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Thursday, December 15, 2011

European court backs British judges over hearsay evidence

European court backs British judges over hearsay evidence

European court of human rights upholds British doctor's indecent assault conviction in landmark ruling

Hearsay evidence can be used as the sole means of securing a criminal conviction where no other evidence is available, the European court of human rights (ECHR) has ruled.

The landmark decision, reversing a previous finding by the court, avoids a head-on judicial collision between the UK supreme court in London and the judges in Strasbourg.

The decision from the upper chamber of the ECHR, which deals with appeals against rulings, shows that the court has listened to objections raised in London and refined its position in the face of strong objections from British lawyers.

It is, however, only a partial vindication for the British government. The European court upheld the conviction of one appellant, Imad Al-Khawaja, and said that his right to a fair trial had not been breached. But in a second case, that of Ali Tahery, it ruled that his conviction for stabbing had been unfair because "there had not been sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the admission of hearsay evidence". The UK was ordered to pay him €18,000 (£15,000) in costs and damages.

Ministers and the supreme court had eagerly awaited the Strasbourg judgment for the past two years. It resulted from a challenge to the original finding by the UK's most senior judges, who felt that the original decision threatened to undermine the authority of the UK's criminal courts.

The protracted wait for the decision stoked up political resentment against Strasbourg. The court has been struggling to deal with a massive backlog of unresolved cases.

If the decision on Al-Khawaja had gone the other way it would have provoked a furious outburst of anti-European sentiment within senior legal circles and among government ministers.

In its decision on Al-Khawaja, the ECHR said that there had been no breach of his rights under article six of the European convention of human rights, which guarantees the right to a fair trial.

Al-Khawaja, 53, is a British national living in Brighton. "While working as a consultant physician he was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis," the judgment said.

"One of the complainants, ST, committed suicide (taken to be unrelated to the assault) before the trial. Prior to her death she had made a statement to the police.

"At the trial it was decided that ST's statement should be read to the jury. 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.

"Mr Al-Khawaja 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." That trial, the Strasbourg court said, had been fair.

Comment: I don't like the idea of a conviction based solely upon hearsay evidence. It could lead to convictions based upon a rumour. It also goes against the principle of guilt beyond all reasonable doubt. It is a pity that the ECtHR saw fit to accomodate the UK and the UKSC. It leaves me with the feeling that the ECtHR has been corrupted by the UK.

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