Hurley, R v [2016] EWCA Crim 1901

Case No 201406067 B1[2016] EWCA Crim 1901
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHWARK CROWN COURT
HIS HONOUR JUDGE BUTLER QC
89/3363/W1
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/12/2016
Before
LADY JUSTICE HALLETTVICE PRESIDENT TO THE COURT OF APPEAL CRIMINAL DIVISIONMR JUSTICE EDISRECORDER OF MAIDSTONE HIS HONOUR JUDGE CAREY DL(SITTING AS A JUDGE OF THE CACD)
Between
REGINAAppellantHURLEYRespondent
Mr J Bennathan QC (instructed by Saunders Law) for AppellantMr L Mably and Mr D Pawson-Pounds (instructed by CPS Special Crime Division) for RespondentHearing Hearing dates : Tuesday 29 November 2016Wednesday 30 November 2016
JudgmentThe Rt Hon Lady Justice Hallett DBE :Introduction
[1]In April 1988 the Applicant acted as the get away driver for an armed robbery. In the course of the robbery an off duty police officer was shot and killed by the Applicant’s co-accused Charlie McGhee. The Applicant admitted the robbery but denied the murder and firearms offences. He offered a plea to manslaughter on the basis that he was not aware that firearms were going to be used but his plea was rejected. He was tried with his two fellow robbers McGhee and Wharrie and an accomplice Robert McFarland. On 17 May 1989 the Applicant, McGhee and Wharrie were convicted of murder and firearms offences. McGhee and Wharrie were also convicted of the robbery and McFarland was convicted of assisting an offender. Decades later, the Applicant seeks to challenge his conviction for murder on the basis of ‘fresh’ evidence from himself and a number of men to whom it is said McGhee has made statements exculpating the Applicant.[2]The Applicant’s explanation for the delay in making the present applications for an extension of time and leave to appeal against conviction is two fold: i) he escaped from prison and was on the run for over thirteen years and ii) he was unwilling to put forward his present account while McGhee was still alive. McGhee died in January 1995.

Factual background

[3]On 15 February 1988 the Applicant stole a Montego car. On 17 March the Montego was spotted by a police officer with McGhee in the front passenger seat and a man wearing a balaclava in the rear. On 29 March the Montego broke down. The next day, the Applicant stole a Vauxhall Cavalier. A transit van was stolen on 13 April.[4]On the morning of 14 April 1988 two security guards, John Bennett and David Smith, were delivering cash to Barclays Bank, Hemel Hempstead when they were confronted by McGhee and Wharrie. McGhee was armed with a loaded firearm. An off-duty police officer, Francis Mason, intervened. McGhee fired and killed Mr Mason. He and Wharrie ran off and left the scene in the Vauxhall Cavalier driven by the Applicant. The robbers had to change car because one of the tyres on the Cavalier burst. They hijacked a Peugeot car at gun point and drove it to where they had left the transit van.[5]McGhee and others had been under observation and shortly afterwards officers saw McFarland (with whom the Applicant was then living) and the Applicant emerge from a shop at 82 Richmond Hill, Luton. The shop was owned by McFarland’s sister. They had a holdall and bin liners with them. They went to a lock-up garage rented by the Applicant where they were arrested. In the holdall were three revolvers, a sub machine gun, ammunition for the revolvers and the sub machine gun, a shock baton, thunder-flashes, a balaclava and some gloves. Two of the revolvers were loaded, one with five and one with six bullets. The missing bullet was the one that killed Mr Mason. Police also found a Securicor tag from the robbery, carrier bags containing £678.60 worth of coins, wrappers from the notes stolen in the robbery, cheques stolen in the robbery, a bottle containing ammonia, some clothing, a cleaning ticket on a jumper that matched a cleaning ticket found on Wharrie and crash helmets of the kind used by the shooter. The Applicant’s (and Wharrie’s) fingerprints were found on the wrappers.[6]A short time later a taxi containing McGhee and Wharrie arrived at the shop. They had with them a holdall containing cash from the robbery wrapped in a carrier bag. The fingerprints of the Applicant, McGhee and Wharrie were found on the carrier bag.[7]The Applicant provided instructions to his solicitors and counsel to the effect that he committed the robbery with two men called Bance and O’Dowd (both deceased). He admitted he knew they would carry guns but claimed he thought the guns would be replicas. He provided a very complicated account of his movements and a drugs deal after the robbery, which it is now accepted was designed to explain all the forensic links between Wharrie and McGhee and the robbery. Wharry wrote a note to Hurley asking him to provide an explanation for one of the incriminating items. Wharrie and McGhee ran alibi defences by giving evidence and calling evidence. The Applicant did not give evidence.[8]The judge directed the jury not to hold the Applicant’s failure to give evidence against him and only convict him of murder or manslaughter if satisfied he knew one or both of his fellow robbers had a loaded gun and had agreed with them the gun should be used if necessary. If the agreement was to kill or cause really serious bodily harm, the verdict would be murder, if the agreement was to frighten or cause some harm, the verdict would be manslaughter. If the jury were not satisfied that he knew there was a loaded gun they were directed to acquit.

