Steele & Ors, R v [2006] EWCA Crim 195

Case No 2004/07224/5/6 B5

[2006] EWCA Crim 195

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday, 22 nd February 2006

Before

LORD JUSTICE MAURICE KAY

MR JUSTICE OPENSHAW

SIR CHARLES MANTELL

Between

STEELEAppellants

WHOMESAppellant

CORRYAppellant

(Transcript of the Handed Down Judgment of

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Baroness Kennedy QC and Mr T Badenoch for Appellant

(1) Mr H Blaxland QC and Mr P Clark for Appellant

(3) Mr A Lakha QC for Appellant

Mr A Munday QC and Mr J Dodd for Crown

Judgment

[1]On 21 December 2004 the Criminal Cases Review Commission referred to this Court the convictions of Michael Steele, Jack Whomes and Peter Corry. The convictions in question came at the end of a trial in the Central Criminal Court which had begun on 1 September 1997 and which ended on 20 January 1998. All three appellants were convicted of conspiracy to import cannabis. Steele and Whomes were also convicted of the murders of Patrick Tate, Antony Tucker and Craig Rolfe. Steele was found not guilty of possession of a pump-action shotgun. The case for the prosecution was that the drugs offence and the murders were closely connected. In a nutshell, the allegation was that the appellants had been active as substantial importers of cannabis from the Netherlands; that the three deceased had been purchasers of the cannabis from the appellants; that there had been a fall-out between the two groups following an importation in November 1995 which turned out to be of poor quality; and that the fall-out gave rise to the murders. The murders were of a particularly ruthless kind. Tate, Tucker and Rolfe had gone by arrangement to a country lane in Essex in a Range-Rover vehicle driven by Rolfe. Whilst the vehicle was parked in that lane, all three were shot dead at close range in the vehicle. The allegation was that Whomes had shot them at the behest of Steele. The principal witness for the prosecution was Darren Nicholls. His evidence was that he had been party to the conspiracy to import cannabis with Steele, Whomes and Corry and that, on the night of the murders, namely 6 December 1995, he had driven Whomes to the country lane shortly before the murders and had driven Whomes and Steele away a few minutes after the three men had been shot. His account was that he had not known until after the murders that that was the purpose of the journey. His understanding had been that there was to be a rendezvous with Tate, Tucker and Rolfe in connection with the drugs business. It has never been suggested that Corry had any involvement in the murders. Nor was Nicholls ever charged with complicity in the murders. He was charged with two offences of conspiracy to import cannabis and he pleaded guilty to these offences on 16 August 1996. It is common ground that the jury could not have convicted Steele and Whomes of the murders unless they accepted Nicholls’ account.

[2]Following the trial, all three of the current appellants sought leave to appeal their convictions. On 29 March 1999 the Court of Appeal Criminal Division (Lord Bingham of Cornhill CJ, Ian Kennedy and Jackson JJ) refused leave to appeal. The present reference to this Court by the Criminal Cases Review Commission has two aspects. The first results from the fact that, unknown to the defence at the time of the trial and the application for leave to appeal, prior to giving evidence at the committal and in the Central Criminal Court, Nicholls had been in contact with one Tony Thompson, a journalist specialising in criminal matters, and they had entered into a contract for reward to collaborate upon the writing of a book about the case to be published after the trial. Such a book, entitled Bloggs 19, was published in 2000. The second aspect related to possible fresh evidence regarding calls made from and to mobile phones around the time of the murders as Nicholls described them. At the trial, both prosecution and defence had called expert witnesses on this subject. The same expert witnesses gave further consideration to the issues when invited by the Criminal Cases Review Commission. It is suggested that that further consideration has given rise to fresh evidence which ought to be received by this Court and which, if received, would cast doubt on the safety of the convictions.

[3]Essentially, the grounds of appeal relate to Nicholls’ media activities, the fact that they were undisclosed at the time of the trial and the application for leave to appeal and the alleged fresh evidence about the mobile phone calls. In addition, it is suggested that the trial judge misdirected the jury about their right to draw an inference from the failure of Whomes to answer questions when interviewed by the police. Before considering these grounds of appeal, it is necessary to summarise the account which Nicholls gave to the jury. It was a very detailed account and he was cross-examined at length.

Nicholls’ account of the conspiracy to import cannabis

[4]Nicholls, Steele, Whomes and Tate had been in prison together in 1993. Following their respective releases, Nicholls had contact with both Tate and Steele. He did electrical and similar work for Steele. On one occasion he sold a 9 ounce block of cannabis for Steele. In August 1995 Nicholls agreed with Steele that he would play a part in the importation of cannabis. Whomes was also party to the initial discussion. The source of the cannabis was John Stone who ran a café in Amsterdam. Three importations took place between August and November 1995.

[5]The first importation followed a visit to Amsterdam on 15 August. Nicholls travelled with Steele and Corry. Steele provided the money with which Nicholls purchased ferry tickets at Folkestone. In Amsterdam they met Stone and handed over £65,000. They returned to England. A few days later, at the request of Steele, Nicholls and Corry returned to Amsterdam to collect the cannabis. Having collected it, they telephoned Steele. They arranged to meet him at Blankenberg on the Belgian coast. Steele arrived in a rigid inflatable boat, the cannabis was loaded onto the boat and Steele and Corry returned to England with it. Nicholls telephoned Whomes to say that everything was alright. Nicholls later returned by ferry from Calais. Steele gave him a kilo of cannabis as payment.

[6]The second importation followed a visit to Amsterdam on 3 October. On this occasion Nicholls travelled with his friend Francis Reid. Steele entrusted Nicholls with £60 – 70,000. Nicholls purchased a pair of waders for himself because he had become very wet when helping to push Steele’s boat off in August. Nicholls and Reid travelled from Felixstowe to Zeebrugge. He did not tell Reid the reason for the trip. In Amsterdam Nicholls saw Stone and took delivery of a consignment of herbal cannabis. Nicholls and Reid then went to Blankenberg. Reid remained in a bar when Nicholls met Steele who was in his boat. Steele and Nicholls returned to England with the drugs in the boat. Reid was left to make his own way home. The tickets for the crossings were in Reid’s name and were paid for on Nicholls’ credit card. For the return journey the ticket was amended from two passengers to one. After a difficult crossing, Nicholls and Steele met Whomes who had come to the agreed landing place at Point Clear in his Range-Rover. During the unloading operation the Range-Rover became stuck and Steele went to his mother’s house nearby to borrow her car. Steele took the drugs away in the car. Nicholls and Whomes remained and eventually freed the Range-Rover. Steele later returned and he and Whomes obtained a trailer with which they transported the boat to an inland destination. Again Nicholls received a kilo of the drugs as payment and was given a further kilo to sell on behalf of Steele.

[7]The third importation occurred on 7/8 November. Nicholls and Corry collected £125,000 from Steele in the presence of Whomes. Nicholls and Corry then took the overnight ferry from Harwich and made their way to Stone’s café. Although the preference had been to obtain herbal cannabis only cannabis resin was available. On this occasion Nicholls had hired a car but had had some difficulty with the hire company because it insisted on payment by credit card rather than cash. Nicholls did not have sufficient credit on his credit card and so had to telephone home to arrange for his wife to pay money into a bank account. The bank then provided a reference number which persuaded the hire company to release the car. All this was confirmed by documentary exhibits. Having obtained the drugs from Stone, Nicholls was unable to contact Steele and spoke instead to Whomes. Nicholls and Corry then proceeded to Blankenberg where the drugs were loaded into Steele’s boat. Steele and Corry then returned to England with the drugs in the boat. Nicholls returned the hire car to Amsterdam and, having missed the night ferry, stayed in the Delta Hotel. He had difficulty in making telephone contact with Steele which is not surprising because in the early hours of 8 November Steele, Whomes, Corry and another man had been arrested on the beach at Felixstowe. At that time, according to Nicholls, the drugs had already been off-loaded at another point on the coast and the boat had then proceeded to Felixstowe where Corry was cleaning it at the time of arrest. A small trace of cannabis was later found in the boat following its seizure on this occasion. However those who had been arrested were soon released and no-one was charged with any offence at the time. Nicholls’ knowledge of what had occurred in his absence came from subsequent conversations with Steele who also described tampering with the navigation system of the boat so that there was no record of where it had been.

