Sammon v R. [2011] EWCA Crim 1199

[2011] EWCA Crim 1199

Case No 201000991 D3

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL from Manchester Crown Court

His Honour Judge Steiger QC

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

Date 18/05/2011

Before

LORD JUSTICE PITCHFORD

MR JUSTICE BLAIR

MR JUSTICE EDWARDS-STUART

Between

MICHAEL JOSEPH SAMMONAppellant

RRespondent

H C GRUNWALD QC and A DOS SANTOS (instructed by Paul Martin & Co. - Solicitors) for Appellant

P CURRAN and A NICHOLSON (instructed by CPS) for Respondent

Hearing Hearing date: 8 April 2011

Judgment

[1]This is an appeal against conviction with the leave of the single judge to argue three grounds concerning, principally, the trial judge’s exercise of discretion under section 78 Police and Criminal Evidence 1984, and a renewed application to argue four further grounds. The appellant also renews his application for permission to appeal against his sentence.

[2]The prosecution case at trial was that the appellant, Michael Joseph Sammon, together with Robert Tyrer, who pleaded guilty, were the main actors in conspiracies between 16 April 2004 and 5 September 2005: Count 1: to possess firearms with intent to endanger life; Count 2: to import prohibited items, namely firearms, contrary to section 50(2)(a) and (4) of the Customs and Excise Management Act 1979; Count 3: to manufacture firearms contrary to section (1)(aba) of the Firearms Act 1968; Count 4: to possess ammunition contrary to section 1 of the Firearms Act 1968. The investigation

[3]On 19 July 2004 Thomas Ravenscroft, now deceased, was arrested at Dover by officers of HM Customs when found in possession of 24 ME .38 magnum handguns and one ME.38 compact handgun manufactured by Cuno Melcher in Germany. They were blank-firing sports guns. Ravenscroft was charged with unlawful possession of firearms and in May 2005 he was sentenced to 3 years imprisonment. Also in his possession was a diary which was photocopied and returned to him. That diary contained important information about telephone numbers which featured in the appellant’s trial.

[4]On 22 October 2004 an officer of HM Revenue and Customs intercepted a parcel at the depot in Dover. It contained three blank-firing Cuno Melcher .38 revolvers. The package was addressed to K Lloyd at 456 Stockport Road in Manchester. Kenneth Lloyd of that address was an associate of Robert Tyrer.

[5]On 13 January 2005 a Royal Mail or Parcelforce employee stole a parcel from the international mail sorting office in Coventry. When recovered it was found to contain three ME .38 compact revolvers and three Luger pistols, also blank- firing. The addressee for the parcel was ‘Tyrer’.

[6]On 22 July 2005 two parcels were delivered to a furniture store in Stockport Road, Levenshulme. They were addressed to a P Taylor, 864 Stockport Road, an address which did not exist. Staff opened the parcel and found 11 blank firing ME .38 compact revolvers and three ME Luger blank-firing pistols. The police were called. On 3 and 5 August 2005 two similar parcels were intercepted at the Parcelforce depot in Giddings Road, Piccadilly, Manchester. Nineteen firearms were recovered from these two parcels. The sender on each occasion was K Lloyd, 6 Telfer Avenue, Longsight, Manchester.

[7]On 24 August 2005 Robert Tyrer was seen to enter 6 Telfer Avenue using a key. He was arrested on 5 September 2005. In his possession was a German “Postpaket” receipt dated 19 July 2005. At the time of his arrest Robert Tyrer was living at flats in 536 Hyde Road, Gorton with his brother Jamie and Kenneth Lloyd. A search was made at this address on 5 and 6 September. During the search the police found a substantial quantity of incriminating articles relating to firearms and their conversion, specifically the conversion of a Cuno Melcher ME .38 compact revolver. In addition, search officers recovered ammunition and a relevant travel document. At the home of Tyrer’s partner, Margaret Bray, officers recovered further incriminating articles including German travel tickets and post office receipts.

[8]Jamie Tyrer was arrested on 5 September 2005 and Kenneth Lloyd was arrested on 7 October 2005.

[9]David McCulloch was by trade a machine engineer. He was arrested on 20 March 2006 at his workshop in Victoria Mill industrial estate, Ancoats in Manchester. Inside, the officers found a workshop, engineering tools, milling machines, a computer, computer software and materials all, according to expert evidence, suitable for the conversion of blank-firing guns for the discharge of live ammunition. On the following day search officers recovered from the paper tray of Mr McCulloch’s photocopier a converted ME .38 compact revolver and five live rounds of ammunition. The conversion was a sophisticated engineering operation which, in the experience of the firearms expert, was unique.

[10]During their investigation officers discovered the paper trail by which it was established that some 273 blank-firing guns had been imported, at first by means of personal courier, such as Ravenscroft in July 2004, and latterly by package post from Germany. Of those 273 firearms some had been seized, some had been identified as used in crimes; the rest, about 100, were still unaccounted for.

[11]When interviewed under caution McCulloch made denials. On 28 March 2006 two detective officers, Houston and Young, visited McCulloch on remand in prison. At that meeting McCulloch said that he wanted to tell the officers “everything” and was prepared to give evidence for the prosecution. McCulloch consulted a solicitor. On 5 June 2006 McCulloch pleaded guilty to counts 1, 3 and 4 of the indictment by video link before the trial judge, HH Judge Steiger QC. On 22 June 2006 a written agreement was signed pursuant to section 73 Serious Organised Crime and Police Act 2005. By that agreement McCulloch agreed to assist in the investigation and prosecution of a number of named individuals who did not include Michael Sammon because at that stage the investigation was unaware of his involvement. Following recorded interviews, called “the debriefing process”, McCulloch signed a 12-page witness statement on 5 July 2006. He referred to the unknown conspirator as ‘Mick’, the only name by which he was able to identify him.

[12]The German Postpaket receipt for 19 July 2005 recovered from Robert Tyrer’s wallet was examined for fingerprints. Sammon’s finger marks were found in positions which were consistent with him holding the receipt in a pinch grip between his left thumb and forefinger. Sammon had been arrested, bailed and was awaiting trial for a fraud offence in 1997. He breached his bail and ever since had remained at large. He was convicted in his absence and sentenced to 4 years imprisonment. On Sammon’s subsequent arrest it was discovered that he was living under the false identity of a deceased friend called McDonagh, and was using a false passport in that name. In the intervening period Sammon had acquired shop premises from which, through a manager and shop assistant, he was selling hardware, machinery and equipment including power tools and generators.

[13]McCulloch’s witness statement was served on those defendants who had been arrested. As a result, Ravenscroft pleaded guilty to count 2 of the indictment. He was suffering from a terminal illness and was sentenced in February 2007 to a suspended term of imprisonment. In July and August 2006 Robert Tyrer, Jamie Tyrer and Kenneth Lloyd pleaded guilty to counts 2, 3 & 4 inclusive. They were sentenced to 19 years, 5 years and 13 years imprisonment respectively.

[14]When, on 27 November 2006, McCulloch appeared for sentence, there was taken into consideration an offence of unlawful possession of an Uzi sub-machine gun which he had been asked to repair several years before by an associate of Robert Tyrer’s. Very considerable credit was given to McCulloch for his co-operation with the prosecution. His sentence was 6 years imprisonment.

[15]On 7 January 2008 Brian Kinsley walked into Blackpool police station and said that he wanted to “help with Mike Sammon”. He said that Sammon was involved in the industrial growing of cannabis and had been running guns from Germany. Mr Kinsley had a history of mental ill-health to which we shall need to refer in more detail. He told DC Gallagher that Sammon was staying with a man called Tony Key in a seafront flat in Lytham St Annes. There is no evidence whether he was or was not. Kinsley said that Sammon was “wanted by Crimewatch”. There had at that stage been no Crimewatch programme relevant to Sammon. On 17 March 2008, there was a Crimewatch appeal in connection with an investigation into gun crime in Manchester but it had nothing to do with the current investigation, ‘Operation Carbon’, and did not refer to Mr Sammon or his co-accused. The information provided by Kinsley was circulated and picked up by the Manchester police. Kinsley had by then gone to Southampton where he was eventually traced. With the encouragement of the investigating officers he returned to Manchester on 20 June 2008. In the course of interview Mr Kinsley admitted that he had harboured Michael Sammon in a flat at 8 Shore Road, Blackpool. He was cautioned and examined by a doctor who certified him fit for interview. The interview continued. On 9 October 2008 Mr Kinsley signed a witness statement confirming the content of his interview under caution.