Events following trial

[9]In February 1994 the Applicant escaped from prison. He remained at large until arrested on 5 November 2007 in Holland in relation to drug trafficking offences at a flat where drugs and a firearm were found. He was sentenced to 6 years’ imprisonment and in November 2011 was extradited to the UK.

The Applicant’s accounts

[10]On his arrest, the Applicant got in touch with his trial solicitor Mr Rose Smith. Mr Rose Smith’s notes indicate that the Applicant was now prepared to admit he committed the robbery with McGhee and Wharrie but insisted ‘he did not know the guns were real’. This was consistent with an account he had given in 1991 and 1992 to two probation officers and a psychiatrist in prison. Mr Rose Smith prepared a draft witness statement for the Applicant to sign. In the final version, signed by the Applicant, he maintained he had stolen the vehicles used in the robbery for McGhee weeks before, without realising they were to be used in the robbery, and that he was only asked to act as getaway driver two days before the robbery. There was no reference in the statement to guns of any kind, to what force was to be used to commit the robbery or to the moment when he realised a man had been shot. The Applicant also explained that he did not give evidence because it would have involved his implicating McGhee and Wharrie and they had made it clear he could not do that. He feared for his life.[11]From what Mr Rose Smith told us and from the contemporaneous documents, we infer (safely as Mr Bennathan QC conceded) that the Applicant deleted a paragraph from the draft statement before signing it. This paragraph contained his claim that he believed replica guns would be used and mention of a heated conversation between Wharrie and McGhee, as they left the scene, from which he understood for the first time a loaded gun had been used. Also deleted from the final statement was a paragraph added by the Applicant to the draft in which he said the first he knew of a shooting was in the police station.[12]The Applicant placed considerable emphasis on McGhee’s reputation for violence, a reputation that grew worse after conviction, to explain why he stayed quiet. Even before he escaped, he knew from two friends, Eamonn Kane and Brian Drein, that McGhee had admitted he, the Applicant, knew nothing of the guns, but he did not think there was any prospect of doing anything about it for fear of incurring McGhee’s wrath. After his escape and recapture he learned McGhee was dead and felt safe enough to launch this appeal.[13]In a second statement dated 7 January 2016 he added that he did not go into the witness box and name the two other men because McGhee told him not to.[14]In a witness statement dated 14 June 2016 he answered a question from Mr Bennathan QC, who had by then been instructed to represent him, about what force he expected to be used in the robbery to extract the cash. He stated for the first time that he expected McGhee to use an electronic shock baton.

Trial counsel’s comments

[15]Mr Michael Turner (now Michael Turner QC) who was the junior at trial commented: “Given that James Hurley admitted being present at the robbery with knowledge that a robbery would take place we advised him strongly that he should give evidence if he were to stand any chance of convincing a jury as to his lack of knowledge of a firearm. James Hurley steadfastly refused. He did not express the reasons behind his refusal and whether it was through fear or through loyalty and friendship towards McGhee and his co-defendant we were not able to determine”.[16]Rock Tansey QC, the leader at trial, commented:
“I have considered Michael Turner’s response. I have no clear recollection of the case nor papers to assist my recollection. However, I believe that we advised James Hurley that he should give evidence for the reasons stated by Michael Turner. Despite our advice he refused to give evidence. He did not state that he was unwilling to give evidence because he was afraid of McGhee”
.

