FIRST SECTION

CASE OF SETON v. THE UNITED KINGDOM

(Application no. 55287/10)

JUDGMENT

STRASBOURG

31 March 2016

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Seton v. the United Kingdom,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mirjana Lazarova Trajkovska, President,
	Ledi Bianku,
	Linos-Alexandre Sicilianos,
	Paul Mahoney,
	Aleš Pejchal,
	Robert Spano,
	Armen Harutyunyan, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 8 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  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.
2.  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
3.  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.
4.  The facts of the case may be summarised as follows.
A.  The murder
5.  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.
6.  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
7.  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.
8.  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.
9.  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.
10.  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
11.  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
12.  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
13.  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.
14.  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).
15.  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”.
16.  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.
17.  Thirdly, he said that he was satisfied the evidence in question was “extremely important”.
18.  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.
19.  Fifthly, he pointed out that as the conversations were taped the evidence was clearly reliable.
20.  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.
21.  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
22.  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.
23.  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.
24.  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.
25.  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.
26.  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.
27.  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.
28.  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.
29.  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.
30.  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.
31.  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.
32.  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
33.  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.”
34.  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.”
35.  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
36.  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.”
37.  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.”
38.  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.”
39.  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.
II.  RELEVANT DOMESTIC LAW
A.  The admission of hearsay evidence
40.  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.”
41.  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):