[8]Steele took Nicholls to Steele’s mother’s garage at Point Clear and Nicholls was given several kilos for onward sale. One of the purchasers of the cannabis in this country was Tate. A problem then arose. A number of purchasers including Tate complained about the quality of the cannabis. Steele asked Nicholls to find out if any of the remaining stock was of low quality and Nicholls ascertained that that was the position. Tate returned part of his share. Stone accepted that there was a problem but maintained that one third of the consignment was alright. He offered repayment if all the consignment was returned. At this point Nicholls was holding about 60 kilos and Tate still had the remainder of his share. On 15 November Nicholls and Steele went from Harwich to the Hook of Holland by ferry and on to Amsterdam by rail in order to recover the money. At first Stone only had £30,000 available and so Nicholls and Steele spent the night at the Delta Hotel. On 16 November Stone offered a further £30,000 but Steele said that he would wait for more. On 17 November he agreed to take 80,000 guilders and Steele accepted the total repayment. This left Nicholls and Steele with a large amount of cash. Telephone calls were made to Whomes, Tate and others to travel to Ostend to assist in the transportation of the money back to England. It was thought that such a large amount of money on one or two persons would attract suspicion. Eventually others arrived in Ostend to assist with the transportation of the money. Whomes arrived with a van and took the guilders back. Nicholls and Steele eventually travelled back by Jetfoil. Once back in England, Steele told Nicholls to get rid of the remaining 60 kilos. Nicholls disposed of it in a sandpit near Braintree. Steele thought that Tate had pulled a fast one because he had not returned one third of the cannabis as he should have done and Stone had indicated that one third of the original consignment was of proper quality. Nicholls had the impression that Steele and Tate were falling out, not only because of the cannabis but also because Tate and his girlfriend, Sarah Saunders, had split up and Steele was quite close to her.

Nicholls’ account of the murders

[9]In the weeks that followed Nicholls went about his normal business. This included carrying out electrical work for Steele on his property. On 6 December Nicholls was doing some plumbing and labouring work for someone else in the Sunbury area, west of London. In the middle of the day there was telephone contact between Nicholls, who was still in Sunbury, and Steele, who was at or near Colchester. Nicholls left Sunbury in the early afternoon and drove to Essex via the M25 and M11. The arrangement was that Nicholls would meet Steele at Marks Tey at 5.00 o’clock. Steele arrived late driving a Toyota. They waited for Whomes who arrived in a Volkswagen Passat. It became apparent that Steele and Whomes had arranged a meeting with Tate. Steele said that its purpose was a drugs deal. From Marks Tey Steele and Nicholls travelled in the Toyota and Whomes followed in the Passat. Both vehicles stopped at a country park at which point Nicholls joined Whomes in the Passat which Nicholls then drove. Whomes told Nicholls to drive to the Halfway House public house and park. When they arrived the Toyota was there and Whomes told Nicholls to park at a distance from it. A Range Rover then arrived and parked next to the Toyota. Whomes said that it was Tate in the Range Rover. Whomes then directed Nicholls along the A130 close to the village of Rettenden. He indicated a farm track whereupon Nicholls drove in and turned the car round. Whomes got out of the car, told Nicholls to go elsewhere and await a phone call to pick Whomes up at the same place. Whomes took a canvas bag and a coat from the back of the car. Nicholls drove to a nearby public house, The Wheatsheaf. There he saw that his mobile phone signal was poor so he drove off and parked again in Meadow Road. Before very long Whomes telephoned to be picked up. Nicholls drove back to the farm track. At first he did not see anyone but Whomes arrived and went into the back of the car. Whomes said that Steele would not be long but had dropped something. Steele then arrived and sat in the front passenger seat. When the interior light came on, Nicholls noticed that Whomes was wearing surgical-type gloves and that they were speckled with red. It soon became apparent to Nicholls that the point of the rendezvous with Tate and his associates had not been a drugs transaction but had been murder. No sooner had Steele got into the car and told Nicholls to drive away than he said “They won’t fuck with us again.” Steele handed over some parts of a gun to Whomes. Whomes said Steele had fired it and it had fallen apart. Nicholls was directed to drive to another public house where the Toyota had been parked. Steele described how he had been in the farm track with Tate when Tate’s mobile had received an incoming call from Sarah Saunders. It had taken Steele by surprise because it was an affectionate call, whereas Steele was under the impression that Sarah Saunders wanted nothing more to do with Tate. Steele described Whomes as cold-hearted because of the ruthlessness with which he had shot the three occupants of the Range Rover. Whomes had then reloaded his weapon and, without emotion, shot them each again in the back of the head. Eventually Steele took Nicholls back to Marks Tey where Nicholls’ own car was parked. He continued to see Steele and Whomes after that but the contact was less. He also continued to do work at Steele’s property. Some time later, Steele had described the three deceased as “horrible bastards”, his attitude being that he had done the world a favour by getting rid of them. Steele or Whomes said that the gun had been ground up and been thrown into the sea. Steele had burned the overalls and boots which he and Whomes had worn.

The telephone evidence

[10]At trial the prosecution adduced detailed evidence of telephone calls to and from land lines and mobile phones which belonged to Nicholls, Steele, Whomes, Tate and his associates. The telephone companies provided details as to the time and duration of calls. In addition, this was one of the first cases in which the position of the makers and recipients of mobile phone calls was identified by the location of the cell sites through which the phones had sent or received the call. There was a great deal of factual and expert evidence on this subject at the trial. We shall have to return to it later as it gave rise to one of the bases upon which the Criminal Cases Review Commission referred the matter to this Court. At the moment it is sufficient to summarise some of what it established. It included telephone contact between Nicholls and Steele on 6 December while Nicholls was still in the Sunbury area in the middle of the day. It also established contact between Steele’s mobile phone and that of Whomes at 14.11. Around 14.30 there were calls from a telephone kiosk near a public house close to where Whomes was working. Two of the calls were to the mobile phone of Tucker and one (a missed call) was to the mobile phone of Tate. At 14.32 there was a call to a telephone kiosk in Basildon, close to where Tate lived. About 20 minutes later there was a call from the same telephone kiosk to Nicholls’ mobile phone. There was other telephone contact between Nicholls and Steele, and Steele and Whomes in the course of the afternoon. At 17.03 a call was made from a telephone kiosk near The Halfway House public house on the A127 to Tate’s mobile phone. Whomes telephoned Steele via the mobile phones at 17.12. At 18.03 and 18.09 calls were recorded between Steele’s mobile phone and that of Whomes. At 18.44 there was a call of almost 4 minutes duration from an address in Basildon where Sarah Saunders was and the mobile phone of Tate. The case for the prosecution was that it was the call overheard by Steele as described by Nicholls at a time when Steele and Tate were in or near the Range Rover in the farm track at Rettenden. That call ended at about 18.48. At 18.59 two short calls were made from Whomes’ mobile phone to that of Nicholls. The case for the prosecution was that they, or one of them (they lasted one and four seconds respectively) included the ‘pick-up’ call. Although there was no medical or scientific evidence as to the time of death of the three deceased, the case for the prosecution was that the murders took place between 18.48 and 18.59 and that the telephone evidence supported this. It is a fact that the mobile phones of the deceased men did not make or receive effective calls after that time. Although their bodies were not found until the following day, they had been expected home before 20.00hrs because they had social engagements. Both Tate and Tucker died with their mobile phones in their hands.

