PEREIRA v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Mario Pereira, is a United Kingdom national, who was born in 1973 and is currently serving a sentence of life imprisonment in HM Prison Wakefield. He is represented before the Court by Saunders and Co, solicitors practising in London. The facts of the case, as submitted by the applicant, may be summarised as follows. On 13 February 1997, Michael Menson died as a result of severe burns sustained during an incident in a street on the night of 27-28 January 1997, when he was sprayed with a form of accelerant and the back of his clothing set alight. As a result of their investigation, the police arrested and charged in the United Kingdom three men, the applicant, Charalambous Constantinou and Husseyin Abdullah. A fourth man implicated in the incident, Ozzie Cevat, had gone to Cyprus. He was arrested and tried in Cyprus and convicted of manslaughter. The trial in the United Kingdom took place in November-December 1999. The prosecution case was that the applicant and Cevat had set Menson on fire while Constantinou had assisted by acting, inter alia, as lookout and that Abdullah had committed subsequent acts intended to pervert the course of justice (namely, by covering up the evidence of the incident). In the case of the applicant, the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them; on covert tape recordings of conversations between him and his co-accused; and on the lies which he had told the police. As regarded Constantinou, the prosecution relied on his own account that he had watched the applicant and Cevat carry out the attack, making no attempt to leave and doing nothing to prevent what happened. Afterwards he had taken Menson’s personal stereo. In his case too, the prosecution relied on the covert recordings and the lies he told. Before the trial, the applicant applied for severance of the trial so that he would not be tried with his two co-defendants. He considered that a joint trial would prejudice his defence such that a fair trial would not be possible. This was because both his co-defendants had made statements implicating him in the attack. In particular, Constantinou in his statement to the police had stated that the applicant and Cervat were not only present but had set fire to the victim. According to the rules of evidence, this statement was evidence against Constantinou but not the applicant. However although the judge would be bound to direct the jury to that effect, the jury would still hear Constantinou’s version of events. It was also unlikely that Constantinou, who had a history of mental disorder, would give evidence and be available to be cross-examined. At the same time, the applicant applied under section 78 of the Police and Criminal Evidence Act 1984 for the evidence from the covert tapes to be excluded as inadmissible and also relied on the prejudice to his defence from the taped conversations from Constantinou implicating him. The judge rejected the applicant’s application for severance. He took the firm view that this was a case which called strongly for a single trial. He recognised that there was a danger of prejudice in that ruling but pointed out that there was a joint charge of murder and that it would be difficult to have a fair trial of all the accusations if done separately. “In this case if tried separately, it is possible that Pereira could be acquitted of murder, and Constantinou, whose case is that Pereira had carried out the killing, could be convicted. It is also possible that there could be inconsistent verdicts on the individual counts of doing acts tending to and intended to pervert the course of justice. In the circumstances, although there is some prejudice to all three defendants if each is tried with the others, in my judgment, there are no exceptional circumstances which make it necessary for me to order severance. Balancing all the factors for and against severance, I conclude that the interests of justice are best served by a joint trial of the defendants...” The judge also refused to exclude the covert tapes as evidence. During the trial, neither of the applicant’s co-defendants chose to give evidence. The applicant did go into the witness box. On 21 December 1999, the applicant was convicted of murder and sentenced next day to life imprisonment. Constantinou was convicted of manslaughter and a count of perverting the course of justice and was sentenced to a total of 12 years’ imprisonment for manslaughter. The applicant applied for permission to appeal, on the grounds inter alia that the judge had wrongly refused to order a separate trial. Permission to appeal was refused by a single judge of the Court of Appeal. He renewed his application. At a hearing held on 9 April 2001, the Court of Appeal considered as regarded the judge’s decision to try all the defendants together: “That was a judgment [Counsel for the applicant] said to us that the exceptional circumstances were the absence of significant evidence against his client, in terms of there being no eye witnesses, no forensic evidence and the dubious nature... of the persons to whom the confessions had actually been made. It was not, however, the case that there was no other evidence at all against his client, nor, in our judgment, is it right to say that the jury would necessarily have concentrated on inadmissible evidence in order to understand the case. This was very much a matter for the judge’s judgment. This Court will not interfere with his ruling in this case. The judge was, of course, in making that ruling, acutely conscious of the need to direct the jury in the clearest possible terms as to what evidence was admissible and what was not in the case of each man. He said: ‘...what Mr Constantinou may have said to Mr Abdullah and Mr Abdullah to Mr Constantinou in the absence of Mr Pereira is not evidence against Mr Pereira, and if there are other occasions vice versa as far as Mr Pereira is concerned. The same applies to what Mr Constantinou may have said to Pereira about Mr Abdullah in Mr Abdullah’s absence, or what Mr Abdullah may have said about Mr Pereira or Mr Constantinou in the absence of one or other of them. It is desperately important that you bear that in mind at all times and of course it is important because you are going to be considering, as I have already told you, the cases entirely separately in relation to each.’ The judge was entitled to assume, and this Court will assume, that the jury understood and acted on a direction that was singled out by the judge as being ‘desperately important’ as part of their work. That safeguard is and was the proper safeguard for the various defendants. It is the appropriate safeguard in a case such as this.” The Court of Appeal went on to find that the judge had not erred in admitting the evidence of the covert tapes. They rejected the applicant’s arguments that Constantinou’s statement to the police should not have been admitted in evidence as it was entirely self-serving and that the jury’s verdicts were inconsistent.