CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 décembre 2011

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THE UNITED KINGDOM   (Applications nos. 26766/05 and 22228/06)                     JUDGMENT     STRASBOURG   15 December 2011     In the case of Al-Khawaja and Tahery v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Françoise Tulkens, President ,   Nicolas Bratza,   Jean-Paul Costa,   Christos Rozakis,   Peer Lorenzen,   Elisabet Fura,   Alvina Gyulumyan,   Danutė Jočienė,   Dragoljub Popović,   Ineta Ziemele,   Mark Villiger,   Giorgio Malinverni,   András Sajó,   Mirjana Lazarova Trajkovska,   Işıl Karakaş,   Nebojša Vučinić,   Kristina Pardalos, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 19 May 2010 and on 9 November 2011, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The cases originated in two applications (nos. 26766/05 and 22228/06) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Imad Al-Khawaja (“the first applicant”), on 18   July 2005 and by an Iranian national, Mr Ali Tahery (“the second applicant”), on 23 May 2006. 2.     The first applicant was represented by Mr A. Burcombe and Mr   D.   Wells, lawyers practising in London with Wells Burcombe LLP Solicitors, assisted by Mr J. Bennathan QC, counsel. The second applicant was represented by Mr M. Fisher, a lawyer practising in London with Peter   Kandler & Co. Solicitors, assisted by Ms R. Trowler, counsel. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office. 3.     The first applicant alleged that his trial for indecent assault had been unfair because one of the two women who made complaints against him died before the trial and her statement to the police was read to the jury. The second applicant alleged that his trial for wounding with intent to commit grievous bodily harm had been unfair because the statement of one witness, who feared attending trial, was read to the jury. 4.     The applications were allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 20 January 2009, following a hearing on the admissibility and merits (Rule 54 § 3), a Chamber of that Section, composed of Josep Casadevall, Nicolas Bratza, Giovanni Bonello, Kristaq Traja, Ljiljana Mijović, Ján Šikuta and Päivi Hirvelä, judges, together with Lawrence Early, Section Registrar, decided unanimously to join the applications, to declare each application admissible and to find a violation of Article 6 § 1 of the Convention read in conjunction with Article   6 § 3 (d) in respect of each applicant. 5.     On 1 March 2010, pursuant to a request by the Government dated 16   April 2009, the panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. At the final deliberations, Alvina Gyulumyan, Işıl Karakaş and Nebojša Vučinić, substitute judges, replaced Corneliu Bîrsan, Ireneu Cabral Barreto and Sverre Erik Jebens, who were unable to take part in the further consideration of the case (Rule 24 § 3). Jean-Paul Costa, Christos Rozakis and Giorgio Malinverni, whose terms of office expired in the course of the proceedings, continued to sit in the case (Article 23 § 7 of the Convention and Rule 24 § 4). 7 .     The applicants and the Government each filed observations on the merits. In addition, third-party comments were received from the London-based non-governmental organisation JUSTICE, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 19 May 2010 (Rule 59 § 3). There appeared before the Court: (a)     for the Government M r   J. Grainger ,   Agent , M r   D. Perry QC , M r   L. Mably, M s   V. Ailes,   Counsel , M r   C. Munro, M r   N. Gibbs ,   Advisers ; (b)     for the applicants M r   J. Bennathan QC ,   Counsel , M r   D. Wells ,   Adviser.   The Court heard addresses by Mr Bennathan and Mr Perry and their answers in reply to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE S A.     Mr Al-Khawaja 9.     The first applicant was born in 1956 and lives in Brighton. The facts which gave rise to his application are as follows. 10.     While working as a consultant physician in the field of rehabilitative medicine, the first applicant was charged on two counts of indecent assault on two female patients while they were allegedly under hypnosis. The first count in the indictment alleged that he had indecently assaulted a woman called S.T. during a consultation on 3 June 2003. The second count in the indictment alleged that he had indecently assaulted a woman called V.U. also during a consultation, this time on 12 June 2003. 11.     For reasons unrelated to the alleged assault, S.T. committed suicide before the trial. However, several months after the alleged assault, she had made a statement to the police. She had also told two friends, B.F. and S.H., that the applicant had indecently assaulted her. 12 .     On 22 March 2004 a preliminary hearing was held to determine whether S.T.’s statement should be read to the jury. At that hearing, the defence indicated that the defence to each count of the indictment was essentially the same, namely that S.T. and V.U.’s allegations were wholly untrue. The judge at the hearing decided that S.T.’s statement should be read to the jury at trial. He observed that the first applicant was very likely to feel that he had no realistic alternative other than to give evidence in order to defend himself on the second count relating to V.U. Therefore, the reading of S.T.’s statement would not have the effect of making it very difficult for the applicant not to give evidence. The judge also noted that collusion between S.T. and V.U. was not alleged, and so that issue did not need to be investigated by cross-examination of each woman. 