admitted as evidence.  The applicant was convicted by majority.  He appealed on the basis that his inability to cross-examine the witness infringed his right to a fair trial.  The Court of Appeal upheld the trial judge's reasoning and he was refused leave to appeal to the House of Lords.

Domestic Legislation

In both instances, domestic legislation provided for the admissibility of witness statements in certain circumstances.  In Al-Khawaja, the relevant legislation was s 23 of the Criminal Justice Act 1988, which allows a witness statement to be admitted as evidence where the witness is dead or unfit to attend trial and the judge considers admitting the evidence to be in the interests of justice.  In Tahery, the relevant legislation was s 116(2)(e) of the Criminal Justice Act 2003, which allows a court to admit a statement where a witness is unavailable to give oral evidence because of fear or intimidation, and it is in the interests of justice to do so.


The applicants argued that the decision to admit the witness statements violated their right to a fair trial under arts 6 § 1 and 3(d) of the Convention.  Article 6 § 1 provides a general right to a fair trial and art 6 § 3 lists the minimum rights for a person charged with a criminal offence, including the right '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 set out against him.'

The United Kingdom argued there was no absolute rule that a conviction could not be based solely or to a decisive extent on evidence given by an absent or anonymous witness and that the proceedings, when considered as a whole, were fair.  In both instances, the UK argued that the relevant legislation provided sufficient safeguards and the trial judges had correctly applied the relevant tests and concluded that it was in the interests of justice to admit the evidence.


The European Court of Human Rights upheld the appeals, finding that, in both instances, the admission of the witness statements constituted a violation of the applicants' rights to a fair trial.  The Court awarded each applicant €6,000 in non-pecuniary damages and €11,898 for costs and expenses.

The Court noted that the provisions listed in 6 § 3 are minimum rights and therefore must be read as express guarantees, not merely as factors to be taken into account in assessing whether a fair trial has been held.  Even if these minimum rights are met it is still necessary to determine whether the proceedings as a whole were fair and satisfied the general right in art 6 § 1.

The Court held that the starting point in assessing whether there has been a breach of art 6 § 3 should be the principles established in Lucà v Italy, No. 33354/96, § 40, ECHR 2001-II:

  • if the defendant has the opportunity to challenge depositions, either when they are made or after, they will be admissible without contravening the section; and
  • if a conviction is based solely or to a decisive degree on depositions by someone who the accused has not had the opportunity to cross-examine, then admitting the statements as evidence will be a violation of the rights protected by art 6.

The Court distinguished previous cases which admitted untested statements on the basis of special factors, such as the fact that the witnesses could not appear for fear of the defendants, which made it justifiable to admit the statements.  Absent such special factors, the Court doubted 'whether any counterbalancing factors would be sufficient to justify the introduction in the evidence of an untested statement which was the sole or decisive basis for the conviction of the applicant.'  In the present cases, the Court was not satisfied that the prejudice to the defendants was sufficiently counterbalanced by factors including the warnings given by the domestic courts to approach the untested evidence with care.

Relevance to the Victorian Charter

The decision in the cases of Al-Khawaja and Tahery suggests that, except in very limited special circumstances, allowing a witness statement to be admitted if it is the sole and decisive evidence in establishing a conviction will violate the right to a fair trial.  This holds true regardless of counter-balancing factors that can be taken into account according to the domestic evidence legislation.

However, the extent to which this decision will be applicable in the Victorian context is unclear because of differences in the wording of the human rights statutes.  Like the European Convention, the Victorian Charter preserves the right to a fair trial (s 24) and guarantees the right to call and cross-examine witnesses in criminal proceedings (s 25(2)(g)).  Section 25(2)(g), however, qualifies the right as 'unless otherwise provided for by law'.  This specific direction suggests that, in a Victorian context, any legislative provisions (eg in the Victorian Evidence Act) setting out grounds on which witness statements could be admitted in these circumstances could be an overriding consideration.

Katherine Payne and Peter Henley, Human Rights Law Group, Mallesons Stephen Jaques