[16]Kinsley said in his witness statement that in June or July 2006 he saw a television trailer for the Crimewatch programme. He thought he recognised ‘Mick’. Within minutes Mick, Colin Hughes and Anthony Key turned up. Mick said that he and Tony needed somewhere to stay and put pressure on him to permit them to stay in his flat. He eventually agreed. Mick wanted to watch the news channels. He, Tony and Colin started drinking from a bottle of whisky. Kinsley said that they found nothing of significance in the news programmes However, when the Crimewatch programme came on and a ‘rogues gallery’ was broadcast, Mick said, “There I am, I told you I was on it Colin. There I am”. According to Kinsley the programme mentioned four men who had been sent to prison for re-arming guns which had then been sold on the streets of Manchester. Mick made several comments in response to the programme which demonstrated inside knowledge:(1) He felt sorry for the man who was sentenced to 15 years because “he did nothing really”; he was a lackey;

(2) Mick said the programme made it look as though they had brought the guns into the UK in containers. They did not: He said ‘we’ went to Germany and sent them back in parcels;

(3) The only mistake they made was sending them to the same address;

(4) The only reason they got caught was because someone had sent a parcel addressed to his own home;

(5) Mick said that ‘they’ thought he was the armourer. He was not. He had got someone else. Mick said he was “just the money man”;

(6) One of the men was old and sick;

(7) The engineer got 25 years. Mick thought that he was “looking at more than that”. Kinsley said in his witness statement that Mick and Tony had stayed at his flat for about eight to ten days. When they left Mick travelled on the back seat of Colin’s BMW covered by a coat. Kinsley said that he next saw Mick about six weeks later at a barbeque at Colin and Beverley Hughes’ house in Lytham St Annes. Following the barbeque the next and last time Kinsley said he saw Mick was at the Sun Inn on New Year’s Eve 2006.

[17]Sammon, his current partner, Fiona McIntyre, and Anthony Key were arrested at Southsea Leisure Park, Portsmouth on 28 June 2008. On 28 October 2008 Colin Hughes were arrested at his home address in Lytham St Annes. Following his arrest Mr Sammon was taken ill and was never interviewed under caution about these matters. In his defence statement, subsequently served, Mr Sammon referred to McCulloch’s workshop assistant, Andrew Thorley. In consequence the investigating officers arrested Andrew Thorley on 27 June 2009. The trial

[18]The trial of Michael Sammon, Colin Hughes, Fiona McIntyre, Anthony Key and Andrew Thorley took place between 2 November 2009 and 21 January 2010 at Manchester Crown Court, sitting at Preston, before HH Judge Steiger QC. Andrew Thorley was charged together with Sammon in count 3 with conspiracy to manufacture firearms. He was found not guilty by the jury. Fiona McIntyre was charged in count 5 with having a false instrument, namely a false Irish passport in the name of Monaghan. She was charged in count 6 with assisting Sammon, by providing accommodation with intent to impede his apprehension or prosecution, knowing or believing him to be guilty of conspiracy to possess firearms with intent to endanger life. She was convicted by the jury and sentenced to 30 months imprisonment. Colin Hughes was charged in count 7 with assisting an offender by providing Sammon with accommodation while of the same knowledge or belief. He was convicted by the jury and received a suspended sentence order. Anthony Key was charged in count 8 with assisting an offender by providing Sammon with accommodation while of the same knowledge or belief. He was convicted by the jury and received a suspended sentence order. On 2 November 2009 the appellant pleaded guilty to 2 offences, having a false instrument with intent and possessing identity documents with intent. Evidence of McCulloch

[19]At the trial David McCulloch gave evidence that he was 55 years of age. He had commenced his engineering apprenticeship in 1974. In time he had acquired his own workshop and traded as DMC Engineering with 12 employees. Later, as business dwindled, the firm’s name was changed to City Components. By 2004 he was on his own and living at the workshop. He was hoping to cash in his lease under a compulsory purchase order. His marriage had broken down and he was drinking to excess. He was approached by Robert Tyrer and Mike Sammon. The meeting took place after Ravenscroft had been stopped in Dover in July 2004. Tyrer produced two guns and asked whether he could drill out the barrels. There was a hardened steel obstruction built into the barrels to ensure that they could not fire live ammunition. It was agreed that Sammon and Tyrer would acquire specialist tooling from a firm called J & L in Birmingham. The tools were brought to the workshop by Sammon and Tyrer. Several relevant invoices had been recovered from addresses associated with Tyrer. Sammon and Tyrer assisted McCulloch to drill out the cylinders to receive the cartridges. Kenneth Lloyd also assisted. Sammon and Tyrer were present for test firings and Tyrer obtained black and silver paint with which to coat the guns. The blank-firing guns were delivered in packages brought to the workshop by Sammon and Tyrer. McCulloch converted them. McCulloch said that he had converted about 300 guns in all, for which he had been paid between £4,000 and £5,000 together with bottles of whisky. The agreed price had been £100 per gun but he had not been paid what was due to him.

[20]McCulloch showed Tyrer and Sammon a prototype pen cartridge gun left with him by the man for whom he had repaired the Uzi submachine gun. They assisted to provide further parts to go into production of pen guns. Tyrer hurt himself while test firing one of the pens, causing Sammon some amusement. The pens never became saleable items. McCulloch said that Sammon also employed him to repair a quantity of power tools and generators from his shop business. That work was done by Andrew Thorley, his assistant. McCulloch said that in April 2005 he was asked by Tyrer to go to Malaga to inspect gun making machinery in Spain. In Spain he met Sammon who was already there. McCulloch said that he had left Kenneth Lloyd behind in Manchester converting 150 guns. In the middle of his visit to Spain McCulloch was told to return to Manchester to inspect Lloyd’s work and was provided with expenses to enable him to do so. When he returned Lloyd had completed about 100 guns. McCulloch went back to Spain but the enterprise there came to nothing.

[21]McCulloch said that all his mobile telephone calls with Sammon related to guns. He did not socialise with the Tyrers or with Sammon. Sammon had told him that the guns were selling for £750 when supplied with 5 or 10 rounds of ammunition. People were coming from Scotland, Liverpool, Birmingham, Sheffield, Newcastle and London to purchase them. McCulloch said that when Robert Tyrer was arrested Sammon telephoned him and warned him that he had better clear out.

[22]On 19 January 2010 the appellant was convicted of all 4 conspiracies charged in counts 1 – 4. On 22 January 2010 he was sentenced by the trial judge as follows - Count 1: 30 years imprisonment, count 2: 6 years imprisonment, count 3: 8 years imprisonment, count 4: 4 years imprisonment, and for the document offences 30 months imprisonment on each count. All sentences were ordered to run concurrently making 30 years in all. Grounds of Appeal

[23]Mr Grunwald QC and Mr Dos Santos, who represented Mr Sammon in his trial, have advanced seven grounds of appeal:(1) The trial judge permitted the prosecution to adduce in evidence the recording of a television programme called “Manhunt”. Its admission was so plainly prejudicial to the appellant that the evidence should either have been excluded altogether or introduced to the jury by agreed description;

(2) Having discovered that the “Manhunt” programme had been admitted on an erroneous factual basis, the judge should have but failed to discharge the jury;

(3) The judge wrongly permitted the prosecution to adduce before the jury a recording of a Granada TV news programme which further prejudiced the appellant;

(4) The learned judge wrongly admitted evidence which demonstrated the criminal purposes to which at least some of the imported weapons had been put; the evidence was unnecessary and prejudicial;

(5) The learned judge wrongly declined to permit defence counsel to cross-examine DC Houston upon possible breaches of Code C PACE 1984 concerning vulnerable suspects;

(6) In summing up the learned judge failed adequately to place the defence case before the jury;

(7) The learned judge misdirected the jury upon those matters which were capable of supporting the evidence of the witness McCulloch in the trial against the appellant. As we have said, the appellant advances Grounds 1 – 3 with the leave of the single judge, Roderick Evans J, and seeks to renew his application in respect of Grounds 4 – 7. Grounds 1 – 3: Admission in evidence of television programmes and the evidence of Brian Kinsley

[24]In order to consider the propriety of the admission of the television recordings it is necessary to examine the development of Kinsley’s evidence in some detail.

[25]Brian Kinsley gave evidence that he was a native of Bradford. Following the break-up of his marriage he became an alcoholic. He lived an itinerant life travelling between Blackpool, Southampton and Leeds. He had remained a full-blown alcoholic for a 10 year period between 1985 and 1995. He claimed to have taken his last drink in 1995. When presented with an entry in his medical records to the effect that he had informed a doctor that he had taken a few beers on an occasion in 2003, Kinsley admitted that he would lie to doctors to obtain prescription drugs. In his late 30s Kinsley had moved to Southampton and had undergone a period of detoxification and rehabilitation. He made two unsuccessful attempts and, he said, a third successful attempt to rid himself of his dependency on alcohol. Nevertheless, he had a history of mental health problems. He had been provided with prescription drugs for depression, anxiety, sleeplessness and psychosis. He told the police during interview in 2008 that he was still not 100 per cent. At the time he gave evidence he was being prescribed Diazepam.