13 .     Having regard to the contents of S.T.’s statement, the judge also observed that it was crucial to the prosecution on count one as there was no other direct evidence of what took place during the consultation on 3 June 2003. He said: “[P]utting it bluntly, no statement, no count one.” He went on to observe that the real issue was whether it was likely to be possible for the first applicant to controvert the statement in a way that achieved fairness to the defendant. The judge found that the first applicant could give evidence as to what had happened during the consultation. It was also the intention of the prosecution to call S.T.’s friends to give evidence as to what she had said to them. There were inconsistencies between their statements and S.T.’s, which provided a route by which S.T.’s statement could be challenged. An expert witness would also be called by the prosecution to give evidence on altered perception during hypnosis and cross-examination of that witness might also serve to undermine S.T.’s credibility. 14.     At the trial, once S.T.’s statement had been read, the jury heard evidence from B.F. and S.H., S.T.’s friends. S.T.’s general practitioner also gave evidence as to a letter he had written on S.T.’s behalf to the hospital authorities, which outlined S.T.’s allegations against the first applicant. In respect of the second count, the indecent assault upon V.U., evidence was given by V.U. and by the police officers who had investigated the case. Evidence was then given by two women who alleged that the first applicant had made improper suggestions to them during hypnosis consultations. That evidence was relied on by the prosecution as “similar fact evidence” to support the evidence of S.T. and V.U. As the prosecution had indicated, expert evidence was given as to the effects of hypnosis. The defence was given the opportunity to cross-examine all the witnesses who gave live evidence. The first applicant gave evidence in his own defence. He also called a number of witnesses, who gave evidence as to his good character. 15 .     In his summing up, the trial judge directed the jury, on two separate occasions, as to how they should regard S.T.’s statement. Firstly, he stated: “It is very important that you [the jury] bear in mind when considering her [S.T.’s] evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence tested in cross-examination [by counsel for Mr Al-Khawaja], who would, undoubtedly, have had a number of questions to put to her.” 16 .     He later stated: “... bear in mind ... that this evidence was read to you. The allegation is completely denied ... you must take that into account when considering her evidence.” 17 .     When referring to the evidence of S.T.’s friends, the trial judge reminded the jury that there was an inconsistency between S.T.’s account of the consultation and the account given by S.H. (in her statement S.T. said that the applicant had touched her face and mouth; S.H. gave evidence that it was S.T. herself and not the first applicant who had touched her face and mouth). The trial judge continued: “It is for you to decide the extent to which the evidence of [B.F.] and [S.H.] helps you in deciding whether or not [S.T.] has spoken the truth in her statement. But bear in mind the evidence as to what [S.T.] said to [B.F.] and [S.H.] is not independent evidence as to the truth of her allegations.” 18 .     The trial judge also instructed the jury that they were entitled to consider the evidence of V.U., and of the other two women who had given evidence as to the improper suggestions made by the first applicant, when deciding whether S.T.’s statement was true. However, the jury firstly had to discount the possibility of collusion between the four women. Secondly, they had to ask themselves whether it was reasonable that four people independently making similar accusations could all either be lying or mistaken or have all suffered similar hallucinations or false memory. If the jury thought that incredible, they could be satisfied that S.T. and V.U. had spoken the truth. The trial judge also directed the jury that the greater the similarity between the allegations, the greater the likelihood that the four women were telling the truth. He added that the jury also had to consider whether the women could have consciously or unconsciously been influenced by hearing of the complaints of the others. 19.     In the course of their deliberations, on two occasions the jury asked for clarification of points raised in the statement of S.T. On 30 November 2004, the first applicant was convicted by a unanimous verdict of the jury on both counts of indecent assault. He was sentenced to a fifteen-month custodial sentence on the first count and a twelve-month custodial sentence on the second count, to run consecutively. 20.     The first applicant appealed against his conviction to the Court of Appeal. The appeal centred on the pre-trial ruling to admit S.T.’s statement as evidence. It was also submitted that, in his summing up, the trial judge did not give adequate directions to the jury as to the consequential disadvantage of this evidence to the first applicant. 