Dunn & Anor v R [2016] EWCA Crim 1392

Case No 201504394 B2 and 2014 04714 B2[2016] EWCA Crim 1392
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM BIRMINGHAM CROWN COURT
MR JUSTICE UNDERHILL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/09/2016
Before
LORD JUSTICE DAVISMR JUSTICE GILBARTSIR JOHN ROYCE(Sitting as a Judge of the Court of Appeal)
Between
(1) JAMES DUNNAppellants(2) GARY HIGGINSAppellantTHE CROWNRespondent
Mr J Bennathan QC and Ms D Cooper (instructed by Hadgkiss Hughes & Beale) for AppellantsMr J McGuinness QC and Mr R Davies (instructed by the Crown Prosecution Service) for RespondentHearing Hearing dates: 7 and 8 July 2016
Judgment
[1]As long ago as 20 July 2006 the appellant Dunn and the applicant Higgins were, with others, convicted of murder after a trial before Underhill J and a jury at Birmingham Crown Court.[2]Dunn, along with certain of the co-accused, sought to appeal against his conviction. Higgins did not seek to do so. The appeal of Dunn was dismissed by a constitution of this court (Goldring LJ, Burton J and the Recorder of Kingston-upon-Hull) on 23 June 2009. The appeals of the co-accused, advanced on a basis quite different from that of Dunn, were also dismissed.[3]This further appeal of Dunn comes before this court on a reference by the Criminal Cases Review Commission (“CCRC”). Put shortly, it is based on further evidence which has come to light since the trial and since the dismissal of the first appeal: albeit such further evidence has, it is said, to be assessed in the light of the evidence which had been available at the trial and earlier appeal. It is argued that this further evidence (and in this regard it is also said that in some respects there was a serious failure of disclosure on the part of the prosecution below) wholly undermines the credibility and reliability of a key prosecution witness called Maria Vervoort, whose evidence is said to have been absolutely central to the prosecution case against Dunn, if not also Higgins. It is in consequence said that the conviction of Dunn for murder is thereby rendered unsafe.[4]The application of Higgins for leave to appeal against his conviction – made many years out of time – is essentially based on the same grounds. It has been prompted by the reference to this court by the CCRC in the case of Dunn. For reasons we will come on briefly to explain, we have decided to grant Higgins the necessary extension of time and to grant him leave to appeal. He thus also becomes an appellant.[5]Both appellants were represented before us by Mr Joel Bennathan QC leading Ms Danielle Cooper. The respondent was represented by Mr John McGuinness QC leading Mr Robert Davies. None of them had appeared at the original trial, although Mr Bennathan had represented Dunn on his first appeal. We would like at the outset to record the care, thoroughness and skill with which the respective legal teams prepared and presented their written and oral arguments. We would also pay particular tribute to the conspicuous fairness with which Mr McGuinness presented the Crown’s case, whilst at the same time tenaciously and forcefully arguing in favour of the safety of the convictions.

