What was missing from the cross-examination [of KT and police officers at trial] was the reference to the visit by Northumbrian police to Consett police station before Kevin Thompson’s release on bail. In addition, it seems to us, that this strategy could well have been assisted by reference to the meetings on 14 and 26 April 1992 and the absence of detailed notes of those meetings in the police officers’ notebooks, something that in our judgment required some explanation from those officers. In the first appeal the Court described the absence of notes by the Durham police in similar circumstances as deplorable and inexcusable. By way of a postscript we add the fact that counsel at the first appeal accepted, contrary to Kevin Thompson’s evidence, that a deal must have been done between Kevin Thompson and the Durham police in respect of the Consett robbery, further undermines Kevin Thompson’s evidence given at trial.
Mr Nolan [for the Crown] concedes that it was unacceptable not to have examined the Holmes database. If this document had been unearthed it would have given the defence lawyers a useful tool with which to challenge both the evidence of the two police officers and Kevin Thompson. It may also have led to further fruitful enquiries being made as to the time when DC Perkins “shouted up” for the appellant’s car to be stopped. On its own the failure to obtain and use A491 and make the associated points might not be sufficient to render the verdict unsafe. But, in our judgment, it is something which must be put in the balance with other factors when we consider whether this verdict is unsafe.
- 111. The evidence on which the appellant relies is as follows. Two witnesses, Christopher Williams and Malcolm Hession lived in houses overlooking the relevant part of the car park. Each looked out of windows in their respective houses and saw the Montego on fire only seconds after it had been set alight. Neither saw anybody in the area of the Montego, suggesting that those who had set it on fire had escaped by a route other than one which would take them across the car park in the direction of the place where Kevin Thompson said his car was parked. Hession’s witness statement was read. Williams was not called nor was his evidence read. Both statements were part of the committal bundle.
- 112. The appellant relies on other evidence on this topic which it is alleged was available to the defence but not deployed. In summary this evidence is:
- The fact that Hepple lived nearby (at 11 Mount View).
- A large burgundy car, possibly an Audi, was seen by Paul Walton parked in the car park before the fire started close to where the Montego was found. He did not see it in the early hours of the following morning when walking past that part of the car park.
- At 22.40 three men were seen by Jean Hayden acting suspiciously in the Coalway Lane getaway route.
- The Holmes database disclosed the existence of a transcript of an anonymous telephone call taken by PC Tyrie on 24 March 1990 from a person describing himself as an eye-witness. It was made in answer to a police advertisement seeking witnesses who might assist in the investigation of the murder. The man said that he had seen a dark coloured car driving along the public footpath in Coalway Lane at the relevant time. He described the car as flying down the Lane and going along South View Terrace. He thought there were two people in the car and although he said he could not actually say it was the killers he thought it sufficiently important to ring up and inform the police of it.
- Morris Birdsall, who lived at 16 South View Terrace made a statement in which he said that between 23.50 and 00.10 on the night of 19 March 1990 he saw a large saloon car drive along South View Terrace from the east end. His statement is recorded on the Holmes database and was apparently not seen by the defence lawyers.
- Yvonne Hogarth lived at 48 South View Terrace. She described a dark coloured saloon car travelling at high speed along South View Terrace. She gave the time of this incident as 23.50 on 19 March 1990. Her statement was also on the Holmes database.
- On 25 March 1990 a police dog handler found a discharged 12 bore shotgun cartridge near the Colway Lane footpath.
- Mr Owen submits that this evidence, coupled with the evidence of O’Brien, provided a credible alternative escape route by the killers of Royal and ought to have been deployed by the defence.
- Neither Mr Menary nor Mr Walsh could shed any light on whether or not this evidence was considered by the defence lawyers at trial.
- Mr Nolan submits that the evidence in respect of the Coalway Lane getaway was far too vague to provide any credible alternative to Kevin Thompson’s evidence.
- We accept that the evidence relied on by the appellant on this topic, if adduced, on close examination may not have been quite as powerful as Mr Owen submits it is. We have, however, no doubt that the appellant’s legal advisers at trial were unaware of its existence and unaware of its potential value. Much of this evidence was on the Holmes database and should have been seen by the defence team. We are quite confident that it was not. In our judgment, if the defence had known of the existence of this evidence, they would have adduced it.
- Para 155 et seq.
- None of the evidence which was not deployed on these three topics can be described as fresh evidence. It was all available to the defence before trial. But the failure to use this evidence, in our judgment, demonstrates that, for whatever reason, the legal advisers at trial had failed in those respects in their pre-trial preparations. The reason for this is not hard to see. The principal cause of these failures was, in our view, the late return of their instructions by counsel first instructed. At the date when the briefs were returned much preparatory work remained to be done. Some confirmation for this finding is to be found in a note made by Mr Cosgrove for the conference to be held on 8 April 1993 to which we have referred above (see para 48). We find that not all of the essential preparatory work was carried out. It was this deficiency in pre-trial preparation which caused the failures which we have identified. It would be unfair to blame Mr Fordham and Mr Menary alone for all these failures. We have no doubt that they did their best. We have also no doubt that they believed that everything that ought to have been done had been done. But in our judgment they underestimated the time needed to complete the work.
- It is difficult to conclude that the criticisms and failures which we have found in respect of any one of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together, cumulatively they were sufficient to render the verdict unsafe. Each of these topics was important. The relevance of the Kevin Thompson unused material was, as Mr Menary conceded to the CCRC “crucially important”. The West Road stop was a very important part of the prosecution case. It went largely unchallenged by the defence at trial. The ability meaningfully to probe it in the way suggested is in our view significant. Finally, the Coalway lane getaway evidence represented an opportunity further to undermine Kevin Thompson’s evidence of his alleged assistance given to the appellant and Hands in carrying out the murder.
- We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe. The appeal will be allowed and the conviction quashed.