Al-Khawaja v R

Under European Convention Article 6, the inability to cross-examine a witness does not automatically make the admission of that witness’s statement unfair. The court must assess the fairness of the proceedings as a whole. It must consider the reason for admitting the statement, safeguards available to the defence, the statement’s reliability, and the caution required in relying on it.

Where a critical witness has died, there may be a strong public interest in admitting the statement so that the prosecution can proceed. That interest cannot override a fair trial. A jury must be properly directed about the disadvantage caused by the absence of cross-examination and the resulting need for caution.

Al-Khawaja v R concerned convictions for two counts of indecent assault under the Sexual Offences Act 1956. One complainant had died before trial. At a pre-trial hearing, the Crown Court permitted her written statement to be read under sections 23, 25 and 26 of the Criminal Justice Act 1988.

The appellant did not challenge that ruling under domestic law. On appeal, he argued for the first time that admitting the deceased complainant’s untested statement breached Article 6 of the European Convention, and that the trial judge’s direction to the jury was inadequate. The central issue was whether the proceedings, viewed as a whole, were fair despite the absence of cross-examination.

1. Appeal dismissed. The admission of the deceased complainant’s statement did not breach Article 6 of the European Convention, and the convictions were safe.

2. Article 6(3)(d) is a particular aspect of the overall right to a fair trial under Article 6(1). The absence of any opportunity to examine a witness does not itself make the use of that witness’s statement incompatible with Article 6. Following the approach in Sellick [2005] EWCA Crim 651 and applying Doorson v Netherlands (1996) 22 EHRR 330, the question was whether the proceedings as a whole, including the manner in which the evidence was taken, were fair.

3. The complainant’s death was a material and final reason for her absence. Her statement was the sole direct evidence of the first assault, so its exclusion would have ended that count. There was a strong public interest in admitting it, but that interest could not displace the appellant’s right to a fair trial. The statutory safeguards had been properly considered. The defence could test the statement’s accuracy through discrepancies with the evidence of other witnesses and through expert evidence concerning altered perception under hypnosis. There was no basis for an unpursued suggestion of collusion.

4. A suitable jury direction was essential because the statement had not been tested in cross-examination. The judge should ideally have stated expressly that the appellant was disadvantaged and that the evidence might carry less weight. Nevertheless, the directions given made sufficiently clear that the jury had neither seen nor heard the complainant, and that defence counsel would have had questions for her. In the circumstances, that was an adequate warning.

5. The court was wholly unpersuaded that either verdict was unsafe. The overall evidence against the appellant was very strong.

• Court of Appeal (Criminal Division) — in Al-Khawaja v R [2005] EWCA Crim 2697, dismissed the appeal against both convictions after reserving reasons.
• Lewes Crown Court — convicted the appellant on 30 November 2004 of two counts of indecent assault. A pre-trial ruling admitted the deceased complainant’s statement under sections 23, 25 and 26 of the Criminal Justice Act 1988.