Preliminary Comments:  Throughout the appeal and as part of the Defence team, I was able to bring forth my legal opinions collectively and thus anonymously, as court filings in writing to the judges of the SCSL Appeals Chamber. With the official end of the appeal and the issuance of the final Appeal judgement on 26 September 2013, this is no longer possible. Of course, I do not and cannot speak in the name of the Defence. The views of the Defence were presented publicly by Lead Counsel, Mr. Morris Anyah at the press conference  that immediately followed the public reading of the appeal judgement. I wish to dedicate the present blog post to Mr. Taylor’s defence team, although any responsibility to what I write below is mine alone. The blog post is written as an intellectual exercise, I find necessary in accomplishing the work that we do, when defending, prosecuting or judging individuals for the most heinous crimes. As Judge Shireen Fisher states (joined by Judge Winter) in her Concurring Opinion on Aiding and Abetting Liability: ‘Reasonable minds may differ on the law’. I would like to comment on what in my mind is unreasonable on a specific point of law, namely, assessing evidence and uncorroborated hearsay.

Other commentators will write valuable words on aiding and abetting, the ICTY Perisic Appeal decision, or on fact-finding in the ‘planning’ conviction. I wish to focus on the issue of the assessment of evidence. Despite the fact that this posting may no longer help Mr. Taylor, I hope it helps prevent the creation of and reliance on an erroneous precedent in international criminal law, by international criminal courts and tribunals and by domestic courts.

I find the issue of the assessment of evidence of extreme importance for two main reasons. Firstly, the Appeal Chamber itself states in paragraph 52 of the Appeal Judgement that ‘the Defence raises two issues of law which the Special Court has not had occasion to discuss to any extent in any of its previous judgements’. The first issue relates to determining the what could be ‘corroboration of evidence’ and the second issue relates to the use of uncorroborated hearsay as sole or decisive basis for conviction. Secondly, I argue, the Appeal Chamber misrepresents and misapplies the European Court of Human Rights (ECtHR) case law. Indeed, it bases its decision to reject Defence arguments on the ECtHR, the Al Khawaja and Tahery v. UK case. I argue that the Appeal Chamber erroneously bases its decision on Al Khawaja and Tahery, and fails to read this case in its entirety, as well as, to set it in the context of other ECtHR case law on the issue of corroboration and hearsay evidence.

Before entering the crux of the debate on whether incriminating findings of fact can be based solely and decisively on uncorroborated hearsay and the (mis)application of ECtHR case law, allow me to briefly come back to the first point mentioned as a novelty by the Appeals Chamber in paragraph 52 of the Judgement, i.e. the nature of evidence that can be considered as corroboration.

I. What does ‘corroborated’ evidence mean? Is it a question of common sense?

Paragraphs 71 to 73 of the Appeal Judgement discuss the arguments of both the Defence and the Prosecution on what ‘corroborated’ hearsay evidence is. Should the Trial Chamber have defined it and is it a legal notion (the Defence’s position) or a matter of common sense (the Prosecution’s position)?

Even taking the apparently lower standard of ‘a matter of common sense’, I think common sense cannot support the view that hearsay evidence can in any way corroborate other hearsay evidence. If hearsay evidence is a rumour that cannot be adequately challenged by the Defence at trial, then one rumour cannot reasonably be considered to corroborate another rumour. In other words, one rumour does not make another rumour any less unfounded in law. Stating the contrary would be contrary to common sense.

II. Is Corroboration an outdated notion in domestic or international criminal proceedings and is this of relevance to hearsay evidence or any other evidence of lower probative value?

While it is true that corroboration of direct evidence is not a requirement for conviction. This is true because one reliable, direct testimony, or piece of evidence can legitimately found a conviction. However, is this even relevant when looking at the question of hearsay evidence?

Hearsay evidence inherently defies Defence rights, as it is almost impossible to challenge such evidence in court. This is why most common law systems usually strike out hearsay evidence at the admissibility stage, while continental legal systems give it lower probative value.

Furthermore, to state that ‘corroboration’ is outdated would mean to ignore recent international case law, including the two very recent ICC judgements (i.e. in the Lubanga and Ngudjolo cases), where the trial chamber looked extensively into the question of corroboration. I hope it is not unfair to point out that the ICC is the international criminal court of the future, par excellence while the SCSL will soon be part of the past.

