Miscarriages of JusticeUK

 

Murder Convictions of Jamie Dunn and Gary Higgins Quashed

Today 23rd September 2016, the Court of Appeal handed down its reserved judgment and formally quashed the convictions of Jamie Dunn and Gary Higgins. No retrial was ordered and Jamie and Gary were, finally, released. They were convicted of murder at Birmingham Crown Court following a trial in 2006. Jamie's case was referred back to the Court by the Criminal Cases Review Commission. Maslen Merchant has represented Jamie for over ten years, dealing with his first appeal in 2009 and the subsequent CCRC referral. He also represented Gary in this appeal and Conrad Jones whose linked conviction for attempting to pervert the course of justice was quashed in 2014 Maslen instructed Joel Bennathan QC of Doughty Street Chambers and Danielle Cooper. Below paragraphs, 30 to 56 of today's decision.

Present Appeal

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.

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.

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.

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.

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.

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.

There is More

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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

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.