CASE OF AL-KHAWAJA AND TAHERY v. THE UNITED KINGDOM

No violation of Art. 6-1+6-3-d;Violation of Art. 6-1+6-3-d;Non-pecuniary damage - award

Alvina Gyulumyan;András Sajó;Christos Rozakis;Corneliu Bîrsan;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Ineta Ziemele;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Kristina Pardalos;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Stefan Trechsel;Sverre Erik Jebens

The first applicant was born in DATE and lives in GPE . The facts which gave rise to his application are as follows .

While working as a consultant physician in the field of rehabilitative medicine , the first applicant was charged on CARDINAL counts of indecent assault on CARDINAL female patients while they were allegedly under hypnosis . The first count in the indictment alleged that he had indecently assaulted a woman called ORG during a consultation on DATE . The second count in the indictment alleged that he had indecently assaulted a woman called ORG also during a consultation , this time on DATE .

For reasons unrelated to the alleged assault , ORG committed suicide before the trial . However , DATE after the alleged assault , she had made a statement to the police . She had also told CARDINAL friends , PERSON and GPE , that the applicant had indecently assaulted her .

NORP On DATE a preliminary hearing was held to determine whether ORG 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 GPE and GPE ’s allegations were wholly untrue . The judge at the hearing decided that ORG 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 GPE Therefore , the reading of ORG 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 GPE and GPE was not alleged , and so that issue did not need to be investigated by cross - examination of each woman .

Having regard to the contents of ORG 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 DATE . 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 ORG friends to give evidence as to what she had said to them . There were inconsistencies between their statements and ORG , which provided a route by which ORG 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 ORG ’s credibility .

At the trial , once ORG statement had been read , the jury heard evidence from PERSON and ORG , ORG friends . ORG general practitioner also gave evidence as to a letter he had written on ORG behalf to the hospital authorities , which outlined ORG allegations against the first applicant . In respect of the second count , the indecent assault upon GPE , evidence was given by GPE and by the police officers who had investigated the case . Evidence was then given by CARDINAL 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 ORG 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 .

In his summing up , the trial judge directed the jury , on CARDINAL separate occasions , as to how they should regard ORG statement . Firstly , he stated :

“ It is very important that you [ the jury ] bear in mind when considering her [ ORG ’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 PERSON ] , who would , undoubtedly , have had a number of questions to put to her . ”

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 . ”

When referring to the evidence of ORG ’s friends , the trial judge reminded the jury that there was an inconsistency between ORG account of the consultation and the account given by ORG in her statement ORG said that the applicant had touched her face and mouth ; NORP gave evidence that it was PERSON 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 [ ORG ] 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 [ PERSON ] and [ NORP ] is not independent evidence as to the truth of her allegations . ”

The trial judge also instructed the jury that they were entitled to consider the evidence of GPE , and of the other CARDINAL women who had given evidence as to the improper suggestions made by the first applicant , when deciding whether ORG statement was true . However , the jury firstly had to discount the possibility of collusion between the CARDINAL women . Secondly , they had to ask themselves whether it was reasonable that CARDINAL 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 ORG 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 QUANTITY 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 .

In the course of their deliberations , on CARDINAL occasions the jury asked for clarification of points raised in the statement of GPE On DATE , the first applicant was convicted by a unanimous verdict of the jury on both counts of indecent assault . He was sentenced to a DATE custodial sentence on the first count and a DATE custodial sentence on the second count , to run consecutively .

The first applicant appealed against his conviction to ORG . The appeal centred on the pre - trial ruling to admit ORG 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 .

The appeal was heard and dismissed on DATE . In its written judgment handed down on DATE ORG 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 ORG , the court held that it was not necessarily incompatible with LAW ( d ) of the LAW . Relying on PERSON v. the GPE ( DATE , Reports of Judgments and Decisions CARDINAL ) , the court held that the admissibility of evidence is primarily a matter of domestic law . It then found :

“ CARDINAL . The important factors in the present case are the following . The witness , PERSON , 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 [ ORG ] 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 LAW [ see paragraph CARDINAL 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 .

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 GPE [ see paragraph CARDINAL below ] we do not consider that the case - law of ORG the conclusion that in such circumstances the trial will be unfair . The provision in LAW ( 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 ORG – PERSON , paragraph CARDINAL [ see paragraph CARDINAL 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 . ”

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 [ ORG ] 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 LAW . We should also say that overall the evidence against the [ first applicant ] was very strong . We were wholly unpersuaded that the verdicts were unsafe . ”

ORG refused leave to appeal to ORG but certified that a point of law of general public importance was involved in the decision .

On DATE the first applicant petitioned ORG on the point of law certified by ORG . On DATE ORG refused the petition .

The second applicant was born in DATE . His application arises from his conviction for wounding with intent . The background to that conviction is as follows .

On DATE , S. , a member of the NORP community living in GPE , was involved in an altercation with some NORP men . The second applicant interposed himself between PERSON and the NORP men in order to protect NORP In TIME CARDINAL May CARDINAL , PERSON and the second applicant met again outside an NORP restaurant in GPE , GPE . The second applicant asked PERSON to have a word with him and led him into a nearby alleyway . The men began discussing the earlier altercation . Although PERSON 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 PERSON back and , at this stage , PERSON became aware of a burning sensation in his back , which proved to be the result of CARDINAL stab wounds to his back . PERSON 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 .

During the fight other men were present , including the NORP men from the earlier altercation . A friend of S. , another member of the NORP community called PERSON , was there , as were CARDINAL of T. ’s friends and the second applicant ’s uncle . S could not say which of the men were behind him .

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 CARDINAL below ) , he stated that he went to pick it up but that either the second applicant or ORG 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 PERSON , the second applicant immediately denied this . He told PERSON 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 PERSON to the hospital . At the hospital , the second applicant told the police that he had seen CARDINAL black men stab S.

When witnesses were questioned at the scene , no one claimed to have seen the second applicant stab PERSON days later , however , ORG made a statement to the police that he had seen the second applicant stab PERSON his statement , ORG recounted that , when the second applicant and PERSON had begun fighting in the alleyway , T. had tried to separate them . He then saw the second applicant hold PERSON by the neck , hold up the knife and stab S. twice in the back . As PERSON moved towards the second applicant , the second applicant tried to stab T. in the neck . According to ORG , the second applicant then dropped the knife and shouted “ do n’t tell the police ” .

On DATE the second applicant was arrested and taken to GPE police station . In interview , he denied stabbing PERSON and again stated that CARDINAL 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 CARDINAL black men stab S.

On DATE the second applicant ’s trial began at ORG . DATE , 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 .

S. gave evidence for the prosecution . He recounted how he and the second applicant had fought in the alleyway . After TIME 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 . PERSON had asked the second applicant who had stabbed him and the second applicant had denied that it was him . When cross - examined , PERSON 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 .

