PROCEDURE

The case originated in an application (no. 55287/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr John Edward Seton (“the applicant”), on 13 September 2010.

The applicant was born in 1983 and is currently detained at HMP Whitemoor. He is represented before the Court by Mr G. Bloxsome, a lawyer practising in Croydon with Blackfords LLP. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The present case concerns the applicant’s trial and conviction before a judge and jury at the Central Criminal Court for the murder of a Mr Jon Bartlett. A co-defendant, Mr Lee Osborne, was tried and acquitted of assisting an offender.

The facts of the case may be summarised as follows.

A. The murder

Mr Bartlett was shot dead at about 7.40 pm on 31 March 2006. According to witnesses the gunman was wearing a baseball cap and drove off in a silver Vauxhall Vectra. In the early hours of 1 April 2006 a silver Vauxhall Vectra was set alight a short distance from the scene of the shooting.

Shortly after the murder the applicant fled to the Netherlands. He was subsequently extradited from the Netherlands to the United Kingdom to stand trial for Mr Bartlett’s murder.

B. The applicant’s defence

On 1 April 2008 the applicant formally served a Defence Statement in which he alleged that Mr Bartlett had been murdered by Mr Pearman, a man who had previously been convicted of serious drug and firearms offences and who was at that time serving a prison sentence for murder.

The applicant’s case was that he had been involved in a drug deal with Mr Pearman and Mr Bartlett. On the morning of 31 March 2006 Mr Pearman and Mr Bartlett had asked him to provide a car so they could collect a shipment of drugs. Later that day he purchased the Vectra in the presence of Mr Osborne and Mr Pearman, but Mr Pearman had driven off in it.

The applicant met Mr Pearman again at 7.30 p.m. to give him his share of money for the drugs. Mr Pearman was driving the Vectra. The applicant left the meeting with Mr Osborne, who was driving a white van.

After this meeting the applicant went to his parents’ home. During the night he went to a petrol station and while he was there he called a friend whose mother lived near the road where the burning Vectra was discovered.

C. Mr Pearman’s evidence

On 4 July 2008 the police interviewed Mr Pearman about the applicant’s allegations. He answered “no comment” to the questions asked. That evening he telephoned his son and told him he had never heard of the applicant and knew nothing of the murder. On 17 July 2008 he telephoned his wife and again denied any involvement in the murder. Both of these conversations were recorded as Mr Pearman, a category A prisoner, would have known.

D. The trial

The applicant’s trial for the murder of Mr Bartlett started on 11 August 2008. At the trial it was accepted by the applicant that the real issue for the jury was whether he or Mr Pearman was the murderer. Mr Pearman was asked to make a statement or give evidence at the trial but refused to do so. This was made known to the court through a statement from an officer at the prison where he was being detained.

1. The admission of Mr Pearman’s telephone calls

To disprove the applicant’s defence the prosecution sought to adduce the recordings of Mr Pearman’s telephone calls pursuant to section 114(1)(d) of the Criminal Justice Act 2003 (see paragraph 40 below). The defence objected to their admission in evidence but the judge ruled that they should be admitted. In his ruling, the judge stated that Mr Pearman had indicated, in the clearest terms, that he was not prepared to make a statement to the police or give evidence at the trial.

In determining whether the recordings should be admitted, the judge considered the matters listed in section 114(2) of the Criminal Justice Act 2003 (see paragraph 40 below).

First, he stated that he was satisfied the evidence had extremely strong probative value as Mr Pearman “appeared to be expressing genuine outrage at being implicated in a murder in which he was in no way involved”.

Secondly, he indicated that Mr Pearman could not be called because he refused to give evidence, but noted that all the enquiries carried out by the police to date had confirmed his lack of involvement in the killing.

Thirdly, he said that he was satisfied the evidence in question was “extremely important”.

Fourthly, the judge referred to the submissions of counsel for the applicant and for his co-defendant, who submitted that Mr Pearman would have known that his calls were being recorded by the prison authorities, and argued that his statements were self-serving. The judge said that these were all valid comments which the jury should consider in assessing the weight to be attached to Mr Pearman’s denials, but were not, in his view, grounds for excluding evidence.