The emergence of Nicholls’ account

[11]In January 1996 Nicholls became a police informant. His handler was Detective Constable Bird. Their relationship was a corrupt one. We mention it at this stage because in the course of it Nicholls began to impart information about the drug trafficking of Steele, Whomes and others. In February Operation Century began. It was a police operation centred on suspects in respect of the Rettenden murders, including the appellants. There was also an investigation into the activities of Detective Constable Bird. On 13 May 1996 Nicholls, Steele, Whomes and Corry were arrested. Shortly after his arrest, Nicholls asked to speak to Detective Constable Bird but his request was refused. Detective Constable Bird had also been arrested. When first interviewed by Detective Constables Brown and Winstone on the evening of 13 May and the afternoon of 14 May in the presence of a duty solicitor Nicholls made no comment. However, on the evening of 14 May Nicholls asked to speak to a senior officer and he was then seen by Detective Superintendent Barrington. It was confirmed to him that Detective Constable Bird was in custody. Nicholls indicated his willingness to talk about “drugs jobs” and said that “other more serious things would be disclosed”. He asked about protection in and out of prison. He said that he would be giving information about the illegal activities of police officers but that he had not said anything so far to Detective Constables Brown and Winstone because he did not know if he could trust them. Detective Superintendent Barrington assured him that they were trustworthy. He also told Nicholls that he would have to accept responsibility for whatever he had done and would have to accept any sentence eventually passed upon him. Late on the night of 14 May there began a series of interviews between Detective Constables Brown and Winstone and Nicholls. In all there were a further eight interviews between that night and 20 May. Initially, Nicholls declined the services of a solicitor but in the later interviews he was represented by Mr Craddock. At first, his account of the drugs importations lacked candour in that he untruthfully sought to minimise his own role and played down the number of importations. However, before the end of 14 May he had described the events of 6 December and the roles of Steele and Whomes in the murders. In our description of Nicholls’ accounts of the drugs importations and the murders we have dealt with them in the merest outline. In fact the account was extremely detailed and almost all the important detail was set out by Nicholls in the interviews between 14 and 20 May. On 21 May he signed a 30 page statement dealing with what he had said in the preceding interviews. In subsequent interviews in May and June he clarified and added to what he had previously said in answer to questions prompted by the ongoing investigation. On 12 June he gave a fuller account of the drugs importations. He was further interviewed on 5 July but the subject matter was related more to Detective Constable Bird. On 20 August 1996 Nicholls made a 48 page statement which was mainly concerned with the drugs importations and which formalised what he had imparted in interview on 5 July. On 29 August he made a statement dealing with a firearm which he said that he had bought on behalf of and supplied to Steele after the murders and which was recovered from Steele’s property. It became the subject of Count 5 on the indictment against Steele and in due course Steele was acquitted of possession of that firearm. In summary, then, Nicholls had given a detailed accounts of the drugs importations and the murders to the police by 12 June 1996. He was himself charged in relation to the drugs importations. On 26 July 1996 he was committed to the Crown Court and on 16 August 1996 he pleaded guilty. Sentence was adjourned until after the trial of Steele, Whomes and Corry. In due course, Nicholls received a lenient sentence reflecting the assistance he had given.

The Trial

[12]Unquestionably the centrepiece of the trial was the lengthy evidence of Nicholls. He was in the witness box for 13 days and was subjected to vigorous cross-examination on behalf of the three appellants. It was and is common ground that, at least in relation to the murders, there could be no conviction unless the jury were sure about the evidence of Nicholls. There was no forensic evidence linking Steele or Whomes to the murders. So far as the conspiracy to import cannabis was concerned, whilst there was circumstantial evidence from other sources linking the appellants with the boat, some of the journeys, presence in Belgium or the Netherlands and so on, the prosecution case again depended on Nicholls to put flesh on the circumstantial bones. As we have indicated, the telephone evidence also occupied an important part of the case, particularly in relation to the murders. Although neither Steele nor Whomes had been forthcoming in interviews with the police, both gave evidence. Steele accepted some of the circumstantial evidence in relation to the drugs importations but denied that he was personally involved in knowingly importing the cannabis. He maintained that it was Nicholls who was at the centre of the operation. He denied all involvement in the murders. He gave and called alibi evidence to the effect that he was elsewhere and with others at the material time. Whomes’ approach to the drugs importations was similar. As regards the murders he admitted being in the vicinity of Rettenden at the material time but maintained that he was there with a trailer to pick up a Passat car for Nicholls. He took the Passat on the trailer to his yard at Barham. The Passat was old and in poor condition and, with Nicholls’ consent, he disposed of it to a man for use in stock car racing. Both Steele and Whomes provided their own explanations for the telephone evidence. Corry had not remained silent when interviewed by the police. He had given an innocent explanation for his connection with the boat on 8 November. He had been on a recreational trip off the coast. He did not give evidence at the trial. His case as put by counsel was that Nicholls had untruthfully attributed a role to Corry in the drugs importations which in fact belonged to Francis Reid whom Nicholls wished to protect as a friend. It was submitted on his behalf that the telephone evidence incriminated Reid rather than him.

[13]The case for all three appellants was that Nicholls was a manipulative liar who had cobbled together a false story with the assistance of Detective Constables Brown and Winstone and on the back of his corrupt relationship with Detective Constable Bird. He had done so in order to cover up or minimise his own criminality in relation to the drugs importations and the murders and in order to receive a lenient sentence. It is implicit in the unanimous verdicts of the jury that they were sure about the evidence of Nicholls in relation to the drugs importations and the murders but not about the later firearm matter.

The present appeals

[14]Two weeks after the Court of Appeal refused leave to appeal on 25 January 1999, an application was made to the Criminal Cases Review Commission. On 21 December 2004, the Commission referred the cases of the three appellants to this Court. It did so on the basis of new evidence of which neither the prosecution nor the defence had been aware at the time of the trial or the 1999 appeal. In referring to the prosecution at this point, we mean prosecuting counsel and the Crown Prosecution Service. The new evidence does not relate to the circumstances of the offences of which the appellants were convicted. It relates to dealings which Nicholls had with the media from a time in 1995 before he gave evidence at the committal in November 1995 and long before the trial at the Central Criminal Court which commenced on 1 September 1997. That there was contact with the media and that from the middle of 1995 Nicholls was contracting for reward to collaborate in the production of material to be published after the trial is beyond dispute. It is also beyond dispute that at the time when he began to have dealings with the media he was on bail with a condition that he reside wherever directed by senior police officers. At the material times he was residing in various police stations as a protected witness. That had been so since his first court appearance in May 1996. The Criminal Cases Review Commission came to this conclusion:

“… if the trial jury had heard evidence regarding Mr Nicholls’ dealings with the media prior to the trial, they might nevertheless have convicted Mr Steele, Mr Whomes and Mr Corry. However, given the use that the defence could have made of the new evidence in attacking Mr Nicholls’ credibility and the centrality of his evidence to the Crown’s case, the Commission considers that the Court of Appeal might well not be satisfied that, if the jury had heard the new evidence, they would necessarily have arrived at the same verdict … Accordingly the Commission considers that there is a real possibility that the Court of Appeal would quash these convictions.”

[15]In pursuing their appeals to this Court, the appellants seek to rely not only on damage to the credibility of Nicholls. Their case is that, additionally and importantly, Nicholls’ contacts with the media were facilitated by the police officers during periods of protective custody and that Nicholls and the officers colluded to suppress and keep from the jury the existence and extent of those contacts. This, it is said, afflicts not only the credibility of Nicholls but also the credibility of the police officers, particularly Detective Constables Brown and Winstone who not only conducted the important interviews with Nicholls following his arrest, but also acted as welfare officers during the time between his becoming a protected witness in May 1995 and the date of the trial. These were the very officers against whom the defence had alleged collusion with Nicholls in the dishonest formulation of his eventual evidence. This addendum to the point which concerned the Criminal Cases Review Commission is based substantially on material which has come to light only since the Commission made the reference. Accordingly, the grounds of appeal of all three appellants complain about the non-disclosure of the media contacts prior to trial and further assert that the new evidence about those contacts undermines the credibility of Nicholls to a point which renders the convictions unsafe. Reliance is also sought to be placed on what is said to be new evidence from the expert witnesses who had dealt with the telephone evidence at trial. In addition, Mr Blaxland QC, on behalf of Whomes, contends that the trial judge misdirected the jury when dealing with the possible drawing of adverse inferences from the failure of Whomes to answer questions in interview. If there is anything in this point, it would also accrue to the benefit of Steele.

