Hearsay Evidence and the Demise of Absolute Rules
| Published date | 01 August 2016 |
| Date | 01 August 2016 |
| DOI | http://doi.org/10.1177/0022018316658175 |
| Subject Matter | European Court of Human Rights |
European Court of Human Rights
Hearsay Evidence and the
Demise of Absolute Rules
Seton vUnited Kingdom [2016] ECHR 55287/10
Keywords
Hearsay, absent witness, fair trial, Article 6 ECHR
The applicant, Seton, was tried and convicted of murder in 2008 for a shooting that occurred in 2006.
The gunman was not identified at the scene but witnesses reported that a person of the applicant’s
general description drove off in a silver Vauxhall Vectra motor vehicle. Hours later, a similar vehicle
was set alight a short distance from the scene of the shooting. The applicant had purchased the vehicle on
the day of the shooting. The applicant and the victim knew each other and were involved in significant
drug dealing. Circumstantial evidence linked the applicant to the scene of the shooting and the scene of
the vehicle’s destruction.
Within days of the murder the applicant fled the country. While abroad he was prosecuted by Dutch
authorities for unrelated drugs offences. At the end of his sentence he was extradited to the UK, where he
refused to answer police questions. He also failed to serve a defence statement until the date originally
fixed for his trial. In the statement he claimed that the murder had been committed by an associate, Mr
Pearman. The applicant alleged that Pearman had committed the murder in the context of a drug deal
involving the applicant, Pearman and the deceased. Pearman had convictions for serious drugs and
firearms offences and by the time of the defence statement was serving a prison sentence for murder.
Pearman was interviewed in prison regarding the allegation and declined to answer police questions.
Following the interview he made two telephone calls to members of his family in which he steadfastly
denied the murder. As he was a Category A prisoner these calls were recorded. The prosecution applied
to adduce the tape recordings of the calls as hearsay evidence admissible in the interests of justice under
s. 114(1)(d) of the Criminal Justice Act 2003. The trial judge accepted that Pearman had clearly
indicated that he would not make a statement or attend to give evidence and ruled that the transcripts
of the tapes should be admitted. He also stated that the evidence had extremely strong probative value.
By way of counterbalance it was acknowledged in front of the jury that the statements were self-serving
and made by a serious criminal who would have known that they were being recorded.
The Court of Appeal (RvSeton [2010] EWCA Crim 450), relying on RvZ[2009] EWCA Crim 20,
reiterated that it would only interfere with a trial judge’s decision under s. 114(1)(d) if it was marred by
legal error, by a failure to take relevant matters into account or was one that could not sensibly have been
made (at [24]). Finding no such fault in the decision, the court rejected the single ground of appeal. It
stated that, given the judge’s finding that Pearman would not give evidence, compelling him would have
been a ‘fruitless exercise’. Added to this, the court identified for the firs t time in the proceedings
Pearman’s right to claim privilege against self-incrimination. Together these factors led the Court to
The Journal of Criminal Law
2016, Vol. 80(4) 220–223
ªThe Author(s) 2016
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DOI: 10.1177/0022018316658175
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