Appeal

[17]Leave is sought to adduce evidence from the Applicant and a number of witnesses pursuant to section 23 of the Criminal Appeal Act 1968. We heard from the witnesses de bene esse.[18]In summary, the Applicant offers an explanation as to why he failed to give evidence in his own and defence and the witnesses describe conversations with McGhee in which he said that the Applicant was merely the getaway driver and had no knowledge of the firearm. Furthermore, McGhee was an exceedingly violent man whom people feared to cross.

The Applicant’s evidence before us

[19]The Applicant’s account to us was that he stole cars for a living and he stole the Montego and the van for McGhee, a close friend, without knowing they were to be used in the robbery. He was only recruited as the driver for the robbery two days before. He knew McGhee was a violent man but agreed to participate. He assumed McGhee would use an electronic shock baton to force the security guard to hand over the money. He insisted he did not know where he was going until they got into the car to head for the bank. He parked twenty or so yards from the robbery, he never saw a gun and did not hear any gun shot. There was pandemonium when McGhee and Wharrie got back into the car but they did not reveal that someone had been shot.[20]After the robbery he was in such a state he drove into something and burst a tyre. There was no-one in at the first address and so he drove the car to Richmond Hill. When he opened one of the bags given to him to look after, he saw a gun but assumed it was a replica. He only found out a real gun had been used when in police custody. Any references in his proof of evidence to his knowing replica guns would be used in the robbery before that moment and to his having reminded the robbers to take their guns came from McGhee.[21]McGhee and Wharrie wanted him to give evidence in accordance with the proof to help them. He thought the story about the clothing and a drugs deal was too convoluted, he was frightened he might make a mistake and fearful of what McGhee might do if he did. Also he did not want to help them. He spent months trying to persuade them he should not testify. Eventually, he succeeded and it was agreed he could plead guilty to the robbery and not give evidence. After a while McGhee and Wharrie decided he was probably right not to go in the box. Had he gone into the witness box and told the truth he would have been seriously hurt.

Brian Drein

[22]Brian Drein has no previous convictions. In his witness statement he described McGhee as a volatile person “you would not want to cross”. As a friend of both the Applicant and McGhee he visited them on remand before the trial and became aware of tensions between them. The Applicant admitted the robbery to him but denied he knew of the guns. About a year after the convictions he saw McGhee who admitted the Applicant had not known about the guns but at that stage McGhee was still protesting his innocence. He saw the Applicant after his escape and recapture and was then asked, and agreed, to come forward and be a witness.[23]Before us, Mr Drein explained that both McGhee and the Applicant were long standing friends. Hurley told him that he did not know about the guns. When he visited McGhee in prison after the verdicts and sentence, McGhee asked him about Hurley. McGhee was really down and felt sorry for him for getting ‘all that time for being just the driver’. Mr Drein did not remember if McGhee ever told him what Hurley had and had not known about the job.

Eamonn Cane

[24]Eamonn Cane has been convicted on thirteen occasions of twenty six offences. He was a friend of Drein, McGhee and the Applicant. In his witness statement he said he saw McGhee before the trial and became aware of some problem between him and the Applicant. He said they were all shocked by the sentence imposed on the Applicant. About a year after the convictions, in company with Drein, he saw McGhee who admitted the Applicant had not known about the guns. He also saw the Applicant after his escape and recapture and was then asked, and agreed, to come forward and be a witness. Before us he claimed McGhee told him that he felt sorry for Hurley because he “shouldn’t have got what he did. He never knew there were guns on the job”. He agreed he had visited the Applicant in prison in the Netherlands and that he had visited the Applicant’s solicitor with McGhee’s brother, taking with them files of papers handed over by the Hurley family.

Simon Bowman

[25]Simon Bowman has been convicted on fourteen occasions of forty five offences including armed robberies, conspiracy, and escape. He has given lying evidence on oath in his own defence more than once. He knew both the Applicant and McGhee in prison. In his witness statement he said he and McGhee discussed the Applicant’s escape. McGhee was happy about it because the Applicant had not known about the guns and had not spoken of this through fear of McGhee.[26]Before us he explained that when he met Hurley in prison about four years ago, he had a conversation with him about getting his appeal together. People in the prison system had decided Hurley was innocent. Hurley mentioned McGhee and said he had not known McGhee had a gun whereupon Bowman remembered what McGhee had told him years before. McGhee had said he felt really guilty about Hurley and could not look him in the eye because Hurley did not know they had a firearm. McGhee said Hurley would not have gone on the robbery if he had known about loaded guns. McGhee had a violent reputation and Hurley said he was too scared of him to say anything at trial. Both Hurley and McGhee told him Hurley thought McGhee had a replica gun.