The new evidence about media contacts

[16]We have received evidence from three witnesses who appeared before us. They are Ms Caroline Dawnay, a literary agent, Ms Barbara Daniel, a publisher, and Mr Stuart Morris, a television producer. We have also considered numerous documents. What does this evidence establish? Ms Dawnay has acted as literary agent for Tony Thompson since the early 1990s. She was instrumental in bringing about the publication of his book Gangland Britain which was first published in 1995 and a paperback edition of which was published in late June or early July 1996. The paperback edition contains a brief and inconsequential reference to the Rettenden murders. Ms Dawnay agreed to meet with Tony Thompson on 25 July 1995. For some reason that meeting was postponed until 1 August. On 1 August there was a meeting attended by Ms Dawnay, Tony Thompson and Nicholls. It took place in Ms Dawnay’s club in central London. Its purpose was to discuss a proposed book which would result from collaboration between Thompson and Nicholls. Two days earlier, Thompson had sent Ms Dawnay an outline of the proposal. After the meeting, Ms Dawnay considered the proposal and discussed it with colleagues. On 7 August Thompson revised the outline. Also on 7 August Ms Dawnay sent copies of the outline and a confidentiality agreement to four publishers. One of them, Little Brown, expressed interest and eventually became the publisher of the book. It was published under the title Bloggs 19 with the sub-title The Story of the Essex Ranger Rover Triple Murders. It was published in the sole name of Thompson in 2000. In the acknowledgments Thompson expressed gratitude to “numerous police officers, customs officers and members of the underworld”. There is no doubt that Nicholls collaborated with Thompson. They entered into a collaboration agreement and both were parties to the publishing contract. The collaboration agreement is dated 17 August 1995. The publishing contract with Little Brown had been signed by all parties by 14 September 1996. The publishing contact provided for an advance of £20,000 to be paid to Thompson and Nicholls. The agreement between Thompson and Nicholls provided for the division of that sum between them. The payment was made in stages, mainly via Thompson. It is difficult to be precise as to how much Nicholls received before and after publication but the likelihood is that it amounted to between £10,000 and £15,000. Although the original agreement with the publisher had anticipated a draft manuscript would be delivered by 30 November 1996, with later editions to embrace the trial, the manuscript was only delivered on 5 August 1999. The date of publication was 3 February 2000.

[17]The history as we have recounted it of the relationship between Nicholls, Thompson and their agent and publisher is largely undisputed. Although Mr Munday QC was not able to concede that Nicholls was present at the meeting on 1 August 1996, in our judgment it is virtually certain that he was there. The real controversy is as to the origin of the contact between Nicholls and Thompson, the frequency of that contact thereafter and the part played by police officers in facilitating or acquiescing in that contact.

[18]It is important to keep in mind the evidence we have received and not to speculate about evidence which we have not received and which no one has asked us to receive. Although Tony Thompson has made a number of statements dealing with the history, they are riddled with inconsistency. Neither the prosecution nor any appellant sought to call him as a witness. Indeed, the view expressed on all sides was that counsel should decline to call Thompson because he lacks credibility in view of the inconsistencies to which we have referred. We can well understand that view. In the circumstances we did not consider it appropriate for the Court to call Thompson as a witness. No one ever suggested that Nicholls should be called as a witness. On behalf of Steele, Baroness Kennedy QC has sought to persuade us that the contact between Thompson and Nicholls must have begun at a considerably earlier date. We can find no basis for such an assertion. It is a reasonable inference that there had been some sort of contact, probably by telephone, prior to 25 July 1995, the date of the postponed meeting with Ms Dawnay. It seems from a fax from Thompson to Ms Dawnay dated 29 July that there had been some delay until that date in producing the five page outline. It may be that the meeting of 25 July was postponed because the outline was not ready. Whether or not that is so, there is no evidence before us from which it could properly be inferred that there was any contact between Nicholls and Thompson before mid-July 1995.

[19]The next question relates to the knowledge of police officers and their involvement in the meeting of 1 August 1995. At that time, Nicholls was residing in Colchester Police Station on conditional bail as a protected witness. In such circumstances, it is an inescapable conclusion that, in order to attend the meeting in London, police officers must have known about and assisted in bringing about his presence there. The arrangements surrounding Nicholls’ residence in Colchester Police Station at that time have been the subject of evidence to us from Detective Constables Brown and Winstone. Having acted as the principal interviewing officers in May at the time when Nicholls made his initial disclosures, they were later deployed in a welfare role in relation to Nicholls. In addition, at the material time members of the Diving Squad of Essex Police had also been assigned to look after Nicholls. We have not been asked to receive evidence from any of them. The evidence of the Detective Constables was that the Diving Squad were relieved of such duties on or about 7 August because they had been discharging them in too lax a manner. This had included taking Nicholls to a public house and enabling him to drink alcohol. As Nicholls was in a police station he was also the subject of a custody record and came under the jurisdiction of a number of custody officers. No one has asked us to receive evidence from any of them. The custody record contains no entry at all for Thursday 1 August. A log subsequently compiled mainly by Detective Constable Brown from the custody record and possibly other documents is also silent as to 1 August. Detective Constables Brown and Winstone are emphatic that they never took Nicholls into Central London and they were unaware of anyone else taking him there on 1 August. There is no documentation available which shows whether Detective Constables Brown and Winstone were on duty that day or, if they were, what their duties were. Work rotas and pocket books have long since been destroyed. It is obvious from the custody records and the log that Nicholls was often taken out by police officers. In most cases the destination was within Essex. There is no reference to Central London. During the preceding week he had been taken out by one of the Diving Squad on 27 July and by two of the Diving Squad on 29 July. On each occasion he was out for about five hours and no destination was recorded. He was visited in the police station on 30 July by Detective Constable Winstone and another Detective Constable. On 31 July he was taken out for 5½ hours by two of the Diving Squad. He was visited by one of the Diving Squad on 2 August 1996. He was taken out by Detective Constable Winstone and one of the Diving Squad on 3 August 1996 and by Detective Constables Brown and Winstone on 5 August. On 7 August he was taken to see his wife by Detective Constables Brown and Winstone. On that occasion he was out for about 10 hours. Having regard to that contemporaneous material, and having been impressed by the evidence of Detective Constables Brown and Winstone to the effect that they were not involved in any visit to Central London on 1 August, we are unable to infer and we do not consider that any reasonable jury could properly infer, that Detective Constables Brown and Winstone knew of or participated in the visit to Central London on 1 August.

[20]The next issue is as to contact between Nicholls and Thompson in the months after 1 August. There is no doubt that there could have been telephone contact. There is equally no doubt that on some occasions Thompson was allowed to visit Nicholls in Harlow Police Station. The first mention of such a visit in the custody record is on 24 November 1996. Further visits are recorded on 16 February 1997, 23 February 1997 and 9 March 1997. So far as the last of those entries is concerned it records that Detective Constable Brown also visited Nicholls that day and there is an overlap between the times of the visits as recorded. However, Detective Constable Brown has no recollection of any encounter with Thompson. The same is true of Detective Constable Winstone.

[21]We are invited by counsel for the appellants to infer that there was much greater contact between Nicholls and Thompson between August 1996 and early 1997 and that it was facilitated by police officers including Detective Constables Brown and Winstone but suppressed in the documentation. It is pointed out that the agreement with Little Brown anticipated the delivery of a first manuscript by the end of November 1996 and that a document of Ms Dawnay dated 6 August 1996 states that Thompson “is working closely with him over the next two weeks and after that he won’t be needed any more, except for publicity which is uncertain”. In addition, there are copious references to Nicholls having been taken out of the police station for hours at a time on numerous days by Detective Constables Brown and Winstone. Once again, we do not consider that we or any reasonable jury could properly infer the degree and type of contact which counsel seek to establish. There is no evidence that the anticipated close collaboration which was expected to take place in August 1996 in fact occurred. Indeed, there is some contemporaneous documentary evidence that there was difficulty in communicating with Nicholls over the signing of documents. In the event, the contractual deadline of November 1996 was exceeded by an enormous margin as no manuscript was delivered until 5 August 1999, almost three years after the contractual date.