[26]When he returned to Blackpool in about 2003/4 Kinsley said he lived in social security accommodation at the Rinehart Hotel, Blackpool. He was at that time unkempt and unclean. He was a regular customer at Bev’s Café on Shore Road in Blackpool. ‘Bev’ was Beverley Hughes, the wife of the defendant Colin Hughes. They befriended him. They knew the landlord of 8 Shore Road, a house converted to flats, and introduced him to Kinsley. Kinsley became a tenant of flat 4a on the first floor. He continued to be a regular customer of Bev’s Café where he got to know Anthony Key (who lived above the café). Later, a man he knew as “Mike” or “Mick” became a regular visitor. Mick’s girlfriend was the landlady (Fiona McIntyre) at the Sun Inn within easy walking distance of the café and the flat. Mick first turned up at the time of the funeral of a man from Manchester who had settled in Blackpool. It was later established that the date of the funeral was 2 September 2005.

[27]Kinsley described an occasion in June or July 2006 when he was in a ground floor flat at 8 Shore Road occupied by Lee Hall and Pauline Paxon watching the television. According to Kinsley they had watched a trailer for the “Crimewatch” programme. The trailer showed four photographs of wanted people, one of whom he recognised as Mick. Colin Hughes, Anthony Key and Mick then turned up at 8 Shore Road to speak to Lee Hall. They wanted to stay with Lee and Pauline but he, Kinsley, offered them his own flat. They went upstairs to flat 4a to watch the television. The Crimewatch programme came on. One of the articles was about gun smuggling and the presenter said that Michael Sammon was wanted. It was not until the programme referred to the surname that he realised that the Mick he knew was Michael Sammon. Mick, during the course of a conversation, made a number of remarks in response to the programme which were relevant and incriminating. When he saw his photograph he said he did not look like that anymore. Kinsley said that Mr Sammon obviously knew about the sentencing of other defendants, he thought from a Manchester newspaper article. He said there was a man who got 15 years who did not deserve it and he felt sorry for him. He said the ‘engineer’ got 25 years. Kinsley was asked whether Sammon had agreed with the content of the programme. He replied, “Most of it”. Sammon said the programme made it sound as if he was the armourer but he was not. He was only in it for the money. Packages containing the guns, small pistols, were sent to the UK from Germany by post. Sammon said the packages were sent to the same address in Manchester. The guns were ‘re-bored’ (heard as ‘re-balled’ by the shorthand writer). Kinsley understood they were making ammunition. Mick told them that they had to be careful not to put too much explosive in the ammunition so that the guns did not backfire and injure them.

[28]Mr Curran asked Mr Kinsley whether he would be able to recognise the Crimewatch trailer and the programme which followed if he saw them again. Kinsley said that he would. The prosecution and the defence were already aware that no relevant Crimewatch programme had been broadcast which Kinsley could have watched with Sammon and his co-accused. Research had, however, revealed the broadcast of a “Manhunt” programme by BBC North West on 29 May 2007. Kinsley had never told the police that he had watched the Manhunt programme and the investigating officers had deliberately not shown the programme to Kinsley in advance of the trial on advice that to do so might risk an accusation of manipulation. The Manhunt programme did display photographs of men wanted for a variety of different criminal activities. One of them was Sammon. The programme involved a reconstruction staged at McCulloch’s premises where men were seen test-firing weapons. An actor who could sensibly be thought to represent Mr Sammon spoke lines provided for him which suggested that he brought pressure on the armourer (McCulloch) to produce converted guns to his order. There was a studio demonstration of the lethal nature of such weapons by firearms officers who used a similar weapon to destroy a melon.

[29]The prosecution had forewarned the judge of its application to play the Manhunt recording despite the fact that it was broadcast 12 months later than Kinsley recalled. The application was resisted by Mr Grunwald on the ground that it was prejudicial and unnecessary. The jury could, by agreement, be given a general description. It was suggested that Kinsley’s evidence would not, by that means, be in any sense diminished. The judge was invited to exercise his discretion under section 78 Police and Criminal Evidence Act 1984 to refuse permission for the programme itself to be replayed in evidence. The judge viewed the programme in the privacy of his room and, having done so, gave leave for the recording to be played to the witness and the jury. He gave short written reasons handed down at 4.00 pm on 25 November 2009. At paragraphs 6 and 7 he said:

“6. The second item of evidence objected to was the Manhunt programme transmitted by BBC North West on Wednesday 27 May 2007 for which a trailer was broadcast earlier that day both of which I saw before making any ruling that it was admissible. The programme is part factual and part dramatic reconstruction which is not based on any evidence. I was with Mr Grunwald to the extent of warning the jury that some of the DVD was dramatic reconstruction and I had confidence that they would be able to distinguish such material from evidence. 7. The prosecution argued that the programme was relevant since Brian Kinsley claimed that he had watched it with Sammon, Hughes and Key; Sammon had made observations about facts not within the programme itself and so had effectively confessed to Kinsley that he was involved in the conversions. In addition, Kinsley’s evidence fixed Key and Hughes with knowledge of the evidence for which Sammon was sought by the police and was relevant to their state of mind on the counts of assisting an offender; at the beginning of the trial the prosecution made clear that they would only ask for convictions if the jury was sure that Hughes, Key and McIntyre knew that Sammon was on the run in connection with guns endangering life.”

[30]In argument before this Court Mr Grunwald objected in particular to passages which he described as follows in his written advice and grounds:

“DI Lyons: I was able to uncover that these firearms had fallen into the hands of criminals across Manchester and further afield in the North West and around the UK. These have been involved in a variety of horrendous incidents, involved in serious armed robberies, serious injuries, and some deaths. Presenter: Once a gun hits the streets there is no way of knowing how many crimes it will be involved in or how many people will be threatened, injured, or even killed as a result. (studio cleared) Presenter: Scotland Yard Officers need to remain anonymous (in balaclavas). (Officer uses a 9 mm self-loading pistol or similar to shoot a water-melon exploding it dramatically). Presenter: Well, just imagine if that was somebody’s head. That impact was from a self-loading pistol but the 274 guns that Michael Sammon is believed to have sold were converted weapons and nearly 100 of which are still on the streets. This is what happened when people came face to face with them ... (Two recreations shown) [including the purchase of a gun by a youth wearing a hoodie riding a bicycle]. DI Lyons: We believe Sammon is at the very top. Presenter: Police say there is a climate of fear that surrounds this man.”

Presenter: Police say there is a climate of fear that surrounds this man.”

[31]Each member of the court has watched the footage for himself. There is no doubt the contents of the programme were inadmissible if the object was to establish the truth of its contents. Its contents were clearly prejudicial in that they represented in dramatic terms:(1) The urgent necessity of tracing the ringleader of a conspiracy to convert and distribute guns, Michael Sammon;

(2) The lethal nature of the weapons;

(3) The fatal harm which such weapons could cause when placed in the wrong hands, including members of young teenage gangs;

(4) The climate of fear which surrounded Michael Sammon. As to the fourth of these features of the programme Mr Grunwald argued that the jury may have made an unwarranted connection between the alleged character of Michael Sammon and the special arrangements made for the jury’s travel to and from court. We do not accept this assertion. The jury was provided with the conventional re-assurance as to their travel arrangements.

[32]In our judgment, the content of the Manhunt programme was, upon the facts known to the trial judge, clearly relevant to the issues the jury was being asked to resolve. Mr Kinsley’s evidence was hotly disputed. There was much about the witness’s background to which we have referred that would be relied upon to attack his credibility. The conversation between Mr Sammon and his companions was, Kinsley said, generated by the content of a television programme. The content of the Manhunt programme matched the description given by Kinsley. Although the broadcast had taken place in 2007 and not June or July 2006, the similarity was striking. It was a real possibility that Kinsley was mistaken about the name of the programme and the date of transmission but correct about its content and the occasion. The appellant was, Kinsley said, drawing a comparison between the allegations made in the programme and the truth as he “knew” it to be. The playing of the programme to the jury provided them with the context within which this important alleged conversation took place.

[33]We do not suggest that every judge would have permitted the recording to be shown to the jury. It may have been possible to provide from a transcript of the programme a sufficient summary to achieve the prosecution’s proper objective. We shall consider the practicability of this course later in this judgment together with the cumulative effect of prejudice, if any. As will become apparent the judge received insufficient assistance from both the prosecution and defence. As a result he admitted the recording upon a misapprehension as to the state of the evidence. We shall also examine later the effect of the error upon the fairness of the trial and the safety of the verdicts.

