European Court Sidesteps Exacerbating UK Conflict in Hearsay Case

Photo by UK Parliament.

The Grand Chamber of the European Court of Human Rights (ECtHR) averted a possible conflict with the United Kingdom in December by overturning a lower Chamber ruling that almost completely barred the use of hearsay evidence to convict a criminal and overruled exceptions in British law. The long awaited decision in the combined case of Al-Khawaja and Tahery v. the United Kingdom,—arriving more than 18 months after the Grand Chamber hearing—came as the UK assumed the rotating chairmanship of the Committee of Ministers of the Council of Europe, the larger body that oversees the ECtHR. The chairmanship has emboldened critics within the UK government to push for long-sought reforms to the Court and the country’s connection to it.

The Grand Chamber overruled the lower Chamber in the case and held that testimony is admissible where there is good reason a witness cannot testify directly and there are adequate safeguards to comply with Article 6 of the European Convention of Human Rights (ECHR), which provides for the right to a fair trial. In the case of Al-Khawaja, a woman who accused the defendant of indecent assault was unable to testify because she had committed suicide, but a number of friends and the complaint of another alleged victim corroborated her affidavit. The Grand Chamber upheld this use of hearsay evidence. In the case of Tahery, however, one witness refused to testify in the trial involving a stabbing during a gang fight and the case hinged critically on that witness’ testimony, which the defense had no other method of challenging. The Grand Chamber  of the ECtHR did not object to the barring of this testimony. The approach essentially adopts the British rule of a generally strong restriction on hearsay evidence with an exclusion for only particular circumstances.

Previously, the UK has bristled over ECtHR-imposed restrictions on its ability to deport foreign nationals—including those convicted of violent crimes like rape—and for more than six years has refused to adhere to an ECtHR decision requiring that convicts be allowed to vote. In a January 24, 2012 speech before the Council of Europe Parliamentary Assembly, Cameron staked out the UK’s plans for reform in response to what he called growing unease over the court. “When controversial rulings overshadow the good and patient long-term work that has been done,” he said, “that not only fails to do justice to the work of the court it has a corrosive effect on people’s support for human rights.”

A leaked draft of the UK’s plan for ECtHR reform—called the Brighton Declaration—surfaced in February 2012 and advocates for bold reform in three significant areas. First it recommends inserting into the ECHR explicit recognition of the principles of “subsidiarity” and the “margin of appreciation,” both of which operate to recognize the Court’s deference to national courts. Secondly, the document recommends a system whereby a national court could refer a point of law to the ECtHR. Third, it proposes altering the admissibility requirements under Article 35 to both shrink the time limit under which an application can be filed and make clear that the default is that an application is inadmissible if it is the same in substance as a matter decided by a national court taking into account the convention. The proposals will be debated at a conference in April at the end of the UK’s term at the chairmanship.

The Cameron government has also sought reform on the domestic level, which is controlled by the Human Rights Act of 1998, which inter alia committed British courts to give effect to the decisions of the ECtHR. Political conflict lead one conservative member to resign from the eight-person panel working to draft a British Bill of Rights as a possible replacement for the Human Rights Act. Any progress the panel might make would also be limited by the UK’s treaty obligations under the ECHR, which makes all decisions by the ECtHR binding upon member states.

The reforms envisioned by the Brighton Declaration would further the British objectives by affecting what comes out of Strasbourg, not how it is implemented. The recommendations found within the proposal would likely make decisions such as Al-Khawaja and Tahery—where the national courts were given deference—a common occurrence. Although this would protect the interests of the states, the reforms would also meet an intended purpose of keeping cases out of the Court. The proposal calls this efficiency, but it would also have the effect of effect of restricting individuals’ access to the court as a final refuge.

ECtHR President Nicholas Bratza warned political leaders against using “emotion and exaggeration” to criticize the court in a speech delivered two day’s after Cameron’s address. Bratza—a British lawyer—defended the court and emphasized its importance amidst the European debt crisis. “Human rights, the rule of law and justice seem to be slipping down the political agenda in the current economic climate,” he said. “We must continue to ensure that the court remains strong, independent and courageous in its defense of the European Convention on Human Rights.”

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