(a)  It cannot and should not be applied so as to render nugatory section 116 of the same 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: R v. O’Hare [2006] EWCA Crim 2512; see also R v. ED [2010] EWCA Crim 1213.
(b)  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.).
(c)  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).
(d)  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).
(e)  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).
(f)  In R v. Musone [2007] EWCA Crim 1237 a prisoner who had refused to testify was brought to court, if only for the purpose of confirming his refusal to testify. Once the prisoner refused to answer questions, his previous hearsay statement was read as evidence under section 114.
B.  Safeguards
42.  Sections 124 – 126 of the 2003 Act provide as follows:
“124. Credibility
(1) This section applies if in criminal proceedings —
(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and
(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.
(2) In such a case —
(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;
(b) evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;
(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.
(3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.
(4) In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned is to be treated as the maker of the statement for the purposes of subsections (1) to (3) above.
125. Stopping the case where evidence is unconvincing
(1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that —
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury.
(2) Where —
(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and
(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of that offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1) in respect of it.
(3) If —
(a) a jury is required to determine under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 (c. 84) whether a person charged on an indictment with an offence did the act or made the omission charged, and
(b) the court is satisfied as mentioned in subsection (1) above at any time after the close of the case for the prosecution that —
(i) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(ii) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the person, a finding that he did the act or made the omission would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a rehearing, discharge the jury.
(4) This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.
126. Court’s general discretion to exclude evidence.
(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if —
(a) the statement was made otherwise than in oral evidence in the proceedings, and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2) Nothing in this Chapter prejudices —
(a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or
(b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).”
C.  The privilege against self-incrimination
43.  The privilege against self-incrimination is deep-rooted in English law (see, for example, Lam Chi-Ming v. the Queen [1991] 2 AC). The underlying principle is that a person should never be compelled to provide incriminating testamentary evidence, save in certain cases where the rule is expressly set aside by statute. Accordingly, a witness may refuse to answer questions when giving evidence under oath on the basis that to do so would put them at risk of criminal prosecution.
44.  There must be a “real and appreciable” danger of incrimination rather than a mere possibility for the privilege to apply. The Court will err on the side of caution in its assessment of whether the privilege applies: Lamb v. Munster (1882) LR 10 QB 110 and “great latitude should be allowed to [the witness] in judging for himself the effect of any particular question” (Reg. v. Boyes (1861) 1 B&S 311).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3(d) OF THE CONVENTION
45.  The applicant submitted that the admission of the telephone recordings 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 as provided in Article 6 § 1 and 3(d) of the Convention, which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
... ... ...
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
46.  The Government contested that argument.
A.  Admissibility
47.  The applicant’s complaint raises arguable issues under Article 6 § 1 and 3(d) of the Convention, so that it cannot be rejected as manifestly ill‑founded within the meaning of Article 35 § 3 (a). The Court is further satisfied that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  The applicant’s submissions
48.  The applicant submitted that there had been a violation of Article 6 of the Convention as neither the prosecution in seeking to adduce the tape recordings into evidence nor the judge in ruling them admissible had provided a good reason for Mr Pearman’s non-attendance at court. In Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 the Court had focused on witnesses who were either dead or in fear of attending court; nevertheless, even in cases where there was alleged fear by the witness, the Court required that appropriate enquiries be made to determine whether there were objective grounds for the fear and whether those grounds were supported by evidence. In the present case, as soon as the trial judge had been informed via a prison officer that Mr Pearman was refusing to attend court no further efforts were made to secure his attendance, even though he was in the hands of the State at the relevant time and, as such, the State had been in a position to secure his attendance, even if the privilege against self-incrimination meant that he could not be compelled to give evidence. For example, the authorities could have made a production order or special measures, such as a video link, could have been utilised to provide the applicant with the opportunity of cross-examining him.
49.  The applicant further observed that the privilege against self-incrimination was first mentioned by the Court of Appeal in order to retrospectively justify the admissibility of the hearsay evidence. However, the applicant dismissed as “mere speculation” the Court of Appeal’s finding that Mr Pearman would have sought to exercise his privilege against self‑incrimination had he been brought to court. In any case, the Court has held that witnesses seeking to exercise their privilege against self‑incrimination are still expected to appear at court and be asked questions (Vidgen v. the Netherlands, no. 29353/06, 10 July 2012 and Kaste and Mathisen v. Norway, nos. 18885/04 and 21166/04, ECHR 2006‑XIII) and the applicant argued that even if Mr Pearman had exercised his right to silence his presence at court would have enabled the jury to see him and assess his demeanour in the witness box in response to the applicant’s cross‑examination.