[34]Before the recording of the trailer was played to the jury and the witness

the judge said to the jury:

“Ladies and gentlemen, you’re going to see now a trailer of [and] the programme itself. I think can I give you a warning about your approach to these television programmes. I have actually seen these programmes once and it is perfectly clear to me that there is a great deal of dramatic reconstruction so when you are looking at these programmes, please remember that a lot of the content is a dramatic reconstruction and not something of which there is clear evidence one way or the other.”

[35]Having viewed the trailer, Brian Kinsley immediately conceded that the trailer was for the Manhunt programme and not Crimewatch, but he insisted that it had indeed been the programme which he had viewed with the appellant, Hughes and Key. He thought that he might have seen both programmes. The programme itself was then played to the court. Kinsley confirmed that this was the programme he had watched with the accused. He repeated that Sammon had told him he was not the armourer but the money man who provided the guns. He said that Colin Hughes left that night but Sammon and Key stayed with him for two days (later he said about a week) after the programme was broadcast. Colin would bring them food. They left in Mr Hughes’ white BMW because a neighbour made a complaint of excessive noise. Mr Sammon lay on the back seat. They were going, Kinsley understood, to an address in Lytham St Annes. He saw Mr Sammon on four or five occasions after he had left. He last saw Mr Sammon on New Year’s Eve at the Sun Inn. He turned up unexpectedly. Sammon was aware that he was wanted but did not seem to be bothered about it. Examination in chief of Kinsley was completed on Tuesday, 24 November 2009. Mr Grunwald commenced his cross-examination on the following day, Wednesday 25 November.

[36]Kinsley was asked many questions about his earlier life. The defence had been provided with his medical records. He had in the past suffered severe psychosis and he accepted that were times while he was drinking when he had lost touch with reality, but not since. He had taken his medication as advised although there had been occasional lapses. What had turned his life around, he said, was his relationship with his present partner and their child. When he left his flat in Shore Road he moved into another address at 31A Bolton Road with his partner. When he became a witness he was placed upon the witness protection programme and he accepted that under the programme he was provided with new accommodation and environmental circumstances with which he was extremely pleased. It had provided him with a more stable life than he had had known since the 1980s.

[37]Kinsley agreed that when interviewed by the police he had told them that the programme he had watched was broadcast in June or July 2006. The Manhunt programme was not broadcast until 29 May 2007. Mr Kinsley conceded that he had got his dates wrong. He was clear, however, that the date on which he had seen Mr Sammon on New Year’s Eve was 31 December 2006. It was pointed out to Mr Kinsley that this could not fit with his evidence that he had last seen Sammon on New Year’s Eve 2006 after viewing the television programme. If the correct year was 2007 he was now saying that he had last seen Mr Sammon eight days before he went to Blackpool police station. Mr Grunwald put to Kinsley (formal admission 170) that the date of the funeral of the man from Manchester (Crolla) was 2 September 2005. He was then questioned about the tenancy of his flat in Shore Road. He said that he had moved into his flat on the Thursday before his birthday which would have been shortly before 22 March. He thought that would be in the year 2007. Mr Grunwald had in his possession a copy of the tenancy agreement which showed the tenancy began on 21 March 2005. The first payment of rent was due on 27 March 2005. Kinsley again conceded that he had been wrong about his dates. The witness had at first claimed to have returned to Blackpool on the Tuesday before Good Friday in 2003 or 2004. He conceded that he must have stayed in the Rinehart Hotel for almost a year after his arrival in 2004. He had not thought it was that long a period.

[38]Mr Kinsley admitted that he had told the police that pressure had been on him to provide Sammon and Key with an address at which to stay. That was not true. He had volunteered his flat. The account he had given of being in the ground floor flat with Lee and Pauline was true.

[39]Mr Grunwald then put to Mr Kinsley that he had vacated his flat at 8 Shore Road on 22 April 2007. The implication was, first, that Kinsley was not resident in his flat at the time when he said he had allowed Mr Sammon and Mr Key to stay there and, secondly, he had left the flat over a month before the Manhunt programme was broadcast. It was suggested to Mr Kinsley that his evidence could not be believed. Kinsley insisted that he had watched a television programme with Mick and about Mick. He suggested that he could have been mistaken about the identity of the programme. They could have been watching the news. At page 43B of the transcript of volume 2 of his evidence Mr Kinsley said:

“We watched Sky News, we watched Granada News, we watched every news programme possible to find out what was going on and we read the newspapers together. They did stay at my flat. I’ll state that and there’s no way you’re going to get me to change me mind about that ...”

Asked by Mr Grunwald what he was now saying, Mr Kinsley replied (page 44E):

“That when they were sentenced they was on the Granada news. Michael’s picture came up, he came round, I offered to let him stay, he did stay. He stayed for approximately a week and then he left and then I seen him a few times after that. Q: Are you now saying this was a television programme when the other people got sentenced? A: Yes. Q: Not the Manhunt programme: A: No. Q: So we have got that completely wrong have we? A: Yes, I got it wrong. But I think you will find if you get the coverage of them programmes you will see the picture and you will see what I am saying is true.”

Q: Not the Manhunt programme:

Q: So we have got that completely wrong have we?

[40]Mr Grunwald wanted to make an application to discharge the jury but he was encouraged by the judge to continue with his cross-examination for the time being. Mr Kinsley pointed out that in his evidence in chief he had referred to Mr Sammon’s remarks about sentencing. The sentences had not been broadcast in the Manhunt programme. Mr Grunwald reminded the witness that in his earlier account in interview with the police he had claimed that while he and the accused had watched the television news they had not seen anything relevant; also, at that time he was saying that they had watched the Crimewatch programme. Mr Kinsley continued to insist that he had watched a television programme of the kind he was describing. He was asked questions about his visit to Blackpool police station on 8 January 2008 and his return from Southampton in June 2008. Cross-examination was then interrupted to enable counsel to make an application for the discharge of the jury. We shall consider this application once we have completed the chronology. The judge gave time for further investigation of television programming to take place.

[41]Cross examination resumed on Tuesday, 1 December 2009, after the judge had rejected the application. Mr Grunwald returned to Kinsley’s inconsistencies as to the programme watched with the accused. Mr Kinsley said that on the day after the ‘Wanted’ [Manhunt] programme in May 2007 Mr Hughes and his wife moved to Lytham St Annes. It was a news programme he had watched with Sammon, Hughes and Key. Kinsley said that he had been wrong to give the impression that New Year’s Eve 2006 was the last time he had seen Mr Sammon. He had not seen him from the day Mr Sammon left Kinsley’s flat (which he put at November 2006) until 31 December 2006. He had seen him afterwards at a barbeque at the Hughes’ house in Lytham during the summer of 2007. Mr Kinsley was asked further questions by Mr Grunwald about his dealings with the police in 2008.

[42]It was suggested to Mr Kinsley by Miss Daley on behalf of Fiona McIntyre that a barmaid called Annie had banned him from the Sun Inn before New Year’s Eve 2006. It was suggested he had not been there that night. Kinsley denied both suggestions.

[43]In answer to questions from Mr Jackson on behalf of Colin Hughes, Mr Kinsley repeated that while he had got the date and the programme wrong it was true that he had seen a news programme with the relevant information within it. It was at the time of the Manhunt programme in May 2007 that Mr and Mrs Hughes moved house. Cross-examination resumed on Wednesday, 2 December 2009. It was put to Kinsley by Mr Jackson that Beverley and Colin Hughes had in fact moved two weeks before the Manhunt programme was broadcast. Mr Kinsley said they may have purchased the house before the programme but he was first told they were moving by Mrs Hughes on the day Manhunt was shown. He said he had met his partner in September or October 2007. She had been doing cleaning work at Pontin’s holiday camp with Mrs Hughes and Pauline Paxon. He agreed that in November or December 2007 they had told him he had to choose between his new partner and them. They did not trust her. He denied that he went to the police in January 2008 in a spirit of revenge. He was reminded that in his statement he had referred to Mr Sammon being covered by a coat when he left his flat in Mr Hughes’ BMW. He confirmed the truth of his statement and said he had forgotten that detail.

[44]When asked questions by Mr Travers on behalf of Key he said about the critical television programme (transcript evidence of Kinsley volume 4, 2 December 2009 page 25E):

“It was about the news. I have already agreed that I have got that wrong, that I had seen it on the ... the time they came to my flat was on the news Granada News reports, I believe, and North West Tonight.”

He again conceded that he had told the police originally that he had been put under pressure to provide temporary accommodation to Michael Sammon. That was not true; he had offered accommodation so as to avoid risk to Lee and Pauline in the flat below. He had no explanation why he had given the earlier account. He insisted that Mr Key had arrived with the others for the purpose about which he had given evidence.