Background facts

[6]It is not necessary for us in this judgment to set out the background facts relating to the murder in very great detail. This is because they are fully set out in the judgment of this court of 23 June 2009: [2009] EWCA Crim 1371. They are also fully set out, in circumstances which we will come on to mention, in the judgment of another constitution of this court (Pitchford LJ, Turner J and Carr J) handed down on 4 July 2014 in the case of R v Conrad Steven Jones [2014] EWCA Crim 1337. Replication of the detailed facts is therefore unnecessary.[7]In very brief summary, then, the position was this. Clinton Bailey had been released from prison on 1 April 2005. The prosecution case was that he then became involved in some way in a dispute between a man called Murray and two brothers called Liam and Craig Dooley. The background apparently involved some form of criminality; certainly drug dealing was part of the context. There was, at all events, some evidence that by 4 April 2005 Bailey had become fearful for his own safety.[8]Shortly after 9 pm on 4 April 2005 Bailey was shot several times outside a pub in Coventry called the Three Horseshoes.[9]There was evidence that earlier that day Bailey had been in contact with the Dooleys and also with Murray. It was said that threats were made against Bailey of which Dunn was aware. Also during the day Higgins went to the Brinley Park Inn in Coventry. He was with Maria Vervoort, with whom he was at the time in a relationship. Higgins contacted Dunn in the context of seeking drugs and Dunn came to the Inn. According to Vervoort, there was then talk of Bailey “running his mouth off”. According to Vervoort, Dunn (with another, unidentified, man) then drove Higgins and Vervoort back to another hotel where they were staying. It was not disputed that there was a telephone conversation between Higgins and Bailey during this journey. What was said in the car was, however, hotly disputed. According to Vervoort, there was talk of the dispute with Bailey. At all events Higgins arranged over the telephone to meet Bailey at the Three Horseshoes pub that evening. When the phone call ended there was more discussion in the car about the dispute and the unidentified man then (according to Vervoort) referred to shooting Bailey.[10]There is no doubt that Higgins and Bailey did meet in the Three Horseshoes that evening. Vervoort also attended, she having been pressed to do so – as she was to say – by Higgins, so as to provide “cover” for him. She travelled there by taxi: the evidence of the taxi driver was that she was reluctant to get out of the car and Higgins had to persuade her to come into the bar area. There came a time when Bailey left the bar with Higgins. The two went outside the pub at around 9 pm. It was outside the pub that Bailey was shot by a group of men wearing balaclavas. Two handguns were involved and a number of shots were fired.[11]Higgins returned inside the pub and said to Vervoort that they should leave immediately. A taxi had previously been summonsed but in the event they were driven back to their hotel by a man who had been in the pub called McDonagh. According to Vervoort, Higgins was in a foul mood, saying words to the effect that “Dooley had frozen” and that people had “messed up”, as Bailey, although shot several times, had escaped over a wall. The understanding of Vervoort, according to her, was that Higgins’ role had been to lure Bailey to the pub and then outside it so that he could be shot. Vervoort also gave evidence of contact between Higgins and a man called Conrad Jones after they returned to the hotel. According to her, Higgins spoke to Conrad Jones on the phone and Conrad Jones then arrived at the hotel. There was, according to Vervoort, talk of “stupid idiots messing up the shooting”. Conrad Jones also talked of going to the pub himself to check things out.[12]As for Bailey, he was taken to hospital. He was to die as a result of his wounds on 16 April 2005. In the intervening period, he named those who shot him to various individuals. He told the man who took him to hospital (Anthony Conroy) that his assailants were Luke Turner and the two Dooleys. He gave the same names to his mother and also to Lisa Hulme. Natalie Sealy said that he told her that it was Dooley and Luke Turner. Alan Christian gave evidence at trial that Bailey named the two Dooleys and Dunn and that Bailey also had said there was a fourth man he could not identify (Christian did not, it may be observed, refer to Dunn as one of the named men in his initial statements). This hearsay evidence was admitted at trial. It was to be the main part of the challenge raised in the appeals of the co-accused.