Damian Fincher

[27]Damian Fincher has often been in prison and is now serving a life sentence for murder. He has given evidence on oath before in his own defence and been disbelieved. He struck up a friendship with McGhee in the late 1980s early 1990s in prison. In his witness statement, he claimed McGhee told him at that time that the Applicant had not known there were guns being carried on the robbery. Mr Fincher also mentions that in HMP Whitemoor McGhee “stabbed and slashed” another named prisoner who was “ripping him off” when selling drugs on his, McGhee’s, behalf.[28]Before us Mr Fincher described himself as ‘nosy’ so that when McGhee said he was not on speaking terms with his co-accused Hurley, he wanted to know why. All McGhee would say was James (Hurley) was just the driver and not aware of the guns. He got to know James Hurley relatively recently and told him what McGhee has said.

Steven Bevans

[29]Steven Bevans is serving a sentence of life imprisonment for murder and drugs supply. In his witness statement he stated that he learned from McGhee back in the 1990s that the driver in the robbery was “on his toes” and had not known that “tools” (guns) were to be carried on the robbery. He also mentioned that the fact McGhee was able to “run” the prison even when away from his native part of the UK was notable.[30]Before us he accepted he is a career criminal and that the offence of murder involved the execution of a rival drug dealer. He got to know Hurley in prison. One day he noticed that Hurley looked sad and upset and asked him what was wrong. Hurley explained that a witness had gone missing. Mr Bevans claimed he realised he could help and offered to do so. He remembered the details of what McGhee had said so long ago because he thought it was ‘out of order’ to recruit a getaway driver and keep him in the dark about loaded firearms. McGhee had never said anything about a shock baton.

Alan Byrne

[31]Alan Byrne is serving life imprisonment with a thirty year tariff. He has previous convictions for armed robbery and murder. He has given evidence on oath and been disbelieved. During his sentence he escaped from lawful custody (he claims he was kidnapped), and went to the Netherlands where he committed serious drug offences before being recaptured. In his witness statement, he recalled McGhee telling him that the Applicant had not known guns were being carried on the robbery. Before us he said McGhee told him in several conversations that Hurley knew nothing about what was going on that day and he felt sorry for Hurley because he did not know there would be guns. He said it was common knowledge around the prison system that Hurley did not know what was going on that day. McGhee was held in “high esteem” by his fellow prisoners but you could not mess around with him.

Kevin Brown

[32]Kevin Brown is nearing the end of the minimum term of his life sentence. He too has a long record of serious offences to which he has pleaded not guilty and about which he has given lying evidence on oath. In his witness statement he recounted McGhee saying, of the robbery and murder, that “the poor fucker didn’t know I had a tool on me”, meaning that the Applicant had been unaware guns were being carried. He described McGhee as a “maniac”.[33]He told us that everyone in prison knew that Hurley was innocent and should not have been serving a life sentence. It does not happen very often that someone in prison is acknowledged as innocent and that is why he remembered the conversation with McGhee. He said that in 2015 he and Hurley had been in the same prison and Hurley had approached him and mentioned that he was going to appeal and asked him if he could remember anything. He was trying to find out whether Brown and others had had a conversation with McGhee.

Prison records and other documentation on McGhee

[34]Prison records reveal that McGhee had a very violent reputation. On numerous occasions he threatened prison staff and/or attacked them with such weapons as were at his disposal. The threats were taken seriously. There were also various occasions where he used the threat of serious violence to intimidate fellow prisoners.[35]A similar picture is presented within the Respondent’s schedule entitled McGhee Prison Intelligence/Assessments. Going back to the time of the robbery and trial the schedule includes references to his “extremely violent nature”, his being “very dangerous with no regard for human life”, being feared by his peers, and with the power to dictate what happened within a prison.[36]Instructions to Prosecution Counsel dated 12 July 1988 included this comment:
“The influence and direction of McGhee should not be underestimated. The CPS are informed by the Police that he has a considerable degree of control over both his co-defendants...”
[37]In a report prepared at the instigation of leading Prosecution Counsel seeking jury protection at trial, it was said that:
“There is no doubt that McGhee is an extremely ruthless individual who will resort to violence whenever it suits his purpose...It was apparent from the time of his arrest that McGhee was the man in charge of affairs. He immediately requested the services of his solicitor, Mr Rose-Smith, who then acted for the other three defendants, all of whom appear to be in awe of McGhee”
[38]The trial Judge at the murder trial observed “Hurley was the youngest and least involved. No doubt he was drawn in by McGhee”

