Play it again

The appellant in Regina v Seton [2010] EWCA Crim 450 was convicted of murder at the Central Criminal Court on 26 August 2008; the victim had been shot in the head on a piece of common land in Chislehurst on 31 March 2006 and died instantly.

The gunman had been seen to leave the scene wearing a baseball cap and driving a silver Vauxhall Vectra. CCTV showed the appellant wearing a baseball cap at a petrol station later that night, and furthermore he was shown to have purchased a silver Vauxhall Vectra two hours before the shooting (a silver Vectra having been burnt out nearby in the early hours of the following morning).

Telephone evidence also established a strong (drug-related) connection between him and the victim in the days leading up to the shooting, and cell-site analysis placed him in the vicinity at the relevant time. Less than three days after the shooting the appellant left the country and was later extradited from Holland.

Having made no comment in interview, the defendant served a defence statement on the morning of trial alleging that the murder had in fact been committed by a Christopher Pearman. Pearman was at that time serving a prison sentence for murder and had previous convictions for serious drugs and firearms offences. The appellant claimed that he, the victim, and Pearman, had been involved in a drug deal and that it had been Pearman driving the silver Vectra on the evening of the shooting.

The trial was adjourned for the police to investigate, and on 4 July 2008 they interviewed Pearman at Whitemoor Prison where he declined to answer any questions. That night, however, he telephoned his son and told him that he knew nothing about either the appellant or the murder.

A similar call was made to Pearman's wife two weeks later. It was accepted at trial that Pearman would have been well aware that as a category A prisoner his calls would be recorded.

Probative value

At trial the prosecution did not attempt to compel Pearman to give evidence, instead applying under section 114(1)(d) Criminal Justice Act 2003 to adduce the recordings as hearsay evidence. The trial judge considered each of the matters listed in section 114(2) in deciding the application. His finding was that (in relation to 114(2)(a)) the evidence had extremely strong probative value because Pearman appeared to be expressing genuine outrage at being implicated, (in relation to (b)) that Pearman refused to give evidence but all enquiries confirmed his lack of involvement in the killing, (c) that the evidence was extremely important, (d and e) that Pearman's knowledge of the calls being recorded went to weight rather than admissibility, (f) the fact that these were recordings rendered them reliable, (h) the defence could utilise Pearman's criminal history, and (i) that there was not any real prejudice to the appellant from the tapes being played.

The tapes were therefore played to the jury, and furthermore played again during their deliberations at their specific request. This represented the sole ground of appeal against conviction, and was duly rejected by the Court of Appeal (Stanley Burnton LJ, Collins and Davis JJ) on 4 March 2010. The appeal judges held that the trial judge had considered each of the factors in section 114(2) and that his decision was neither marred by legal error nor one that no judge could sensibly have made.

The judges went on to observe that they would, in any event, have upheld the conviction on the basis that the evidence against the appellant was overwhelming. They detailed a number of factors, perhaps the most compelling of which was that Pearman was 54 at the time of the shooting and the evidence of witnesses pointed to the gunman being aged in his twenties or thereabouts.

There are two very disquieting aspects to the Court of Appeal's judgment. Most obvious is the fact that the admission of the tapes was not criticised. It is notable that the judgment does not specifically endorse this decision as having been the right decision in the circumstances, instead relying on the previous authority of R v Z [2009] EWCA Crim 20 to the effect that the judge had considered all the relevant factors and his decision should not therefore be interfered with. It is plain that the jury were influenced to a greater or lesser degree by evidence that was highly prejudicial and clearly self-serving, and the Court of Appeal was simply wrong to find that this was a sensibly made decision.

The second point of concern is that the Court of Appeal felt the need to bolster its decision with observations about the strength of the case against the appellant. This authority will allow similar situations to arise where the evidence may be less strong and so it is of no comfort that justice may have been done in this case.

This case quite simply reflects the constant erosion of a defendant's right to a fair trial that has followed the coming into force of the hearsay provisions of the Criminal Justice Act 2003 in April 2005. The case should be seen against the backdrop of the United Kingdom's appeal to the Grand Chamber of the European Court of Human Rights in the cases of Al-Khawaja and Tahery [2009] 49 EHRR 1, which is currently being heard, and the Supreme Court's rejection of the European court's initial decision in those cases when hearing the subsequent appeal of Horncastle [2009] UKSC 14.