[45]In re-examination by Mr Curran, Mr Kinsley accepted that, as Mr Grunwald had put to him, he left his flat in Shore Road in April 2007. Application to discharge the jury

[46]On 25 November 2009 all defence counsel, save Mr Diamond on behalf of Andrew Thorley, sought the discharge of the jury. The judge was reminded that he had at the outset of the trial declined to permit the prosecution to adduce film of a demonstration by a firearms expert of one of the firearms recovered. He had ruled it unnecessary to admit the evidence. He had, however, admitted a similar demonstration performed in more dramatic and prejudicial terms in the Manhunt programme. Now, it had been established that the television programme which Kinsley claimed to have viewed with the accused could not have been viewed. There was, in the circumstances, no evidential basis for the programme to have been admitted in evidence in the first place. Only prejudice was left and the jury should be discharged.

[47]The judge explained his ruling admitting the recording of the Manhunt programme in written reasons handed down at 4 pm on 25 November 2009 (see paragraph 29 above). He continued :

“8. As matters stood yesterday afternoon it appeared to me that the programme was admissible for the reasons advanced by the Crown and that Sammon could fairly be protected by the warning I gave to the jury. However, the evidence took an unexpected turn this afternoon when in the cross-examination Kinsley said that it was not the Manhunt programme in May 2007 which he watched with the other defendants but a Granada TV item in 2006 which reported on the sentences passed in November. Had I known what was to come out of cross-examination I would, of course, have ruled the Manhunt programme inadmissible. 9. As a result of Kinsley’s evidence I heard defence submissions at 3.15 pm today that the jury ought to be discharged. Mr Grunwald submitted that the Manhunt programme was both prejudicial and wholly irrelevant since Kinsley admitted that he had not seen it and the only fair course was to discharge the jury. Counsel for Hughes and Key supported the application whereas Mr Diamond for Thorley opposed it. 10. In his reply Mr Curran informed me that the police do have a recording of a TV programme from November 2006 dealing with the sentences and referring to Sammon along with a photograph. Mr Curran suggested that Kinsley must have made a mistake and confused the May 2007 Manhunt programme with a November 2006 news report. For whatever reason this had not been previously disclosed to the defence and so I adjourned for counsel to consider it. I will return to the application to discharge the jury tomorrow.”

[48]On Thursday, 26 November the judge gave his ruling on the application to discharge the jury. At page 3E, transcript volume III he encapsulated the defence submission as follows:

“... the damage done to the interest of the defence by what turns out to have been inadmissible material is so great that that could only be cured by the jury being discharged and there being a new trial ordered. In particular, the defendants Key and Hughes, through their advocates, stressed that Kinsley’s account of those two defendants being present at the discussion when the Manhunt programme was seen, is the only evidence which fixes them with the knowledge that Sammon was involved in the distribution of firearms for the purpose of endangering life. In the case of Fiona McIntyre, there is, of course, other evidence so far as she is concerned, but Miss Daley submits that she too, perhaps rather than directly removed, is also affected by this evidence that the jury should not have seen.”

[49]The judge reviewed the contents of the Manhunt programme in detail (pages 2D-3D). He concluded that to the extent that the nature of the conspiracy had been covered by the programme the jury now had admissible evidence (from McCulloch, recovered exhibits and admissions) from which to reach their conclusions. Secondly, and controversially, the Manhunt programme depicted short range test-firing at a melon, a female presenter observing, “Imagine if that was someone’s head”, thus stressing the lethal potential of the weapons. Thirdly, the programme had referred to a robbery at Oldham and a shooting in Old Trafford as incidents during which converted firearms had been used. There was no evidence implicating any of the converted weapons with the Old Trafford shooting. Fourthly, DC Lyons was filmed outside McCulloch’s workshop describing the nature of the conspiracy. Fifthly, a firearms expert described the lethal nature of the weapons. They were dangerous also to the user. The judge observed that the jury had heard independently that Kenneth Lloyd’s blood had been found on a damaged weapon. Sixthly, dramatic reconstructions showed Mr Sammon negotiating for the conversion of the weapons and, while doing so, adopting a threatening and bullying manner. He was shown selling a gun to a youth on a bicycle. The judge observed that this was clearly dramatic reconstruction for which there was no support in the evidence. However, it was the kind of behaviour in which Mr Sammon had been implicated by the evidence of McCulloch. Lastly, the judge identified the description of Sammon as a man around whom there was “a climate of fear” as the most troubling aspect of the programme.

[50]In the meantime the prosecution had carried out a trawl of television programmes in order to ascertain what programme it may have been Kinsley was referring to. There were seven relevant broadcasts made on Wednesday 22 November 2006 the day upon which the trial judge had passed sentence upon Robert Tyrer, Jamie Tyrer and Kenneth Lloyd. One of the seven broadcasts was an ITV Granada news report aired at about 6.30 pm. While a shorter programme it contained much of the material broadcast in the Manhunt programme. In particular, there was a reference to one of the firearms being used in a robbery in Oldham, a reference to Mr Sammon as the mastermind and paymaster who was still at large, and a demonstration in the open made by the firearms expert of the effect of using a similar weapon to shoot a melon. There was also a broadcast by Sky News mentioning Mr Sammon at 5.00 pm and 6.00 pm. The content was substantially the same as that in the Granada reports.

[51]The judge reviewed Kinsley’s interviews with the police, his witness statement of 9 October 2008 and his evidence. When Kinsley took part in an identification procedure on 4 November 2008 he identified Mick as the man he had seen in his flat “in June/July 2006”. On 18 November when identifying Key a statement prepared for him and signed by Kinsley read, “At 9.20 I picked out the person at position 4 on the DVD as being the person whom I saw on the 29th of May of 2007, who visited my flat in Blackpool immediately following the Manhunt broadcast on television showing wanted people”. The judge concluded that the decision to alight upon the Manhunt programme was an error made not by Kinsley himself but by the investigating officers. Kinsley himself had, throughout, until he gave evidence, referred to a Crimewatch programme which everyone accepted was irrelevant and was not broadcast until March 2008, several weeks after Kinsley had first gone to the police to give information. The judge continued (page 6B):

“In my view Kinsley was hopelessly confused about dates and details of the television programme. There is no evidence at the moment that Kinsley ever watched the broadcast of the 22 November 2006, it is merely a matter of surmise on the part of the prosecution that Kinsley must have been watching that programme and had made that mistake, and Mr Grunwald submits that the November 2006 programme is irrelevant. Mr Grunwald submits that prejudice inuring to Sammon’s case is so great that only a new trial and the discharge of the present jury can fairly accommodate his client’s fair trial interests. And Mr Grunwald, despite being offered an opportunity, was not interested in performing any comparison between the Manhunt programme from May 2007 and the November 2006 broadcasts, saying that effectively the earlier was irrelevant. The prosecution say that it is clear that Kinsley has seen some television programme. They submit that he had consistently referred to a television programme since he first went to the police on the 7 January, even though he may have been in error about the correct time of the programme concerned. The prosecution submit that the only sensible explanation, consistent with all of the known facts is that Kinsley must be referring to one or other or both or more of the broadcasts on the 22 November, two of which undoubtedly referred to Sammon.... The prosecution concede that there are differences between the two programmes...but they submit that such differences as there are, are not so great that appropriate directions or a comment cannot fairly accommodate the genuine error that has been made, as it seems to me more by the police than by Mr Kinsley.”

The judge made the following further observations (page 6G):

“In coming to my conclusions, I bear in mind the following considerations that, firstly, the jury have already heard from David McCulloch, a witness apparently not connected to Kinsley, who put Sammon at the heart of the conspiracy... Secondly, that although Sammon never gave an interview, for reasons that the jury will not in due course be troubled by, he accepts in his defence case statement knowing Kinsley. The majority of the Manhunt programme, in my judgement, summarises the evidence that the jury have heard and which is not in dispute. The problematical elements of the Manhunt programme in my judgement are the reconstruction and the comment. So far as the role played by Sammon is concerned the threats are a significant feature, but in my judgement they are consistent with the evidence that McCulloch has given, the reconstruction is something which is evidently so to the jury and in my judgement, as it was yesterday when I gave my written reasons, a sophisticated jury ought to have no difficulty in distinguishing between reconstruction and hard evidence and they had already been given a warning to that effect.”