The trial

[13]The accused at trial were Liam Dooley, Craig Dooley, Luke Turner, Higgins and Dunn. The first three were said to be the shooters. Higgins was said to have been the one who lured Bailey to the pub and then outside to enable him to be shot. Dunn was alleged to have “helped to coordinate and organize that episode”. Telephone evidence was a major part of the Crown case.[14]So far as Dunn and Higgins were concerned, the potential importance of Vervoort’s evidence was well appreciated. A sustained attack on her credibility was launched, remarkable for its intensity, in particular perhaps in the light of s.100 of the Criminal Justice Act 2003. Instances of her having lied in the Family Court and elsewhere were deployed; in due course, members of her own family and others were called by the defence to testify as to her reputation for lying and fantasising and with allusions to drug and mental health issues. In fact a submission of no case to answer had been made on behalf of Dunn. The trial judge rejected that.[15]Dunn and Higgins gave evidence. They denied any knowledge of or participation in a plan to shoot Bailey. They strongly disputed Vervoort’s account of events, both as to what occurred in the car and, in the case of Higgins, as to what occurred after the shooting.[16]When he came to sum up the trial judge gave full joint enterprise directions with regard to the appellants. With regard to Higgins, the judge emphasised the Crown’s reliance on the evidence of Vervoort to the effect that it was Higgins “who delivered Bailey into the hands of his killers”. As to what was said during the car journey of the afternoon of 4 April 2005 the judge had earlier said this to the jury:
“But the crucial questions are of course what was actually said by Gary Higgins and Jamie Dunn over the whole of that encounter. As to that, members of the jury, you are going to have to form a view of the witnesses and crucially, because she is central to the prosecution case, particularly though not only against Gary Higgins and Jamie Dunn, you are going to have to form a view about Maria Vervoort”
The judge made the like remarks about what Vervoort said occurred at the hotel after the shooting so far as concerned contact between Higgins and Conrad Jones.[17]With regard to Dunn, the judge stated that the case against him was “rather different” from that against the others. The judge counselled very great caution with regard to Christian’s evidence. The judge also emphasised that knowledge alone on the part of Dunn that something would or might happen to Bailey would not suffice: taking an active and knowing part in the steps leading up to the shooting was required to be proved. The judge identified three planks of the Crown’s case. The second was Dunn’s alleged involvement in threats made against Bailey earlier in the day. The third was the general pattern of the telephone traffic. As to the first plank, the judge said this:
“First and foremost there is the evidence of Maria Vervoort of what was said at the Brinley Park Inn and the subsequent car [journey]. Jamie Dunn of course says that her evidence about that is simply lies. If you think it is, that is the end of the case against Jamie. If you are sure that her evidence about that was truthful, you must nevertheless consider whether what she reported goes beyond merely being present when the shooting was being discussed and amounted to actual participation. As [counsel] rightly reminded you, there is no evidence of anything else being done by Jamie Dunn by way of participation…..”
[18]In the result Dunn was convicted by a majority verdict. Higgins, as were the other accused, was convicted by unanimous verdict.

The first appeal

[19]The appeal of Dunn in 2009 was in part based on further material which had emerged concerning the witness Vervoort.[20]At trial, as we have said, a sustained attack on Vervoort’s entire credibility had been mounted. Four specific instances had been relied on; lies told by her in Family Court proceedings relating to her son; seeming inconsistencies in her allegations of Higgins’ alleged violence towards her; statements made by the police to her that her young son might be taken into care if she continued to associate with or support Higgins; and a lie told by her about the circumstances of contacting a friend whilst she was under the police protection scheme: see paragraphs 53 to 60 of the judgment of Goldring LJ. The court’s view of those matters as deployed at trial was that it was “not surprising” that they did not cause the jury to reject Vervoort’s account. It was said: “such lies as she may have told were in a wholly different context”: paragraph 61.[21]The new materials which had emerged by the time of the 2009 appeal related primarily, although not solely, to a subsequent trial of Conrad Jones in 2007 on an allegation of perverting the course of justice: in fact there had been three such trials in 2007 (the first two resulting in the jury being discharged and the third resulting in the conviction of Conrad Jones). Vervoort had been a key witness at those trials. The alleged acts had involved pressurising or seeking to induce Vervoort not to give evidence in the 2006 murder trial. These subsequent matters relied on are identified in paragraphs 62 and following of Goldring LJ’s judgment.[22]This court expressly proceeded in the 2009 appeal on the assumption that the prosecution had disclosed what they were obliged to disclose (paragraph 64). It was, however, noted that there had not been deployed at the 2006 trial the contents of police notes of Vervoort’s initial accounts given on 12 and 13 September 2005 of the car journey, in which no mention of the reference to shooting was (according to the notes) made by Vervoort.[23]One aspect of the further evidence related to what Vervoort had said, in evidence in 2007, about a meeting she claimed she had had with Conrad Jones at Nottingham Railway Station on 1 or 2 June 2006 (probably 2 June): when, according to her, Conrad Jones, who was in a silver Mercedes car, threatened her with the consequences of giving evidence at the murder trial and offered her a cash inducement not to do so. Cell site research, however, placed her mobile phone in Burton on 1 and 2 June. Vervoort’s explanation in cross-examination in 2007 was that she must have lent her phone to a friend, Paula, who lived in Burton, on the relevant day. She said that Paula was identified as “Peaches” in her mobile phone directory. Leading counsel then appearing for the Crown on the 2009 appeal had been leading counsel both in the 2006 murder trial and in the three 2007 trials concerning Conrad Jones. He made clear on the appeal that he continued to rely on the account of the witness for the purposes of the 2009 appeal.[24]The court took the view that what Vervoort said about the meeting on 1 or 2 June 2006, taken in conjunction with the other evidence, did not “so call into question her reliability as to affect the safety of the [murder] conviction”. The court reviewed certain other new matters sought to be relied upon (paragraphs 91 to 97). It concluded that, by convicting Conrad Jones, the jury must have accepted that Vervoort was telling the truth in at least one of the particulars set out in the indictment and must have concluded that she was not a witness whose word could not be relied on. It was said that it would be “surprising” if, by the time of the final Conrad Jones trial, she could remember everything or “not make mistakes”. It considered that Vervoort’s evidence was not the only evidence capable of implicating Dunn. Accordingly this court rejected the challenge to the 2006 conviction of Dunn for murder.