After S had given evidence , the prosecution made an application for leave to read ORG ’s statement pursuant to section CARDINAL(CARDINAL)(e ) and ( CARDINAL ) of LAW DATE ( “ the DATE LAW ; see paragraphs CARDINAL - CARDINAL below ) . The prosecution argued under LAW 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 NORP community was close - knit and that PERSON ’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 .

NORP 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 CARDINAL(CARDINAL ) of the CARDINAL Act ] . Subsection CARDINAL(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 ORG 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 DATE 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 DATE 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 ORG envisaged might require a statement to be read . ”

T. ’s witness statement was then read to the jury . Evidence was also given by the doctor who had treated PERSON 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 PERSON ( 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 CARDINAL above ) .

The second applicant gave evidence in his defence . He stated that he had been present at the earlier altercation with the NORP men . When he and PERSON later met outside the restaurant , he had taken PERSON by the hand and suggested that they go and talk , but PERSON had begun to punch him . He had defended himself by grabbing PERSON by the collar and pushing him . T. had then tried to intervene and a number of other members of the NORP community had restrained PERSON had been standing between PERSON 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 PERSON 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 CARDINAL 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.

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 CARDINAL and CARDINAL together and made ORG , 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 TIME 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 . ”

On DATE 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 DATE imprisonment to be served concurrently with a term of CARDINAL months’ imprisonment for the charge of attempting to pervert the course of justice to which he had pleaded guilty .

The second applicant appealed to ORG , arguing that the inability to cross - examine T. infringed his right to a fair trial . ORG acknowledged that the ORG accepted that ORG ’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 , ORG held that the jury was informed of all matters necessary to its decision - making process . Leave to appeal on conviction was refused on DATE . ORG did , however , give the second applicant leave to appeal against his sentence and reduced the sentence of CARDINAL years’ imprisonment to DATE imprisonment .

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 CARDINAL of the judgment of Lord PERSON in PERSON and others , summarised at paragraphs CARDINAL to CARDINAL 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 CARDINAL 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 CARDINAL of ORG , 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 .

At the time of the first applicant ’s trial , the relevant statutory provisions were to be found in sections CARDINAL of LAW DATE ( “ the DATE LAW . LAW provides for the admission of first - hand documentary hearsay in a criminal trial :

“ CARDINAL . ...

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—

( CARDINAL ) ...

( a ) ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness ;

( CARDINAL ) If , having regard to all the circumstances—

( a ) the ORG Court—

( i ) on a trial on indictment ;

( ii ) on an appeal from a GPE court ; or

( iii ) on the hearing of an application under section CARDINAL of LAW DATE ( applications for dismissal of charges of fraud transferred from GPE court to ORG ) ; or

( b ) the criminal division of ORG ; or

( c ) NORP a GPE 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 CARDINAL or CARDINAL above nevertheless ought not to be admitted , it may direct that the statement shall not be admitted .

( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) 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 CARDINAL , to any of them .

Where a statement which is admissible in criminal proceedings by virtue of section CARDINAL or CARDINAL 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 CARDINAL , to any of them ; and

( iii ) to any other circumstances that appear to the court to be relevant ... ”

Schedule CARDINAL 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 .

In its report of DATE , entitled “ Evidence in Criminal Proceedings : Hearsay and Related Topics ” , ORG recommended a series of reforms to the law of hearsay in GPE and GPE , including the provisions contained in LAW . 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 CARDINAL ) .

In its earlier consultation paper , published in DATE , ORG had reviewed the case - law of ORG CARDINAL § CARDINAL ( 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 CARDINAL of the consultation paper ) . After criticisms of this proposal ( principally that it was unduly cautious and was beset with practical difficulties ) , in its DATE report ORG decided not to maintain its proposal ( see paragraphs CARDINAL of the report ) . It concluded instead that the adequate protection would be provided by the safeguards it proposed , in particular its recommendation CARDINAL , which proposed giving the trial judge the power to stop a case if hearsay evidence was unconvincing ( see paragraph CARDINAL below ) .

Part CARDINAL , LAW of LAW DATE ( “ the DATE LAW ) came into force in DATE . 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 ORG .

Under section CARDINAL of the CARDINAL Act , hearsay evidence is only admissible in criminal proceedings if CARDINAL of a number of “ gateways ” applies . Although it was not relied upon in the second applicant ’s case , CARDINAL such “ gateway ” is section FAC ) 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 CARDINAL(CARDINAL ) provides :

“ In deciding whether a statement not made in oral evidence should be admitted under subsection ( DATE ) , 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 ) NORP whether oral evidence of the matter stated can be given and , if not , why it can not ;

( 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 . ”

The “ gateway ” relied on in the second applicant ’s case was section FAC , which allows for the admission of statements of absent witnesses . Section CARDINAL , where relevant , provides :

“ ( CARDINAL ) NORP 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 CARDINAL conditions mentioned in subsection ( CARDINAL ) is satisfied .

( CARDINAL ) 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 GPE and it is not reasonably practicable to secure his attendance ;

( d ) that the relevant person can not 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 .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) ‘ fear’ is to be widely construed and ( for example ) includes fear of the death or injury of another person or of financial loss .

( CARDINAL ) Leave may be given under subsection ( CARDINAL ) 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 LAW of ORG and Criminal Evidence Act CARDINAL ( c. CARDINAL ) ( 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 .

( CARDINAL ) A condition set out in any paragraph of subsection ( CARDINAL ) 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 ) . ”

By section CARDINAL of the CARDINAL Act , section CARDINAL ) can only be relied upon in respect of first - hand hearsay ; it can not be relied only to allow the admission of multiple hearsay .

In addition , section CARDINAL 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 CARDINAL(CARDINAL ) 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 , LAW 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 ORG recommendation CARDINAL ( see paragraph CARDINAL above ) .

Section CARDINAL preserves both the common - law discretion and the section CARDINAL discretion of the trial judge to exclude hearsay evidence ( see paragraph CARDINAL 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 ” .

The conditions under which witnesses can give evidence anonymously in criminal proceedings are now regulated by the Coroners and Justice Act DATE ( “ the DATE Act ” ) . Formerly , this was regulated by similar provisions in FAC DATE , which was enacted following the ORG of Lords’ judgment in NORP v. PERSON ( see paragraphs DATE and CARDINAL below ) . Under the CARDINAL 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 ” . LAW requires that the trial judge be informed of the identity of the witness . Sections CARDINAL(CARDINAL)-(CARDINAL ) and CARDINAL 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 CARDINAL(CARDINAL)(c ) ) .

Section CARDINAL of LAW DATE 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 ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen . Section CARDINAL ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right .