Fifthly, he pointed out that as the conversations were taped the evidence was clearly reliable.

Sixthly, the trial judge said that the defence had already cross‑examined the officer in the case as to Mr Pearman’s previous convictions and the details of the murder for which he was serving his sentence of life imprisonment. Moreover, he had already noted that the jury should consider the fact that Mr Pearman’s comments were self-serving and that he would have known that his telephone conversations were being recorded.

Finally, he said that he did not consider that there would be any real prejudice to the applicant from the tapes being played.

2. The rest of the evidence

At trial, in addition to playing the tapes, the prosecution led evidence that the applicant and victim were known to each other and were both involved in drug dealing on a substantial scale. Items connected to drug dealing were recovered from Mr Bartlett’s home, one of which was a list of debts. The applicant’s name appeared on this list and he was shown as owing the victim GBP 24,000.

The prosecution also relied on the applicant’s previous arrest when he was found to be in possession of a firearm. In his evidence the applicant admitted that when arrested on that occasion he had been dealing in drugs, but denied possession of the firearm.

Mr Bartlett’s mobile telephone records were also introduced to show that he had been in contact with the applicant on the day of the murder. The last telephone call between them was recorded at 7.22 p.m., shortly before the murder. There had also been significant telephone contact between the applicant and Mr Bartlett in the ten days prior to the murder.

The seller of the silver Vectra gave evidence that on the afternoon of the murder he had been contacted by the applicant, who had arranged to meet at his house at 6 p.m. The seller’s mother testified that one of the two men who collected the car was named John and was wearing a baseball cap. The men came for the car in a white van that had been hired by the father of Mr Osborne that day from AVA, a hire company, and passed to Mr Osborne at 6 p.m. that evening. The van had distinctive orange writing on the side.

Witnesses also saw a white van in the vicinity of the shooting at the relevant time. The van had orange writing on the side, and was similar, if not identical, to the van that had been hired from AVA on the same date.

Mobile telephone cell site evidence was led by the prosecution with the intention of showing that the applicant’s mobile telephone was in the vicinity of the murder at the relevant time, although it was switched off between 7.28 p.m. and 7.50 p.m. Cell site evidence also demonstrated that the applicant and his co-accused were in the vicinity of the road where the Vectra was found between 8.01 p.m. and 8.17 p.m.

Residents of the streets near the shooting gave evidence. One stated that she had heard two bangs and a man running to a car and driving off very quickly. Another, Ms Rita Willott, gave a description of the gunman as being between twenty and thirty years’ old, of average build and height and wearing a baseball cap. She saw a car matching the Vectra’s description leaving the scene. Ms Willott’s evidence was not challenged and was read to the jury. A third eye-witness, a ten-year old boy, also gave evidence that the gunman had been in his mid-thirties and had been wearing a baseball cap. A fourth eye-witness, Mr Gordon Raggett, also gave a description matching the applicant. A fifth witness, Ms Kate Botwright, gave evidence that she had seen both the car and the van near the shooting. The driver of the car was in his late teens or early twenties, had short brown hair and wore a baseball cap. Several other witnesses gave descriptions to the effect that the man driving the Vectra was white and was wearing a baseball cap.

CCTV footage from a petrol station showed the applicant arriving in the white AVA van, wearing a baseball cap and making telephone calls to an associate at 1.47 a.m. The number dialled by the applicant was in the vicinity of the cell site covering the road where the Vectra was found and the inference sought by the prosecution was that the applicant was in discussions about the destruction of the car.

A police superintendent also gave evidence of the enquiries into Mr Pearman. The police had found no connection between Mr Pearman and either Mr Bartlett or the applicant (there was, for instance, no reference to Mr Pearman in Mr Bartlett’s telephones) and it was the superintendent’s conclusion that there was absolutely no evidence that he had been involved in Mr Bartlett’s murder.

A photograph of Mr Pearman was also adduced in evidence. The prosecution’s case was that Mr Pearman, a man in his fifties, did not match the description of the gunman given by the eye-witnesses.