21.     The appeal was heard and dismissed on 6 September 2005. In its written judgment handed down on 3 November 2005 the Court of Appeal concluded that the first applicant’s right to a fair trial had not been infringed. With regard to the admission in evidence of the statement of S.T., the court held that it was not necessarily incompatible with Article 6 §§ 1 and 3 (d) of the Convention. Relying on Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996 ‑ II), the court held that the admissibility of evidence is primarily a matter of domestic law. It then found: “25.     The important factors in the present case are the following. The witness, S.T., could not be examined on behalf of the [first applicant] because she had died. She was the only witness whose evidence went directly to the commission of an indecent assault on her by the appellant. If her statement had been excluded, the prosecution would have had to abandon the first count. The [applicant] was able to attack the accuracy of [S.T.’s] statement by exploring the inconsistencies between it and the witnesses, [B.F.] and [S.H.], and through the expert evidence relating to ‘altered perception’ under hypnosis. The relevant sections of the 1988 Act [see paragraph 41 below] contained provisions designed to protect defendants, which were properly considered by the judge, before the statement was admitted in evidence. Lastly, the tribunal of fact, here the jury, could and should take proper account of the difficulties which the admission of a statement might provide for the [applicant], which should be provided by an appropriate direction to the jury. 26.     Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick [see paragraph 48 below] we do not consider that the case-law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6 § 3 (d) that a person charged shall be able to [have] the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is ‘whether the proceedings as a whole, including the way the evidence was taken, were fair’ – Doorson , paragraph 19 [see paragraph 58 below]. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph.” 22 .     Turning to the issue of the trial judge’s summing up, the court stated: “We consider that it would have been better if the judge had stated explicitly that the [first applicant] was potentially disadvantaged by the absence of [S.T.] and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of [S.T.’s] statement being in evidence in her absence, and that this is not a factor which might make the [first applicant’s] trial unfair and in breach of Article 6. We should also say that overall the evidence against the [first applicant] was very strong. We were wholly unpersuaded that the verdicts were unsafe.” 23.     The Court of Appeal refused leave to appeal to the House of Lords but certified that a point of law of general public importance was involved in the decision. 24.     On 30 November 2005 the first applicant petitioned the House of Lords on the point of law certified by the Court of Appeal. On 7 February 2006 the House of Lords refused the petition. B.     Mr Tahery 25.     The second applicant was born in 1975. His application arises from his conviction for wounding with intent. The background to that conviction is as follows. 26.     On 19 May 2004, S., a member of the Iranian community living in London, was involved in an altercation with some Kurdish men. The second applicant interposed himself between S. and the Kurdish men in order to protect S. In the small hours of the morning of 20 May 2004, S. and the second applicant met again outside an Iranian restaurant in Hammersmith, London. The second applicant asked S to have a word with him and led him into a nearby alleyway. The men began discussing the earlier altercation. Although S. denied throwing the first punch, he conceded while giving evidence at the second applicant’s trial that he had punched the second applicant. In the fight, the second applicant pushed S. back and, at this stage, S. became aware of a burning sensation in his back, which proved to be the result of three stab wounds to his back. S. and the second applicant had been face-to-face and S.’s account was that he neither saw the second applicant stab him, nor was he aware of the second applicant going behind him or reaching round his back, so as to stab him. 27.     During the fight other men were present, including the Kurdish men from the earlier altercation. A friend of S., another member of the Iranian community called T., was there, as were two of T.’s friends and the second applicant’s uncle. S could not say which of the men were behind him. 28.     S. saw a knife lying on the ground and he realised that he had been stabbed. In his evidence at the second applicant’s trial (see paragraph 32 below), he stated that he went to pick it up but that either the second applicant or T. had picked it up and thrown it towards the restaurant. S. assumed that it had been the second applicant who had stabbed him. According to S., the second applicant immediately denied this. He told S. to sit down beside him and attempted to staunch the blood flow from S.’s wounds until an ambulance arrived; when it did, he accompanied S to the hospital. At the hospital, the second applicant told the police that he had seen two black men stab S. 29.     