This ORG ’s judgment in PERSON v. GPE ( no . CARDINAL , § DATE , ORG CARDINAL ) was considered by ORG in NORP v. GPE and GPE [ DATE ] EWCA Crim CARDINAL , which concerned CARDINAL defendants who were alleged to have intimidated witnesses . Leave was given by the trial judge to have the ORG statements read to the jury . The defendants appealed on the ground that the admission of the statements breached LAW read in conjunction with LAW ( d ) . ORG dismissed the appeal . In considering the relevant case - law of this Court , at paragraph CARDINAL of its judgment , it stated that what appeared from that case - law were the following propositions :

“ ( i ) The admissibility of evidence is primarily for the national law ;

( ii ) Evidence must normally be produced at a public hearing and as a general rule LAW ) ] require a defendant to be given a proper and adequate opportunity to challenge and question witnesses ;

( iii ) It is not necessarily incompatible with Article [ QUANTITY ( d ) ] for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings . Article [ QUANTITY ( d ) ] is simply an illustration of matters to be taken into account in considering whether a fair trial has been held . The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue , whether , where statements have been read , the trial was fair ;

( iv ) The quality of the evidence and its inherent reliability , plus the degree of caution exercised in relation to reliance on it , will also be relevant to the question whether the trial was fair . ”

ORG then stated :

“ The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process , the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant . Certainly at first sight paragraph CARDINAL of PERSON seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of LAW , if the statements are the sole or decisive evidence . Furthermore there is some support for that position in the previous authorities . But neither PERSON nor any of the other authorities were concerned with a case where a witness , whose identity was well - known to a defendant , was being kept away by fear , although we must accept that the reference to ORG - type organisations and the trials thereof in paragraph CARDINAL shows that the court had extreme circumstances in mind . ”

In NORP v. PERSON [ DATE ] UKHL CARDINAL , ORG considered an appeal against conviction by a defendant who had been convicted of CARDINAL counts of murder by shooting . CARDINAL witnesses had given evidence at trial identifying the defendant as the gunman . They gave evidence anonymously , testifying behind a screen so that they could be seen by the judge and jury but not the defendant . ORG unanimously allowed the defendant ’s appeal .

It found that the ORG testimony was inconsistent with the long - established principle of the NORP common law that , subject to certain exceptions and statutory qualifications , the defendant in a criminal trial should be confronted by his accusers in order that he may cross - examine them and challenge their evidence , a principle which originated in ancient GPE ( Lord PERSON at paragraph CARDINAL ) .

Moreover , this ORG had not set its face absolutely against the admission of anonymous evidence in all circumstances . However , it had said that a conviction should not be based solely or to a decisive extent on anonymous statements . In any event , on the facts in PERSON ’s case , this ORG would have found a violation of LAW not only was the anonymous ORG evidence the sole or decisive basis on which PERSON had been convicted , but effective cross - examination had been hampered .

Lord PERSON , concurring in judgment , considered the relevant authorities of ORG CARDINAL . Having done so , he doubted that there was an absolute requirement that anonymous testimony should not be the sole or decisive evidence against a defendant . Instead , the extent to which such testimony is decisive might be no more than a very important factor to balance in the scales . He also considered that NORP v. PERSON and GPE ( among other authorities ) served as a caution against treating the Convention , or apparently general statements by this ORG , as containing absolutely inflexible rules .

The ORG judgment of DATE in the present cases was considered by ORG and ORG of GPE in PERSON and others . The case concerned the appeals of CARDINAL defendants who had been convicted on the basis of statements of absent victims , which were read at trial under section CARDINAL of the CARDINAL Act . For CARDINAL of the defendants , the maker of the statement had died . For another CARDINAL , the witness was too fearful to attend trial . Their appeals were heard together with that of a fifth defendant , PERSON , who had been convicted on the basis of business records , which were introduced at his trial .

On CARDINAL DATE the ORG unanimously dismissed the appeals of the first CARDINAL defendants ( [ DATE ] EWCA Crim CARDINAL ) . It accepted that LAW ( d ) had a content of its own but , given that it did not create any absolute right to have every witness examined , the balance struck by LAW was legitimate and wholly consistent with the Convention . There could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling . However , having regard to the safeguards contained in LAW , which were rigorously applied , there would be no violation of LAW if a conviction were based solely or to a decisive degree on hearsay evidence . Where the hearsay evidence was demonstrably reliable , or its reliability could properly be tested and assessed , the rights of the defence would be respected , there would be sufficient counterbalancing measures and the trial would be fair . It was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive . This had been considered and rejected by ORG and ORG when it enacted LAW .

There were also principled and practical difficulties with a sole or decisive rule . Firstly , as a principled difficulty , the test assumed that all hearsay evidence was unreliable in the absence of testing in open court , and secondly , it further assumed that the fact - finder ( such as the jury ) could not be trusted to assess the weight of the evidence . Neither assumption was justified . For the first , ORG gave examples of hearsay evidence that would be reliable such as a victim who , before dying , revealed the name of his or her murderer . For the second , ORG found that juries were perfectly able to understand the limitations of written statements and , under section CARDINAL of the CARDINAL Act , would be provided with material about the maker of the statement ( see paragraph CARDINAL above ) . The mere fact that the evidence was an essential link in the chain of evidence against the accused did not alter that conclusion . For example , forensic evidence might depend on work done by unidentified laboratory assistants ( and to that extent was hearsay ) . However , it was not necessary for every member of the laboratory who had worked with the evidence to be called in order for the strength of the evidence to be tested .

The court also found that there were practical difficulties with the sole or decisive rule as a test of admissibility of evidence . It observed :

“ It is clear from the judgment in PERSON [ v. GPE ] that the [ ORG ] took the view that the error had lain in admitting the hearsay evidence : see in particular DATE , DATE , DATE and DATE . Any test of admissibility must be one which can be applied in advance of the giving of the evidence , let alone of the outcome of the trial . A routine test of admissibility of evidence which can only be applied in retrospect , after the outcome of the trial is known , makes the trial process little more than speculative . Judge , jury , witnesses and parties may find themselves engaged in shadow - boxing without knowing whether the solemn result of the trial will stand to be reversed on the grounds that , as things have turned out , the test of admissibility was not met . Nor can any defendant decide how to conduct his case , and indeed whether or not to plead guilty , if he does not know what evidence can and can not be relied upon .

It will no doubt often be possible to identify in advance a case in which the hearsay evidence in question is the sole evidence against the accused . An obvious case is that of the single eyewitness case , with no suggested support from any other source . But this frequently may not be clear from the outset ; there may be other evidence which the prosecution intends to present , but which , on hearing , turns out not to incriminate the accused , or is effectively demolished . Conversely , what appears at the outset to be hearsay evidence standing alone may sometimes come to be supported by other material as the evidence develops . A witness may add something of great significance not previously mentioned , or the significance of something always said may become apparent when apparently unconnected other evidence is given . In any case where there is CARDINAL accused jointly charged , it is common experience that the evidence of one may well shed enormous light upon the guilt or innocence of another . So even the concept of ‘ sole’ evidence is an impractical test for admissibility .