[22]We now turn to a different media contact. The new evidence comes from Mr Stuart Morris who is a television producer. In 1995 he was involved with factual programmes for LWT. At that time he had known Tony Thompson for some years. Mr Morris was the producer of a programme called Crime Monthly, one episode of which was broadcast on 22 December 1995. The programme has been described as “a sort of tabloid Crimewatch”. On 22 December it featured the Rettenden murders. Senior police officers from the investigation appeared, as did Thompson and another journalist. Mr Morris had involved Thompson because he knew of Thompson’s expertise in gangland crime and he thought that Thompson may be prepared to be less cautious than the police officers when describing the lifestyles of the deceased. Mr Morris thinks it unlikely that there was any contact between Thompson and the police officers who appeared on the programme. At one stage Baroness Kennedy was concerned to establish 22 December as the beginning of a sinister relationship between Thompson and the investigating officers but there is absolutely no basis for such an assertion and, wisely, she did not press it in her final submissions. More to the point, there was further contact between Mr Morris and Thompson in or about October 1996. Thompson was attempting and succeeded in selling to Mr Morris the idea of a programme which would amount to the inside story of a supergrass. This eventually resulted in a contractual arrangement formalised in May 1997 but with reference back to October/November 1996. In order to obtain material for the programme, Mr Morris entrusted to Thompson a video camera for onward transmission to Nicholls who would record a sort of video diary in his cell in the police station. The video camera was about 12 inches long. Thompson swore Mr Morris to secrecy because Thompson was anxious to ensure that the officers who were protecting Nicholls did not become aware of the camera. Thompson told Mr Morris that the police did not know what was happening. Nicholls proceeded to produce some ham-fisted recordings in which his face was disguised by something like an ice hockey mask. Mr Morris’ impression from a viewing of Nicholls’ videos was that Nicholls was speaking and acting in a way designed to ensure that others nearby would not hear him. Work continued on the proposed programme but Channel 4, which had been showing interest, withdrew its interest in about October 1998. Thereafter the BBC became interested and the programme was due to be transmitted on 3 February 1999. However Nicholls obtained an injunction to prevent the transmission on the grounds that, if transmitted, it might assist malicious people to identify and trace him. As a result, the programme was remade with an actor in place of Nicholls, but speaking Nicholls’ original words. The programme was transmitted on 5 August 1999. In all, Thompson received some £17,000 in relation to the television programme. No doubt some part of that was passed on to Nicholls.

[23]On behalf of the appellants, we are invited to infer that during the time when the television programme was conceived and steps were being taken to bring it to fruition, in particular by resort to Nicholls’ video diary, police officers, and specifically Detective Constables Brown and Winstone, were complicit in the arrangements and facilitated them. The officers robustly deny such allegations. They accept that from an early stage following his arrest Nicholls had spoken from time to time about a book, television and a film. However, they say that they did not take him seriously. However they were involved in the preparation for Nicholls’ application for an injunction in February 1999 and contemporaneous documentation from that period records that Nicholls had mentioned that he was going to appear on television but that they had advised him not to. In relation to the injunction proceedings Mr William Smith, Deputy Controller of Factual Programmes at LWT, swore an affidavit in which he referred to a meeting with Essex Police Officers and a subsequent telephone conversation with Mr Peter Laurie, the press officer to Essex Police. In the course of the telephone conversation Mr Smith says that he referred to police officers having provided Thompson with assistance in writing his book about Nicholls and the fact that Thompson was heavily involved in the television programme. Mr Smith added in his affidavit:

“Laurie conceded this was correct but said that it was ‘unofficial assistance’ only.”

[24]Upon this small foundation Baroness Kennedy seeks to construct a large and sinister edifice. There is no secret that Thompson received assistance from unnamed Essex police officers in the preparation of his book. That assistance was acknowledged in the book. Unsurprisingly, there is no evidence from Thompson as to which officers assisted him or upon which occasions. Moreover, such evidence as there is on this particular point relates to the time of the injunction application, which took place long after the conclusion of the trial at the Central Criminal Court on 20 January 1998.

[25]What can properly be concluded as a result of all this? First, that there was contact between Nicholls and Thompson from some time in July 1995, initially about the book project. Secondly, following the meeting of 1 August 1995, Thompson and Nicholls agreed to collaborate upon the proposed book and their collaboration resulted in the publication of Bloggs 19 in 2000. Thirdly, that Nicholls benefited financially from that collaboration. Fourthly, that Nicholls and Thompson also collaborated with the makers of the television programme from about October or November 1996. Fifthly, as part of the collaboration Nicholls recorded a video diary in his cell with a camera supplied by LWT via Thompson. Sixthly, Nicholls benefited financially from the making of the television programme. Seventhly, there is no evidence that Detective Constables Brown and Winstone or either of them colluded with Nicholls and/or Thompson in or towards the book project or the television programme. Eighthly, the allegations of sinister collusion are at best speculation and, on the evidence we have received, there is no scope for a proper inference of such collusion. Nevertheless, there is incontrovertible evidence of media deals and financial benefit involving Nicholls and dating back to a time before he had given evidence at the committal proceedings, let alone in the trial at the Central Criminal Court. We shall have to address the safety of the convictions against that background. Before we do so it is appropriate to state the approach which is required of us.

The approach of the Court of Appeal

[26]Section 2 of the Criminal Appeal Act 1968 provides:

“Subject to the provisions of this Act the Court of Appeal – (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.” (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.”

[27]It follows that the single question to be answered by this Court is whether it thinks that a particular conviction is “unsafe”. The correct approach to deciding that question was authoritatively set out by Lord Bingham of Cornhill in Pendleton

[2002] 1 Cr App R 34

;

[2001] UKHL 66

. Dealing in particular with fresh evidence cases, Lord Bingham said (paragraph 18):

“By the time the Court comes to decide that the appeal should be allowed or dismissed, it will have heard the evidence, including cross-examination and any submissions made on its effect. It may then conclude, without doubt, that the evidence cannot be accepted or cannot afford a ground for allowing the appeal … The Court may, on the other hand, judge the fresh evidence to be clearly conclusive in favour of allowing the appeal. Such might be the case, for example, if a witness who could not be in any way impeached testified, on oath and after all appropriate warnings, that he alone had committed the crime for which the appellant had been convicted. The more difficult cases are of course those which fall between these extreme ends of the spectrum.”

[28]He then emphasised the importance of the plain words of section 2 in this passage (paragraph 19):

“It is undesirable that exercise of the important judgment entrusted to the Court of Appeal by section 2(1) of the 1968 Act should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision. Thus the House in Stafford were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury … It would, as the House pointed out, be anomalous for the Court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford … does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

[29]In the course of the present appeal counsel have made repeated reference to Austin (unreported, 17 May 1996, 95/2096/Z5). That, too, was a case concerning the relationship between an important prosecution witness who had been deeply involved with the appellant and the media. In giving the judgment of the Court of Appeal

Lord Justice Swinton Thomas said (transcript page 17):

“The question that we are required to answer is whether this verdict is safe or not. In the context of this appeal that involves answering the question: are we sure that if this material had been available to the defence for cross-examination, the jury would necessarily have arrived at the same verdict?”

[30]Although Austin preceded Pendleton, in our judgment it is entirely consistent with the approach adumbrated by Lord Bingham. Be that as it may, it is incumbent upon us to adopt the approach of Lord Bingham, with whom Lord Mackay of Clashfern, Lord Steyn and Lord Hope of Craighead agreed. Lord Hobhouse of Woodborough, having identified the point of principle, also expressed his total agreement with Lord Bingham “on this aspect” (paragraph 35). He added (paragraph 36):

“Unless and until the Court of Appeal has been persuaded that the verdict of the jury is unsafe, the verdict must stand. Nothing less will suffice to displace it.”

[31]That, too, seems to us to be entirely consistent with the approach of Lord Bingham. Lord Hobhouse then said:

“A mere risk that it is unsafe does not suffice: the appellant has to discharge a burden of persuasion and persuade the Court of Appeal that the conviction is unsafe.”

[32]Although Mr Munday seeks to rely on the first clause of that sentence, again it seems to us that, read as a whole and in context, it does not add to or subtract from the speech of Lord Bingham which, in any event, contains the ratio of Pendleton. With that in mind, we now proceed to assess the evidence of Nicholls’ contacts with the media and the inferences that can properly be drawn from that evidence.

Are the convictions unsafe as a result of Nicholls’ media contacts?

