Few recent decisions of the European Court of Human Rights have put the cat among the English legal pigeons as effectively as Al-Khawaja and Tahery v. UK (Applications 26766/05 and 22228/06, 20 January 2009). And this is not surprising, since it shows that our 2003 reform of the hearsay rule – elaborated by the Law Commission and enacted as part of the Government's ongoing programme to “rebalance” criminal justice – conflicts with the rights guaranteed to defendants under Article 6 of the European Convention on Human Rights.

In its classic form, the English hearsay rule rendered inadmissible as evidence of the facts any statement from a person who had seen, heard or otherwise experienced them, other than one given by the witness in oral evidence at trial: where, of course, he would depose on oath and be subject to cross-examination. If rigidly applied, this rule could lead to miscarriages of justice in a range of cases where a key witness could not be produced to testify at trial. In consequence, the common law recognised a limited number of exceptions: the list of which was expanded by the Criminal Justice Act 1988, and then – on the back of the Law Commission's Report No. 245 in 1997 – further and more radically expanded by the Criminal Justice Act 2003. As a result of the 2003 reform, a hearsay statement is now usually admissible if the maker fails to appear at trial because of death, illness, absence abroad, disappearance, or “fear”: a term which the Act, in deference to the Government's professed concern for “victims and the law-abiding majority”, requires to be “widely construed”. And for good measure, the court now has an extra power to admit hearsay in any other situation “if it is satisfied that it is in the interests of justice for it to be admitted”.

As against this, however, Article 6(3)(d) of the ECHR guarantees to all defendants the right “to examine or have examined the witnesses against him”. As interpreted by the Strasbourg Court, a “witness” in this context means not only someone who comes to court to give live evidence for the prosecution, but also anyone who consciously and voluntarily gave a statement to the police or prosecution earlier, which the prosecution then seeks to use as evidence at trial; and if the defendant had no opportunity to put questions to this person, a conviction based on such evidence will infringe his rights under Article 6(3)(d) – unless it was corroborated by some other significant piece of evidence, to which the same objection cannot be made.

Rather surprisingly, the requirements of Article 6(3)(d) as so interpreted are not reflected in the “hearsay reform” provisions of the Criminal Justice Act 2003. Like the 1988 reform before it, and indeed the common law before that, the 2003 reform works on the premise that if a piece of hearsay evidence is admissible it has the same potential weight as a piece of oral evidence, and it is open to the court to convict on it, even if it stands alone. By section 125 of the 2003 Act, the judge has an express power to stop the trial if the prosecution case consists entirely of hearsay evidence that is “unconvincing”. But if he thinks it is convincing, he is not required to stop the trial merely because the prosecution case consists of a statement or statements from a person or persons whom the defendant has been unable “to examine or have examined.”

Al-Khawaja and Tahery v. UK involved two defendants, each of whom had been convicted on the basis of a single piece of hearsay evidence: in the first case, admitted under an exception to the hearsay rule contained in the CJA 1988, and in the second, one contained in the hearsay provisions of the CJA 2003. Al-Khawaja was a doctor convicted of indecently assaulting a female patient, who had died by the time of trial, on the basis of a witness-statement the patient had earlier given to the police. And Tahery was an Iranian, convicted of a stabbing on the sole basis of a witness-statement made to the police by another Iranian, who had been excused from giving oral evidence at trial because he feared that testifying against a compatriot might lead to a reprisal. In the English courts the attempts by both defendants to appeal had failed. But in Strasbourg the UK was condemned for failing to respect the rights of both defendants under Article 6(3)(d), because the “sole or decisive evidence” against them was statements from witnesses whom they had not been able to challenge by putting questions to them.

The UK's position, in effect, was that the right conferred by Article 6(3)(d) is instrumental. In other words, it merely exists to ensure that defendants are not convicted on evidence that is unreliable, and where it is not possible to enable the defendant to question a key witness, “other safeguards” designed to secure the reliability of his evidence can make up for this. But the Strasbourg Court was not prepared to see the matter in this light. In their view, the right guaranteed by Article 6(3)(d) is absolute, and other safeguards cannot fill the gap. To this rule, they said, there is an exception where – as in Sellick [2005] 1 W.L.R. 3257 – the key witness is absent because the defendant has intimidated him; and so too, presumably, where the defendant has caused his absence in some other way: as in Keet [2007] 1 W.L.R. 2716, where the defendant absconded for three years, during which time the key witness, already old and doddery, completely lost her wits. But failing “special circumstances” such as these, the defendant cannot properly be convicted if the witness the defence is unable to examine furnishes the “sole or decisive evidence” of his guilt, irrespective of the reason for his absence from the witness-box, and whatever “counterbalancing measures” may be put in place at trial.

In Al-Khawaja and Tahery, as in all the cases that led up to it, the Strasbourg Court made it clear that Article 6(3)(d) is satisfied provided the defendant had a chance to put his questions to the witness, either at trial, or at some earlier stage. This qualification reflects the fact that in most continental systems, witnesses who are thought likely to go missing can be examined at formal pre-trial hearings where the defence are present and allowed to put their questions; and this procedure enables those systems to convict some defendants without infringing their Convention rights when English law, at least in its present form, cannot. When the reform of the hearsay rule was being mooted, some commentators (including this one) urged the Law Commission and the Government to consider the introduction of such a system here; but they would not listen, preferring to solve the problem by making admissible as evidence at trial the initial statements that the absent witnesses had made, without defence input or judicial oversight, to the police. Is it too much to hope that this new case will make them think again?