The Applicant’s Submissions

[39]This court may receive evidence if we think it necessary or expedient in the interests of justice to do so, pursuant to section 23 of the Criminal Appeal Act 1968. We must have regard, in particular to the following questions: i) whether the evidence is capable of belief; ii) whether the evidence may afford a ground of appeal; iii) whether the evidence would have been admissible at trial; iv) whether there is a reasonable explanation for the failure to adduce the evidence at trial.

Is the evidence capable of belief?

[40]The evidence fell into three categories: the evidence of McGhee’s reputation, the hearsay evidence of what McGhee told others and the Applicant’s evidence.[41]First, it is accepted that the prison material provided a compelling and detailed picture of McGhee as an extraordinarily violent, dangerous and manipulative criminal, even by the standards of professional armed robbers. Mr Bennathan urged us to accept this provided powerful support for the other fresh evidence.[42]Second, Mr Bennathan conceded, as he must, that the witnesses upon whom he relies are by the nature of their contact with McGhee, either criminals or at least criminals’ friends. Mr Bennathan argued it is hardly likely that a man such as McGhee would confide in anyone else. He recognised that the court will wish to bear in mind the witnesses’ antecedents, but insisted these should not be a bar to receiving the evidence. He submitted that courts frequently receive and accept the evidence of men with serious criminal convictions; notable murder convictions have been founded on “cell confessions” from exactly this sort of witness.[43]Third, he described the overall picture they and the Applicant presented as a credible one. The getaway driver of a robbery of this kind would not necessarily know that guns were to be carried. A wages snatch need not involve firearms. The robbers wore jackets and the firearm carried by McGhee was a handgun, so there is no basis to conclude the Applicant must have seen the weapon. McGhee’s forceful and manipulative character makes it all the more believable that he would recruit a driver and not feel obliged to tell him the details of the robbery. The trial Judge’s opinion of the Applicant was that he was “drawn in by McGhee”. He disputed the Respondent’s assertion that the Applicant would inevitably have heard the noise of the gun discharging. This was an urban area with many noises and the Cavalier was parked around or close to the corner.[44]Finally, there is clear support for the Applicant’s claim of ignorance of guns, in the statements made by the witnesses Drein, Cane, Bowman, Fincher, Bevans, Byrne and Brown. Some of these men were friends of the Applicant while some were not. There is no obvious basis why the whole group would manufacture these comments from McGhee and their evidence has a powerful cumulative effect.[45]Further, the Applicant’s assertion that he was ordered by McGhee to decline to give evidence is also said to be credible. On the face of his account the Applicant had a simple tale to tell as far as his own role was concerned; he was recruited late in the day as the driver. He was kept out of the detail of the robbery. Conversely, the account McGhee gave was complex and contrived; it would have been perfectly logical for McGhee to fear that the Applicant might get some of the detailed movements and conversations “wrong” in the sense of not matching McGhee’s elaborate story and might have accidentally implicated McGhee and Wharrie. As a result, pressure was put on him not to testify.[46]Both trial Counsel advised he should testify, neither was provided with a clear reason for his declining to do so. It is suggested the failure of the Applicant to tell his lawyers he was being threatened is unremarkable; once he was in fear of McGhee, any disclosure to a person in authority was bound to lead to McGhee becoming aware. Furthermore, there is direct evidence of the other defendants seeking to manipulate the Applicant at trial in the form of the note from Wharrie “reminding” him what to say.[47]Mr Bennathan relied on contemporaneous support for the suggestion that McGhee was issuing orders to the Applicant in the two Prosecution documents that speak of him having “a considerable degree of control over both his co-defendants...” and of “the other three defendants, all of whom appear to be in awe of McGhee”[48]McGhee was described as “Extremely violent.. manipulative, subversive and demanding... feared by his peers.... able to wield considerable power and sway over other inmates”. Such a man is said to be highly likely to have behaved exactly as the Applicant now states.

Does the evidence afford a ground of appeal?