III. The Crux: Misapplication of ECtHR Case Law on the Issue of Hearsay

In paragraphs 85-87, the Appeals Chamber sets out its reasons for rejecting the Defence arguments relating to the assessment of evidence by the Trial Chamber. It bases its decision on the Al Khawaja and Tahery ECtHR decision issued on 15 December 2011, namely on paragraph 147 (quoted in part). It then states that seeing the guarantees of a fair trial offered by the SCSL Statute and Regulations, it was all fine, there was nothing to worry about, as Mr. Taylor was offered a fair trial and a fair chance to challenge the evidence on case, including uncorroborated hearsay.

Perhaps it is best to quote the Appeal Judgement here [emphasis added]:

“85. The Appeals Chamber considers that the issue in this case in regard to hearsay evidence turns on whether the Defence was right in its contention that reliance on uncorroborated hearsay evidence as the sole or decisive basis for incriminating findings of fact leading to a conviction amounted to an error in law. It is, therefore, in this context relevant and instructive to note that the ECtHR in the case of Al Khawaja and Tahery, decided on 15 December 2011, considered and expressly rejected a similar view as that put forward by the Defence in this case. In Al Khawaja and Tahery, the Grand Chamber of the ECtHR held that reliance on an uncorroborated hearsay statement as the sole or decisive basis for a conviction is not precluded as a matter of law and does not per se violate the accused‘s right to a fair trial.189”

The Appeals Chamber examines whether basing a conviction on uncorroborated hearsay is an error of law or not. It concludes that according to the Al Khawaja and Tahery case, basing a conviction on hearsay evidence is permissible in view of the safeguards offered by the SCSL Statute and Rules. The Appeals Chamber only partially quotes paragraph 147 and continues by explaining:

“86. The opinion of the ECtHR in Al Khawaja and Tahery applying Article 6 of the European Convention was that there is no technical rule of law requiring ―corroboration‖ or any other specific type of verification for hearsay evidence, but that the trier of fact must undertake a ―fair and proper assessment of the reliability of [hearsay] evidence,‖ and only where ―such evidence is sufficiently reliable given its importance in the case‖ may that evidence be the basis for a conviction.190 This is in consonance with the intent of Rule 89(B) and (C) of the Rules of the Special Court which the Appeals Chamber is bound to follow. In accordance with the Statute and Rules, the Trial Chamber admitted the evidence proffered before it, notwithstanding that it may have been hearsay or uncorroborated hearsay, as long as such evidence was relevant. Evidence does not become irrelevant because it is hearsay. It is instructive that only Rule 95 of the Rules expressly excludes the admission of evidence when it provides that: ―No evidence shall be admitted if its admission would bring the administration of justice into disrepute.”

87. The Appeals Chamber recognises, however, that admission of evidence is not conclusive of its reliability, and emphasises that because hearsay evidence is admissible as substantive evidence in order to prove the truth of its contents, establishing the reliability of hearsay evidence is of paramount importance.191 There exist in the laws applied by the Special Court safeguards designed to ensure the accused‘s rights of fair hearing and to ensure that evidence can be fairly challenged at trial.192”

The Appeals Chamber then concludes in paragraph 91 of the Judgement:

“91. Given the safeguards provided by the Statute and the Rules of the Special Court, as interpreted in the jurisprudence of the Court, there is no prohibition against the use of uncorroborated hearsay evidence, even if such hearsay is the basis of the conviction, provided that the Trial Chamber has subjected the hearsay evidence to a fair and proper assessment of its reliability.198”

Correctly analyzing the case law of the European Court of Human Rights: reliance on uncorroborated hearsay evidence counterbalanced by systemic safeguards

Have you read the Al Khawaja and Tahery v. UK decision of the ECtHR Grand Chamber?

I have.

It is an eloquent and intelligently nuanced and even cautious decision that is issued by the ECtHR. Nothing like the dialogue de sourds that the Appeals Chamber procedure and judgement turned out to be.

Paragraph 147 and ‘Safeguards provided by the Statute and the Rules of the Special Court’
Paragraph 147 of the Al Khawaja and Tahery v. UK decision actually states in full [emphasis added]:

“1. The Court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R. v. Davis (see paragraph above), and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”

Therefore, the ECtHR admits, and by this is broadens its previous case law, which it nevertheless continues to confirm as valid in the Al Khawaja and Tahery case (see below), that under certain limited circumstances, namely when in the presence of ‘sufficient counterbalancing factors, including the existence of strong procedural safeguards’, basing a conviction solely and decisively on hearsay evidence would not automatically be in violation of Article 6(3) of the Convention (Article 6 generally guaranteeing the right to a fair trial).