It is , however , the second limb of the suggested test which is apt to cause the greatest difficulty . No one can know what evidence is decisive until the decisionmaking process is over . On no view can it be possible to rule in advance , at the stage when admissibility is in question , which evidence will be decisive ... The application of the test is made the more difficult yet if the meaning of ‘ ORG is extended to encompass any evidence of which it can be said that , if it were absent , ‘ the prospect of a conviction would have receded and that of an acquittal advanced’ ( see paragraph CARDINAL of PERSON ) . Indeed , if that is the test of what is decisive , virtually all evidence would qualify ; evidence which does not , if accepted by the jury , advance the prospect of conviction will ordinarily be excluded as irrelevant . ”

ORG also observed that the test would also be impossible to apply at a trial of CARDINAL or more defendants , where CARDINAL defendant sought to introduce hearsay evidence for his defence . In such a case , the trial judge would be bound to allow the defendant to introduce that evidence even if it might also incriminate CARDINAL of the other defendants and indeed be decisive evidence against that other defendant .

ORG also considered that the safeguard in section CARDINAL of the CARDINAL Act ( the power of a trial judge to stop the case if the hearsay evidence is unconvincing ; see paragraph CARDINAL above ) provided for a “ proportionate assessment of the reliability ” of hearsay evidence and it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the hearsay evidence were the sole or decisive evidence . PERSON or decisive hearsay could be wholly convincing and , equally , evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe . Where there was a legitimate argument that that hearsay was unconvincing and important to the case , the trial judge was required to make up his own mind as to whether a conviction would be safe ; this involved assessing the reliability of the hearsay evidence , its place in the evidence as a whole , the issues in the case as they had emerged , Finally , the other safeguards contained in the CARDINAL Act were rigorously applied and the difficulties faced by defendants when hearsay was admitted were well understood by the courts . The LAW did not equate hearsay with first - hand evidence ; on the contrary it required cautious handling .

ORG also gave guidance as to assessing when it would be appropriate to allow hearsay evidence to be introduced because a witness was in fear . There was , in the case - law of this Court , no requirement that the fear had to be attributable to the defendant , and the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed . ORG added :

“ It is , however , important that all possible efforts are made to get the witness to court . As is clear , the right to confrontation is a long - standing requirement of the common law and recognised in LAW ( d ) ] . It is only to be departed from in the limited circumstances and under the conditions set out in the [ CARDINAL Act ] . The witness must be given all possible support , but also made to understand the importance of the citizen ’s duty , and indeed that the violent and intimidatory will only flourish the more if that duty is not done , whilst they will normally back down in the face of determination that it be performed . For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read . Unless the defendant consents , it is only the court applying the strict conditions of the [ CARDINAL Act ] based on evidence that can admit such a statement . Any indication , let alone an assurance , can only give rise to an expectation that this will indeed happen , when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all .

It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis : that is a matter for practical policing and not for us . But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read , or indeed given any indication whatsoever that this is likely . The most that he can be told is that witnesses are expected to be seen at court , that any departure from that principle is exceptional , and that the decision whether to depart from it is one for the judge and not for the police . In the case before us of ORG and PERSON [ CARDINAL of the appellants ] , as we set out at CARDINAL and CARDINAL , the judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down , although relocated , and killed . Although notorious , that incident was an extreme and very unusual case . The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness . Whilst the [ CARDINAL Act ] requires fear to be construed broadly , it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury . If the evidence can really only be assessed by the jury by seeing the witness , as will often be the case , it may not be admitted . If it is admitted and central to the case , there is a significant possibility that at the end of the trial the judge may have to rule under [ section ] CARDINAL that a conviction relying upon it would be unsafe . ”

On DATE ORG unanimously upheld ORG judgment ( [ DATE ] ORG ) . Lord PERSON , giving the judgment of ORG , found that , although domestic courts were required by LAW DATE to take account of the GPE jurisprudence in applying principles that were clearly established , on rare occasions , where a court was concerned that the GPE judgment did not sufficiently appreciate or accommodate some aspect of LANGUAGE law , it might decline to follow the judgment . The ORG judgment was such a case .

Lord PERSON considered that a defendant should not be immune from conviction where a witness , who had given critical and apparently reliable evidence in a statement , was unavailable to give evidence at trial through death or some other reason . In analysing the relevant case - law of ORG CARDINAL § CARDINAL ( d ) , Lord PERSON concluded that , although this ORG had recognised the need for exceptions to the strict application of LAW ( d ) , the manner in which it approved those exceptions resulted in a jurisprudence which lacked clarity . The sole or decisive rule had been introduced into the GPE case - law in PERSON ( cited above ) without discussion of the underlying principle or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to continental and common - law jurisdictions . Indeed , the rule seemed to have been created because , in contrast to the common law , continental systems of criminal procedure did not have a comparable body of jurisprudence or rules governing the admissibility of evidence .

Lord PERSON , in agreement with ORG , found that the rule would create severe practical difficulties if applied to NORP criminal procedure . Firstly , it was not easy to apply because it was not clear what was meant by “ decisive ” : under LANGUAGE criminal procedure no evidence could be admitted unless it was potentially probative and , in theory , any item of probative evidence could make the difference between conviction and acquittal . Secondly , it would be hard enough to apply that test at first instance but it would be impossible for national appellate courts or this ORG to decide whether a particular statement was the sole or decisive basis for a conviction . In a jury trial , the only way the rule could be applied would be to exclude all hearsay evidence .

Lord PERSON also observed :

“ The sole or decisive test produces a paradox . It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral , but not where it is decisive . The more cogent the evidence the less it can be relied upon . There will be many cases where the statement of a witness who can not be called to testify will not be safe or satisfactory as the basis for a conviction . There will , however , be some cases where the evidence in question is demonstrably reliable . ORG has given a number of examples . I will just give one , which is a variant of CARDINAL of theirs . A visitor to GPE witnesses a hit and run road accident in which a cyclist is killed . He memorises the number of the car , and makes a statement to the police in which he includes not merely the number , but the make and colour of the car and the fact that the driver was a man with a beard . He then returns to his own country , where he is himself killed in a road accident . The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard . The owner declines to answer questions as to his whereabouts at the time of the accident . It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness , yet that is the effect of the sole or decisive test . ”

Lord PERSON instead concluded that the DATE Act made such a rule unnecessary in LANGUAGE criminal procedure because , if the CARDINAL Act were observed , there would be no breach of LAW ( d ) even if a conviction were based solely or to a decisive extent on hearsay evidence . To demonstrate this point , LAW to the judgment analysed a series of cases against other ORG where this Court had found a violation of LAW when taken in conjunction with LAW ( d ) . In each case , had the trial taken place in GPE and GPE , the witness ’s testimony would not have been admissible under LAW either because the witness was anonymous and absent or because the trial court had not made sufficient enquiries to ensure there was good reason for the witness ’s absence . Alternatively , had the evidence been admitted , any conviction would have been quashed on appeal .