[49]If the Court were to find there is credible evidence that the Applicant was not aware of the co-defendants carrying guns, Mr Bennathan asserts that his conviction would obviously be unsafe under both the law as understood at the time of trial and as now clarified by the Supreme Court in R v Jogee and another [2016] 1 Cr App R 31. Both the law applicable at the time of trial and the trial judge’s directions make clear that if there was any doubt that the Applicant knew guns were being carried, he would be entitled to an outright acquittal on the murder count.

Would the evidence have been admissible?

[50]The Applicant’s account of his role and limited knowledge of the robbery was clearly admissible at trial. Assessing whether the evidence from the other witnesses was admissible is a slightly artificial exercise because it did not exist at the time and is only put before us to support the Applicant’s current account.[51]Mr Bennathan urged us to accept that the surrounding evidence as to McGhee’s violent and manipulative nature goes to the significant issue of why the Applicant did not give his account at trial. Furthermore, the evidence from the witnesses that “McGhee told me the Applicant had not known guns were being carried” could be categorised as confessions by McGhee and as such would have been admissible at trial, both against McGhee and in favour of the Applicant under the law as it was later declared to be in R v Myers [1998] AC 124. In any event it would now be admissible as hearsay under one of the hearsay provisions of the Criminal Justice Act 2003.

Is there a reasonable explanation for the failure to adduce the evidence at trial?

[52]It is suggested that if the Court finds the Applicant’s account of the threats from McGhee credible, such threats provide a reasonable explanation. Alternatively, if the Court finds merit in the rest of the application then the interests of justice weigh heavily in favour of the receipt of this evidence. As Lord Kerr said in Lundy v The Queen [2013] UKPC 28:
“If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh”
.

Application to extend time

[53]It is conceded that the Court is being asked for an exceptionally long extension of the leave period and it is further accepted that the delay past the time of McGhee’s death was prolonged by about two years by the Applicant’s criminal conduct in absconding from custody. It is submitted that nonetheless the Court should extend the period and consider this application.[54]The application is based on the fear of McGhee and that fear did not expire with the Applicant being convicted of murder; there is a compelling body of material, as set out above, that demonstrates McGhee’s malign influence within the prison system.[55]In R v Thorsby [2015] 1 Cr App R (S) 63 this Court reviewed long standing authorities as to the exercise of the power to extend time and stated at paragraph 13 that whilst the interest of justice was a term wide enough to embrace the efficient use of resources and the public interest in the finality of Crown Court decisions, “However, the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual”[56]Ultimately, if this Court was to arrive at the view that the Applicant was serving a life sentence for a murder of which he might not be guilty, a perfectly proper regard for procedural regularity should not prevent this appeal being allowed.