In this way, a correct reading of paragraph 147 would be that in principle such a conviction stands in violation of the convention, except when ‘strong procedural safeguards’ exist. The SCSL Appeals Chamber considered that the SCSL Statute and Rules offer precisely these safeguards of a fair trial. It thus completely disregards the elaborate legal analysis made by the ECtHR when it makes the distinction between the common law and the continental legal systems. Indeed, the ECtHR analyses the UK legal system (common law) in length and finds that it offers particularly strong safeguards against most convictions that would be based solely and decisively on uncorroborated hearsay- while it provides very limited exceptions for cases where the hearsay evidence was solid (see Lord Philips below). Contrary to this, a review of the ECtHR jurisprudence makes it obvious that continental or civil legal systems do NOT normally present the same safeguards and therefore, in these cases the prohibition of reliance on hearsay evidence as sole and decisive evidence for conviction (Lucà v. Italy), should apply.

Notably, and similarly to the SCSL, all continental law systems have safeguards to ensure the fair trial of defendants, including his right to challenge evidence. Therefore, it seems quite obvious that finding, as the Appeals Chamber has in its Judgement, that regular safeguards that exist in most legal systems, are also present at the SCSL cannot be sufficient in itself, to satisfy the strong safeguards rule set by the ECtHR and to justify the sole and decisive reliance on uncorroborated hearsay.

The Difference between the Common Law and the Continental Legal Systems: the Relevant Comparison when dealing with Safeguards

The ECtHR maintains that the issue of admitting hearsay or evidence of lower probative value is a question for national courts. It adds however, that what the ECtHR is competent to do is check whether there has been a violation of Article 6(3) of the Convention. In other words, it examines whether the application of the rules of evidence by national courts violates the defendant’s right to a fair trial.

In Alkhawaja and Tahery, after stating the principle, the ECtHR analyses the safeguards offered by the laws of the UK and how they are applied by the Courts on the question of hearsay evidence. Beforehand, the ECtHR goes to the trouble of analysing relevant domestic law and practice (paragaphs 40-62 of the ECtHR decision). This includes safeguards offered by The Criminal Justice Act 2003, The Coroners and Justice Act 2009 and the Human Rights Act 1998. When examining  case law of England and Wales, the ECtHR focuses on how UK Courts apply ECtHR case law.

The first case, R v. Sellick and Sellick, marked the need for UK courts to distance themselves from a strict application of ECtHR case law (Lucà v. Italy, no. 33354/96, § 40, ECHR 2001). According to the UK Court, this distance is necessary considering that the UK system is jury based, and hearsay evidence is swiped out by the judge at the admissibility stage, so that the jury cannot even take hearsay evidence into consideration as the sole and decisive element basing a conviction. This is not the case of civil legal systems where most evidence is admissible and their probative value is weighed by professional judges at the verdict stage- much like international criminal procedure. The UK Court states the existing ECtHR case law pertaining to the ‘sole or decisive standard’ is inadequate seeing that at the admissibility stage, it is impossible to presume whether one piece of evidence would be decisive or not at the judgement stage.

Lord Philips is quoted by the ECtHR decision (paragraph 58) when he states [emphasis added]:
“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.”

The second UK case examined by the ECtHR (paragraph 49 of the ECtHR judgement) is R. v. Davis, where the ECtHR refers to Lord Bingham at paragraph 5 of the UK decision and states [emphasis added]:

“[The UK Court] found that the witnesses’ testimony was inconsistent with the long-established principle of the English 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 Rome (Lord Bingham at paragraph 5).
Moreover, this Court 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 Davis’s case, this Court would have found a violation of Article 6: not only was the anonymous witnesses evidence the sole or decisive basis on which Davis had been convicted, but effective cross-examination had been hampered.

Finally, the ECtHR goes to length when it examines R. v. Horncastle and others. In paragraph 61 of the ECtHR judgement, it reports the conclusions of Lord Philips, as follows [emphasis added]:

“61. Lord Phillips instead concluded that the 2003 Act made such a rule unnecessary in English criminal procedure because, if the 2003 Act were observed, there would be no breach of Article 6 § 3(d) even if a conviction were based solely or to a decisive extent on hearsay evidence. To demonstrate this point, Annex 4 to the judgment analysed a series of cases against other Contracting States where this Court had found a violation of Article 6 § 1 when taken with Article 6 § 3(d). In each case, had the trial taken place in England and Wales, the witness’s testimony would not have been admissible under the 2003 Act 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.”