When witnesses were questioned at the scene, no one claimed to have seen the second applicant stab S. Two days later, however, T. made a statement to the police that he had seen the second applicant stab S. In his statement, T. recounted that, when the second applicant and S. had begun fighting in the alleyway, T. had tried to separate them. He then saw the second applicant hold S. by the neck, hold up the knife and stab S. twice in the back. As T. moved towards the second applicant, the second applicant tried to stab T. in the neck. According to T., the second applicant then dropped the knife and shouted “don’t tell the police”. 30 .     On 3 November 2004 the second applicant was arrested and taken to Hammersmith police station. In interview, he denied stabbing S. and again stated that two black men were responsible. He was charged with wounding with intent and also with attempting to pervert the course of justice for telling the police, at the hospital and at the police station, that he had seen two black men stab S. 31.     On 25 April 2005 the second applicant’s trial began at Blackfriars Crown Court. That day, he pleaded guilty in respect of the charge of attempting to pervert the course of justice but maintained his not guilty plea in respect of the charge of wounding with intent. 32 .     S. gave evidence for the prosecution. He recounted how he and the second applicant had fought in the alleyway. After a minute he realised that he had been injured in the back. He had not seen who stabbed him. The second applicant had made him sit down and had covered the wound. S. had asked the second applicant who had stabbed him and the second applicant had denied that it was him. When cross-examined, S. accepted that he had not seen the second applicant go behind him and that they had been face-to-face. He also testified that he had heard someone shout to him “Tell him it was the blacks”; the voice did not belong to the second applicant. 33.     After S had given evidence, the prosecution made an application for leave to read T.’s statement pursuant to section 116(2)(e) and (4) of the Criminal Justice Act 2003 (“the 2003 Act”; see paragraphs 43-45 below). The prosecution argued under the 2003 Act that T. was too fearful to attend trial before the jury and that he should qualify for special measures. The trial judge heard evidence from a police officer conducting the case who testified that the Iranian community was close-knit and that T.’s fear was genuine. T.   also gave evidence to the trial judge (but not the jury) from behind a screen. He told the judge that he was in fear for himself and his family because of visits and telephone calls he had received, none of which were said to have been from the second applicant. He did not say who had been responsible for the visits and telephone calls. 34.     In ruling that leave should be given for the statement to be read to the jury, the trial judge stated: “I am satisfied in those circumstances upon the criminal standard of proof that this witness is genuinely in fear; and I base that not only on his oral testimony, but also upon my opportunity while he was in the witness box to observe him. I therefore have to go on to consider the questions posed in [section 116(4) of the 2003 Act]. Subsection 4(a) requires me to look at the statement’s contents. I have done so. It is submitted by the defence that they may be unreliable; there being some inconsistencies with the evidence that was given by [S.]. There will always be cases, whether it be oral evidence or evidence that is read, where there are inconsistencies. It is always for the jury to come to a conclusion, based upon submissions of counsel and the evidence that they have heard, as to whether the evidence is reliable or not. And they will receive from me the appropriate warning when the time comes as to how they should view that statement. It is further submitted that in looking at the statement, it is a statement of great importance; in that it is from a person who purports to witness the incident and consequently goes to the heart of the matter. In my view, it is precisely this type of witness who is likely to be put in fear, and consequently that must have been what Parliament had in mind when it enacted this particular section. I therefore have to look, having looked at the contents of the statement, to any risk its admission or exclusion will result in unfairness to any party to the proceedings. I am satisfied that there would be an unfairness caused by its exclusion; but I am equally satisfied that no unfairness would be caused by its admission. And in doing so, I have taken into account the words of [the 2003 Act]; in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence. Challenge of a statement does not always come from cross-examination. Challenge of a statement can be caused by evidence given in rebuttal; by either the defendant, if he chooses to do so, or by any other bystander – and we know that there were some – who were on the street at that time. Consequently I am satisfied that the defendant’s evidence, if he chooses to give it, would be sufficient to rebut and to challenge the evidence that is contained in that statement. I have further considered other relevant factors, and I have also offered to the witness whilst he was in the witness box behind screens the possibility of him giving evidence with the same special measures in place. He told me his position would not change; that he could not give evidence before a jury, and the reason that he could not was because he was in fear. Having taken all those matters into account in those circumstances, I am satisfied that this is the type of case which Parliament envisaged might require a statement to be read.” 35.     