On Thursday last week the European Court of Human Rights passed judgment on an appeal by the UK Government to a ruling on hearsay evidence.
It has decided to amend a previous decision barring hearsay evidence on the grounds that it denied a defendant access to a fair trial. Instead, the European Court agreed with UK judges that in some cases such evidence should be permitted.
Hearsay evidence is that given by one person describing words or events told to them by another. It is not usually allowed in court because it is one person’s recollection of another person’s testimony.
Use of hearsay evidence in court is said to prejudice the defendant because their lawyers cannot cross-examine the witness to see if they were telling the truth. The UK courts felt, however, that there are some circumstances in which such evidence should be allowed.
The original case was that of Imad Al-Khawaja, a consultant physician working in Brighton who was accused of indecently assaulting a patient with multiple sclerosis whilst she was under hypnotherapy.
The patient subsequently ended her own life, so that she could not give evidence in court, nor be cross-examined by the defence. She had given a written statement prior to her death, which was permitted to be used in court, even though she could not be cross-examined. The European Court of Human Rights ruled that allowing this evidence prejudiced the trial.
In a later case, the UK courts were dealing with another situation in which they believed that hearsay evidence should be permitted. They decided to challenge the European Court to change its decision.
On Thursday the European Court concluded 18 months of deliberation on the matter by agreeing that in some circumstances such evidence should be permitted, providing that there are counterbalancing factors in the defendant’s favour and strong procedural safeguards to protect the defence.
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