Mr Pearman’s previous convictions for drug offences, firearm offences, and murder committed on 2 May 2006 were also adduced.

3. The summing up and verdict

On Mr Pearman’s telephone calls, the trial judge directed the jury as follows: “It is for you to decide what weight, if any, you attach to this evidence; but it does have certain limitations which I must draw to your attention: (a) you had not had the opportunity of seeing and hearing the witnesses in the witness box and sometimes when you do see and hear a witness you get a much clearer idea of whether his evidence is honest and accurate; (b) their evidence has not been tested under cross‑examination and you have not had the opportunity of seeing how their evidence survived this form of challenge; (c) in the case of Pearman these were self-serving statements, that is he was saying he was not involved in the murder of Jon Bartlett. In addition calls made by high risk category A prisoners, such as Pearman, from prison would be known by him to be recorded and he was speaking in those calls to members of his own family.”

On Mr Pearman’s previous convictions, the trial judge directed the jury: “You have heard this evidence because it may help you to resolve two issues in the case, namely: (a) whether the convictions show that on 31st May 2006 he had a tendency to be a drug dealer, carry a firearm and commit murder, and whether this makes it more likely that he was the gunman in this case; and (b) whether he was being truthful and reliable in denying his involvement in the present case in his telephone calls to his son and wife. A person of bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You may use the evidence of his bad character for the particular purposes I have just indicated, if you find it helpful to do so. It is for you to decide the extent to which the evidence of bad character helps you, if at all. The prosecution submit that the only reason Seton chose to name Pearman as the murderer in his defence statement on 1st April 2008 was because he knew he had an extremely bad character for drugs offences, firearm offences and murder, and therefore was an ideal person for him to blame for the murder in this case. The defendant Seton says he named him because he believed Pearman killed Jon Bartlett.”

In the course of their deliberations, the jury asked and were allowed to hear the tapes of Mr Pearman’s telephone calls again. On 26 August 2008, by a majority, the jury convicted the applicant of murder. He was sentenced to life imprisonment with a minimum term of thirty years. He appealed against conviction to the Court of Appeal.

4. The appeal

The application for leave to appeal was initially considered and rejected by a single judge in February 2009. The application was renewed before the full court on 14 November 2009 and leave to appeal was granted. In doing so, the court found it to be arguable that the trial judge did not make sufficient investigations with regard to the production of Mr Pearman. The court also observed: “It seems to us that it is a long standing principle that unless there are compelling reasons to the contrary, the best available evidence should be put before the jury. In this instance, rather than the jury hearing from Mr Pearman himself, they heard the recording of his two conversations. It is also of note that shortly after the jury had retired they asked if they might hear the recordings again and, after some discussion, the recordings were played to them. It is perhaps pertinent to observe that had Pearman himself given evidence, what would have happened if there had been a request by the jury to be reminded of his evidence is that the judge would have summarised it to them from his notebook. Playing the recordings a second time to the jury, that, submits Miss Wass [counsel for the applicant], is something that elevates the importance of the hearsay evidence there contained. There is no doubt that the recordings were important evidence in the context of the case as a whole (at least so far as we are thus persuaded) and we have come to the conclusion that permission to appeal should be granted on all grounds advanced and the hearing will proceed in due course accordingly.”