[33]It is obvious that contacts and contracts between a witness and media interests in advance of a trial have a potential to engender injustice, especially when they are unknown to the defence at the time of trial and cannot be used in cross-examination of the witness. In March 2002 the Lord Chancellor’s Department published a consultation paper entitled Payments to Witnesses in which, in a foreword, Lord Irvine of Lairg referred to “the most pernicious practice” of payment to witnesses or potential witnesses for their stories. The consultation paper did not lead to any legislation but we understand that it has resulted in more active involvement by the Press Complaints Commission. So far as the present case is concerned it is apparent from their evidence that Ms Dawnay and Mr Morris genuinely thought in 1996 that their involvement with Nicholls was not at all inappropriate. They considered that so long as no prejudicial publication appeared before the conclusion of the trial, there was no harm in negotiating and contracting with a witness before a trial. It is true that neither Nicholls nor they committed any offence. However, we find it surprising that such prominent and experienced media practitioners did not apprehend that they might at least be providing the defence with material for cross-examination.

[34]It may be that, now the Press Complains Commission has become more involved in these matters, the 1990s may come to be seen as the most troublesome period in relation to contacts between witnesses and the media. We have already referred to the case of Austin (paragraph 28), in which a conviction for murder was quashed as a result of the media antics of a very important prosecution witness. It seems to us that the crucial point in that case was that the witness admitted that, when selling his story to the media, he had totally fabricated allegations about the appellant, albeit not in relation to the immediate subject matter of the trial. In such circumstances it is hardly surprising that the Court of Appeal did not feel confident that, if the subsequent material had been available to the defence for cross-examination, the jury would necessarily have arrived at the same verdict. A retrial was ordered and, we understand, the appellant was again convicted. At the other end of the scale, the case of Rosemary West (2 April 1996, 95/7813/S2) the fact that a number of witnesses had sold their stories to the media before the trial, which was disclosed to the defence before or during the trial, was not considered to give rise to even an arguable ground of appeal. Plainly, each case needs to be considered in the light of its own individual circumstances. It is a feature of the present case that, unlike in Austin, it has not been established and there is no material to suggest that Nicholls has fabricated any evidence relating to the appellants.

[35]With those matters in mind, we turn to the central question identified in Pendleton, namely “whether the conviction is safe and not whether the accused is guilty”. It seems to us that the following matters are of particular significance. First, all the essentials of Nicholls’ account had been imparted to police officers in interview and reduced to witness statements before he had any dealings with Thompson or any other members of the media. Although the defence case at trial was that what occurred in the interviews was the tip of an iceberg of collaboration between Nicholls and Detective Constables Brown and Winstone, there is not a shred of evidence to support such a contention. That issue was resolved by the jury and there is no new evidence to the contrary. Secondly, Nicholls’ account was long and detailed and in all important respects it remained consistent throughout. He was in the witness box for almost three weeks and was rigorously cross-examined by counsel for all three appellants. Thirdly, this was not a case in which the defence had no material with which to cross-examine. The material at the disposal of the defence enabled them to present Nicholls to the jury as a time-served criminal of some sophistication, a dishonest drug-trafficker and a man with a corrupt relationship with a police officer. He was plainly a manipulative man with his own interests to serve. He told the jury of the long time he had spent in the company of police officers leading up to the trial in the course of which they had been anxious that he might fail to come up to proof. Notwithstanding the volume of material which the defence were able to throw at Nicholls, the jury remained sure, and unanimously so, about the essentials of his account of the drugs importations and the murders. In those circumstances, if the jury had known about the media contacts and Nicholls had admitted them as he would have been bound to do, although those contacts are to be deprecated, it is difficult to see how they could have added significantly to the cross-examination armoury in the circumstances of this case. Fourthly, although the jury were convinced by Nicholls’ account of the essentials of the drugs importations and the murders, it is implicit in their verdict of Not Guilty on Count 5, the firearms charge, that they did not accept his evidence about everything. Baroness Kennedy seeks to turn that to the advantage of the appellants by submitting that, in effect, having started down the road to disbelief, the jury might have travelled further with one more push. However, the combination of factors is equally susceptible to the analysis that the jury were prepared to accept Nicholls on the drug importations and murders, notwithstanding his many personal shortcomings and in spite of the fact that they were unpersuaded by his account of one of the offences alleged on the indictment. For our part, we consider it virtually certain that the jury would also have rejected that part of Nicholls’ evidence where he sought to minimise the involvement in and knowledge of the drugs importations by his friend Reid. We cannot escape the conclusion that the jury, mindful of Nicholls’ personal shortcomings and accepting that he had probably not told the truth about, for example, the firearm and Reid, were nevertheless utterly convinced by his account of the essentials of the drugs importations and the murders. Fifthly, it is important not to forget the other evidence in the case. Nicholls’ account of the drugs importations was supported by a quantity of documentary evidence which confirmed aspects of his account although, to the extent that it did so, the appellants also proffered explanations which were consistent with that material. Nevertheless, the evidence of the arrests of the appellants in proximity to the boat on 8 November and the finding of a small trace of cannabis in the boat gave some support to Nicholls’ account. So far as the murders were concerned, the telephone evidence to which we shall return, was, in our judgment, strongly supportive of Nicholls’ account. Moreover, although Steele called alibi witnesses, the prosecution succeeded in proving that the alibi was false. Sixthly, even if, contrary to the view we have expressed, a reasonable jury might conclude that Detective Constables Brown and Winstone had been less than candid in their evidence to this court about their knowledge of Nicholls’ contacts with Thompson and the media, that does not undermine Nicholls’ trial evidence to a material degree.

[36]For all these reasons, we have come to the firm conclusion that what has been established about Nicholls’ contacts with the media does not undermine the safety of the convictions of the appellants. We have had careful regard to all the new evidence which is before this Court on this issue and have been careful to distinguish between that which is properly before the Court as evidence and that which others, who are not before the Court, may have said. There is no other proper way upon which to consider these matters.

[37]However, that does not dispose of this aspect of the case. We are also invited to consider the matter on a different level, namely that of a failure to disclose relevant material which failure, it is said, rendered the trial unfair. At its highest, the case for the appellants is that the police officers, and particularly Detective Constables Brown and Winstone, deliberately withheld information about contacts with the media. It follows from what we have said about their evidence that, we do not consider that this conclusion could properly be reached; indeed, we are sure that this did not happen. Undoubtedly, one or more police officers must have known of the visit to Central London on 1 August 1996. What is not established is whether any particular police officer knew or had reason to know of the potential significance of that occasion. We are prepared to assume, without finding, that one or more police officers (but not Detective Constables Brown and Winstone) knew in 1996 that Nicholls was liaising with the media with a view to making arrangements which would lead to financial reward. However, that assumption does not enable or entitle us to proceed to a conclusion that that or those police officer or officers were acting in bad faith by not taking steps to ensure that their knowledge was shared with the defence. It is common ground that not every failure to disclose automatically gives rise to an unfair trial. As we are not persuaded that any police officer has been shown to have acted in bad faith, and in the light of the conclusion we have reached about the safety of the convictions when considered in the light of what is now known about Nicholls’ media contacts, we do not consider that the trial can properly be characterised as unfair. Moreover, even if there was a defect in relation to the trial, that has now been reviewed by this Court on the present appeal. That that is a proper function of this Court is apparent from Edwards v United Kingdom

(1992) 15 EHRR 417

and Craven [2001 2 Cr App R 181. It is a function which has survived the coming into force of the Human Rights Act 1998. Standing back and taking a careful view of the trial and this appeal, we are entirely satisfied that there was no operative unfairness which affects the safety of the convictions.

[38]It follows from what we have said that the grounds of appeal of each appellant relating to Nicholls’ contacts with the media and what flowed from them are not such as to affect the safety of these convictions. We therefore turn to the other grounds of appeal.

The Mobile Telephone Point

[39]We turn now to deal with the points made upon the mobile telephones, which gave rise to a separate point of appeal. At the trial much evidence was called about the telephone traffic passing between the three deceased men, the defendants, Nicholls, their friends, families and others. As is well known, the itemized billings for each telephone account show the calls which were made, the telephone to which the call was made, the time the call was made and length of the call.

