EUROPEAN COURT OF HUMAN RIGHTS

006
8.1.2008

Press release issued by the Registrar

CHAMBER HEARING
TAHERY v. THE UNITED KINGDOM
Al-Khawaja v. the United Kingdom

The European Court of Human Rights is holding a Chamber hearing today Tuesday, 8 January 2008 at 9 a.m., on the admissibility and merits in the cases of Tahery v. the United Kingdom and Al-Khawaja v. the United Kingdom (application nos. 22228/06 and 26766/05).

The hearing will be broadcast from 2.30 p.m. on the Court’s Internet site http://www.echr.coe.int.

Tahery v. the United Kingdom and Al-Khawaja v. the United Kingdom

The cases concern the applicants’ complaint that their convictions were based to a decisive degree on statements from witnesses who could not be cross-examined in court and that they were therefore denied a fair trial.

Summary of the facts

Tahery

Ali Tahery is an Iranian national who was born in Tehran in 1975 and lives in London.

On 19 May 2004 he allegedly stabbed S three times in the back and was subsequently charged with wounding with intent and attempting to pervert the course of justice by telling the police that he had seen two black men stab S.

When witnesses were questioned at the scene, no-one claimed to have seen the applicant stab S. Two days later however one of the witnesses, T., made a statement to police that he had seen the applicant stab S. In S’s statement to the police, it is clear that he did not see who stabbed him.

The applicant was tried before Blackfriars Crown Court. On 26 April the prosecution successfully applied for leave to read T’s statement under section 116(2) (e) and (4) of the Criminal Justice Act 2003 on the ground that T. was too frightened to appear in court. There was no suggestion that T. was afraid of the applicant himself. T’s witness statement was then read to the jury in his absence. The applicant also gave evidence. The judge, in his summing up, warned the jury about the danger of relying on T’s evidence. 

On 29 April 2005, the applicant was convicted by a majority verdict, principally of wounding with intent to cause grievous bodily harm, and later sentenced to 10 years and three months imprisonment.

The applicant appealed, arguing that his right to a fair trial had been infringed because he was not able to have T. cross-examined. The appeal was unsuccessful. However, the Court of Appeal acknowledged that, had T’s statement not been admitted, “the prospect of a conviction would have receded and that of an acquittal advanced”. The court stated that cross-examination of other prosecution witnesses, evidence from the applicant and bystanders could prevent unfairness. It was also stated that the trial judge had given the jury explicit directions on how to treat the statement in question. Further leave to appeal was refused.

Al-Khawaja

Imad Al-Khawaja is a British national who was born in 1956 and lives in Lewes (United Kingdom).

While working as a consultant physician in the field of rehabilitative medicine, he was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. One of the complainants committed suicide (taken to be unrelated to the assault) before the trial but, prior to her death, had made a statement to the police.

On 22 March 2004 it was decided that her statement should be read to the jury. The judge ruling on that question stated that the contents of the statement were crucial to the prosecution on count one as there was no other direct evidence of what took place; “putting it bluntly, no statement, no count one”. The defence accepted that if the statement were read to the jury at trial they would be in a position to rebut it through the cross-examination of other witnesses.

During the applicant’s trial, the jury heard evidence from a number of different witnesses and the defence were given the opportunity to cross-examine other witnesses. The trial judge directed the jury as to how they should regard the statement of the deceased complainant, pointing out to the jury that they had not seen her give evidence or be cross-examined and that the allegations were denied.

The applicant was convicted by a unanimous verdict on both counts of indecent assault. He was sentenced to one 15-month and one 12-month custodial sentence, to run consecutively.

He appealed unsuccessfully. The Court of Appeal considered the trial judges directions to be “adequate” and did not consider that there had been any violation of Article 6 (right to a fair trial) of the European Convention on Human Rights. All further appeals by the applicant failed.

Complaints

Both applicants complain under Article 6 §§ 1 and 3 (d) (right to a fair trial) of the Convention about their inability to cross-examine witnesses whose evidence was used against them in court.

Procedure

The applications were lodged with the European Court of Human Rights on 18 July 2005 in the case of Al-Khawaja and on 23 May 2006 in the case of Tahery.

Composition of the Court

The case will be heard by a Chamber composed as follows:

Josep Casadevall (Andorran), President,
Nicolas Bratza (British),
Giovanni Bonello (Maltese),
Kristaq Traja (Albanian),
Stanislav Pavlovschi (Moldovan),
Ján Šikuta (Slovak),
Päivi Hirvelä (Finnish), judges,
Ljiljana Mijović (citizen of Bosnia and Herzegovina), substitute judge,

and also Lawrence Early, Section Registrar.

Representatives of the parties

Government:	John Grainger, Agent,
	David Perry, Counsel,
	Lydia Clapinska, Stephen Jones, Mark Lindley, Abda Sharif, Advisers;

Applicants:	Joel Bennathan, Rebecca Trowler, Counsel,
	Martyn Fisher, Solicitor.

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After the hearing the Court will begin its deliberations, which are held in private. A decision on admissibility, followed if appropriate by a judgment, will be delivered at a later date.

Press contacts
Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30)
Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.