The judge acknowledged that on the face of it the description “a climate of fear” was a highly prejudicial comment. However, McCulloch had, when giving evidence to the jury, described Sammon and Robert Tyrer as being threatening. That is why he had retained one of the weapons and concealed it in the photocopier in his office. In the result the judge concluded that although these developments were worrying the trial (page 7C):

“can properly and fairly continue provided there are a number of caveats observed: firstly, that the jury are directed to ignore the Manhunt programme completely, in particular the passage relating to reconstruction and comment; secondly, that the defence have a fair opportunity of considering the material from the 22 November and any other dates upon which broadcasts may have taken place.” “can properly and fairly continue provided there are a number of caveats observed: firstly, that the jury are directed to ignore the Manhunt programme completely, in particular the passage relating to reconstruction and comment; secondly, that the defence have a fair opportunity of considering the material from the 22 November and any other dates upon which broadcasts may have taken place.”

At page 7E

the judge reflected upon the proper approach to admissibility of any further television broadcast:

“Thirdly, remembering as I do that Kinsley is halfway through his being cross-examined, it seems to me appropriate that if further enquiry was to be made as to whether or not the programme which he saw was one or other of the broadcasts on the 22nd of November that that enquiry rather than being conducted by a police officer is conducted by a voir dire. The defence for Sammon in this case have suggested throughout that the police have been actuated by malice and bad faith and if there were to be any enquiry into how it comes, if it is so suggested, that Kinsley has mistaken one programme for another, then the enquiry must be made in open court on the voir dire without the jury present. Thus provided those three caveats can be dealt with I see no reason why the trial should not continue, but I recognise that both the prosecution and the defence will wish to have time to consider their position in the light of this ruling and I shall therefore adjourn until half-past ten tomorrow.”

[53]On the morning of 2 December 2009 the prosecution made an application to the judge to play a recording of the Granada news programme broadcast on 22 November 2006. The judge concluded that further cross-examination on behalf of the defendants had disclosed (Vol IV, page 2E):

“a real danger that unless the jury sees the news programme or programmes from November, they may have a completely distorted view of the difference between those two broadcasts. In my judgment, as my recapitulation of the contents earlier this afternoon demonstrates, there are very significant similarities in many respects, and accordingly I am with the prosecution in principle that the programme should go before the jury. Kinsley has spoken repeatedly today about there being a Granada programme, and it seems to me that the jury should watch that programme, and I consider in the circumstances that the nature of the cross-examination has made it admissible”

. The judge was not, however, prepared to permit the prosecution to show the Granada programme to Mr Kinsley in the presence of the jury. The purpose of showing the programme was limited to enabling the jury to consider the credibility of Kinsley’s oral evidence that he and the accused had watched a television programme together, even if he had been hopelessly inconsistent as to which programme it was. The judge introduced the news programme to the jury by explaining that they were viewing it only in order better to understand the evidence of Kinsley. Assessment of prejudice and the safety of the verdicts

[54]This Court learned from Mr Grunwald that at the time when he first resisted Mr Curran’s application to play the Manhunt recording he was in possession of information to the effect that Mr Kinsley had acquired the tenancy of his flat in March 2005 and had vacated it in April 2007, before the date of the Manhunt broadcast. Mr Grunwald told the Court, and we accept, that he was not in possession of the document which confirmed his instructions until Wednesday 25 November 2009. The tenancy agreement was produced to Kinsley on that day but the document confirming the date of his departure from the flat was not shown to him or, as far as we can tell, to the trial judge. Kinsley simply accepted the date, 22 April 2007, which was put to him. Mr Grunwald did not draw to the attention of the trial judge, at the time the application to play the Manhunt recording was made, the fact that he was awaiting confirmation of his instructions. If the information available to the defence was accurate there could be no question of the Manhunt programme being admissible. It was one thing for Kinsley to have been mistaken about the year but, in our view, quite another for Kinsley to be proved to have vacated his flat before the programme was broadcast. We can understand an anxiety not to forewarn Kinsley of what was coming but disclosure to the trial judge need not have been made in the presence of the witness. It seems to us that provided the judge had been satisfied that the information would be available within a short period of time he would almost certainly have granted an adjournment for the purpose of obtaining confirmation. As the judge himself remarked, had he known in advance what was to emerge only in cross-examination, he would not have permitted the Manhunt programme to be played in the first place. In the result, the judge was invited to rule upon the application under a mistaken impression as to the facts. It is regrettable that full disclosure was not made to the judge at the outset but if, as a result of misunderstanding, a significant unfairness going to the safety of the verdicts has taken place the court will not seek to attribute responsibility but will seek to judge its effect.

[55]It does not automatically follow that because inadmissible material is placed mistakenly before the jury the trial must be stopped. In Lambert, McGrath and Brown

[2006] EWCA Crim 827

Lord Phillips CJ observed at paragraph 57:

"Sometimes in the conduct of a trial ... as a result of an oversight on the part of counsel and the judge, or the judge alone, a direction is omitted or material is placed before the jury which should not have been. It is wrong to start with the premise that such an oversight vitiates the trial. The question must always be whether, when viewed in the context of the trial as a whole, the safety of any verdict which has been given or is to be given, has been put in jeopardy or the fairness of the trial has otherwise been prejudiced to an extent that calls for the discharge of the jury or the quashing of a verdict."

The ultimate question which this Court will consider is whether there is a real risk that the jury was improperly influenced by the inadmissible material (compare Tufail

[2006] EWCA Crim 2879

, P

[2010] EWCA Crim 1296

and Brown

[2010] EWCA Crim 1337

). The answer to this question will depend not just on the nature and objectively prejudicial effect of the inadmissible material but also upon the terms, if any, of any warning to the jury and the other evidence in the case. The assessment of the influence of prejudice is intensely fact and case sensitive.

[56]In our judgment, juries are not to be treated as though they cannot, with suitable directions from the judge, distinguish between that which is probative upon the issues they have to decide and that which is merely prejudicial and which they must ignore. We no longer adopt a patronising attitude towards juries which requires them to hear nothing which, improperly considered, would be regarded as prejudicial to the defendant. Bad character evidence which is otherwise probative is one example. Provided the jury received a suitable warning, it was properly open to the judge to reach the conclusion that the Manhunt programme should be admitted in evidence. Once it was established that the Manhunt programme had been inadmissible because it was irrelevant the question for the judge was whether the prejudice it was capable of generating had undermined the fairness of the trial. If so, it was his obligation to discharge the jury. We are not persuaded that that stage had been reached for the reasons given by the judge in his ruling of 26 November 2009 (paragraphs 48-52 above). While the content was clearly prejudicial we agree with the judge that the admissible evidence provided the jury with the material required to distinguish between that which was relevant and that which was not. Further, this was not an occasion on which the jury’s assessment of the relevant evidence (that is, the reliability of the evidence of Kinsley and McCulloch) would be undermined by prejudicial material. Kinsley’s evidence was unaffected by the Manhunt programme. McCulloch was himself the source of much of the reconstruction and the jury’s paramount task was to decide whether he was a trustworthy witness. In other words, the live evidence of McCulloch and the warnings from the trial judge effectively sidelined the prejudicial material.

[57]We turn to consider whether the judge was right to permit the prosecution to play to the jury the news programme to which the witness himself had made specific reference. It is true that the witness had shown himself to be completely inconsistent in his attempt to recall the programme which he had watched but he had been utterly consistent in his assertion that he, the appellant and his co-accused had watched a programme. What would have been the position if, as Mr Grunwald proposed, suitable admissions had been made as to the contents of the Manhunt programme? First, we have reservations whether suitable admissions would ever have been capable of agreement. The prosecution needed detail in order to provide the context within which Kinsley was saying Mr Sammon commented upon the programme. The defence was unlikely to agree material which although relevant was prejudicial. Secondly, it seems to us that Mr Grunwald would still have been required to cross-examine Mr Kinsley upon the date and contents of the broadcast in order to lay the ground he required to undermine the witness’s evidence that Sammon viewed the programme with him in May 2007. It seems to us that in this regard he would hardly have been in a better position than he was after the Manhunt programme had been shown to the witness and the jury. Mr Grunwald would have demonstrated that Kinsley could not have viewed the Manhunt programme with Sammon but only at the expense of revealing the contents of the programme.

