Quick answer
In Al-Khawaja and Tahery v. the United Kingdom (Grand Chamber, 15 December 2011, applications nos. 26766/05 and 22228/06), the European Court of Human Rights recast its approach to convictions based on the untested statements of absent witnesses. It held — by fifteen votes to two — that there had been no violation of Article 6 § 1 read with Article 6 § 3 (d) in the case of Mr Al-Khawaja, but unanimously that there had been a violation in the case of Mr Tahery. A conviction based solely or decisively on an absent witness’s statement is not automatically unfair, provided there are sufficient counterbalancing factors.
Background and facts
The two cases were joined. Mr Al-Khawaja, a consultant physician, was tried for indecently assaulting two patients. One complainant died before the trial, and her written statement to the police was read to the jury; it was the sole or decisive evidence on that count. Mr Tahery was convicted of wounding after a stabbing; a witness who claimed to have seen him stab the victim was too afraid to testify in person, and his statement was read to the jury, where it was decisive.
In neither case had the defence been able to cross-examine the absent witness. Both applicants argued that their convictions therefore breached the right, guaranteed by Article 6 § 3 (d), to examine the witnesses against them.
The Court’s reasoning
The case concerned the so-called “sole or decisive rule” — the proposition that a conviction should not be based solely or to a decisive extent on the statement of a witness the defendant has had no opportunity to challenge. In an unusual dialogue between courts, the United Kingdom’s Supreme Court had questioned that rule, and the Grand Chamber responded by refining it.
The Court set out a structured approach. It must ask: whether there was a good reason for the witness’s absence; whether the evidence of the absent witness was the sole or decisive basis for the conviction; and, if so, whether there were sufficient counterbalancing factors — including strong procedural safeguards — to compensate for the handicaps caused to the defence and to ensure the overall fairness of the trial. The “sole or decisive” nature of the evidence is thus a very important factor calling for the most careful scrutiny, but it is not an absolute rule that automatically renders a trial unfair.
Applying that test, the Court found that in Mr Al-Khawaja’s case there had been adequate counterbalancing factors — including supporting evidence and appropriate directions to the jury — so there was no violation. In Mr Tahery’s case, by contrast, the decisive untested statement was not adequately counterbalanced, and his conviction breached Article 6.
The judgment
- by fifteen votes to two, no violation of Article 6 § 1 with Article 6 § 3 (d) in respect of Mr Al-Khawaja;
- unanimously, a violation in respect of Mr Tahery, who was awarded EUR 6,000 in respect of non-pecuniary damage plus costs.
Why this case matters
- The three-step hearsay framework. Good reason for absence → sole or decisive? → sufficient counterbalancing factors. This structure governs untested-witness evidence across the Convention.
- A flexible, fairness-based test. The Court moved from a rigid rule to an overall-fairness assessment, later consolidated in Schatschaschwili v. Germany (2015).
- Judicial dialogue. The judgment is a notable example of the Strasbourg Court engaging with a national supreme court and adjusting its case law.
What this means for applicants
- Untested witness statements are dangerous but not fatal. A conviction can rest on them only where there are strong counterbalancing safeguards under Article 6.
- The weight of the untested evidence is decisive to the analysis — the more central it is, the stronger the safeguards must be.
- Fair-trial challenges turn on the trial as a whole, not on any single rule applied mechanically.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did Al-Khawaja and Tahery v. UK decide?
The Grand Chamber held there was no violation of Article 6 for Mr Al-Khawaja (by fifteen votes to two) but a violation for Mr Tahery (unanimously). It held that a conviction based solely or decisively on an absent witness’s statement is not automatically unfair if sufficient counterbalancing factors exist.
What is the “sole or decisive rule”?
It is the principle that special caution is needed where a conviction rests solely or decisively on the statement of a witness the defendant could not cross-examine. The Court held it is a very important factor, but not an inflexible rule.
Why did one applicant win and the other lose?
In Mr Al-Khawaja’s trial there were adequate counterbalancing safeguards; in Mr Tahery’s trial the decisive untested statement was not sufficiently counterbalanced, so his conviction was unfair.
What are “counterbalancing factors”?
They are procedural safeguards and supporting evidence that compensate for the defence’s inability to cross-examine — for example corroboration, careful jury directions, and the ability to challenge the reliability of the absent witness.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Sporrong and Lönnroth v. Sweden
- Del Río Prada v. Spain
- Kudła v. Poland
- Salduz v. Turkey
- Winterwerp v. the Netherlands
- Selmouni v. France
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