Lord PERSON delivered a concurring judgment in which he stated :

“ These appeals are of the utmost importance . If the GPE case - law does indeed establish an inflexible , unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to [ LAW ( d ) ] of the LAW , then the whole domestic scheme for ensuring fair trials – the scheme now enshrined ( as to hearsay evidence ) in LAW DATE and ( as to anonymous evidence ) in FAC ( Witness Anonymity ) Act DATE [ see paragraph CARDINAL above ] – can not stand and many guilty defendants will have to go free . It is difficult to suppose that ORG has in fact laid down so absolute a principle as this and , indeed , CARDINAL exception to it , at least , appears to be acknowledged : the fairness of admitting hearsay evidence from a witness absent as a result of the defendant ’s own intimidation .

Nor can GPE readily be supposed to have intended the sort of practical problems and anomalies identified by ORG ( paragraphs CARDINAL - CARDINAL and DATE [ of its judgment ] ) that must inevitably flow from any absolute principle of the kind here contended for . Obviously , the more crucial the evidence is to the proof of guilt , the more scrupulous must the court be to ensure that it can be fairly adduced and is likely to be reliable . In this connection there can be no harm in using the concept of ‘ sole or ORG so long as it is used broadly – as it is in the CARDINAL Act with regard to anonymous witnesses and , indeed , in the control order context where it relates rather to the allegations made against the suspect than the evidence adduced in support . Understood and applied inflexibly , however , the concept would involve insoluble problems of detailed interpretation and application .

The better view may therefore be that no such absolute principle emerges from ORG judgment in PERSON and PERSON v. the GPE ... ”

Subject to certain statutory exceptions , in NORP criminal law a person can not be convicted of a crime or statutory offence on the uncorroborated testimony of CARDINAL witness , however credible ( see PERSON v. HM Advocate DATE , quoted in ORG v. HM Advocate DATE ORG CARDINAL ) .

Hearsay is regulated by section CARDINAL of the Criminal Procedure ( GPE ) Act DATE , which allows for its admissibility under certain conditions , including when the person who made the statement is dead . Section CARDINAL ) permits evidence to be admitted which is relevant to the credibility of the person as a witness . In N v. ORG Advocate DATE ORG CARDINAL the High Court of Justiciary , sitting as an appeal court , reluctantly reached the conclusion that section CARDINAL deprived the court of the discretion it previously enjoyed at common law to exclude such evidence if it was unreliable . Lord ORG observed that , notwithstanding section CARDINAL , the long - recognised dangers in hearsay evidence remained . He added :

“ Where a general provision such as [ section ] CARDINAL applies , there are bound to be cases in the circumstances of which hearsay evidence would be so prejudicial to the fairness of the trial that the only just and proper course would be to exclude it . This , I think , is such a case .

I am not impressed by the CARDINAL safeguards to which the trial judge referred ( ORG Advocate v. N , at p. CARDINAL – E ) . The requirement of corroboration is a neutral consideration . It is a safeguard that applies to prosecution evidence in any form . I can not see what worthwhile safeguard the principle of corroboration provides if the primary evidence sought to be corroborated is per se unfair to the accused . Moreover , the leading of evidence bearing upon the credibility of the maker of the hearsay statement may be at most an exercise in damage limitation where clearly prejudicial evidence has already been led . As for the safeguard of the judge ’s directions , I think that there may be cases where the hearsay evidence is so prejudicial that no direction , however strong , could make adequate amends for the unfairness of its having been admitted . ...

In NORP provisions governing the admissibility of a statement made in a document , ORG has expressly conferred a discretion on the court to exclude such a statement if it is of the opinion that in the interests of justice it ought not to be admitted . CARDINAL specific consideration to which the court must have regard is the risk that the admission of the evidence will result in unfairness to the accused ( Criminal Justice Act DATE , [ sections ] GPE ) , CARDINAL ) and CARDINAL ) ; cf . PERSON ) . These , in my view , are prudent provisions . If provisions of this kind had been available to the trial judge in this case , they could have enabled him to exclude the hearsay at the outset . ”

The High Court of Justiciary also considered the compatibility of the introduction of the evidence of an absent witness with LAW ( d ) in ORG . In that case , a murder trial , the prosecution sought to introduce statements made to the police by a possible co - accused who had since died . In a previous ruling given before trial ( DATE ORG CARDINAL ) , ORG of Justiciary , sitting as an appeal court , had found that it was only in extreme circumstances that an accused could contend in advance of trial that the introduction of the hearsay evidence would be so prejudicial to the prospects of a fair trial that the court could determine the issue in advance . It therefore allowed the trial to proceed . When the statements were introduced at trial and the accused was convicted , he appealed against his conviction . In its judgment dismissing the appeal ( DATE ORG CARDINAL ) , ORG of Justiciary found that , while the statements were important evidence , having regard to the other evidence led at trial ( which included admissions by the accused and forensic evidence ) , it could not be said that the appellant ’s conviction was based to a decisive extent on them . The jury had also been adequately and satisfactorily directed as to how to approach the absent witness ’s statement . A similar conclusion was reached by the same court in ORG v. M DATE SLT CARDINAL .

The compatibility of the admission of hearsay evidence with LAW ) was further considered by ORG of Justiciary in ORG v. ORG ( cited above ) . The court observed that , in the relevant case - law of this Court , many of the violations of LAW ( d ) which had been found had arisen in jurisdictions which did not apply the NORP law rule of corroboration :

“ Most of the situations in which it has been held by the court that there had been a violation of [ LAW ( d ) ] could not arise in GPE . Against the requirement for corroboration of all crucial facts , a conviction could not be based solely on the evidence of a single witness , whether in primary or in secondary form . Violations of the Convention right have been established where the principal witness against the accused has not been made available for questioning or , in circumstances where there have been a number of principal witnesses , where none of them has been made so available . No case was cited to us in which a violation was held to have occurred in circumstances where the accused had had an opportunity to question or have questioned the complainer or other direct or central witness and other supporting evidence was in statement form . ‘ To a decisive ORG , as used in the NORP authorities , appears to be concerned with the significance of the evidence as a matter of weight . It is not concerned with any rule that a conviction can not be based on a single source of evidence . The fact that the hearsay is required to meet the rule about corroboration does not of itself render that hearsay ‘ ORG in the NORP sense .

In these circumstances we are not persuaded that in every case in which hearsay evidence is a necessary ingredient of the ORG ’s corroborated proof there will be a violation of [ LAW ( d ) ] . It will , however , be necessary for the trial judge to address , in the context of the whole evidence in the case , the significance of any hearsay evidence relied on by the ORG and to take appropriate action to ensure that the accused ’s entitlement to a fair trial is not violated thereby . ”

The court added that , in directing a jury , the guidance given by the Lord Justice Clerk in the case of N v. ORG ( cited above ) , should be borne in mind . ORG allowed the appeal of the first appellant in the case of ORG ( cited above ) because of the inadequacy of the trial judge ’s direction to the jury . It dismissed the second appellant ’s appeal in so far as it related to LAW , finding that the hearsay evidence was not decisive and that the principal evidence against him came from a witness who had testified in court .

