Neutral Citation Number: [2010] EWCA Crim 450

Case No: 200805089 C4
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Morris QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/03/2010
Before :

LORD JUSTICE STANLEY BURNTON 
MR JUSTICE COLLINS
and
MR JUSTICE DAVIS
- - - - - - - - - - - - - - - - - - - - -
Between :

	John Edward Seton	Appellant	
	- and -		
	R	Respondent	
- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Sasha Wass QC and Siobhan Grey (instructed by Andrew Keenan & Co) for the Appellant
Victor Temple QC (instructed by the CPS) for the Respondent

Hearing date : 4 March 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Stanley Burnton: 
Introduction
1.	On 26 August 2008 at the Central Criminal Court before His Honour Judge Morris QC and a jury the Appellant, John Edward Seton, a man aged 26, was convicted of the murder of Jon Bartlett. He appealed against his conviction with leave of the Full Court.
2.	The sole ground of appeal is that the judge erred in allowing the prosecution to adduce certain hearsay evidence of Christopher Pearman, who the Appellant alleges committed the murder. That evidence consisted of statements made by Pearman in prison on the telephone to members of his family expressing outrage at the suggestion that he had committed the murder, and implicitly and expressly denying that he had committed it. It was submitted that as a result of the erroneous admission of that evidence the conviction is unsafe.
3.	After hearing submissions in this appeal we announced our decision to dismiss the appeal. We said we should give our reasons subsequently. These are our reasons for dismissing the appeal.
The facts
4.	At about 1940 on 31 March 2006 the victim, Jon Bartlett, was shot dead on a piece of common land in Chislehurst.  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 silver Vauxhall Vectra motor 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.
5.	The Appellant 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 the victim’s home, one of which was a list of debts. The Appellant’s name appeared on this list and he was shown as owing the victim £24,000.
6.	Analysis of the victim’s mobile telephone demonstrated that he had been in contact with the Appellant on the day of the murder. The last telephone call between them was recorded at 19.22 on 31 March, shortly before the murder. There had been significant telephone contact between the Appellant and victim in the 10 days prior to the murder.
7.	The Appellant had purchased a silver Vectra motorcar on the day of the murder, some 2 hours before the murder. He had asked Dax Lingham, the seller, whether he had any cheap cars. Lingham’s mother said one of the two men who collected the car was named John and was wearing a baseball cap. They came for the car in a white AVA van that had been hired by the father of the Appellant’s co-accused, Lee Osborne (who was acquitted of assisting an offender) that day from AVA, a hire company. It had distinctive orange writing on the side. The Appellant’s evidence was that he bought the car for Bartlett.
8.	Witnesses also saw a white van in the vicinity 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. Osborne had taken the van from his father at about 6 pm. The Appellant was seen on CCTV in a garage in the early morning of the murder: he arrived in the white AVA van and purchased a top-up to Osborne’s mobile telephone. The Appellant was wearing a baseball cap.
9.	Telephone evidence as to calls and text messages passing between the victim and Appellant were contended by the Prosecution to show that Bartlett had been repeatedly trying to contact the Appellant to no avail. For example, on 28 March the victim rang the Appellant 34 times, leaving messages on a number of occasions. The Appellant did not respond. 
10.	Mobile telephone cell site evidence showed that the Appellant’s mobile telephone was in the vicinity of the murder at the relevant time. However, it was switched off between 19.28 to 19.50. Cell site evidence also demonstrated that the Appellant and his co-accused were in the vicinity of Bercta Road between 2001 and 2017. As mentioned above, CCTV footage from a petrol station showed the Appellant wearing a baseball cap and making telephone calls to an associate at 0147. The number dialled by the Appellant was in the vicinity of the cell site covering Bercta Road and the inference sought by the prosecution was that the Appellant 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 0253.
11.	On 3 April the Appellant 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 Christopher Pearman, to whom we refer below. Fearing he would be suspected, the Appellant fled to France, where he lived under a false name. He was later prosecuted by the Dutch authorities for drug offences. He told police that his name was John Kaley but the Dutch authorities would not release him at the conclusion of his sentence until he could satisfy them as to his identity. He eventually gave them his true identity and said that he was wanted by police in the UK. He was extradited back to this country.
