Al-Khawaja v UK EctHR
insufficient reasons for absence at trial/counterbalancing factors-Article 6(3) was an express guarantee in itself-question arose again; it could not be read simply as an illustration of matters to be taken into account when considering the fairness of the trial. The statement of a patient, who had subsequently committed suicide, implicating the accused (a doctor) in a sexual offence, admitted under the now repealed CJA 1988, was the only evidence against the defendant or at least the decisive, basis for conviction. In Al-Khawaja�s case the hearsay statements had been the only, For this reason, and as there were no factors which could counterbalance the prejudice to the defendant, his minimum rights had been infringed and there had been a violation of Article 6(1), read in conjunction with Article 6(3)(d). The Court pointed out that this was not a case where a witness had been kept from giving evidence through fear induced by the d. But the Court added that it doubted whether, in the absence of such special circumstances, any counterbalancing factors would be sufficient to justify the introduction of a hearsay statement that was the sole or decisive basis for convicting a defendant. If the English courts follow this decision, hearsay evidence from an absent witness whose evidence is the sole or main evidence against a defendant is likely to be inadmissible unless the reason for absence is that the witness has been intimidated by the defendant. It is unclear whether such intimidation must be caused directly by the defendant. Other reasons for absence at trial, such as illness or death, will be insufficient where the evidence is the sole, or main, basis for the prosecution case. A decision of the ECrtHR of considerable importance concerning the admissibilty in criminal proceedings of untested statements that are read to the court as evidence in the case. The decision in the cases of Al-Khawaja and Tahery suggests that, except in very limited special circumstances, allowing a witness statement to be admitted if it is the sole and decisive evidence in establishing a conviction will violate the right to a fair trial. This holds true regardless of counter-balancing factors that can be taken into account according to the domestic evidence legislation.