Campbell was applied in ORG Advocate v. PERSON SLT CARDINAL where , in a ruling given during the trial , the Lord Ordinary allowed the admission of a witness statement made to the police by a witness who subsequently died before trial ; the statement was admissible , inter alia , because it could not be “ decisive ” . In PERSON v. HM Advocate [ CARDINAL ] HCJAC CARDINAL , ORG of Justiciary observed that it had “ great difficulty ” in understanding the meaning of the word “ decisive ” in the context of a case based on circumstantial evidence but , in that case , the evidence in the form of a police statement of a witness who had died was not “ remotely decisive ” and there was sufficient evidence to support the conviction without it . Similar results were reached in PERSON v. ORG [ CARDINAL ] HCJAC CARDINAL , and ORG v. ORG [ CARDINAL ] HCJAC CARDINAL .

In its DATE Consultation Paper on Hearsay in Civil and Criminal Cases , ORG of GPE provisionally recommended that , subject to existing common law and statutory inclusionary exceptions , hearsay should continue to be excluded in criminal proceedings . It also provisionally recommended that there should be no statutory introduction of a residual discretion to include hearsay evidence and that the concepts of reliability and necessity should not form the basis for reform of the hearsay rule because they lacked clarity .

The Commission also noted :

“ Article CARDINAL of the LAW of Ireland protects the right to cross - examination and that the free admissibility of hearsay evidence in criminal proceedings would infringe this constitutionally protected right . There are dangers associated with allowing evidence of unavailable witnesses : it undermines the defendant ’s right to a fair trial and creates the potential of miscarriages of justice arising if evidence adduced from the following categories of witnesses is admitted :

Where the witness is dead ( with the exception of dying declarations ) ;

Where a witness because of a bodily or mental infirmity can not give evidence ;

Where the witness is outside of the jurisdiction ;

Where the witness can not be found . ”

The Commission declined to recommend that the statutory scheme in GPE and GPE , and in particular section CARDINAL of the CARDINAL Act , be adopted in GPE . It observed :

“ This model of reform relaxes the rule in such a manner as to potentially render the rule against hearsay redundant . The categories of admissible hearsay under this model are extended significantly and , in light of the constitutional protection afforded to the right to cross - examination , the ORG is of the provisional opinion that to allow in untested evidence from frightened and unavailable witnesses would undermine this right . The ORG notes that it has provisionally recommended that the courts should retain a discretion to develop the hearsay rule if the necessity exists . ”

The ORG also found that ( subject to possible reservations concerning the ultimate outcome in the present cases ) , the case - law of this ORG appeared broadly in line with the approach taken in NORP law .

A strict approach to the exclusion of out - of - court statements has always been taken by the NORP courts ( see , for example , PERSON The Queen ( DATE ) CARDINAL CLR CARDINAL ) .

The admission of hearsay in federal criminal proceedings in GPE is now regulated by the Evidence Act DATE . LAW allows the admission of evidence as to previous representations ( for example statements ) when a witness is not available to give evidence about an “ asserted fact ” . Such evidence will be admissible , inter alia , when : ( i ) the representation was made when or shortly after the asserted fact occurred in circumstances that make it unlikely that the representation is a fabrication ( section CARDINAL(CARDINAL)(b ) ) ; or ( ii ) when the representation was made in circumstances that make it highly probable that the representation was reliable ( section CARDINAL(CARDINAL)(c ) ) .

The use of these provisions to admit the statement of a witness who died before trial was considered by ORG in PERSON v. The Queen ( DATE ) CARDINAL A Crim R CARDINAL . The court found that , , the statement made to the police was not sufficiently reliable , particularly when the witness had reasons to tell the police what they wanted to hear . Equivalent statutory provisions were considered by ORG in GPE v. The Queen ( CARDINAL ) CARDINAL A Crim R CARDINAL , where the deceased complainant ’s statement was found to be sufficiently reliable to be admitted , given that , inter alia , the complainant knew that the police would interview other witnesses in the case .

The law of hearsay in GPE has been reformed as a result of CARDINAL principal decisions of ORG , which created a “ principled approach ” to the admissibility of hearsay evidence .

DATE . Firstly , in NORP v. PERSON [ DATE ] CARDINAL SCR CARDINAL , ORG found that the trial judge had erred in refusing to allow the victim , a CARDINAL - and - a - half - year - old girl who alleged that she had been sexually assaulted , to give unsworn evidence and his refusal to allow the ORG to introduce statements the child had made to her mother TIME after the assault . If unsworn evidence could not be given there would be a danger that offences against very young children could never be prosecuted . In respect of the statements to the mother , ORG found that it was appropriate to take a more flexible but “ principled ” approach to hearsay . Despite the need for caution , hearsay could be admitted where the CARDINAL general requirements of necessity and reliability were met . In determining admissibility the trial judge was required to have regard to the need to safeguard the interests of the accused . Concerns as to the credibility of the evidence remained to be addressed by submissions as to the weight to be accorded to it and submissions as to the quality of any corroborating evidence .

Secondly , in NORP v. PERSON [ DATE ] CARDINAL SCR CARDINAL the ORG approved the “ principled approach ” taken in GPE and found that CARDINAL telephone calls made by the deceased to her mother shortly before her death were admissible . However , the mother ’s evidence as to the contents of a third telephone call should have not been admitted as the conditions under which that call was made did not provide the “ circumstantial guarantee of trustworthiness ” which would justify its admission without the possibility of cross - examination .

Khan and PERSON were followed in NORP v. PERSON [ DATE ] CARDINAL SCR CARDINAL . ORG was satisfied that any reasonable trial judge would have found it necessary to admit pre - trial statements made by a child , who was DATE at trial , in which he complained that he had been sexually assaulted . It was observed by PERSON ( concurring in judgment ) that the case against the appellant was strong : the child ’s statements were entirely consistent and supported , inter alia , by medical evidence and evidence of behavioural changes in him after the assault and the absence of any plausible explanation of someone other than the appellant perpetrating the assault .