T.’s witness statement was then read to the jury. Evidence was also given by the doctor who had treated S. at hospital as to the nature of the wound and by a forensic scientist who had tested the blood found on the second applicant’s clothes and confirmed it matched that of S. (though no firm conclusions could be drawn as to how it had been deposited on the clothes). The record of the second applicant’s interview by the police was also tendered by the prosecution (see paragraph 30 above). 36.     The second applicant gave evidence in his defence. He stated that he had been present at the earlier altercation with the Kurdish men. When he and S. later met outside the restaurant, he had taken S. by the hand and suggested that they go and talk, but S. had begun to punch him. He had defended himself by grabbing S. by the collar and pushing him. T. had then tried to intervene and a number of other members of the Iranian community had restrained S. T. had been standing between S. and the second applicant and, at this stage, the second applicant noticed the knife on the ground. He had picked it up and thrown it, not knowing at this point that S. had been stabbed. When S blamed him for the stabbing, the second applicant had told him to sit down and had successfully calmed him down. He placed his hand on the wound on S.’s back. S. then appeared to accept that the second applicant had not stabbed him. The second applicant also gave evidence that he had told the police that two black men were responsible because this was what his uncle had told him to say. Finally, the second applicant gave evidence that, before he had been interviewed by the police, T. had told him that he, T., knew that the second applicant had not stabbed S. 37 .     The judge, in his summing up, warned the jury about the danger of relying on the evidence of T. He stated: “That evidence, as you know, was read to you under the provisions that allow a witness who is frightened, it is not a question of nerves it is a question of fright, fear, for his statement to be read to you but you must be careful as to how you treat it. It is right, as has been pointed out by the defence, that they were deprived of an opportunity to test that evidence under cross-examination. It is right also that you did not have the advantage of seeing the witness and his demeanour in court. You did not have the opportunity for him to think back and say ‘possibly because of things I saw I put two and two together and made five’, as counsel for the defence invites you to say. In other words, you must always be alert to [the fact] that he could put things that he did see together and come to the wrong conclusion. That is a way of examining the statement. You must ask yourselves ‘can we rely upon this statement? Is it a statement which we find convincing?’ It is only, if you are satisfied so that you are sure, that what is in the statement has accurately depicted what happened that night and what the witness saw, that you could rely upon it. That goes for any witness. It is only if you find that the evidence is compelling and satisfies you, so that you are sure, that you act upon it. So you must always ask yourselves ‘is the statement he made reliable?’ You must bear in mind also, importantly, that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear.” 38.     On 29 April 2005 the second applicant was convicted by a majority verdict of wounding with intent to cause grievous bodily harm, for which he was later sentenced to nine years’ imprisonment to be served concurrently with a term of fifteen months’ imprisonment for the charge of attempting to pervert the course of justice to which he had pleaded guilty. 39.     The second applicant appealed to the Court of Appeal, arguing that the inability to cross-examine T. infringed his right to a fair trial. The Court of Appeal acknowledged that the Crown accepted that T.’s statement was “both important and probative of a major issue in the case ... had it not been admitted the prospect of a conviction would have receded and that of an acquittal advanced”. The court upheld the reasoning of the trial judge, stating that there was available not only cross-examination of other prosecution witnesses but also evidence from the second applicant himself and the potential for evidence from other bystanders in order to prevent unfairness. It was also stated that the trial judge had explicitly warned the jury in detail as to how they should treat this evidence and properly directed them as to how they should consider it in reaching their verdict. Although the second applicant maintained that even a proper direction by the judge could not cure the unfairness, the Court of Appeal held that the jury was informed of all matters necessary to its decision-making process. Leave to appeal on conviction was refused on 24 January 2006. The Court of Appeal did, however, give the second applicant leave to appeal against his sentence and reduced the sentence of nine years’ imprisonment to seven years’ imprisonment. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Common-law principles relevant to both cases 40 .     Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony (see paragraph   20 of the judgment of Lord Phillips in R. v. Horncastle and others , summarised at paragraphs 57 to 62 below). As a general rule it is inadmissible in a criminal case unless there is a common-law rule or statutory provision which allows for its admission. The relevant statutory provisions applicable to each applicant are set in the following section. Those statutory provisions are supplemented by three common-law principles. Firstly, there is an additional discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This, in turn, is supplemented by section 78 of the Police and Criminal Evidence Act 1984, which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. Secondly, if hearsay evidence is admitted and the jury have heard it, the trial judge, in his summing up, must direct the jury as to the dangers of relying on hearsay evidence. Thirdly, in a jury trial, the jury must receive the traditional direction as to the burden of proof, namely that they must be satisfied of the defendant’s guilt beyond reasonable doubt. B.     Primary legislation 1.     Primary legislation applicable in Mr Al-Khawaja’s case 41 .     At the time of the first applicant’s trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988 (“the 1988 Act”). Section 23 of the 1988 Act provides for the admission of first-hand documentary hearsay in a criminal trial: “23.     ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if— (2)     ... (a)     ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness; ... 25.     (1)     If, having regard to all the circumstances— (a)     the Crown Court— (i)     on a trial on indictment; (ii)     on an appeal from a magistrates’ court; or (iii)     on the hearing of an application under section 6 of the Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates’ court to Crown Court); or (b)     the criminal division of the Court of Appeal; or (c)     a magistrates’ court on a trial of an information, is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2)     Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard— (a)     to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b)     to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c)     to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d)     to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. 26.     Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared ..., for the purposes— (a)     of pending or contemplated criminal proceedings; or (b)     of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard— (i)     to the contents of the statement; (ii)     to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and (iii)     to any other circumstances that appear to the court to be relevant ...” Schedule 2 to the Act allows for the admission of evidence relating to the credibility and consistency of the maker of the statement, where such evidence would have been admissible had he or she given evidence in person, or where the matter could have been put to him or her in cross-examination. The Schedule also provides that, in estimating the weight, if any, to be attached to such a statement regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise. 2.     Primary legislation applicable in Mr Tahery’s case (a)     The Law Commission’s report 42 .     In its report of April 1997, entitled “Evidence in Criminal Proceedings: Hearsay and Related Topics”, the Law Commission recommended a series of reforms to the law of hearsay in England and Wales, including the provisions contained in the 1988 Act. In addition to recommending clarification of the conditions under which a witness statement could be admitted at trial (including the existing grounds of death and fear), the Commission proposed that there should be a limited discretion to admit hearsay evidence that did not fall within any other statutory or common-law exception (recommendation 28). In its earlier consultation paper, published in January 1995, the Commission had reviewed the case-law of this Court on Article 6 § 3 (d) and concluded that there was a risk of a breach of the Convention where a person stood to be convicted on hearsay evidence alone. The Commission considered that this risk was sufficiently serious to warrant requiring the trial court to stop the case where hearsay is the only evidence of an element of the offence (paragraph 9.5 of the consultation paper). After criticisms of this proposal (principally that it was unduly cautious and was beset with practical difficulties), in its 1997 report the Commission decided not to maintain its proposal (see paragraphs 5.33-5.41 of the report). It concluded instead that the adequate protection would be provided by the safeguards it proposed, in particular its recommendation 47, which proposed giving the trial judge the power to stop a case if hearsay evidence was unconvincing (see paragraph 45 below). (b)     The Criminal Justice Act 2003 43 .     