On 4 March 2010 the full court heard the case and dismissed the appeal, reserving its judgment. The judgment was delivered on 12 March 2010. In relation to the tapes of Mr Pearman’s telephone calls, the court observed: “It is contended on behalf of the Appellant [the present applicant] that the tapes of the calls should not have been admitted without calling, or trying to call, Pearman to give evidence. ... The difficulty with this submission is the judge’s finding of fact that Pearman would not give evidence. It is true that he could have been compelled to come to Court. However, on the basis of the judge’s finding, the grounds for which have not been impugned, that would have been a fruitless exercise. Moreover, he would have had to be warned of the right to exercise the privilege against self-incrimination. The prospect of any sensible evidence being given by him was, on any realistic view, nil. All that the defence could have obtained was the advantage of having him brought up before the jury, who would presumably have seen his obduracy. The judge considered this evidence to be important and to have strong probative value. We do not know whether the jury shared this view. The defence were able to say, as they did, that the statements were self-serving, made by a serious criminal who knew that they were being recorded. What is central to this appeal is that the judge addressed the matters required to be addressed by section 114(2) [of the Criminal Justice Act 2003]. The allegation against Pearman had been made late, and given that on the Appellant’s case he had known of Pearman’s responsibility for the murder within days of its being committed, it is to be inferred that it was deliberately made late so as to make it more difficult for the Crown to investigate it. As it was, because of the lateness of the allegation, the telephone records for telephones used in the murder for which Pearman had been convicted only went back to 23 April 2006. In Z this Court said: ‘25. The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d) [of the Criminal Justice Act 2003]. It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made.’ The judge’s decision was not marred by legal error; he took all relevant matters into account; and the decision to admit the recordings in evidence was not one that no judge could sensibly have made. ... For these reasons, we reject this ground of appeal.”

The Court of Appeal then added: “The safety of the conviction However, we would in any event have upheld the safety of the conviction. The evidence against the Appellant may have been circumstantial, but it was overwhelming. In summary: (i) The only evidence of Pearman’s involvement was that of the Appellant. (ii) Seton and Bartlett were involved in drugs together; there was evidence that Seton was in debt to Bartlett and that Bartlett was pressing for payment. Seton had a motive to kill Bartlett. (iii) There was no good reason for the allegation of Pearman’s involvement to have been made so late. (iv) It is difficult to see why the Appellant fled the country if he was innocent. (v) The police uncovered no evidence of any link between Pearman and either the Appellant or Bartlett, despite exhaustive enquiries. Miss Wass contends that those enquiries were imperfect. The fact remains that there was no such evidence. (vi) The Appellant himself accepted that he made no direct calls to Pearman; contact was, he said, made via Bartlett. If all three were involved in a drugs deal, it is curious indeed that the Appellant did not have Pearman’s telephone number and could not and did not telephone him direct. (vii) There was no evidence of Bartlett’s telephones having been used to telephone any telephone number associated with Pearman. (viii) Pearman was born in 1952. He was 54 at the date of Bartlett’s murder. The evidence of Rita Willott (described by the judge as an extremely important witness) was not challenged and was read at the trial. She said that the man who fired the gun was aged between 20 and 30, of average build and height, and he was wearing a baseball cap. Jack Doyle, a boy aged 10, said that the gunman was wearing a baseball cap and was in his mid-30s. Gordon Raggett described the gunman as white, in his 20s, athletic and about 5 feet 10 inches, of slim build. All these descriptions fitted the Appellant and not Pearman. Against these, one witness described the gunman as not appearing to be young. Miss Wass suggested that the evidence of the age of the gunman should be discounted because of the uncertainties of ascribing an age to a man wearing a baseball cap. However, the weight of the evidence points clearly to a young man such as the Appellant rather than Pearman. If the Appellant seriously wished to challenge Miss Willott’s evidence, she should have been required to give evidence orally and should have been cross examined. (ix) Similarly, Kate Botwright described the driver of the Vectra car, seen by her together with the AVA van, as in his late teens or early 20s, with short brown hair and wearing a baseball cap. Her account of what she saw was inconsistent with the Appellant’s. (x) The evidence relating to the purchase of the Vectra and the hire of the AVA van on the day of the murder supports the prosecution case. (xi) The cell phone evidence showed Seton to be in the vicinity of the murder when it was committed; the timing of his last telephone connection with Bartlett, just before the murder, and the switching off of his telephone at the time of the murder, and his call to a telephone in the vicinity of the location where the Vectra was set on fire, all powerfully supported his guilt. (xii) Lastly, evidence was given that on a previous occasion Seton had had a connection with a firearm. Thus, quite apart from the evidence of Pearman’s telephone calls, we had no doubt as to the safety of the conviction of the Appellant.”

On 6 March 2010 the applicant was informed that the Court of Appeal had refused to certify questions of general public importance for the consideration of the Supreme Court.