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 conclusion was there was absolutely no evidence that Mr Pearman had been involved in Mr Bartlett’s murder. It was the applicant’s case that the police were not able to identify Mr Pearman’s whereabouts on the night of the shooting and, accordingly, although the police enquiries did not support the applicant’s case, neither did the enquiries refute the defence suggestion that Mr Pearman was at the scene of the shooting.
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.
(c) 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.
3. 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 observed that it was 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 Pearrman 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 Mss 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. As it was, the admission of the tapes in evidence gave the prosecution the unfair advantage of their admission without the Defence being able to cross-examine Pearman. In this connection, the Appellant relies on what was said by this Court in Z [R v. Z [2009] EWCA Crim 20: see relevant domestic law and practice below] and other cases as to the caution to be exercised when considering whether to permit evidence to be adduced under section 114(1)(d).
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). 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). 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 sensible have made.
No complaint is made as to the judge’s summing-up or the direction he gave in relation to the evidence of Pearman’s telephone calls.
The Appellant also relies on the fact that the jury asked for the tapes of the telephone conversations to be played again after they had retired to consider their verdict. It is submitted that this shows the importance of the evidence at the trial leading to the Appellant’s conviction. But this does not necessarily follow. By the time they retired, about a week had elapsed since they had heard them. They may simply have wished to be reminded what was said and in what tone. We do not think the judge can be faulted in allowing the jury to hear the tapes again. If his original decision to allow the tapes to be adduced in evidence was wrong, their replaying compounded the error; conversely, if he was entitled to allow the evidence in, the replay to the jury cannot give rise to any ground of appeal.
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.
B. Relevant domestic law
Section 114 of the Criminal Justice Act 2003, where relevant, provides as follows:
“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if–
...
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), 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) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(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 applicant has also provided the following summary of the guidance issued by the Court of Appeal on the proper application of section 114(d).
It cannot and should not be applied so as to render section 116 of the same Act nugatory: R v. O’Hare [2006] EWCA Crim 2512; see also R v. ED [2010] EWCA Crim 1213. (Section 116 is the provision of the Act which allows for the admission of hearsay statements when the maker is dead, unfit, outside the United Kingdom, cannot be found, or is in fear: see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 44, ECHR 2011.)
Section 114(d) does not render hearsay automatically admissible. Hearsay evidence is necessarily second best evidence and it is, for that reason, much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory question or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission. The interests of justice test will require attention to be given to the difference between an admission against interest and an accusation against someone else (R v. Y [2008] 1 Cr. App. R. 34). Before reaching the conclusion that it is in the interests of justice to admit hearsay, the trial judge must carefully consider the alternatives, which may very well include the bringing of an available but reluctant witness to court. It by no means follows in practice that a witness who has declined to make a statement will in fact refuse to give evidence if brought to court. If he may do so, then consideration will also need to be given to whether justice would be better served by putting him before the jury so that they can see him (ibid.).
Caution must be exercised before admitting hearsay when the result would be to place the defendant at a serious disadvantage upon an issue of importance and the interests of justice test must be full, realistically and not nominally met (R v. Ibrahim [2010] EWCA Crim 1176).
Where hearsay evidence was of very considerable importance, the factors in section 114(2) assumed greater significance and, in particular, section 114(2)(g). The reference in section 114(2)(g) (to whether oral evidence of the matter stated could be given and, if not, why it could not) should be taken to refer to the inability of a witness to give evidence, not his or her reluctance or unwillingness, understandable though such an attitude may be. Cases will be rare indeed in which such significant potentially prejudicial evidence should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant to testify, and the reluctance is not due to fear (R v. Z [2009] EWCA Crim 20; applied in R v. CW and T [2010] EWCA Crim 72).
The Court of Appeal has also stated that it cannot be seen as regarding it as normally in the interests of justice that an important witness’ evidence should be given under the Act when he simply refuses to testify and will not provide a good reason for his refusal when he is available and capable of giving evidence (R v. Sadiq and another [2009] EWCA Crim 712).
A prisoner who had refused to testify was brought to court, if only for the purpose of confirming his refusal to testify, in R v. Musone [2007] EWCA Crim 1237. Once the prisoner refused to answer questions, his previous hearsay statement was read as evidence under section 114.
COMPLAINT
The applicant complains that the admission of the recordings of Mr Pearman’s telephone calls and the refusal of the trial judge to order that Mr Pearman be produced as a witness amounted to a violation of his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention. He also complains that he had no effective remedy, in violation of Article 13 of the Convention.
Under Article 6 §§ 1 and 3 (d), he submits that it was of paramount importance that, if the prosecution sought to rely on Mr Pearman’s denials, he should have been brought to court and made available for cross-examination by the applicant. Doing so would have allowed the applicant to cross-examine Mr Pearman as to his credibility and put his, the applicant’s, case that Mr Pearman had shot Mr Bartlett.
There was no rigorous examination by the court regarding Mr Pearman’s refusal to testify and, once he had refused to come to court, no further attempts were made to compel his attendance, even though it would have been open to the trial judge or prosecution to have issued a production order to that effect to the governor of the prison where Mr Pearman was being detained. Alternatively a live video link to the prison could have been established. Either way, the trial judge would have discovered whether Mr Pearman wished to maintain his refusal to give evidence. Instead, the trial judge had moved straightaway to consider the prosecution’s application to adduce the telephone calls under section 114. This was contrary to the Court of Appeal’s own guidance in the0 cases summarised above, in particular Ibrahim and Z.
Finally, he recalled that Mr Pearman’s evidence had been characterised as “extremely important” by the trial judge. It was clear that, first, by asking for the tapes to be played to them again, Mr Pearman’s denials went to the heart of the issue the jury had to decide; and, second, the jury were trying to determine whether or not they found these denials convincing.
QUESTIONS TO THE PARTIES
1. Was there a good reason for Mr Pearman’s non-attendance as a witness? If not, was there, by that fact, a violation of Article 6 §§ 1 and 3(d) (Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 120, ECHR 2011 and references therein)?
2. If there was a good reason for Mr Pearman’s non-attendance, was his evidence sole or decisive, and were there sufficient counterbalancing factors including strong procedural safeguards to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3(d) (Al-Khawaja and Tahery, cited above, §§, 147 and 152)?
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