The above review of UK case law by the ECtHR teaches a few central points:
(1) ECtHR case law established the ‘sole and decisive rule’ by which uncorroborated hearsay as the sole and decisive basis for conviction, stands in violation of article 6(3) and the right to a fair trial. This prohibition usually related to continental or civil law systems.
(2) The issues that arose in the previous ECtHR cases would have been resolved differently in the UK. This is because hearsay evidence presented in similar circumstances would have been inadmissible. Any other situation would have led to a quashing of a decision at appeal.
(3) UK Courts stress that ECtHR prohibition of use of uncorroborated hearsay evidence, solely and decisively, could not have intended the impractability resulting from the case law for UK courts (re discussion on inadmissibility and foreseeing how decisive any piece of evidence may turn out to be). This is why nuance in the ECtHR case law was needed, resulting in the Al Khawaja and Tahery decision.

The question is: does the Al Khawaja and Tahery decision mark a turning point with previous ECtHR case law?

I argue that it does not, as I develop further below. It simply acknowledges that UK law offers sufficient safeguards so as to allow a departure from a strict application of the ‘sole and decisive rule’, safeguards that the SCSL system does not offer, contrary to what is stated in the Appeals Chamber Judgement.

The ECtHR also examines the case law of other States that it finds to represent ‘relevant comparative law’, notably, other common law systems. This only reaffirms that the ECtHR distinctly positions itself in relation with the type of safeguards each system offers the defendant. Thus, the ECtHR examines the laws of Scotland, Ireland, Australia, Canada, Hong Kong, New Zealand, South Africa and the United States.

ECtHR Grand Chamber’s Assessment and whether or not the Al Khawaja and Tahery marks a Cut from Previous Case Law

In paragraphs 118 and 119 of the decision, the Grand Chamber recalls the general principles of ECtHR case law on the question of hearsay evidence and the right of the accused to confront evidence presented against him at trial. This case law establishes the rule that the use of hearsay evidence solely and decisively for a conviction is in violation of Article 6(3) of the Convention. In the Al Khawaja and Tahery case the ECtHR interprets this rule to see whether it is an absolute rule or not.

The ECtHR concludes as stated in paragraph 147 that basing a conviction solely and decisively on hearsay evidence does not automatically stand in violation of article 6(3) of the Convention. However, this is only true when faced with a case from a legal system that provides strong safeguards. These safeguards at the admissibility stage are generally present in common law systems and are absent in civil or continental law systems, the main point being such evidence would be inadmissible in common law systems and admissible in civil law systems (and before the SCSL). However, nowhere is it claimed that continental law systems do not provide fair trial safeguards. Simply, what is said is that when it comes to hearsay evidence at the admissibility stage, continental law systems do not offer the necessary safeguards. Therefore the SCSL Appeal Chamber obviously confused the safeguards offered by the SCSL Statute and Rules to a fair trial with the UK and other common law system safeguards in relation to hearsay evidence. Further explanation is needed to fully understand the ECtHR finding, and this is provided in the ECtHR decision.

The ‘sole and decisive’ rule in ECtHR case law
I would urge the conscientious reader to go back to the Al Khawaja and Tahery case and read paragraphs 126 to146. I will simply quote the first sentence of paragraph 142 where the ECtHR states:
“142. With respect to the Government’s final argument, the Court is of the view that the two reasons underpinning the sole or decisive rule that were set out in the Doorson judgment remain valid.”

The Doorson judgment sets out the rule by which hearsay evidence cannot solely and decisively be relied upon for a conviction. Nevertheless, in view of the UK case law, the safeguards offered by the UK legal system in terms of a fair trial, specifically addressing the issue of hearsay evidence, and the difficulty for the UK courts to apply ECtHR restrictions on reliance on hearsay evidence, the ECtHR concludes:

“146. The Court is of the view that the sole or decisive rule should also be applied in a similar manner [in a manner in which the limitations on defence are sufficiently counterbalanced by sufficient safeguards]. It would not be correct, when reviewing questions of fairness, to apply this rule in an inflexible manner. Nor would it be correct for the Court to ignore entirely the specificities of the particular legal system concerned and, in particular its rules of evidence, notwithstanding judicial dicta that may have suggested otherwise (see, for instance, Lucà, cited above, at § 40). To do so would transform the rule into a blunt and indiscriminate instrument that runs counter to the traditional way in which the Court approaches the issue of the overall fairness of the proceedings, namely to weigh in the balance the competing interests of the defence, the victim, and witnesses, and the public interest in the effective administration of justice.”

