Art. 6: FairTrial

  1. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law;
  3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language he understands and in detail, of the … accusation;
b. to have adequate time and facilities for the preparation of his defence;
c. to defend himself in person or through legal assistance of his own choosing or, if he has not … means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf….;
e. to have the free assistance of an interpreter if (necessary).

Fair trials in the Rights system and the English Common Law System: Mr. Horncastle and  Dr. al Khawaja
The problem here was that decisive evidence could not be cross-examined because in both cases the key witnesses were the victims and both had died before the trial of causes unrelated to the offences. Natural justice demands that both parties can bring equal resources to a trial and English common law traditionally interpreted this as banning hearsay evidence because unexaminable (as rule d. above). However from the 1970s a steady increase in death threats to witnesses was damaging UK justice by undermining witness availability, so anonymity became acceptable especially for vulnerable witnesses. From a set of rules, judges now counterbalance one party’s disadvantage due to the anonymity with other advantages. See Coroners and Justice Act 2009 S. 3.

Mr. Horncastle was convicted of GBH in the UK Crown Court solely on the basis of evidence to the police by his by then dead victim who died before the trial. The conviction had followed the counterbalancing rules mentioned above and was upheld by the UK Supreme Court. However at the same time Dr. al Khawaja had appealed to the lower court at Strasbourg because his UK Crown Court conviction for indecent assault of a patient was also based on evidence from his now dead victim. Because of Strasbourg’s ban on hearsay evidence Dr. al Khawala won that appeal.

The UK authorities were confident that their counterbalancing system had achieved fairness between the prosecution and Dr. al Khawaja and appealed to the upper court at Strasbourg. The upper court studied the UK counterbalancing rules and by a majority concluded that hearsay evidence in Dr. Khawaja case had been fair overall even when decisive evidence could not be cross examined. The UK therefore won its appeal at Strasbourg regarding Dr. al Khawaja and his guilty verdict remained.

This willingness by Strasbourg to look to the wider needs of effective criminal justice in the context of the unavailability of witnesses was a major breakthrough in the relationship between the UK with our common law system and the European court and its system of principled rights.
Horncassstle, UK Supreme Court
AlKhawaja, case discussion

Buckling under the Westminster pressure?
Two recent Strasbourg cases prompt the UK Human Rights blog to suggest that  the European Court may be irrationally  increasing the UK’s Margin of Appreciation as a response to our threat to withdraw from the Convention.
Seton v. UK 55287/10:, judgment 31-03-2016
Price v. UK, ECtHR 15602/07, judgment 15-09-2016

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