The Conrad Jones appeal

[25]This decision now has to be reviewed in the light of the appeal of Conrad Jones in 2014 against his own conviction in 2007 for perverting the course of justice. That 2014 appeal was itself based on fresh evidence, again relating to Vervoort. Mr Bennathan appeared for Conrad Jones on that appeal. The Crown was represented by the same Leading Counsel as had appeared below.[26]The court on that occasion reviewed the entire background very fully, both as to the 2006 murder trial and as to the 2007 trial of Conrad Jones for witness intimidation. The key issue before the appeal court on this occasion was the alleged meeting of Vervoort with Conrad Jones at Nottingham Railway Station on 1 or 2 June 2006. That point, of course, had also featured in Dunn’s appeal in 2009.[27]What had happened was that Conrad Jones had been prosecuted for yet another alleged offence of perverting the course of justice in 2013 (in the event he was acquitted). One of the issues there arising, however, related to his previous conviction in 2007. Prior to the 2013 trial, the whole issue of disclosure had been reviewed by a different prosecution team. It was identified that there in fact had been surveillance material in the possession of the prosecution - never disclosed to the defence prior to any of the 2007 trials – which positively demonstrated that Conrad Jones could not have been at Nottingham Railway Station on 1 June 2006 (one of the dates mooted); and that on 2 June 2006 he was seen in Coventry driving a blue BMW car until 14.25 and was observed again in a blue BMW car in Coventry at 18.00. Nottingham is some 53 miles from Coventry. Very properly the court was informed and this aspect of the evidence was then the subject of a PII ruling. Appropriate edited disclosure was thereafter made. At his 2007 trial, as it happens, Conrad Jones had advanced alibi evidence for both 1 and 2 June 2006 (the dates Vervoort had suggested for the meeting): alibi evidence which had been attacked at the trial by Leading Counsel for the prosecution as lying or mistaken. Moreover, Vervoort had herself, in evidence at that trial, placed the meeting in the early afternoon at around 1pm: as Pitchford LJ pointed out, it had not been for the prosecution to discount this evidence of its own witness or to assume for its own purposes that the witness was imprecise as to timings. The surveillance evidence had been highly material, therefore, to this whole issue of whether there was such a meeting. But it was never disclosed at the 2007 trial, even though counsel had been made aware of it by the end of 2006.[28]In the result, this court allowed the appeal against the 2007 conviction of Conrad Jones. It described the failure prior to any of the 2007 trials to disclose this surveillance material as “lamentable”. It was very critical of the approach to disclosure taken by Leading Counsel then instructed. The court concluded that, had the jury in 2007 had this evidence before it (coupled with the mobile phone and cell-site evidence and the evidence relating to Peaches), the jury may well have concluded that Paula did not even exist and that Vervoort had simply invented the face-to-face meeting with Conrad Jones: a central issue both as to Vervoort’s credibility and as to the particulars of the alleged intimidation. The issue arising could not be “segregated from an assessment of Ms Vervoort’s credibility in general” (paragraph 35).[29]As to the appeal of Dunn in 2009, and the court’s express assumption on that appeal that the prosecution had performed its duty to make disclosure of appropriate material, Pitchford LJ tersely said (paragraph 33):
“Unhappily it was an assumption that proved to be inaccurate”
. Certainly it is the case that neither the court nor Dunn’s legal team were on the 2009 appeal made aware of the surveillance material.