50.  In his application to the Court the applicant had accepted that Mr Pearman’s evidence was not sole or decisive. However, in his observations to the Court he submitted that the evidence had been fundamental as far as his own case was concerned because if the jury accepted it they would effectively have rejected his own account. Indeed, the trial judge was “satisfied the evidence has extremely strong probative value”. This was particularly so given that the prosecution’s case against the applicant was circumstantial: there was no direct identification or forensic evidence linking the applicant to the shooting.
51.  Finally, the applicant submitted that the counterbalancing factors and existing procedural safeguards were not sufficient to ensure that he had a fair trial within the meaning of Article 6 of the Convention. Although the judge drew the jury’s attention to the fact that Mr Pearman’s statement was self-serving, as well as matters concerning his credibility, these factors were simply not enough to counterbalance the fact that his strong denials were adduced in evidence and the jury had no opportunity to see him or observe his demeanour.
2.  The Government’s submissions
52.  The Government submitted that there was a good reason for Mr Pearman’s non-attendance as a witness. He had made no comment when asked questions by the police and made it clear to the Governor of the Prison shortly before the trial that he refused to provide a statement or give evidence. His refusal to give evidence or answer questions was therefore consistent and sustained and there was no realistic likelihood that his views would change. As the Court of Appeal subsequently found, there was no prospect that he would give meaningful evidence and no purpose would therefore be served in bringing him to court.
53.  Moreover, the Government argued that the present case could be distinguished from cases in which a witness expressed a general reluctance to testify as Mr Pearman had a legal right not to do so. Indeed, he would have been entitled to exercise the privilege against self-incrimination in respect of any question that he was likely to be asked as the issue which had been raised by the applicant was whether or not he was guilty of a criminal offence.
54.  In addition, given Mr Pearman’s incarceration, the Government argued that there would be unnecessary cost and delay in producing him at Court only for him to refuse to answer questions. It was in the interest of the applicant, as well as the efficient administration of justice, that his trial should proceed without undue delay so that the jury could consider the evidence while it was fresh in their minds. Given that, as the Court of Appeal found, the prospect of any sensible evidence being given by Mr Pearman was nil, his attendance would not have given the applicant a better opportunity to challenge his witness evidence or safeguarded his rights under Article 6; on the contrary, it would merely have delayed the trial.
55.  The Government further argued that Mr Pearman’s evidence was not sole or decisive as the Court of Appeal found the evidence against the applicant, quite apart from the evidence of Mr Pearman’s telephone calls, to be overwhelming. In particular, the Government noted that the prosecution had been ready to proceed with a trial without Mr Pearman’s evidence and must therefore have considered that there was a realistic prospect of conviction without it; the Court of Appeal had concluded that the conviction would have been safe and it would have had no doubt about the applicant’s guilt quite apart from the evidence of the telephone calls; and numerous other factors negated the suggestion that Mr Pearman was guilty of the murder, including the fact that there was no evidence of any contact between him and the deceased and the fact that the witnesses’ descriptions did not appear to match that of Mr Pearman. Moreover, it was clear that in making his ruling the judge had regard to the factors set out in section 114(2) of the 2003 Act.
56.  In any case, there were counterbalancing factors, including strong procedural safeguards, which ensured that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 § 1 and 3(d) of the Convention. In particular, the jury was told about Mr Pearman’s previous convictions; a police witness gave evidence to tell the jury what was known about Mr Pearman; the jury was told why Mr Pearman had not given evidence (namely, that he had refused to make a statement to the police or to give evidence in the case) and they were therefore in a position to hear arguments from the parties and consider the reasons why he had taken this course; the tape recorded evidence had inherent safeguards as there was no possible question about what was actually said; and finally, the judge had made a number of observations in his summing up to caution the jury about the limitations of tape recorded evidence (see paragraph 33 above).
3.  The Court’s assessment
(a)  General Principles
57.  The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015 and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili v. Germany, cited above, §101 and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein).
58.  In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119‑147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:
(i)  the Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance;
(ii)  typical reasons for non-attendance are, like in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial;
(iii)  when a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort;
(iv)  the admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings;
(v)  according to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted;
(vi)  in this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive;
(vii)  however, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner;
(viii)  in particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.
59.  Those principles have been further clarified in Schatschaschwili v. Germany, cited above, §§ 111 – 131, in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.
(b)  Application of these principles to the present case
60.  The Court observes at the outset that Mr Pearman could perhaps not be described as a “prosecution witness” in the same sense that the absent witnesses in cases such as Schatschaschwili and Al- Khawaja and Tahery (both cited above) were considered to be prosecution witnesses. Nevertheless, on view of the fact that Mr Pearman’s evidence was being used by the prosecution to rebut the only defence advanced by the applicant at trial, the Court considers that the principles established in these cases apply equally to the facts of the present case.
(α)  Whether there was good reason for the non-attendance of the witness at trial