[58]What would have been the outcome of that cross-examination? Mr Curran would then have been entitled, in re-examination, to ascertain from the witness in as much detail as he could the content of the programme which the witness then recalled seeing. Since Mr Kinsley was insisting in cross-examination that it must have been a news programme, probably in November 2006, which he had watched, it would have been open to the prosecution to demonstrate to the jury, independently of the witness himself, that there was indeed such a programme broadcast at the time of sentence of the co-accused. That was the limited purpose for which the judge permitted the Granada television news programme to be played to the jury and, in our judgment, the judge was right to permit this course to be taken. We do not accept that the playing of the news programme in any sense compounded a prejudice already suffered by the appellant. We accept Mr Grunwald’s criticism of Kinsley’s evidence in that during interview with the police he had said that nothing material was shown on the news channels. This was, however, and always would have been, a matter of consistency and reliability of Kinsley’s evidence for consideration by the jury. There was no question but that upon important matters Kinsley’s had shown himself to be inconsistent if not ultimately unreliable. The issue for the jury was, in the end, whether they could have confidence that Kinsley had watched a television programme with the accused which resulted in comments from the appellant implicating him in the conspiracies. We do not accept Mr Grunwald’s submission that the effect of showing the Granada news programme was to endorse the prosecution’s case. The effect of viewing the programme upon their assessment of Kinsley was for the jury to judge. We note that the jury must have accepted the underlying truth of Kinsley’s evidence because it returned verdicts of guilty also against Hughes and Key.

[59]Mr Curran submits that the following considerations should lead to a conclusion that the jury’s verdicts were safe. We have already referred to the warning given by the judge before the programme was re-played. During his summing up, in the context of dealing with the sentence hearing on 22 November 2006, the judge referred to the Granada news report (transcript of summing up, volume 6, page 69g):

“You may recall that the broadcast of the news item lasts for about 5 minutes. It does include references to Mr Sammon. It went out at 6.30 pm in the later bulletin and it featured a number of shots. First of all, it included a picture and description of Mr Sammon as the mastermind the paymaster still at large. It included someone shooting a melon. It included an interview with Det. Insp. Lyons as he then was. ... The TV broadcast included references to a robbery in Rochdale part of which was a re-enactment. It included a reference to the gun being recovered in Darlington and it included the sentences passed on the Tyrers and Lloyd – not of course McCulloch because he wasn’t sentenced until later. The broadcast concluded with the police wanting to speak to Mr Sammon who was thought to be in Spain. Now, I gave you a warning in relation to the Manhunt programme and I repeat it in relation to this: you shouldn’t in any way treat any of the dramatic re-enactment as being in any way evidence against Mr Sammon or indeed anybody else. You must take care to distinguish between dramatic re-enactment and hard evidence in the case.”

[60]At page 72H the judge dealt with the Manhunt programme of 29 May 2007. He reminded the jury that this was a programme which Mr Kinsley wrongly claimed to have seen at the flat in Shore Road on the date of its transmission. It was not a news item; it had been explained as part of the police efforts to locate Mr Sammon. The judge reminded the jury of the dramatic re-constructions contained within the film and he continued (page 73H):

“All of that is fiction in the sense that it did not happen, because it was a dramatic re-construction, and there is no evidence at all that that was what Mr Sammon did and so you must disregard that programme as in any way amounting to evidence that Mr Sammon did or did not do any particular thing.”

The interview with Mr Lyons appeared to be a repeat of the broadcast in November. An expert spoke of the dangers of firing converted weapons. There was CCTV footage and a re-construction of a robbery in Oldham in 2005.

The judge continued (page 74H):

“There was a reference to a fatal shooting at Old Trafford about which there is no evidence that that incident was part of Operation Carbon so you should disregard that completely. There was reference to 5 men being brought to justice: they were not named in the Manhunt programme that was clearly a reference to the Tyrers, Lloyd, McCulloch and Ravenscroft but there was no reference at all to the actual sentences passed. I repeat that you should not treat this in any way as evidence of what Sammon did at any stage. On that topic you must base yourself solely on the evidence of McCulloch and Kinsley, together with any other evidence, such as phone calls which may support their testimony. The programme was shown to you in the belief that it was what Kinsley had seen at the Shore Road flat with Sammon, Hughes and Key, but that, as now appears, is wrong because Kinsley moved by the 27-29 May. And you may remember that Mr Sammon in the course of his evidence says that it was a work of fiction, and you may agree with that, at least in part as regards the dramatic re-construction, and so that broadcast might well qualify for the description of being a “movie”.”

[61]Mr Curran points out that the jury was shown the Manhunt programme once only on 24 November 2009. The jury did not retire to consider their verdicts until 18 January 2010. They had been required to consider, in the meantime, a quantity of detailed evidence, including the evidence of Michael Sammon himself, together with argument from counsel and the judge’s summing up. He submits that while the Manhunt recording was capable of having an effect upon the jury’s perception of the case against Mr Sammon, the contemporaneous warnings and the directions given by the judge in his summing up were sufficient to make it clear to the jury what was admissible and relevant and what was not.

[62]The jury heard live evidence from both David McCulloch and Brian Kinsley as to the character and overbearing behaviour of the appellant at the material time. The judge reminded the jury of that evidence at pages 146, 153, 156 of the summing up. The direct evidence was sufficiently compelling in itself, provided the jury accepted that McCulloch and Kinsley were telling the truth about the involvement of Mr Sammon.

[63]Although there were differences between the content of the Manhunt and the Granada news programmes, in general the material was to similar effect. The jury had received a specific direction not to pay any attention to re-constructions and material which emerged from the programmes which was not proved by the other evidence. It was clear to the jury that the only purpose of viewing the programmes was to ascertain whether there could have been a television programme broadcast at the material time consistent with the evidence of Kinsley.

[64]The judge gave the jury specific directions about the caution which they must exercise before relying upon the evidence of Mr McCulloch. He drew attention to the motive which McCulloch may have had to protect his own position. As to Kinsley the judge said this (page 166C):

“... Mr Kinsley is a witness who has been shown to be unreliable on a number of topics. Whether he saw the Manhunt programme on 29 May at Shore Road; initially he said he did, but it was established as you have seen that he had moved to 31 Bolton Street by that date. Eventually, as I have just drawn to your attention, Kinsley said that he had seen news broadcasts in November 2006 when the other defendants were sentenced, and you have seen one such broadcast and have details of others in your formal admission. He has been unreliable in particular on dates so far as the following: when he came to Blackpool from Leeds, how long he was in the Rinehart, when he moved to the Shore Road flat, when the Crolla funeral was, and which was the new years eve party at which he was surprised to see Mick. And in addition, there were some variations between what he said in the interview and what he had said in his evidence to you, in particular about whether or not he was coerced by Mick to putting him up in his own flat as opposed to inviting him to come to his flat, the visit having been made first to Pauline and Lee’s. Now Kinsley’s uncertainties about dates may have been contributed to by his having been an alcoholic and having suffered from severe psychosis in which at times he accepts he lost touch with reality, and he is still taking strong medication. He does say that he has not had a drink since 1995, but he did tell you that he lied to the doctors on a number of occasions, saying that he was drinking, in order to get Librium. And furthermore, Kinsley, on his own admission, guilty of helping Sammon, who he knew was on the run for firearms offences and he did not go to the police when he saw that programme. Kinsley was cautioned for that offence in October 2008 having gone to them originally in January. Now, if you did have misgivings about the evidence of Kinsley, you should look for independent evidence which tends to support the correctness of his account before being sure about it.”

[65]We accept these submissions. The decisions of the judge to admit these recordings and to decline to discharge the jury were properly available to him. He acknowledged the risk of prejudice at the outset but concluded that the risk would be avoided by appropriate directions. The jury was provided with suitable warnings as to what was relevant and what was not and reasons were given for those warnings. The jury heard a wealth of evidence during a trial which lasted several weeks. We have no doubt that the trial was not improperly influenced by material which risked an unfair appraisal of the critical evidence. Ground 4: Admission of evidence concerning the distribution of firearms

[66]We now turn to the grounds in respect of which the appellant requires leave. The prosecution was permitted to adduce evidence of the destination of several of the converted weapons and the use to which they had been put. The purpose of the evidence was to demonstrate the nature and scope of the conspiracy charged in count 1 of the indictment. McCulloch gave evidence of Sammon’s claims as to the distribution of the weapons. Formal admissions disclosed that 42 weapons were recovered from locations in the north west and north east of England and in the Midlands. The evidence of distribution was in our view relevant to the jury’s consideration of the scope of the conspiracy and admissible for that reason. The evidence was admitted in a form as uncontroversial as possible by way of admissions. Mr Grunwald argues that it was unnecessary for the prosecution to prove the destination of these weapons since it was accepted on behalf of the appellant at trial that if the prosecution proved that Mr Sammon was a conspirator he must be guilty of Count 1. In our view, this submission fails to give due weight to the prosecution’s task of proving the nature of the conspiracy of which the appellant was said to be a central character. Evidence as to the distribution of the firearms by the person who was alleged to have been selling them seems to this court to have been plainly admissible. Ground 5: Cross-examination as to breaches of Code C

[67]As we have noted the witness Brian Kinsley walked into Blackpool police station in January 2008 wishing to report the activities of the appellant. He then travelled to Southampton where he remained until encouraged by the police to return. He did so willingly. The officers who met him on his return in June 2008 were advised by the CPS that they should caution Mr Kinsley. They had not been informed on suspicion of what offence he ought to be cautioned. He was therefore questioned under caution. When he revealed that he had assisted an offender by providing him with accommodation he was again cautioned and arrested. He was taken before the custody officer and a doctor was summoned to examine him with a view to making a decision whether he was fit to be detained and interviewed. Mr Kinsley declined the services of a solicitor. Mr Kinsley was examined by a doctor who declared him fit to be interviewed. Mr dos Santos sought the judge’s permission to cross-examine DC Houston about his responsibilities under Code C paragraphs 1.4, 11.5 and 11.6. The purpose of the questioning was to ascertain whether it could be demonstrated that police officers took advantage of a vulnerable witness.

