Seton v R.

Under section 114(1)(d) of the Criminal Justice Act 2003, hearsay may be admitted where the interests of justice require it. The trial judge must address each mandatory factor in section 114(2), including the statement’s probative value, reliability, availability of oral evidence, difficulty of challenge and prejudice.

An appellate court will not readily interfere with that discretionary decision. It will do so only for legal error, failure to consider relevant matters, or a decision that no sensible judge could have made. Where the unavailable maker would refuse to give evidence and may invoke privilege against self-incrimination, compelling attendance may be futile. A conviction remains safe if the independent evidence of guilt is overwhelming.

The appellant was convicted at the Central Criminal Court, before His Honour Judge Morris QC and a jury, of the murder of Jon Bartlett.

At trial, the appellant alleged that Christopher Pearman had committed the murder. The prosecution was permitted to adduce recordings of Pearman’s prison telephone calls denying involvement. Pearman had refused to answer police questions and indicated that he would not provide a statement or give evidence.

The appellant appealed against conviction, contending that the recordings should not have been admitted under section 114(1)(d) of the Criminal Justice Act 2003, because Pearman had not been called for cross-examination. The central issue was whether their admission rendered the conviction unsafe.

1. Appeal dismissed. The judge was entitled to admit the recordings of Pearman’s denials under section 114(1)(d) of the Criminal Justice Act 2003.

2. The judge addressed each mandatory factor in section 114(2). He was entitled to regard the denials as important and strongly probative, while leaving the jury to assess the significance of Pearman’s status as a serious criminal, the possibility that the calls were self-serving, and his knowledge that they were recorded.

3. The judge’s finding that Pearman would not give evidence was unchallenged. Although he could have been compelled to attend, that would have been fruitless. He would have required a warning about privilege against self-incrimination, and there was no realistic prospect of useful evidence. The defence could still challenge the statements’ weight through the available evidence and submissions.

4. Applying Z [2009] EWCA Crim 20, the court would interfere with a section 114(1)(d) ruling only for legal error, failure to consider relevant matters, or an unsustainable exercise of discretion. None was present. Replaying the recordings to the jury did not create a separate ground of appeal once their admission was lawful.

5. In any event, the conviction was safe. The evidence independently implicating the appellant was overwhelming, including motive, conduct after the killing, vehicle and telephone evidence, and eyewitness descriptions inconsistent with Pearman being the gunman.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2010] EWCA Crim 450.

• Central Criminal Court: on 26 August 2008, His Honour Judge Morris QC and a jury convicted the appellant of murder.