The appeal by two of the Freshwater Five against their convictions for drug-smuggling was refused by the Court of Appeal yesterday (25 March 2021).
We recently reported on this appeal, in an article that can be found HERE. It founded on inconsistencies in police evidence heard at the trial, and on significant fresh expert evidence, based on radar data that the Crown held, but had failed to disclose, before the trial. The import of that evidence was that the Galwad-Y-Mor, the appellants’ boat, could not have been where she would have needed to be if the appellants had been guilty.
Faced with that evidence, against a Crown case that was, in the court’s own words, circumstantial and, in any event, extremely tenuous, the court chose simply to ignore the hard evidence of the radar data (which was recovered from a law enforcement vessel in the vicinity, and is more reliable than the AIS data on which the Crown relied at trial) and upheld the convictions. In so doing they dismissed appeal grounds which, they said, “do not begin…to cast doubt on the safety of these applicants’ convictions.” This was, they added, “a compelling prosecution case”.
APPEAL, the English criminal justice charity representing the appellants, have issued the following press release:
Deeply Troubling” Court Of Appeal Decision Upholds Freshwater Five’s Convictions Despite Evidence Disclosure Failure
Two members of the ‘Freshwater Five’ – all of whom maintain their innocence of a £53m cocaine smuggling plot – lost their bid to have their convictions overturned today despite the Court of Appeal finding that a failure to disclose evidence at their trial “should not have happened”. The ‘Freshwater Five’ had been sentenced to a total of 104 years’ imprisonment at Kingston Crown Court in 2011 after being convicted by an 11-1 majority jury verdict. Scaffolding business owner Jonathan Beere, fishing boat skipper Jamie Green and crewmember Zoran Dresic were each handed down 24 years’ imprisonment, while fishermen Daniel Payne and Scott Birtwistle received 18-and 14-year sentences respectively. Three of the men – Jamie Green, Jonathan Beere and Zoran Dresic – are still in prison.
Last month judges considered fresh expert evidence that the lawyers for Jonathan Beere and Daniel Payne argued undermined the prosecution’s case that they conspired to use a fishing boat to collect drugs from a containership in the English Channel and later deposited them in Freshwater Bay off the Isle of Wight. The new evidence, uncovered by law charity APPEAL, was based on radar data from a law enforcement vessel which the Crown failed to hand over at trial. In its judgment, the Court of Appeal said of this disclosure failure, “what happened should not have happened” and that the prosecution expert who extracted the data made a “serious and surprising mistake” in not supplying it to law enforcement investigators.
The case at trial: The Crown alleged at trial that in the early hours of 30 May 2010 Jamie Green’s fishing boat, the Galwad-Y-Mor, manoeuvred in the wake of the MSC Oriane in high seas, in the dark, in 3 minutes in order to collect 250kg of cocaine which the prosecution hypothesised was jettisoned from the containership, which had travelled to the English Channel from Brazil. No evidence was put forward showing that drugs had been present on either vessel, but holdalls of cocaine strung along a rope found floating in Freshwater Bay were recovered by Serious Organised Crime Agency (SOCA) officers the following day. Two Hampshire Constabulary officers involved in the SOCA operation told the jury at trial that the afternoon before they had seen the fishing boat deposit the drugs in Freshwater Bay the previous day in an amended log entry – but that no one in the operation reacted to their observation when it was radioed in, an element of the prosecution case that the trial judge characterised as “extraordinary.”
The new evidence, the appeal application and today’s judgment
In 2018, the Crown Prosecution Service disclosed for the first-time radar data from a Border Agency vessel called the Vigilant, which had been monitoring the MSC Oriane and Galwad-Y-Mor. The data had been extracted from the Vigilant’s Electronic Chart Display and Information System, or ECDIS, by a prosecution expert in June 2010 and stored on floppy disks which then sat in a safe for the intervening years. The failure to disclose this data was accepted by the Crown. In today’s judgment the Court stated with regards to this non-disclosure that “what happened should not have happened” and said there had been a “serious and surprising mistake” by prosecution expert witnesses in not bringing this evidence forward. The Court also faulted law enforcement investigators for failing to “join up such investigative dots.”
Furthermore, the Court acknowledged that the Hampshire Constabulary officers “did not, at the time of their observation of the Galwad, identify that they were seeing or had seen holdalls being deployed in a line, as they described” and thus there was “no credible eye-witness testimony in terms linking the Galwad (and therefore the applicants) to the drugs found [.]” Despite acknowledging the problems with this evidence, the Court of Appeal declined to quash the convictions. It acknowledged that “the evidence is circumstantial” but agreed with the Criminal Cases Review Commission’s previous finding that the prosecution’s case was “compelling”.
In its review of the case, the CCRC failed to obtain the undisclosed radar evidence which formed the basis of this appeal application. The CCRC has recently been criticised in a report by the Westminster Commission on Miscarriages of Justice, co-chaired by two members of the House of Lords, for the inadequacies of its approach to investigation.
The grounds of appeal advanced by the men were that the new radar data showed that: The Galwad-Y-Mor never got sufficiently close to the path travelled by the MSC Oriane to permit the transfer of drugs according to the Vigilant’s radar’s assessment of the path travelled by the Oriane . In rejecting this ground, and finding the radar derived line for the path take by the Oriane not to be reliable, the Court rejected evidence from a renowned leader in radar and surveillance technology.