[68]In our view, upon the facts of the present case this was a hopeless application. The purpose of the Code was to protect the interest of suspects. At all times Mr Kinsley was a willing witness. The extent of his vulnerability was fully explored with Mr Kinsley himself in cross-examination, as was his reliability. Kinsley insisted that he was placed under no pressure and volunteered the information he gave. It does not seem to this court that the proposed cross-examination went to any issue which was material. We can envisage circumstances in which it is possible such an exploration might be required to explain that which was unclear from the evidence of the witness himself. However, we have read the transcript of Mr Kinsley’s evidence. He gave a full account of his actions and motivation. He did not accept that he had been misled into saying something he did not wish to say during his interviews. In its material parts the contents of his interviews formed the witness statement which he signed in October 2009. In some respects his evidence was inconsistent with his witness statement. These inconsistencies were fully explored. Ground 6: Summing up

[69]The general assertion made without reference to specific passages of the summing up either in writing or in oral argument is that the summing up was unstructured, unclear and failed to place before the jury the defendant’s defence. We have read the summing up and the submissions made are emphatically rejected. Far from being unstructured it is perfectly clear that the learned judge went to considerable trouble to organise his summary of the evidence so as to provide the jury with chapters of events. He explained what he was going to do and did it. As he proceeded the judge was required to guide the jury through several of the exhibits including telephone charts and through the admissions. He did that in context with his chapters and was by that means able to make his summing up shorter than otherwise it would have been. The judge rightly identified the critical evidence as that from Mr McCulloch and Mr Kinsley. He went to appropriate lengths to explain the caution which the jury should exercise before accepting their evidence and pointed out its contradictions, inconsistencies and weaknesses.

[70]The appellant’s defence was in essence that he had dealings with McCulloch solely for the purpose of arranging the repair of power tools and generators. Everything else was untrue. There was limited scope for extensive reference to that defence. The judge reminded the jury of the evidence of Mr Sammon in a single and closing section of his summing up between pages 171 and 184. He did the same in the case of Mr Thorley and Miss McIntyre. In our view there is no justifiable criticism of his approach. Ground 7: Matters capable of supporting the evidence of McCulloch and Kinsley

[71]Mr Grunwald submits that the judge failed properly to identify for the jury those matters which were capable of supporting the evidence of McCulloch. It is a matter for the judge to assess what are the requirements of a warning when a witness with a purpose of his own to serve implicates an accused. In Makanjuola

[1995] 2 Cr App R 469

at page 472 Lord Taylor CJ said:

“Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised.”

The judge identified for the jury the purpose McCulloch had to serve by giving evidence for the prosecution and directed the jury at page 154 of his summing up that they may think it prudent to see whether there was any other evidence in the case independent of McCulloch which tended to confirm the accuracy of his account. The judge set out the following matters as capable of providing support for the evidence given by McCulloch: 1. Once McCulloch’s statement was served on the defence Robert Tyrer and Lloyd pleaded guilty; 2. If the jury concluded that mobile telephone 5438 was used by Mr Sammon, evidence of phone conversations with Ravenscroft in 2004. 3. The pattern of calls in 2005 between the admitted Sammon 2566 number, the Tyrer brothers and Lloyd at critical moments in the conspiracy; 4. The finding of tools, equipment and documents at the homes of Tyrer and McCulloch’s workshop consistent with McCulloch’s account of the formation of the conspiracy; 5. The J & L invoices for the supply of tools in 2004 recovered after McCulloch had given his account to the police; 6. Photographs of the meeting in Spain at Benalmadena recovered by the police. The judge pointed out that the photographs did not fully support McCulloch’s account since he had been contradictory upon whether Sammon was present on the occasion the photographs were taken; 7. Travel and hotel documents as evidence of McCulloch’s two day visit to England from Spain; 8. Mr Sammon’s fingerprints on the Postpaket receipt. The judge continued that all of those items were capable of supporting McCulloch’s evidence “to some degree or another” but he made it plain that it was a matter for the jury “what view in the end is to be taken of McCulloch’s reliability as a witness”. The judge was plainly not directing the jury that each of these items of evidence was directly capable of supporting McCulloch’s evidence of Sammon’s involvement in the conspiracy. He was pointing out those aspects of other evidence which appeared to support McCulloch’s evidence generally. Those which related specifically to Mr Sammon were the telephone traffic and his fingerprint on a significant document. These were aspects of the evidence upon which both prosecution and defence would have concentrated in their arguments to the jury. Sammon himself accepted that there was business conducted between himself and McCulloch contemporaneously with the conspiracy. There was no dispute that he was a close associate of Robert Tyrer. The jury had to resolve whether despite the fact that McCulloch had apparently told the truth both about the conspiracy and Sammon’s co-accused he had nevertheless lied about the involvement of Mr Sammon. It does not seem to this court that the issue was presented to the jury so as to confuse, but rather to elucidate their task.

[72]The judge also directed the jury at page 167 that the only evidence capable of supporting Kinsley was the evidence of McCulloch and they could not find Mr McCulloch’s evidence supportive unless they had first decided that it was reliable. He pointed out to the jury that the evidence did not reveal that McCulloch and Kinsley were in any way connected with one another. That might diminish the possibility that each of them had sought to frame Mr Sammon as had been suggested. However, what view was to be taken of Kinsley was for the jury provided that they bore in mind the caution which the judge had expressed.

[73]In our view none of these directions was either erroneous or ill-advised. Ground 8: Unsafe verdicts

[74]We have carried out an extensive review of the evidence. This was in the opinion of the court a strong prosecution case despite the inconsistencies and contradictions of Kinsley to which we have referred. The circumstantial detail of McCulloch’s evidence was compelling. It was supported by the telephone traffic and the fingerprint. From a completely different source Brian Kinsley, while being in many ways an unsatisfactory witness, gave a consistent account of an incriminating conversation at which more than one accused was present. It was particularly revealing that Kinsley, who could have had no personal knowledge of the conspiracy, was able to give evidence of the appellant’s observations about the fairness of sentences imposed on his co-accused. Kinsley was not completely accurate about the sentences passed but Kenneth Lloyd who received a sentence of 13 years imprisonment was an object of sympathy by the appellant who said that he was not intimately involved in the conspiracy. David McCulloch also expressed the view that Kenneth Lloyd was being used by the major conspirators and had been reluctant to be involved. The jury plainly accepted the evidence of Kinsley in its important aspects since they convicted both Hughes and Key.

[75]We have concluded that there is no sound basis upon which to doubt the safety of these verdicts. We decline to grant leave upon grounds 4-7 and the appeal against conviction is dismissed. Renewed application for leave to appeal against sentence

[76]Mr Sammon renews his application for leave to appeal against sentence. Robert Paul Tyrer appealed against his sentence of 19 years imprisonment imposed after his plea of guilty. His renewed application was refused by the full court on 21 May 2007. It is submitted by Mr Grunwald that if, as the judge indicated, he was given a discount of 25% for his pleas of guilty, the starting point in Robert Tyrer’s case was 25 years and 4 months. There was an unjustified disparity between Tyrer’s sentence and 30 years imprisonment imposed upon the appellant. It is submitted that the only aspect of McCulloch’s evidence which distinguished the appellant from Tyrer was that the appellant was said to be the money man.

[77]We do not accept this submission. Kinsley gave evidence that not only was Sammon the money man, he was also the source of supply of the guns. He was also involved in their distribution after conversion. We consider that having had the conduct of the proceedings virtually from the outset and having heard the evidence during the course of a lengthy trial the trial judge was in the best position to form an accurate assessment of the respective positions of the conspirators, particularly of Robert Tyrer and this appellant.

[78]The facts of the offending do not require emphasis. The wholesale production of illicit firearms for distribution within the criminal community with intent to endanger life, carried out with a degree of sophistication and determination, despite set-backs, required the judge to pass a very substantial sentence of imprisonment. We do not consider that the sentence imposed upon the appellant was arguably excessive and the renewed application is refused.