The ECtHR further examines specific safeguards in the UK law at the time relevant to the facts of the case before it (Acts of 1998 and 2003). It states as follows:
“148. The Court will therefore examine the counterbalancing measures in place in English law at the relevant time. … Whatever the reasons for the absence of a witness, the admission of statements of a witness who is not only absent but anonymous is not admissible…

149. … Of particular significance is the requirement under the 2003 Act that the trial judge should stop the proceedings if satisfied at the close of the case for the prosecution that the case against the accused is based “wholly or partly” on a hearsay statement admitted under the 2003 Act, provided he or she is also satisfied that the statement in question is so unconvincing that, considering its importance to the case against the accused, a conviction would be unsafe.

150. The Court also notes that, in addition to the safeguards contained in each Act, section 78 of the Police and Criminal Evidence Act 1984 provides a general 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. Finally, the common law requires a trial judge to give the jury the traditional direction on the burden of proof, and direct them as to the dangers of relying on a hearsay statement.

151. The Court considers that the safeguards contained in the 1988 and 2003 Acts, supported by those contained in section 78 of the Police and Criminal Evidence Act and the common law, are, in principle, strong safeguards designed to ensure fairness. It remains to be examined how these safeguards were applied in the present cases.”

Unlike the SCSL, Appeals Chamber, the ECtHR examines the specific safeguards in-depth, as well as their application. Also, there are no safeguards of in the SCSL Statute and Rules similar to those offered in the UK system. Quite on the contrary, the SCSL Appeals Chamber decision proves the exact opposite! If the SCSL had had the same safeguards as the UK legal system, in relation to hearsay evidence, then hearsay evidence could not have been the sole and decisive evidence on which Mr. Taylor was convicted. As stated above, arguably if the case was presented in the UK, the evidence would not have even been admissible.

In the UK, the sole and decisive rule is applicable and hearsay evidence is generally seen as unreliable. Only a few situations justify a departure from this rule. One example is provided by Lord Philips in R. v. Horncastle and others when he argues against a strict application of the ECtHR sole and decisive rule ( see ECtHR decision at paragraph 60), as follows:
“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 cannot 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. The Court of Appeal has given a number of examples. I will just give one, which is a variant of one of theirs. A visitor to London 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.”

The example provided, illustrates the limited extent to which hearsay evidence could be reliable, namely because it was provided by the (deceased) victim who is a direct witness, and that the information he provided was accurate and testable. This can hardly be said about any of the hearsay evidence on which the Trial Chamber based its decision in Mr. Taylor’s case. Although some of the hearsay evidence in the Taylor case came from deceased persons, none of it was of the level of accuracy as Lord Philip’s example, to the point that it would be nearly impossible to question or to raise a doubt about. i.e. how else could one evaluate the evidence in Lord Philips’s example, other than as reliable evidence (question of common sense), coherent and convincing, that underlined irrefutable facts- the existence of a certain individual with a very specific licence plate number?

‘Strong safegaurds’ call for only the very rare occasion of permitting a conviction based solely and decisively on uncorroborated hearsay. It is clear that uncorroborated hearsay that would justify a conviction, in this manner, and according to the ECtHR case law, could only be very strong evidence, for instance evidence revealing a factor related to the crime scene that is inrefutable (car plate number, very precise description of a room to proof the presence inside that room, and so forth).

Post-Al Khawaja and Tahery case- solely and decisively relying on uncorroborated hearsay evidence is a violation of Article 6(3)
More recent ECtHR cases confirm that the ECtHR still finds the sole and decisive rule to be valid and confirm the analysis of the Al Khawaja and Tahery case as presented above. Thus, the ECtHR declared a violation of Article 6(3) was committed when hearsay evidence was relied upon without offering the sufficient safeguards

For two examples see final decisions delivered in September 2012 in Sigbatullin v. Russia, paragraphs 50-59 and Karpenko v. Russia, paragraphs 70 to 77