[40]Each mobile telephone making or receiving a call does so by way of a radio signal, which is routed through one of many local transmitters, commonly called ‘cell sites’, which provide a general coverage throughout the country. Skilled interrogation and analysis of the computer records will show the cell site through which each outgoing and incoming call made from or to a mobile telephone was routed. In order to make the information intelligible and relevant to the issues in the case, a selection of these calls, with this information, was incorporated into agreed schedules. We have in the course of our narrative already referred to many of these calls. However two specific calls require detailed examination and investigation. Both calls were made from Whomes’ mobile to Nicholls’ mobile on the evening of 6th Dec; both calls were made at 18.59. The first call was made at 18.59.21, the outgoing call was routed through the Ingatestone cell site, this call lasted one second. The second call was at 18.59.32, the outgoing call was routed through the Hockley 3 cell site, this call lasted 4 seconds.

[41]Based upon the evidence of Nicholls, it has always been the case for the prosecution that these calls were made by Whomes, immediately after the murders, as he and Steele summoned Nicholls to pick them up; if this be right, the call must have been made as he moved off down the lane from the Range Rover, which was parked at the far end of Workhouse Lane, just short of the gate. According to the evidence which he gave, Nicholls was waiting nearby in Meadow Road; when he received the calls from Whomes, he drove the short distance to Workhouse Lane, he turned the car round in the gap in the hedgerow and as he did so, Whomes and Steele arrived, they were short of breath, as if they had been running, a circumstance which again suggests that Whomes made the call as he was some considerable distance down the lane, perhaps very close to the Range Rover. It will be remembered that the prosecution suggested to the jury at the trial that the particulars of this call, as to time, place and circumstance – about which Nicholls did not and could not have known, as he made his statement – provided a compelling confirmation of his story.

[42]The defendants Whomes and Steele gave no explanation of these matters to the police in interview. Much later, after the details of this call were known, and after the cell site evidence had been disclosed – so that they knew when, by whom, to whom and through which cell sites the calls had been made – the defendants gave an explanation for the calls, as we have already set out. The prosecution alleges – and the jury by their verdict found – that the defendants have concocted a story so as to account for these telephone calls. We now turn to the claim made by Whomes, adopted by Steele, that he made these calls not from Workhouse Lane, as Nicholls claimed, but as he was at the Wheatsheaf Hotel. One of the issues at the trial was, therefore, whether the expert evidence could shed any light on whether the disputed calls were made from Workhouse Lane, as Nicholls has always said , or from the Wheatsheaf Hotel, as Whomes suggested at the trial.

[43]The jury heard several days of evidence on the point. We have read all the reports available at the trial. We have the transcripts of the expert evidence given at the trial, including the evidence from Mr Bristowe, the expert retained by the defence. We have read the summing up on the point, which accurately rehearsed the evidence in great detail. We have read the further reports from Mr Bristowe dated 1 May, 10 January and 11 January 2006 and from Mr Collins (the expert retained by the prosecution) dated 25 Nov 2005. We have also read the short report of ‘the areas of contention and agreement’ which both experts filed at court on the morning of 23 January.

[44]Anxious to ensure that the appellants have no lingering sense of grievance that we refused to hear evidence upon which they place reliance, we decided to hear the expert evidence from Mr Bristowe before deciding whether the evidence does in fact meet the criteria laid down by the section 23 of the Criminal Appeal Act 1968.

[45]It is clear to us from what we have read and heard that, provided that the mobile telephone is within the extreme range of the cell site (which is about 35 kilometres), it can be very difficult to make reliable deductions as to the place from which any particular call was made or at which it was received. There are many reasons for this. The signal may be disrupted by some physical obstruction, such as a hill or a building; such obvious barriers may be observed on the ground; they even be shown on a detailed map but the effect of the obstruction is not necessarily predictable. Metal structures or objects, for example, pylons can disrupt, or even reflect, the signal, so indeed can passing vehicles. Furthermore, movement of a few feet from side to side or even up or down can affect the strength of the signal; so it can make a difference whether the user holds a telephone to one ear or to the other, or whether his head is interposed between the transmitter and the telephone. Even on the same day, from the same place, in the same conditions, different telephones, even of the same make and model, can vary in performance.

[46]Nor is this all, for a cell site can only accept and process so many calls at one time. Each cell site has only so many available channels; if all the channels on the cell site are being used by other callers, then the computers will automatically switch the call to another cell site; thus whether a call is routed to one cell site or another will be affected by the volume of telephone traffic at that particular time. Volume of telephone traffic is peculiarly variable and unpredictable, but is often at its heaviest during the evening rush hour.

[47]There are many other factors which can have some effect, for example, atmospheric conditions, ionization, ice crystals in the air, falling rain or lack of summer foliage but these are not significant factors in this case and do not warrant further attention.

[48]For all these reasons, a call is not necessarily routed through the nearest cell site. Furthermore, for the same reasons, it is exceedingly difficult to identify the variable conditions prevailing on any particular previous occasion; thus one cannot say whether any particular call is more likely to be routed to one cell site than other; all that can be said is whether it is possible for it to have happened.

[49]Service providers do test the signal strength. From the information which they obtain, they produce ‘best server maps’ or ‘plot sheets’ which are theoretical computer predictions of the range of their cell sites. These take into account the topography, that is to say the physical characteristics of the lie of the land but they do not – and can not – take into account all the many other variables to which the radio signals are subject. So, contrary to popular belief, one cannot tell simply from examining these plot sheets through which cell site any call will be routed. We observe that the Wheatsheaf Hotel and Workhouse Lane are only half a mile apart, and that the angle between each and the Hockley cell site is only a couple of degrees (the point is seen at a glance by looking at Mr Bristowe’s figure 1a).

[50]All these matters were was fully canvassed – at considerable length - at the trial. Mr Bristowe carried out many tests; he measured the signal strength and he made various calls from mobile telephones along the length of Workhouse Lane. Basing his conclusions on his findings, he said that it was in the highest degree unlikely that a call from the end of Workhouse Lane could be routed though the Hockley 3 cell site. Mr Collins, the prosecution expert, did other tests; he said that there are so many variables and uncertainties that the call could well have been so routed. Plainly the jury thought that the calls were made from Workhouse Lane.

[51]Since the trial, Mr Bristowe has made a series of further tests. Knowing that one point made against his opinion was that he did not use Whomes’ actual telephone in his tests, although he did use the same make model, he obtained Mr Whomes’s telephone and made the same tests with the same results. We do not think that this added anything at all to the evidence which he gave at the time. This is particularly so since the performance of Whomes’ telephone may have degraded in the five years which intervened between his arrest in 1995 and Mr Bristowe’s further tests in 2000.

[52]A more powerful objection to the validity of his post trial tests, is that conditions have changed. Local cell sites are regularly inspected and tested. It often happens that to improve performance some adjustment is made to the apparatus. It may be modified, re-aligned or even replaced; any alteration in the equipment may affect its performance and may make some difference to its range and capacity. Not only that, for communication technology is being constantly improved and new equipment may be installed on the old cell site or new sites set up; all this will affect the range of the site. Furthermore there may be some change to surrounding buildings which might affect the signals.

[53]Another problem is that Whomes telephone was an analogue device. Analogue usage has declined markedly in recent years; therefore the volume of traffic which might have diverted the call away from the nearest cell site to Hockley 3 back in 1995 is most unlikely to have recurred at the time of Mr Bristowe’s further tests.

[54]So attempted reconstructions become less and less reliable the longer the time elapses between the test and the reconstructions. In our judgment these factors cast considerable doubt on the validity of the attempts which Mr Bristowe made after the trial to recreate the conditions of the 6th December 1995.

[55]Mr Bristowe in the course of his evidence to us said in terms that he remains of the same opinion that he held – and gave – at the trial. He said that he wanted to add nothing nor did he want to amend anything. We do not think that there has been any significant change at all in the state of the mobile telephone evidence since the trial. We heard his evidence without deciding whether to receive it under section 23; having considered it, we are satisfied that there is no new evidence here, and even if there was, it would have made no difference in the trial. Accordingly we decline formally to admit this evidence. On detailed examination, we think there is nothing in this point at all and that the mobile telephone evidence casts no doubt at all on the safety of the convictions, indeed it supports them.