Conclusions

[57]Applications to adduce fresh evidence, sometimes long after the trial, are becoming increasingly prevalent. Mr Louis Mably for the Respondent issued a timely reminder of the basic principle re-affirmed in R v Simpson [2010] EWCA Crim 1528, at paragraphs 12-13 that in criminal proceedings there should be one trial. In the course of that trial each side must adduce the relevant evidence on which it seeks to rely. Where the defence do not call a witness who is available at the time of trial, the court will rarely regard unwillingness on the part of the witness as a reasonable explanation for failing to call him. If the witness was the defendant, who has made a tactical decision not to give evidence, it will be even harder to persuade the court an explanation is reasonable.[58]Where a number of defendants have participated in a criminal enterprise, it is usually in the interests of justice for them to be tried together. They may have difficult choices to make; for example, they may have to decide whether to run a ‘cut throat’ defence but that is the nature of the trial process. The court is entitled to proceed on the basis that defendants participate in the trial process and deploy the available evidence at the time of trial rather than seeking to deploy it after conviction. It would subvert the trial process to do otherwise.[59]Furthermore, if the Applicant’s account is true, he could have given evidence in support of his defence without naming anyone else involved. He could have instructed his defence team as to his difficulties and sought their advice on how to proceed. He did neither. On his account to us, he negotiated with McGhee and Wharrie for months and eventually secured their agreement that he should not give evidence. Far from McGhee preventing him from giving evidence, McGhee had to be persuaded that he should not give evidence.[60]The Applicant’s motives in deciding not to give evidence may well have been mixed; that is far from unusual. The Applicant may have simply preferred to stay silent, he may have dreaded difficult questions he could not answer as to the extent of his involvement (such as why he was left in possession of the guns) and or he may have wished to abide by the code of the career criminal not to give evidence that might implicate his co-accused. Even if there was the additional element of fear of McGhee (about which we have our doubts) we note that he willingly involved himself in a criminal enterprise with a man he knew to be dangerous. We would take some persuading that he should be allowed to rely on his fear as a satisfactory explanation for his tactical decision not to testify. There is therefore a major hurdle in the Applicant’s path before we turn to the question of credibility.[61]In this case, credibility is an even bigger hurdle. The Applicant’s account was frankly incredible both in relation to his involvement in the robbery and his relationship with McGhee. His account has varied over the years in significant respects. In 1989 and in 2011, he accepted he knew that replica guns would be used. In 2016 for the first time, and only when pressed by Mr Bennathan, he introduced the suggestion that an electric shock baton was the only weapon to be used. Similarly, he has changed his account several times on when he knew a man had been shot. Significantly, in our view, he attempted to mislead the court by deleting passages from his witness statement prepared for this court. The Applicant appears to be the kind of man who is prepared to change his account as and when he feels his interests dictate.[62]Furthermore, the current account is inconsistent with the objective evidence. This was a well planned armed robbery committed by career criminals who knew what they were doing. We do not accept that it was pure coincidence that the Applicant stole the vehicles used in the robbery weeks before, that the getaway driver received his directions to the scene only when in the car, that the choice of Richmond Hill was a last minute decision when there was no answer at the chosen destination, that the involvement of his housemate McFarland was unexpected and that the Applicant only learned of the shooting at the police station. If the driver did not know live firearms were to be used, we find it extraordinary that the other robbers would leave him with the guns and the other incriminating evidence. In our judgment, all the evidence indicates a man fully involved in the planning and execution of the armed robbery.[63]Accordingly, we decline to receive the fresh evidence from the Applicant himself which Mr Bennathan conceded was the central plank of the proposed appeal.[64]It is not necessary therefore to consider the evidence of the other witnesses in any detail. We would have been prepared to accept that McGhee was a highly dangerous man and not someone to cross, but we have already explained why that does not advance the Applicant’s cause. As to the evidence of what McGhee allegedly said to his friends and fellow prisoners, we have our doubts about the reliability and accuracy of the witnesses. Some of them are prepared to lie on oath when it suits them and all of them purport to remember what McGhee said over twenty years ago. The explanations of how they suddenly remembered the conversations and made the link between McGhee’s crime and the Applicant, when the Applicant was ‘trying to get his appeal together’, were totally inadequate.[65]Even if we were to assume that McGhee did tell some of the witnesses the Applicant did not know about the guns, we are satisfied it would not afford a ground of appeal. The weight to be given to a hearsay statement depends significantly on the reliability of its maker. McGhee was a man prepared to tailor his account to suit his purpose. He may well have had a purpose in trying to elicit sympathy for the Applicant. As Mr Mably observed, this court has long-recognised the principle that it will be very careful before admitting statements of this kind. In R v Mackin [2007] EWCA Crim 1844, at paragraph 33 the court declared:
“‘It is obvious…that in the ordinary course of events this court will be very careful before it will admit a confession of guilt by one of two people who have been convicted by a jury of a joint offence. It would be so easy for criminals to seek to share out the responsibility so as to get one of them off. On the other hand, there is nothing in the decided cases which in any way affects this court in receiving such evidence in a proper case…’ ‘As a general proposition if a friend or relative comes forward after a trial and conviction of the offence and claims to have committed the offence having stood by and allowed the trial to go ahead without imparting that information previously, the appellant in such a case would have a very high hurdle to surmount in persuading the Court that the new witness is giving evidence that is credible.’”
[66]In this case that friend/fellow robber seeking to exculpate the Applicant is now dead. His account cannot be tested in cross-examination. It is also inconsistent with the account he gave on oath at trial, and it is inconsistent with the forensic evidence.[67]Finally, the judge specifically directed the jury that they could only convict the Applicant of murder if they were sure he knew of the loaded guns and agreed to their being used to kill or cause really serious bodily harm should the occasion arise. There was plainly a proper basis on which the jury could come to the conclusion the Applicant had the necessary knowledge and intention. On careful analysis, nothing has been put before us to undermine the safety of their verdict. Accordingly, the applications are refused.