FOURTH SECTION

Application no. 55287/10
John Edward SETON
against the United Kingdom
lodged on 13 September 2010

STATEMENT OF FACTS

The applicant, Mr John Edward Seton, is a British national, who 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.

A. 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 Mr Jon Bartlett. He was tried with a co-defendant, Mr Lee Osborne, who was tried and acquitted of assisting an offender.

The facts of the case, as submitted by the applicant and as stated in the Court of Appeal judgment in his case, may be summarised as follows.

1. The murder

At about 7.40 p.m. on 31 March 2006 Mr Bartlett was shot dead on a piece of common land in Chislehurst, Kent. He was shot in the head and died instantly. The gunman was described as wearing a baseball cap and was seen to make off in a silver Vauxhall Vectra car parked nearby. In the early hours of 1 April a silver Vectra was set on fire in Bercta Road, Mottingham, a short distance from the shooting.

On 3 April 2006 the applicant left the country. His case was that he had gone to a magistrates’ court in the morning for a court appearance, but had been told that the Vectra had been involved in the murder. He realised that the murder had been committed by a Mr Christopher Pearman. Fearing that he would be suspected, the applicant fled the country, initially to France and thereafter the Netherlands. He was later extradited from the Netherlands to the United Kingdom to stand trial for the murder of Mr Bartlett.

Upon his return to the United Kingdom, the applicant declined to be interviewed by the police. On 1 April 2008 a defence statement was formally served by the applicant, alleging that the murder had been committed by Mr Pearman.

Mr Pearman was a serious criminal who was by then serving a prison sentence for murder. He had previously been convicted of serious drug and firearms offences. The applicant’s case (and his evidence at trial) was that he, Mr Bartlett and Mr Pearman had been involved in a drug deal. The applicant did not want any involvement with Mr Pearman, who he had heard was a dangerous man. This was the reason why, although Mr Bartlett had telephoned him several times in the day before the shooting, he had not answered the telephone calls. However, by 30 March the applicant had relented and had agreed to take part in a forthcoming drug deal with Mr Bartlett and Mr Pearman. At about 7–7.30 a.m. on 31 March the victim and Mr Pearman visited the applicant and told him that drugs would be arriving in Dover that weekend. The applicant told them that he could not collect them. He was asked to provide a car for the drive to Dover and purchased the Vectra, in the presence of Mr Osborne and Mr Pearman. The latter drove off in it.

He was to meet up with Mr Pearman again at 7.30 p.m. in order to give Mr Pearman his share of the money for the drugs. When he met Mr Pearman as arranged at 7.30 p.m., Mr Pearman was driving the Vectra. The applicant gave the money to Mr Pearman and left with Mr Osborne who had followed them in a white van. Nothing untoward had happened as far as the applicant was aware. The applicant had lost his mobile telephone; he could not recall when.

After this meeting, the applicant went to see his parents to collect washing. He went to the petrol station during the night to “top up” Mr Osborne’s mobile telephone. The number he called at this time was of a friend whose mother lived near Bercta Road. The applicant had not telephoned Mr Bartlett again because, on 3 April, he had been told of his death. He left the country because he believed that he would be the next to be killed.

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

2. 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 Mr Pearman was being detained.

(a) The admission of Mr Pearman’s telephone calls

To disprove the applicant’s defence that Mr Pearman was responsible for the murder the prosecution sought to adduce the recordings of the telephone calls made by Mr Pearman under section 114(1)(d) of the Criminal Justice Act 2003 (see relevant domestic law and practice below). The defence objected to their admission in evidence. 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, section 114 required the judge to consider the following matters, listed in section 114(2):

(a) how much probative value the statement had (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it was for the understanding of other evidence in the case;

(b) what other evidence had been, or could be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) was 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 appeared to be;

(f) how reliable the evidence of the making of the statement appeared to be;

(g) whether oral evidence of the matter stated could be given and, if not, why it could 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.

In respect of paragraph (a), the trial judge stated:

“In respect of this sub-section I am satisfied the evidence has extremely strong probative value, because Pearman appears to be expressing genuine outrage at being implicated in a murder in which he was in no way involved.”

In respect of paragraph (b), he said:

“Pearman cannot be called because he refuses to give evidence, but all the enquiries carried out by the police to date confirm his lack of involvement in the killing.”

In respect of paragraph (c), he said that he was satisfied this was “extremely important”.

In respect of paragraphs (d) and (e), the trial 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 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.

In relation to paragraph (f), he pointed out that the conversations were taped, so that the evidence of them was clearly reliable.

In relation to (h) 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, and would also be able to make the points to which he had referred under paragraphs (d) and (e).

Finally, in relation to paragraph (i), he said that he did not consider that there would be any real prejudice to the applicant from the tapes being played.

(b) 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 applicant accepted that he had been involved in drug dealing and that he and Mr Bartlett had sold drugs to each other and often owed each other money. By March 2006, the sum owed was in fact GBP 10,000.)

The prosecution also relied on a previous occasion when the applicant had been arrested and found to be in possession of a firearm but not charged. The applicant, in his evidence, 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 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 also had been significant telephone contact between the applicant and Mr Bartlett in the 10 days prior to the murder. (The prosecution invited the jury to infer that Mr Bartlett had been desperately trying to contact the applicant regarding the debt owed; the applicant maintained it was to organise the next drug deal involving Mr Pearman.)

The prosecution also sought to prove that the applicant had purchased the silver Vectra motorcar some 2 hours before the murder. The seller of the car gave evidence that he had been contacted by the applicant on the afternoon of the murder and, when offered the Vectra, the applicant arranged to meet at the seller’s 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 AVA van that had been hired by the father of Mr Osborne (the applicant’s co-defendant) 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. The applicant’s evidence was that he had bought the car for Mr Bartlett, that Mr Osborne and Mr Pearman had both been present when he bought the car, and that Mr Pearman had driven off in it.

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. However, 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 Bercta Road (where the Vectra had been found) between 8.01 p.m. and 8.17 p.m.

Residents of the streets near the shooting also 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 20 and 30, of average build and height and wearing a baseball cap. She too 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. The applicant’s case was that there were discrepancies between the witnesses’ accounts, for instance as to the age of the gunman and whether he had any facial hair.

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 Bercta Road and the inference sought by the prosecution was that the applicant was in discussions about the destruction of the Vectra. A witness said that she noticed a silver Vectra had been parked in Bercta Road and subsequently noticed that it had been set alight and called the fire brigade at 2.53 a.m. The applicant’s case (which was accepted by the prosecution) was that, given the distance between the petrol station and Bercta Road, he could not have been responsible for the burning of the car and had the van because he was helping Mr Osborne move house.

A police superintendent also gave evidence as to the police’s enquiries into Mr Pearman. The police had found no connection between Mr Pearman and Mr Bartlett or the applicant (there was, for instance, no reference to Mr Pearman in Mr Bartlett’s telephones) and the superintendent gave evidence that her conclusi