12.	Having been returned to this country to stand trial for the murder, the Appellant declined to be interviewed. No defence statement was served prior to the date fixed for the trial, 1 April 2008. On that date, a defence statement was formally served. It alleged that the murder had been committed by Christopher Pearman. The trial date was vacated to enable the Crown to investigate the allegation. 
13.	Pearman was a serious criminal who was by then serving a prison sentence for murder. He had been previously been convicted of serious drug and firearms offences. The Appellant’s case was that he, Bartlett and Pearman had been involved in a drugs deal. The Appellant did not want any involvement with Pearman, who he had heard was a dangerous man. This was the reason he had not answered the victim’s telephone calls. However, by 30 March the Appellant relented and had agreed to take part in a forthcoming drug deal in which Pearman was to be involved. At about 07.00-07.30 on 31 March the victim and Pearman visited him and told him that drugs would be arriving that weekend. The Appellant told them that he could not collect them. He was asked to provide a car and purchased the Vectra. He arranged to meet Pearman and gave him the car. He was to meet up with Pearman again at 1930. When he met Pearman as arranged at 19.30, Pearman was driving the Vectra. The Appellant gave money to Pearman and left with Osborne who had followed them in a white van. Nothing untoward had happened as far as the appellant was aware. The Appellant had lost his mobile telephone; he could not recall when.
14.	After this meeting the Appellant went to see his parents to collect washing.  He went to the petrol station during the night to top up Osborne’s mobile telephone. The number he called at this time was for a friend whose mother lived near Bercta Road. The Appellant had not telephoned 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. 
15.	It is accepted by the Appellant that in the second trial, which took place in August 2008, the real issue for the jury was whether the murderer was Seton or Pearman.
The admission of the recordings of the telephone calls
16.	On 4 July 2008, the police went to Whitemoor Prison to interview Pearman about the Appellant’s allegation. He made no comment answers to the questions asked. That evening he telephoned his son. In “rather colourful language” he said that he had never heard of the Appellant and knew nothing of the murder. On 17 July 2008 Pearman telephoned his wife. He again denied involvement in the murder. Both of these conversations were recorded, as Pearman, as a category A prisoner, would have known.
17.	The Crown sought to adduce the recordings of the telephone calls made by Pearman under section 114(1)(d) of the Criminal Justice Act 2003. The Defence objected to their admission in evidence. The judge ruled that they should be admitted. 
18.	Section 114, so far as is material, is 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. 
19.	In his ruling, the judge said that Pearman had indicated, in the clearest terms, to the prison authorities that he was not prepared to make a statement to the police or give evidence in the trial. In Z [2009] EWCA Crim 20, this Court, differently constituted, said:
21. Section 114(2) contains a list of matters which it is mandatory for the court to take into account when deciding whether to admit hearsay evidence under subsection (1). Since these considerations are mandatory, the judge should, when giving his ruling on an application under subsection (1)(d), make it clear that he has taken them into account.
20.	The judge did consider each of these matters listed in section 114(2). In respect of the matter referred to in paragraph (a), he said:
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 to confirm his lack of involvement in the killing.
In respect of paragraph (c), he said:
I am satisfied this is extremely important.
In respect of paragraphs (d) and (e), he referred to the submissions of counsel for the Appellant and for his co-defendant, who submitted that 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 Pearman's denials, but were not 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) he said that the defence had already cross examined the officer in the case as to 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 there was any real prejudice to the Appellant from the tapes being played.
21.	It is contended on behalf of the Appellant 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 and other cases as to the caution to be exercised when considering whether to permit evidence to be adduced under section 114(1)(d). 
22.	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. 
23.	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 responsible 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.  
24.	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.
25.	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.
26.	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.
27.	For these reasons, we reject this ground of appeal. 
The safety of the conviction
28.	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.
29.	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.