Present appeal

[30]This present appeal is in part based on yet further material, albeit also including that identified by Pitchford LJ in the Conrad Jones appeal, which it is said undermines the credibility of Vervoort. Put shortly, Mr Bennathan’s submission was that if the “tipping point” with regard to the safety of the murder conviction of Dunn had not been reached in 2009 it now most certainly has.[31]It is true that the defence had an amount of material available to it at the 2006 trial to undermine Vervoort’s credibility. It had further such material at the 2009 appeal. None of that, in the result, had sufficed to displace the safety of the conviction. But matters now, it is submitted, stand on an entirely different footing.[32]The first point relates to the alleged meeting of Vervoort with Conrad Jones at Nottingham Railway Station in June 2006. It is now known that that could not have taken place on 1 June 2006. The cell-site evidence of itself also casts considerable doubt on whether there could have been such a meeting on 2 June 2006, subject to Vervoort’s explanation about Paula/Peaches. But the surveillance material, lamentably not disclosed until 2013 although drawn to counsel’s attention at the end of 2006 – indeed the potential need for its disclosure and/or for a PII application was actually discussed with counsel at a consultation on 14 December 2006 – rules out that day prior to 14.25 (when Vervoort’s own evidence was that the meeting was in early afternoon, at around 1 pm) and after 18.00, at which times Conrad Jones on any view was in Coventry: some 53 miles away.[33]Moreover, enquiries had been made with regard to the number stored in Vervoort’s phone directory under the name “Peaches”. It was revealed that the subscriber for that number was in fact a man called Peel. Further enquiries in 2013 had revealed that Peel has the nickname “Peachey”: as indeed – as was disclosed by the Crown in 2013 – is reflected in the Police National Computer. Vervoort has since apparently accepted that she, at least indirectly, knew Peel. Her subsequent new explanation as to what may have occurred, as set out in a statement dated 24 June 2013 by DC Williams, was such that Mr McGuinness did not feel able to place any reliance on it.[34]We need not say more on this point, however, as Mr McGuinness – taking a stance different from Leading Counsel on the 2009 appeal - very fairly indicated for the purposes of this appeal that this court could and should proceed on the footing that there was no face-to-face meeting at all between Vervoort and Conrad Jones on 1 or 2 June 2006 and that Vervoort had lied on this issue at the 2007 trial of Conrad Jones. We thus can only confirm our agreement with the observations of Pitchford LJ in this regard.[35]In such circumstances, as Mr Bennathan pointed out, the “context” - in the word of Goldring LJ – for Vervoort’s seemingly unreliable evidence is different from that advanced at the 2006 trial or as could be advanced on the 2009 appeal. It is one thing, a jury may think, for an individual to lie to the Family Court to secure access to her child or to lie about an attempt to meet a friend while on the protection scheme. It is quite another, it may be thought, deliberately to give false evidence at a criminal trial calculated to help achieve a conviction: which is now to be taken as what occurred in the 2007 trial of Conrad Jones.[36]There is more.[37]Prior to the 2006 trial, there was in existence material deriving from the Criminal Justice Protection Unit (“CJPU”) relating to Vervoort. That contained – we need not go into detail – a number of entries which do not put Vervoort at all in a good light in terms of her truthfulness and her tendency to manipulation. It also included specific reference to her wishing to retract her previous witness statements: coupled with an entry that she was warned that if she did retract her statements she may not be allowed to see her young child. (There also are entries elsewhere suggestive of her making serious allegations of sexual assault and violence against police officers and foster carers, which could be said to be the product of fantasy or invention.) None of this detail was disclosed prior to the 2006 trial – such disclosure as there was in this regard was an anodyne and brief summary.