The third and most significant development in ORG case - law was its judgment in NORP v. PERSON [ DATE ] CARDINAL SCR CARDINAL , which took a stricter approach to reliability . The case concerned a complaint of assault made by an elderly resident at a retirement home against CARDINAL of the home ’s employees . The patient , PERSON , gave the police a videotaped statement ; the statement was unsworn . After S. ’s statement other residents came forward to give statements that they too had been assaulted by the accused . By the time of trial , all those who had made statements , including S , had either died or were no longer competent to testify . Some of the statements were admitted by the trial judge because of the striking similarity between them . ORG for GPE excluded all the statements and acquitted the accused . ORG dismissed the ORG ’s appeal from that decision and affirmed the acquittal . ORG clarified its previous case - law on reliability and stated that the reliability requirement would generally be met by showing : ( i ) that there was no real concern about whether the statement was true or not because of the circumstances in which it came about ; or ( ii ) that no real concern arose because the truth and accuracy of the statement could nonetheless be sufficiently tested by means other than cross - examination . It was for the trial judge to make a preliminary assessment of the “ threshold ” reliability of the statement and to leave the ultimate determination of its worth to the fact - finder / jury . All relevant factors had to be considered by the trial judge including , in appropriate cases , the presence of supporting or contradictory evidence . PERSON , giving the unanimous judgment of the court , stated ( at paragraph CARDINAL of the judgment ) :

“ In some cases , because of the circumstances in which it came about , the contents of the hearsay statement may be so reliable that contemporaneous cross - examination of the declarant would add little if anything to the process . In other cases , the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross - examination . In these circumstances , the admission of the evidence will rarely undermine trial fairness . However , because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability , even if the CARDINAL criteria are met , the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect . ”

NORP The court concluded that PERSON ’s statements were not admissible . It observed that the charges against PERSON in respect of S. were “ entirely based ” on the truthfulness of the allegations contained in PERSON ’s statements ( paragraph CARDINAL of the judgment ) . The absence of any opportunity to cross - examine him had a bearing on the question of reliability and there were no adequate substitutes for testing the evidence . The principled exceptions to the hearsay rule did not provide a vehicle for founding a conviction on the basis of a police statement , videotaped or otherwise , without more ( paragraph CARDINAL of the judgment ) . Nor could the reliability requirement be met by relying on the inherent trustworthiness of the statement ; this was not a case such as FAC where the cogency of the evidence was such that it would be pedantic to insist upon testing by cross - examination . S. was elderly and frail ; his mental capacity was at issue and there was medical evidence that his injuries could have arisen from a fall . It was also not clear that he had understood the consequences of his statement for the accused . In the circumstances , PERSON ’s unavailability for cross - examination posed significant limitations on the accused ’s ability to test the evidence and , in turn , on the trier of fact ’s ability to properly assess its worth .

In its report of DATE , ORG of GPE proposed substantial reforms to the admission of hearsay evidence in criminal proceedings in that jurisdiction . It proposed that the present rule in GPE against the admission of hearsay evidence should be retained but there should be greater scope to admit hearsay evidence in specific circumstances . The ORG rejected the LANGUAGE statutory scheme contained in LAW , observing that GPE had none of the statutory mechanisms for excluding hearsay which applied in GPE and GPE , such as section CARDINAL(CARDINAL ) of the DATE Act and section CARDINAL of ORG see paragraphs DATE above ) . The Commission also observed that grounds for admitting hearsay under section QUANTITY of the CARDINAL Act , although offering a fair degree of certainty and consistency in decision - making , had “ an over - inclusive effect by allowing in all types of relevant evidence , including unreliable hearsay evidence ” ( paragraph CARDINAL of the report ) .

The Commission instead proposed a model of reform , which was based on the approach taken by ORG ( see paragraph CARDINAL below ) and the NORP courts since PERSON . It recommended that hearsay evidence should be admissible , inter alia , if the trial judge was satisfied that it was necessary to admit the hearsay evidence and that it was reliable . Assessment of reliability by a trial judge should include consideration of whether the hearsay evidence was supported by other admissible evidence . ORG also recommended that , at any stage of criminal proceedings after hearsay evidence had been admitted , the court should have the power to direct the acquittal of the accused if the trial judge considered that it would be unsafe to convict . In reaching that decision , the court should have regard , inter alia , to the importance of such evidence to the case against the accused . ORG also found that these recommendations meant that its model of reform would comply with the ORG judgment in the present cases .

ORG , in its DATE Report on Evidence , recommended that the admissibility of hearsay should be based on CARDINAL considerations : reliability and necessity . That recommendation was enacted in the Evidence Act CARDINAL , which came into force in DATE . Section CARDINAL ) of the LAW provides :

“ A hearsay statement is admissible in any proceeding if—

( a ) the circumstances relating to the statement provide reasonable assurance that the statement is reliable ; and

( b ) NORP either—

( i ) the maker of the statement is unavailable as a witness ; or

( ii ) NORP the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness . ”

“ Circumstances ” for these purposes are defined in section DATE ) as including : ( a ) the nature of the statement ; ( b ) the contents of the statement ; ( c ) the circumstances that relate to the making of the statement ; ( d ) any circumstances that relate to the veracity of the person ; and ( e ) any circumstances that relate to the accuracy of the observation of the person .

Section CARDINAL(CARDINAL ) of the LAW provides that evidence must be excluded if its probative value is outweighed by the risk that the evidence will ( a ) have an unfairly prejudicial effect on the proceeding ; or ( b ) needlessly prolong the proceeding . Section CARDINAL(CARDINAL ) provides that in determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding , the judge must take into account the right of the defendant to offer an effective defence .

Although jury trials are no longer used in GPE , it too has substantially reformed its law of hearsay . Section CARDINAL(CARDINAL ) of LAW DATE defines hearsay as evidence , whether oral or in writing , the probative value of which depends upon the credibility of any person other than the person giving evidence . By section CARDINAL(CARDINAL ) such hearsay evidence is not admissible unless ( i ) it is admitted by consent ; ( ii ) the person upon whose credibility the evidence depends testifies ; or ( iii ) the court is of the opinion that the evidence should be admitted in the interests of justice . Section CARDINAL(CARDINAL)(c ) provides that , in forming its opinion , the court must have regard to : ( i ) the nature of the proceedings ; ( ii ) the nature of the evidence ; ( iii ) the purpose for which the evidence is tendered ; ( iv ) the probative value of the evidence ; ( v ) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends ; ( vi ) any prejudice to a party which the admission of such evidence might entail ; and ( vii ) any factor which should in the opinion of the court be taken into account .

In ORG v. Ramavhale [ DATE ] ZASCA CARDINAL , ORG observed that , notwithstanding the wording of section CARDINAL(CARDINAL ) , there remained an “ intuitive reluctance to permit untested evidence to be used against an accused in a criminal case ” . It also endorsed previous authority that a court should “ hesitate long ” in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused , unless there are compelling reasons for doing so . Despite the reforms enacted by section CARDINAL(CARDINAL ) , ORG found that reliability was a factor that should continue to be considered in determining the admissibility of hearsay . Moreover , in that case , in assessing what prejudice would arise to the accused if the hearsay were admitted , the trial judge had erred in relying upon the fact that the accused had other avenues open to him to counter the evidence , one of which was to give evidence himself ; the logical conclusion of this approach was that the ORG , by introducing “ flimsy ” hearsay could force the accused to testify in a case where the absence of direct evidence was such that he would be entitled not to testify .