The section 34 point

[56]We turn now to deal with Ground 6, raised by the appellant Whomes, which is in these terms:

‘the learned judge in summing-up misdirected the jury on the approach they should take to the appellant’s failure to answer questions in interview. In particular the judge misdirected the jury that legal advice to remain silent was not a sufficient reason in law’

. Precisely the same point applies to the appellant Steele.

[57]During their interviews with the police, following their arrest, neither Whomes nor Steele answered any of the questions put to them. At trial they explained that this was because they had been advised by their solicitors not to do so.

The judge first dealt with the matter (at 9th January, transcript IV (d) page 4A –F) in this way:

“I will give you a fuller direction later on when I have finished reviewing all the evidence including the evidence for the defence. The direction I give you at present is this: when a defendant is asked questions after caution he is not obliged to say anything if he does not want to. He does not have to give any answers at all. He can, if he wishes, stay totally silent and say no comment, say no answer – he does not have to utter a word. That is his right in law. But the law also says that if he does stay silent when questioned and does not mention a fact which in the circumstances existing at the time he could reasonably have been expected to mention, then the jury may draw such inferences from the failure to mention that fact as appear proper. That means that you, the jury, may draw such inferences from the failure as appear proper to you. You do not have to, you have the choice. That is why the words of the caution include the words not only that he does not have to say anything, but also the words: it may harm your defence if you do not mention when questioned something which you later rely on in court. I will expand that direction later on as I promised.”

[59]Later, when rehearsing, in great detail, the evidence which Steele gave to the jury, the judge reminded them of his explanation for not answering questions, he said this (at 13th January, transcript IV (f) page 47A –F):

“He was taken through his interviews in May 1996…. He said he could have said where he was on 6th December at any time in those times when he was in custody. He chose not to because he was given legal advice not to. It was put to him that the real reason was that he had not invented his defence yet. He said that that was not the reason. He was given good legal advice to go no comment.”

[60]He reminded them a few pages later (page 54F) that Steele ‘was giving as his reason for not answering questions in interview the legal advice he had been given’. Then he gave this direction (at 54G – 55A):

“I have already indicated to you, and I do it again as a direction of law, that in law that is not a sufficient reason – advice from a lawyer not to comment. I will give you again at the end of my summing-up once I have dealt also with the evidence of Whomes a further direction of the effect of not answering questions (which I have already given you once) when we come to the interviews in November of 1995. I will come again to that at the end of my summing-up.”

[61]Having reviewed the evidence of Steele, he reminded the jury of the evidence given by the appellant Whomes. He told them (at 14th January, transcript IV (g) page 64 A): that Whomes had said that he had not said anything to the police because he had been given legal advice to say ‘no comment’. He then gave this general direction on their failure to tell their stories to the police in the course of the interviews, he said this (at page 85 D – 86C):

“You have heard all the evidence that has been given on every subject in relation to that defence put forward by the defendants separately and you have heard them each accept that they could have given that explanation earlier if they had decided to. The direction in law I have to give you on this topic ……is each defendant has in his defence [re]lied on the detailed facts, which have been summarised to you, about their movements and the reasons for those movements and the knowledge that they had and the things that they said, details of that particular act. Each defendant admits that he did not mention those facts when he was questioned under caution before being charged with the offence. The prosecution case is that in the circumstances, when he was questioned, he could reasonably have been expected then to mention each of those facts. If you are sure he did fail to mention those facts, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention. If it was, the law is you may draw such inferences as appear proper from his failure to mention this matter at the time. Failure to mention such a fact cannot on its own prove guilt. It cannot separately on its own prove guilt, but depending on the circumstances you may hold it against him when deciding whether he is guilty; that is take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.”

[62]It will be remembered that when the defendants were arrested in May 1996 section 34 of the Criminal Justice and Public Order Act 1994 had only been in force for a year. The judge faithfully applied the Standard Directions then suggested by the Judicial Studies Board. Certainly none of the experienced counsel sought at the time, or indeed on the original application for leave to appeal, to suggest that this formula was wrong. Later cases were, of course, to focus more directly on the directions to be given when a defendant seeks to justify his failure to mention relevant facts on which he later relies by reference to the legal advice which he was given at the time. The Current JSB direction has been adapted to deal with the new approach, it is in these terms:

“You may draw such a conclusion against him only if you think it is a fair and proper conclusion and you are satisfied about three things: first, that when he was interviewed he could reasonably have been expected to mention the fact on which he now relies; secondly, that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny; third, that apart from his failure to mention those facts, the prosecution’s case against him is so strong that it clearly calls for an answer.”

[63]No doubt if these circumstances were to arise now, the trial judge would follow the current JSB directions, which is in accordance with the most recent cases decided in this court. As Mr Blaxland points out, the judge’s original direction at the trial did not make clear, in terms, that the prosecution case against the defendants had to be so strong that it called for an answer, before any adverse inference could be drawn. Furthermore, he argues, the judge’s direction that legal advice to remain silent was not in law a sufficient reason was wrong, or at least an over-simplification. He says – correctly - that the recent case of Beckles

[2005] 1 Cr App R 23

, the latest in the long line of authority, makes clear that the jury should ask whether the defendant genuinely and reasonably relied on legal advice to remain silent and that the three questions asked in the JSB direction should be approached in the light of their assessment of the reasons given by the defendants for relying on the advice given. Therefore, he argues, that because of the ways in the law has since developed, the passages to which we have referred were misdirections.

[64]The provisions of many modern statutes are so complex that their interpretation is in a constant state of development and refinement; earlier convictions are not rendered unsafe simply because the law has moved on in the meantime. In Mitchell

(1977) 65 Cr. App. R 185

, at p 189 Lane LJ said: “It should be clearly understood, and this Court wants to make it even more abundantly clear, that the fact there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction”.

[65]Although this was an application for leave to extend time, it is clear that the case laid down a general approach, which has been applied many times. It was endorsed by Lord Bingham CJ in Hawkins

[1997] 1 Cr App R 234

at page 240:

“It is plain, as we read the authorities, that there is no inflexible rule on this subject, but the general practice is plainly one which sets its face against the re-opening of convictions in such circumstances. Counsel submits – and in our judgement correctly submits – that the practice of the Court has in the past, in this and comparable situations, been to eschew undue technicality and ask whether any substantial injustice has been done.”

[66]In our judgement, these cases show how we should approach Mr Blaxland’s argument. In the context of this case, Nicholl’s account that he had driven Steele and Whomes away after committing the murders- and indeed Nicholls detailed account as to their involvement in the importation of the cannabis - supported as it was by the detailed evidence of the telephone traffic passing between them, including the timing of such calls and the cell sites through which the messages passed, was evidence which presented a case against them which was so strong that it called for an answer and any jury would have been bound so to find, even though they were not specifically directed in those terms. Furthermore, the complete failure of Steele and Whomes to make any mention to the police of the detailed accounts which they were later to give, which entirely exonerated them from participation in the murder – and indeed the importations of cannabis - was plainly capable of being a matter from which an adverse inference could be drawn. The judge reminded the jury that each appellant had said that he had not answered questions on legal advice. Following the practice of the day, neither waived legal professional privilege, nor was asked to do so. Beyond the bare recital that they had been advised to say nothing, neither said anything about the detailed advice they had been given. Neither called his solicitor to explain the reasons for the advice. Neither said what they had told the solicitor. Neither suggested that he had made any mention at all, even to the solicitors, of the detailed version which they were later to give to the jury.

[67]Very likely, the judge’s directions would be different if the matter were to be tried now. However, in the circumstances of this case, we do not think that any injustice whatsoever resulted from the directions which were given. No doubt as to safety of the conviction is raised in our minds by this point and accordingly, this ground of appeal is also rejected.

Conclusion

[68]It follows from what we have said that none of the grounds of appeal in relation to any appellant persuades us that any of the convictions is unsafe. This is an important case and we have been careful to consider it not only as a series of separate grounds of appeal but also on a holistic basis. We detect no element of unsafety and, accordingly, all three appeals against conviction are dismissed.