[38]The defence had sought disclosure of the CJPU material. It was on the advice of counsel that this disclosure had not been given. This court has been shown a copy of a note prepared by a CPS lawyer, Mr Fielding, prior to the 2009 appeal. In it he commendably expressed, and at length, concerns about the need to disclose the information in the CJPU diary for the purposes of the 2009 appeal. These concerns become highlighted when it is seen that (as is now known) a conference had been held before the 2006 trial on 31 May 2006, attended by officers of the witness protection unit. Concerns that entries in the CJPU diary undermined Vervoort’s credibility were expressed in that conference. It was noted that entries in the diary “show that [Vervoort’s] credibility is severely undermined” and that “she has at least a purpose to serve in assisting the police”. One of the officers recorded Vervoort as “the worst person they have ever had in witness protection”. It was noted that, before then, this material had not come into the possession of the investigating officers concerned with the prosecution. The perceived seriousness of the position is illustrated by the fact that the note of conference actually records the attending CPS lawyer and counsel discussing “whether we are in a position to proceed to trial against Messrs Higgins and Dunn as the only evidence against them is the witness statement of [Vervoort]”. Nevertheless, the relevant extracts from the CJPU diary were not disclosed before the trial. A brief and limited and anodyne Disclosure Note was provided instead. In our view this was a regrettable and serious failure. We should add that Mr Bennathan also criticised a failure to disclose certain other social services notes relating to Vervoort. We were less impressed by that. But the CJPU materials are potentially of a different character.[39]Before the hearing of the 2009 appeal, and in the light of Mr Fielding’s concerns, counsel were again asked to advise concerning disclosure of the CJPU materials: the obligation to disclose being a continuing obligation. They maintained the same position. The stance was apparently taken that the defence already had enough material on Vervoort’s dishonesty. A note of consultation of 13 November 2008 indicates the CPS strongly querying this approach: but that remained the advice, which was followed. That advice, in our view, was unfortunate.[40]We have also mentioned that, as identified by the time of the 2009 appeal, in her initial comments on 12 and 13 September 2005 to the police (as recorded in the detailed notes of DS Slevin and DS Watson) Vervoort made no reference to talk of a shooting in the course of the car journey. This only emerged at a later stage in her account by way of significant witness interviews on 14 September 2005. Given that the reference to a shooting in the course of the car journey was potentially critical, certainly so far as Dunn, if not also Higgins, was concerned, one might have anticipated sustained cross-examination at trial on the point. But (as noted by the court in the 2009 appeal) there was none.[41]We have not seen any disclosure schedules. Mr McGuinness was not in a position positively to confirm that the notes had been disclosed at trial. However, it does appear that DS Slevin’s notes had been typed up and prepared for entry on the non-sensitive disclosure schedule and it is also right to say that the (disclosed) transcripts of the significant witness interview of 14 September 2005 had made reference to the previous conversations of 12 and 13 September 2005. It is, nevertheless, difficult to credit that at trial Leading Counsel for each of Dunn and Higgins would both simply have overlooked the point. They have since been contacted by Mr Bennathan as to whether they knew of the police notes. Understandably, neither has, as we were informed, a clear recollection now: but neither could conceive of any tactical reason for deliberately avoiding pursuing the point in cross-examination of Vervoort. Nor can we. Moreover, while this court in 2009 proceeded on the general assumption that proper disclosure had been given, subsequent events indicate that, regrettably, such an assumption cannot continue safely to be made in this particular case.[42]Yet further, there was produced to us at the hearing a copy of a letter requesting disclosure sent by the defence solicitors acting for Higgins dated 28 April 2006. Among other things, that requested “all details of Vervoort’s witness interviews by the police”. It specifically itemised requests for copies of video interviews, trigger notes for such interviews, DS Watson’s A4 notebook and any other notes made by DS Slevin in respect of Vervoort. Someone has marked in manuscript on the copy of the letter a cross and the words “No” against these specific itemised requests. That also accords with a brief written Prosecution Response served on 31 May 2006.[43]Our conclusion overall, on the information currently available to us, is that there were not disclosed to the defence before trial the police notes to the effect that Vervoort had made no mention of hearing a reference to shooting in the car journey in her initial interviews, as recorded by DS Slevin.