Part 11, Chapter 2 of the Criminal Justice Act 2003 (“the 2003 Act”) came into force in April 2005. It was intended to reform substantially the law governing the admission of hearsay evidence in criminal proceedings on the basis of the draft bill proposed by the Law Commission. Under section 114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. Although it was not relied upon in the second applicant’s case, one such “gateway” is section 114(1)(d) which allows for the admission of hearsay evidence if the court is satisfied that it is in the interests of justice for it to be admissible. Section   114(2) provides: “In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)— (a)     how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b)     what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c)     how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d)     the circumstances in which the statement was made; (e)     how reliable the maker of the statement appears to be; (f)     how reliable the evidence of the making of the statement appears to be; (g)     whether oral evidence of the matter stated can be given and, if not, why it cannot; (h)     the amount of difficulty involved in challenging the statement; (i)     the extent to which that difficulty would be likely to prejudice the party facing it.” 44 .     The “gateway” relied on in the second applicant’s case was section   116, which allows for the admission of statements of absent witnesses. Section 116, where relevant, provides: “(1)     In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— (a)     oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter; (b)     the person who made the statement (the relevant person) is identified to the court’s satisfaction; and (c)     any of the five conditions mentioned in subsection (2) is satisfied. (2)     The conditions are— (a)     that the relevant person is dead; (b)     that the relevant person is unfit to be a witness because of his bodily or mental condition; (c)     that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; (d)     that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; (e)     that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. (3)     For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. (4)     Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard— (a)     to the statement’s contents; (b)     to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence); (c)     in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc.) could be made in relation to the relevant person; and (d)     to any other relevant circumstances. (5)     A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— (a)     by the person in support of whose case it is sought to give the statement in evidence; or (b)     by a person acting on his behalf; in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).” 45 .     By section 121 of the 2003 Act, section 116(2)(e) can only be relied upon in respect of first-hand hearsay; it cannot be relied only to allow the admission of multiple hearsay. In addition, section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example through the admission of evidence of his bad character, including previous convictions, a propensity to be untruthful and so on. It also allows the admission of inconsistent statements that the witness has made. Section 124(2) allows the admission of evidence to challenge the credibility of the absent witness in circumstances where it would not be admissible in respect of a live witness, for example when it relates to a collateral issue in the case. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe. This enacted the Law Commission’s recommendation 47 (see paragraph 42 above). Section 126 preserves both the common-law discretion and the section 78 discretion of the trial judge to exclude hearsay evidence (see paragraph 40 above). It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”. 3.     The Coroners and Justice Act 2009 46 .     The conditions under which witnesses can give evidence anonymously in criminal proceedings are now regulated by the Coroners and Justice Act 2009 (“the 2009 Act”). Formerly, this was regulated by similar provisions in the Criminal Evidence (Witness Anonymity) Act 2008, which was enacted following the House of Lords’ judgment in R. v. Davis (see paragraphs 49 and 50 below). Under the 2009 Act, witnesses can only give evidence anonymously when, upon the application of either the prosecution or a defendant in the proceedings, the trial judge makes a “witness anonymity order”. Section 87 requires that the trial judge be informed of the identity of the witness. Sections 88(2)-(6) and 89 lay down the conditions for the making of a witness anonymity order. In deciding whether those conditions are met, the court must have regard, inter alia , to whether evidence given by the witness might be the sole or decisive evidence implicating the defendant (section 89(2)(c)). 4.     The Human Rights Act 1998 47.     Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. C.     Relevant case-law from England and Wales 1.     R. v. Sellick and Sellick 48 .     This Court’s judgment in Lucà v. Italy (no. 33354/96, § 40, ECHR 2001 ‑ II) was considered by the Court of Appeal in R. v. Sellick and Sellick [2005] EWCA Crim 651, which concerned two defendants who were alleged to have intimidated witnesses. Leave was given by the trial judge to have the witnesses’ statements read to the jury. The defendants a