61.  The Court has generally adopted a robust approach in determining whether a domestic court had good factual or legal grounds not to secure the witness’s attendance at trial. For example, it has held that the absence of a witness from the country where the proceedings were being conducted was not in itself sufficient reason to justify his or her absence at trial (Gabrielyan v. Armenia, no. 8088/05, 10 April 2012). Moreover, where a witness cannot be located, the Court has held that the authorities must “actively search for the witness” and do “everything which was reasonable to secure the presence of the witness” (Lučić v. Croatia, no. 5699/11, § 79, 27 February 2014).
62.  The justification relied on by the trial judge in the present case, and accepted by the Court of Appeal, for not securing the attendance of Mr Pearman was, in the words of the Court of Appeal, that “the prospect of any sensible evidence being given by him was, on any realistic view, nil” (see paragraphs 13, 16 and 37 above). The present case is therefore an instance of an available but reluctant witness, not an instance of a witness unable to attend. In the light of the strict approach adopted by the Court in some previous cases, the Court is not persuaded that “all reasonable efforts”, to use the language of Al-Khawaja and Tahery (see paragraph 58 (i) above), can be said to have been made to secure the attendance of Mr Pearman. The trial court could have compelled his attendance at trial, even if it could not have compelled him to give evidence; and, as the applicant has pointed out, if he had been compelled to attend, even if he did exercise his right to silence (as to which, see paragraphs 43-44 above), the jury would still have been able to see him in the witness box and assess his demeanour in response to cross-examination. However, the absence of a “good reason”, in the Al‑Khawaja and Tahery sense, for the non-attendance of Mr Pearman at the trial of the applicant, is not the end of the matter. As pointed out in Schatschaswili v. Germany (see paragraph 59 above), this is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations.
(β)  Whether the evidence of the absent witness was “sole or decisive”
63.  Moving on to the second stage of the test in Al-Khawaja and Tahery, although the tape-recorded evidence of Mr Pearman assisted the prosecution in rebutting the applicant’s defence, there is little or nothing in the case-file to support a finding that that evidence could be described as “determinative of the outcome of the case”. On the contrary, the Court of Appeal considered the other incriminating evidence against the applicant to be “overwhelming” (that evidence is summarised at paragraphs 22-29 and 38 above). Quite apart from the evidence of Mr Pearman’s telephone calls to his family, the Court of Appeal had no doubt about the safety of the applicant’s conviction (see paragraph 38 above). The Court’s own conclusion is that the evidence of the absent witness, Mr Pearman, could not be said to be “sole or decisive”.
64.  On the other hand, both the trial judge and, at the preliminary stage of granting leave to appeal, the Court of Appeal characterised the evidence of Mr Pearman as being important (see paragraphs 17 and 36 above). Consequently, as was explained in Schatschaswili v. Germany (paragraph 59 above), even though this absent-witness evidence was not the sole or decisive basis for the applicant’s conviction, given the need under Article 6 to assess the fairness of the proceedings taken as a whole, the Court still needs to determine whether there existed sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence.
(γ)  Whether there were sufficient “counterbalancing factors”
65.  The domestic legal framework, in the form of section 114 of the 2004 Act and the accompanying guidance issued by the Court of Appeal (see paragraphs 40-41 above), lays down detailed conditions under which absent-witness (“hearsay”) evidence may be admitted in criminal proceedings. The 2003 Act further provides an array of procedural safeguards designed to ensure a fair trial and going to matters such as credibility of evidence, stopping the case when the evidence is unconvincing and the trial court’s general discretion to exclude evidence (sections 124-126 of the 2003 Act – set out at paragraph 42 above).
66.  As to the application of that legal framework in the particular case, it is clear that in making his ruling at the opening of the trial the judge had proper regard to the factors set out in section 114(2) of the 2003 Act (see paragraphs 14-21 above). As such, before admitting the recordings in evidence he weighed in the balance factors such as their value, their significance to the proceedings, their reliability, the difficulty the applicant would have challenging the recordings, and the prejudice any such difficulty would cause.
67.  In addition, during the trial and in the judge’s summing-up at the end of the trial the jury was told about Mr Pearman’s previous convictions and advised that they could use this information both in deciding whether he was likely to have murdered Mr Bartlett and in assessing the credibility of his denials. The reasons for his absence were also explained to the jury and they were able to hear arguments from the parties and consider the reasons why he had taken this course (see paragraphs 30-32 and 34 above). Finally, in his summing up the judge cautioned the jury about the limitations of tape recorded evidence and the fact that the statements made by Mr Pearman in his telephone conversations were essentially “self-serving” (see paragraph 33 above).
68.  As recalled above (at paragraph 59 – referring to Schatschaschwili v. Germany), the assessment of “counterbalancing factors” is a relative one: the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the importance of the absent-witness evidence. In the instant case it is therefore of relevance also for this branch of the test in Al-Khawaja and Tahery that, in its examination of the merits of the applicant’s appeal, the Court of Appeal judged the other incriminating evidence against him to be “overwhelming” and in itself sufficient to enable certainty as to the safety of his conviction (see paragraph 38 above).
(δ)  Conclusion
69.  Having regard to the existence of that other, substantial, even decisive, incriminating evidence and of procedural safeguards capable of counterbalancing Mr Pearman’s absence at trial, it cannot be said that the criminal proceedings, looked at as a whole, were rendered unfair by the admission in evidence of the recordings of Mr Pearman’s telephone calls.
70.  Accordingly, the Court is satisfied that the admission in evidence of those recordings did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.
Done in English, and notified in writing on 31 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Mirjana Lazarova Trajkovska
	Deputy Registrar	President