The Court concluded that the AIS-derived line from the Vigilant’s ECDIS for the path taken by the Oriane was reliable. They found that though it was different to the path presented by the prosecution expert at trial, because this data placed the fishing boat’s southernmost turn closer to that track, the jury would have found it more inculpatory than the line presented at trial. The Court reached this conclusion despite another expert’s evidence that this new line changed the probability of any drugs pick up in a manner that was significant.
Another small vessel travelled to Freshwater Bay, where the drugs were recovered, shortly after the Galwad had sailed nearby. Either this was an alternative suspect vessel which was not known about at trial, or this was a law enforcement vessel which failed to find any drugs in the bay after the Galwad passed through. The Court effectively concluded that as the Vigilant did not consider this high powered RHIB to be a suspect and ignored it, the jury would have done the same, had they been made aware of it. The applicants had also argued that this craft could be a law enforcement asset going to check whether the Galwad had left any drugs behind in Freshwater Bay. Had it found any, this evidence would have been presented at trial – which it was not. The Court accepted the Respondent’s contention that it was not the Vigilant’s RHIB, on the basis that no note of such an operational deployment of the RHIB exists in the Vigilant’s deck log. However, the cover of the Deck Log states that “no operational information is to be recorded in the Deck Log at all”. The Vigilant was monitoring the MSC Oriane and discounted the Galwad-Y-Mor as the drugs-receiving vessel around the time when the transfer was supposed to have been taking place.
The Court found that the ECDIS data showed that the “yacht” recorded as being seen near the Oriane by the Vigilant at a time when no activity was visible on the stern of the container ship was the Galwad and not a yacht at all. At trial this yacht was thought to be a different vessel altogether. However, the Court concluded that this would not have made a difference to the jury’s verdict. A surveillance plane flew over Freshwater Bay after the Galwad-Y-Mor passed through yet failed to report the presence of any bags tied together on a rope in the water below.
The Court found it inarguable that this was the UKBA surveillance aircraft, preferring a handwritten note on a log of the take-off time of that aircraft, over the radar data from the Vigilant. This was despite the fact that the Crown’s barrister submitted during the appeal hearing that the safest course was to assume that the radar target seen was the UKBA surveillance aircraft.
The Court concluded that even if it was the surveillance aircraft deployed on the drugs smuggling operation, it could have missed the large red marker buoy, bright white rope, and eleven coloured holdalls that the police claim the Galwad had dumped in the water minutes before. The Court took this view despite being presented with photographs of the items clearly visible in the water taken from a similar plane the next day.
Emily Bolton, Director of APPEAL and solicitor for the ‘Freshwater Five’, said: “Miscarriages of justice don’t just happen in the trial courts – today one happened in the Court of Appeal. The Court handed down a judgment which simply underscores just how profoundly broken the criminal appeals system is in this country. There is no dispute that this is a case in which law enforcement and the prosecution failed to hand over crucial evidence to the defence at trial. As we showed in the court hearing, that new evidence undermines the prosecution’s case on several fronts and gives a totally different picture to that which was presented to the jury. Yet, in a yet another failure to correct a miscarriage of justice, the Court of Appeal has said today that none of this matters. The Court has substituted its judgement for that of the jurors in a way that fundamentally undermines the principle of trial by jury. Further, the Court’s ruling effectively gives law enforcement a licence to perpetuate evidence disclosure failures in future. It sends a deeply troubling message that they can withhold crucial information from judges, juries, and defendants and get away with it. We have no doubt that law enforcement holds further evidence which supports the Freshwater Five’s innocence. Yet our opaque, unaccountable justice system continues to prevent the truth from coming to light. o those with short memories, it is worth bearing in mind that it took three appeals before the Birmingham Six finally had their names cleared. The Freshwater Five, their families and the APPEAL team will keep battling for justice and reform.”
The Freshwater Five families issued the following statement:
This is a bitter and dark day for the men and their families. Yet again, our faith in the criminal justice system has been shattered. These men are innocent and have collectively spent decades in prison for a crime they did not commit. They have missed births, the deaths of close family members, and countless other irreplaceable family moments while our so called ‘justice’ system has kept them kidnapped behind bars. Today, in ruling against Jon Beere and Danny Payne, the Court has once again whitewashed over what has happened in this case, just four days after Jon’s father died, having lost his battle to hold out long enough to see his son vindicated. At this next funeral we will be mourning the death of Jon’s father, but also the death of British Justice. This pitiful judgement is just yet another example of the system protecting itself from embarrassment and criticism. If the Court of Appeal and the Criminal Cases Review Commission won’t correct this mistake, where else do we turn? British justice is broken, and we will never trust it again. But we have faith that the truth will out. In every round of this case, more and more people have come forward with information about what really happened. We are not the only ones waking up in the night worrying about this case – people involved in the original investigation are having trouble sleeping too – there are whistle blower protections and those with a conscience will come forward. The five men and their families would like to place on record their sincerest thanks to the legal charity APPEAL for their relentless work, and for walking through this nightmare alongside us. We also want to thank barristers Joel Bennathan QC and Annabel Timan for their painstaking advocacy, and the experts on the appeal who worked for hundreds of hours for free in their quest to uncover the truth. We ask for privacy during this difficult time, as we come to terms with this decision. The war is not over, and you haven’t heard the last of us. Once the dust has settled, we will be back fighting for this horrific miscarriage of justice to be overturned and making sure the public knows the full story of not just what happened here, but of the efforts that have been made to cover it up.