Disposition

[44]The first issue for us is whether we should give leave for this fresh evidence to be adduced. In our judgment, we should. Indeed Mr McGuinness did not seek to argue otherwise. The requirements of s.23 of the Criminal Appeal Act 1968 are satisfied.[45]The second issue is whether we should grant Higgins the necessary lengthy extension of time for leave to appeal and grant leave to appeal. Again, in our judgment, we should. It is true that Higgins had not himself sought to appeal in 2009. But the present points, in this form, would not have been available to him then even if he had. Moreover, whilst the evidence of Vervoort was on one view more fundamental with regard to Dunn than to Higgins, it undoubtedly – as the trial judge identified to the jury – was also of direct relevance as against him. Such fresh evidence, if admitted, would, in our view, be at least capable of affording a ground of appeal to Higgins.[46]The third, and critical, issue then is whether these appeals should be allowed. As perhaps foreshadowed in our earlier remarks, we have concluded that they should. We can express our reasons quite shortly.[47]Matters now stand on a footing different from that as they appeared in 2006 and 2009. True it is that the credibility of Vervoort was known to be central (so far as these appellants were concerned) and true it is that the defence at trial had an amount of material already available to them to challenge that credibility. But that did not shut the defence out from the right to have access to other relevant materials in that regard. The CJPU materials and the initial interview notes of Vervoort were potentially very important in that regard and were disclosable. They were not disclosed and so could not be deployed to advantage, or at all, by the defence: in an area of sufficient sensitivity for prosecutors before trial to be wondering, in the light of concerns about Vervoort’s entire credibility, whether there was a sustainable case against Dunn and Higgins at all.[48]The subsequently emerging details relating to the events of 2 June 2006 could not, of course, have been disclosed at the 2006 trial. But they – in particular the surveillance material – became known to the prosecution thereafter, by the end of 2006. They were relevant to Conrad Jones’ trial in 2007 and to the issues on the 2009 appeal: but, seemingly on Leading Counsel’s advice, were not then disclosed. They only emerged in Conrad Jones’ 2013 trial and then formed the basis of his successful appeal in 2014. We agree with Pitchford LJ’s remarks; and we also agree with Mr Bennathan that the observation of Goldring LJ in the 2009 judgment (that such lies as Vervoort may have told were in a “wholly different context”) can hardly stand when it is subsequently to be taken, for present purposes, as positively established that she gave entirely false evidence at Conrad Jones’ trial about meeting Conrad Jones on 2 June 2006 whereby he was alleged to have attempted to pervert the course of justice. This point is not, in our view, notwithstanding Mr McGuinness’s submission to the contrary, displaced by the fact that this court already in 2009 had the other (phone) material in any event casting doubt on Vervoort’s account of events of 1 or 2 June 2006.[49]Taken together, these points cannot, in our view, be compatible with the safety of the convictions. Indeed in many ways the failings in disclosure here also bear directly on the actual fairness of the trial and appeal process. This court cannot view such failings with equanimity.[50]The principal response of Mr McGuinness (who did not seek to condone the failures in disclosure prior to the 2006 trial and 2009 appeal) was to emphasise the findings of this court in 2009. He submitted that the validity and basis of that judgment was not undermined. He also sought to focus on the asserted strength of the prosecution case, at all events so as Higgins was concerned. He in particular took us carefully through the mobile phone and cell-site evidence, as well as other evidence: which, he said, lent powerful support to the prosecution case. Further, he forcefully submitted, it also lent powerful support to what Vervoort had all along said about Higgins making phone contact with Conrad Jones (and not, as Higgins was to maintain in evidence, a drugs dealer called “Brummie Steve”) in the immediate aftermath of the shooting. He also submitted that the subsequent, apparently entirely false, evidence of Vervoort about meeting Conrad Jones on 2 June 2006 had nothing of substance to do with the actual 2006 murder trial. Certainly the position is, we accept, different from the position on the Conrad Jones appeal in this regard: since whether the meeting of 2 June 2006 ever occurred was, as Pitchford LJ observed, a central point in the 2007 trial, whereas it did not feature in the 2006 trial.