Compelling reasons for admitting hearsay evidence , even though it was decisive , were found to exist in ORG v. PERSON and others [ DATE ] ZASCA CARDINAL , not least because the guarantees as to the reliability of the evidence were high and the hearsay evidence interlinked powerfully with the other evidence in the case . The concerns expressed in Ramavhale as to admitting or relying on hearsay evidence which played a decisive or even significant part in convicting an accused were reiterated by ORG in ORG v. PERSON and others [ DATE ] ZASCA CARDINAL , ORG v. PERSON and another [ DATE ] ZASCA CARDINAL , and ORG v. PERSON [ DATE ] ZASCA CARDINAL . In the latter , ORG observed that it stood to reason that a hearsay statement which would only serve to complete a “ mosaic pattern ” would be more readily admitted than one which was destined to become a vital part of the ORG ’s case .

LAW guarantees the accused in all criminal prosecutions the right to be confronted with the witnesses against him ( “ the confrontation clause ” ) . In GPE v. PERSON CARDINAL GPE CARDINAL ( DATE ) ORG of GPE held that evidence with “ particularized guarantees of trustworthiness ” was admissible without confrontation . That was overruled in ORG v. GPE CARDINAL GPE DATE ) , where the court ruled that the confrontation clause applied to all evidence which was testimonial in nature and there was no basis in LAW for admitting evidence only on the basis of its reliability . Where testimonial statements were at issue , the only indicium of reliability which was sufficient was the CARDINAL prescribed by the LAW : confrontation . Consequently , testimonial evidence was thus inadmissible unless the witness appeared at trial or , if the witness was unavailable , the defendant had a prior opportunity for cross - examination ( see also PERSON v. GPE CARDINAL SCt CARDINAL ( DATE ) , and GPE v. GPE CARDINAL SCt ORG ( DATE ) ) .

The right to confront witnesses will be forfeited if it can be demonstrated that the defendant has frightened the witness into not testifying ( see PERSON v. GPE CARDINAL GPE CARDINAL ( DATE ) , and PERSON GPE CARDINAL GPE CARDINAL ( DATE ) .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

The facts of the case , as submitted by the applicant , may be summarised as follows .

On DATE the applicant married PERSON . ( a NORP national ) . On DATE their son PERSON was born . The family resided in GPE . According to the applicant , ORG is a NORP national . However , according to a letter dated CARDINAL DATE from ORG of GPE , he is also a NORP national .

In DATE the applicant and T. went on holiday to GPE with PERSON . ’s consent . They were supposed to return by DATE . However , on DATE the applicant informed PERSON . that they were not returning .

On DATE ORG of GPE lodged an application on behalf of LOC . with ORG in GPE , seeking the return of the child to GPE under LAW on the Civil Aspects of International Child Abduction of DATE ( “ the LAW ” ) .

On DATE the court rejected the ORG ’s claim . On DATE the ORG quashed this decision and remitted the case for fresh consideration .

On DATE the ORG refused to institute civil proceedings concerning a claim brought by the applicant for custody and maintenance of T. , referring to LAW which precludes the relevant authorities from consideration of such claims before deciding on a child ’s return . This decision was final and not subject to appeal .

On DATE the court ordered ORG ’s return to GPE .

The applicant contested the order , alleging that ORG . had not provided financially for basic family needs , including food and medical treatment . She asserted that in GPE she had created a proper environment for herself and her son , who had become well integrated into the NORP school system and who objected to his return to GPE . She referred to LAW .

The representative of the Solomyansky ORG ( ORG у справах дітей Солом’янської районної у м. Києві державної адміністрації ) agreed that the child had been unlawfully held on the territory of GPE , but that his mother had provided him with all which was necessary for the child ’s development . The child was very emotionally attached to his mother and did not want to change his place of residence .

The court found that the applicant had not provided convincing evidence that LAW was applicable to her situation . On the contrary , there was sufficient documentary proof that ORG . had taken care of his child ( including PERSON . ’s salary slips , a note from ORG in GPE that Sh . had taken an active part in his son ’s school life , and so forth ) . The materials submitted by the applicant about the child ’s living conditions in GPE had simply confirmed that the applicant had been properly performing her duties as a mother . T. ’s preference to stay in GPE could not by itself constitute a basis for legalising his abduction , particular regard being had to his young age . The court also noted that PERSON . had guaranteed financing the return of both PERSON and the applicant to GPE , where they had permanently resided before GPE abduction . Moreover , the child ’s return to GPE would be in his best interests , which included the need to ensure that he was developing in conditions allowing him free linguistic and ethnic self - identification in the future . The court finally noted that the applicant would be able to lodge a claim seeking to have the child ’s residence changed via court proceedings in GPE .

On DATE ORG upheld ORG judgment . The court found that the first - instance court had adopted a lawful decision . In particular , the applicant ’s statements that PERSON . had insufficient income had not been confirmed by the case - file materials .

On DATE ORG of GPE rejected the applicant ’s request for leave to appeal in cassation .

The applicant ’s further attempts to review the above decisions in the light of newly discovered circumstances were to no avail .

The relevant provisions of LAW can be found in the decision in the case of NORP v. GPE ( dec . ) ( no . CARDINAL , DATE ) .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE the applicant was charged with murder . He was assisted by legal counsel and pleaded guilty to a lesser charge of manslaughter . On DATE the NORP ORG of Krasnodar Region convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .

On DATE the applicant and his counsel submitted their statements of appeal in which they requested the appeal court to reclassify the offence as manslaughter and challenged the findings of fact made by the trial court .

On DATE the appeal hearing was adjourned as the applicant and his lawyer had not been notified of the appeal hearing DATE in advance .

The Government produced a typed summons issued by ORG on DATE , by which the applicant and his counsel were to be informed of the appeal hearing scheduled for DATE . According to the ORG , a copy of this summons was sent to the lawyer ’s address .

On DATE ORG upheld the judgment of CARDINAL DATE . A representative of the prosecution and the applicant , but not his counsel , attended the appeal hearing .

The Code of Criminal Procedure of GPE , in force from DATE , provides as follows :

“ CARDINAL . participation of a defence counsel in criminal proceedings shall be mandatory , if :

CARDINAL ) a suspect or accused has not waived defence counsel as per LAW ...

NORP If , in the instances specified in paragraph CARDINAL of this Article , no defence counsel has been retained by the suspect or defendant , his representative , or by other persons acting on instructions from or subject to the consent of the suspect or accused , the inquiry officer , investigator , prosecutor , or court shall ensure participation of defence counsel in the criminal proceedings . ”

“ CARDINAL . A suspect or defendant shall have the right to waive a defence counsel at any moment of the proceedings in the criminal case . Such waiver shall be permitted only upon the initiative of the suspect or defendant . A waiver of defence counsel shall be filed in writing and be entered into the record of the relevant procedural action ... ”

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements shall not be applicable in appeal proceedings or that the convict ’s right to legal assistance in such proceedings may be restricted . ”

NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in LAW . It further underlined the obligation of the courts to secure the participation of defence counsel in appeal proceedings .