Issue 186  27th March 2021

This matter comes back before the Court in highly unusual and regrettable circumstances. On 2 March 2021 this constitution heard two appeals... At the conclusion of the hearing before us, we announced that we would dismiss the renewed applications for leave and the appeal of MG, but would allow the appeal of IS and quash his convictions...

The basis on which we allowed IS' appeal was that the Judge had failed to sum up IS' evidence to the jury. Ms Meek for IS, Ms Merrick for MG and Mr Khan for the Respondent, all of whom were trial counsel below, confirmed to us that she had failed to do so and that the transcript of the summing-up to that effect was accurate. In these circumstances, we concluded that IS' convictions had to be regarded as unsafe...

As we set out below, the premise of the appeal was in fact wholly misconceived. The Judge had summed up the evidence of IS (at the end of her summing-up and after having first summed up the evidence of MG). The transcript was incomplete and counsel's recollections, to the extent that they can have existed at all, were inaccurate. Our decision to allow IS' appeal and quash his convictions was founded on a fundamental mistake as to what had happened in the Crown Court. Having been misled as to the true position, we address below what remedy may be open to us...

It is well established that this court has, like any other court, an implicit power to revise any order pronounced before it is recorded as an order of the court in the record of the relevant court. The relevant court here is the Crown Court. (See R v Yasain [2015] EWCA Crim 1277; [2015] 2 Cr App R 28; [2016] QB 146 ("Yasain") at [19] to [22])... We revoke our earlier order. IS' appeal against conviction will be dismissed...

This case concerns applications referred to the Full Court by the Single Judge which are made by two of five defendants convicted in June 2011 of conspiracy to evade the prohibition on importation of a controlled drug, cocaine, contrary to section 1(1) of the Criminal law Act 1977. The five defendants are known in the media as “the Freshwater Five” for reasons which will become apparent...

Standing back and looking at all the evidence available at trial as well as the evidence now available, whilst the evidence is circumstantial, this was as the CCRC concluded a “compelling prosecution case of conspiracy to import cocaine”. The Grounds of Appeal do not begin individually or collectively to cast doubt on the safety of these applicants’ convictions. The applications for leave to appeal conviction are accordingly refused, as are the applications for an extension of time and to adduce fresh evidence.

These appeals come before the Court of Appeal following references by the Criminal Cases Review Commission ("CCRC") dated 4 March and 22 May 2020. The appellants were all convicted or pleaded guilty in the course of three trials that were held at Shrewsbury Crown Court in 1973 and 1974 which concerned trade union-related public order allegations...

If the destruction of the handwritten statements had been revealed to the appellants at the time of the trial, this issue could have been comprehensively investigated with the witnesses when they gave evidence, and the judge would have been able to give appropriate directions. We have no doubt that if that had happened, the trial process would have ensured fairness to the accused. Self-evidently, that is not what occurred. Instead, we are confronted with a situation in which an unknown number of the first written accounts by eyewitnesses have been destroyed in a case in which the allegations essentially turned on the accuracy and credibility of their testimony. As we have already described, we consider it correct to infer that the descriptions by the witnesses would in many instances have changed and developed as they were shown the photographs and as the police gained greater understanding of what those responsible for the investigation sought to prove. Those changes and developments could have been critical for the assessment by the jury of whether they were sure that the individual appellants were guilty of the charges they faced. The jury either needed to have this evidence rehearsed in front of them to the extent necessary, if the statements were still in existence, or they needed to be given clear and precise directions as to how to approach the destruction of the statements if that had occurred. Neither of those things happened, and in consequence we consider the verdicts in all three trials are unsafe. The common law has developed significantly in this area over the last half century, particularly as regards the obligation on the prosecution to retain a record of any variations in the statements of relevant witnesses (see the Code under the Criminal Procedure and Investigations Act 1996 ("CPIA"), paragraphs 4 and 5) and to disclose them if that material might reasonably be considered capable of undermining the prosecution's case or assisting the case for the accused. It is to be stressed that under paragraph 5 CPIA Code, the duty is to retain the final versions of witness statements and draft versions where the content differs, along with, inter alia, any material casting doubt on the reliability of a witness. As in Bentley, this court in arriving at this conclusion on the first ground of appeal has applied "legal rules and procedural criteria which were not […] applied at the time". By the standards of today, what occurred was unfair to the extent that the verdicts cannot be upheld...