[51]In the context of appeals based on fresh evidence we were referred to, among other cases, Pendleton [2002] 1 CAR 34; Dial [2005] I WLR 1660 (which among other things states that the fact that the central prosecution witness is subsequently shown to have told a lie does not preclude the requirement to consider the totality of the evidence in the case); and - in the context of non disclosure – Fraser v HM Advocate [2011] UKSC 24. We do not need to go through the relevant principles, which are by now well established[52]We would, however, draw attention to the case of Laing [2005] EWCA Crim 2772. In that case, relevant material relating to the credibility of two important prosecution witnesses had not been disclosed at trial. It was held that had such material been available at trial the defence would have been able to mount a far more effective attack on the credibility of those witnesses and the cross-examination would have had a far greater impact. This resulted in a lack of balance; and the undisclosed facts may have led the jury to be unsure of guilt. The convictions were quashed as unsafe. All these cases must of course be decided on their own facts and circumstances; but the scenario arising in Laing has at least some broad similarity to the present case.[53]Our conclusion, looking at all the points in combination, is that the tipping point has indeed now been reached in this case. The position is now different from that as it appeared to be in 2009 (or, indeed, 2006). The fact that the defence at those times had other materials available to attack Vervoort’s credibility does not displace the potential importance of these further materials: some arising by way of fresh evidence as a result of events subsequent to the 2006 trial and some, regrettably, arising out of a failure to make proper disclosure either before the 2006 trial or before the 2009 appeal.[54]It is not a judgment of hindsight to say that the evidence of Vervoort was crucial – or at least could be seen by the jury as crucial - as against Dunn. That was the perception of the prosecution at the time and was the way the matter was in effect left by the trial judge to the jury. Indeed, as the judge pointed out in his summing-up mere knowledge (if any) on the part of Dunn that something was to be done to Bailey would not suffice. Actual participation in the plan to shoot Bailey was to be proved. The account of Vervoort as to what was (allegedly) said in the car journey was fundamental to the Crown case: without it, it is difficult to see that the Crown had any case as against Dunn for murder. It is realistically possible that the jury might have viewed the case against Dunn differently had the further information been available.[55]We accept that the position with regard to Higgins is different. Quite apart from Vervoort’s evidence, he (unlike Dunn) was there with Bailey at the pub. Further, he went outside with Bailey just before the men arrived and shot Bailey. There was evidence of regular contact with the Dooleys and others and – as Mr McGuinness’s careful review indicates – powerful support for the Crown case against Higgins in the mobile phone and cell-site evidence (to an extent now also potentially strengthened since the 2006 trial, in the light of what emerged in the Conrad Jones 2007 trial). But on balance we cannot be satisfied in his case either that the conviction was safe. Vervoort’s evidence (whilst peripheral with regard to the Dooleys and Turner) operated – if accepted – to implicate Higgins as well as Dunn in the plan to shoot: in some ways, indeed, potentially the more so in the case of Higgins given her account of events after the shooting. The trial judge in terms said that Vervoort’s evidence was potentially important evidence with regard to Higgins and that the jury had to be sure it was truthful. The jury must have accepted the core of Vervoort’s evidence, since they convicted Dunn. The jury may – we do not, of course, say necessarily would – have viewed the case against Higgins differently had these further factors been known to them; especially when viewed also in the light of the subsequent events (not in evidence at the murder trial) concerning Vervoort’s false evidence about the alleged meeting with Conrad Jones on 2 June 2006.

Conclusion

[56]In such circumstances, we give leave to the extent necessary for the fresh evidence to be adduced. We must quash the convictions of both Dunn and Higgins since we cannot be satisfied, in the circumstances, that either conviction was safe.

Cited in 1 later judgment