Case No: 2003/6683/D4
Neutral Citation Number: [2005] EWCA Crim 3245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(Mr Justice Leveson)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 21st December 2005

Before:

LORD JUSTICE SCOTT BAKER
MR JUSTICE JACK
and
MR JUSTICE DAVID CLARKE
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Between :

	PETER HERON	Appellant	
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	THE QUEEN	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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Mr Edward Fitzgerald Q.C. and Mr Paul Taylor (instructed by Messrs Levys) for the Appellant
Mr John Benson Q.C. and Mr Stuart Driver (instructed by The Crown Prosecution Service) for the Respondent

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Judgment
Lord Justice Scott Baker: 
1.	On 27 October 2003 in the Crown Court at Liverpool before Leveson J and a jury the appellant was convicted of murder by a majority of 10 to 2. He was also convicted of two offences of causing grievous bodily harm with intent contrary to Section 18 of the Offences Against the Person Act 1861. He was sentenced to life imprisonment for murder with concurrent 10 year sentences for each of the Section 18 offences. He appeals against conviction with the leave of the single judge. There were two co-defendants, Cassidy and Murphy, both of whom were convicted by a majority of 10 to 2 of the same three offences. Murphy was additionally convicted of a fourth offence, theft of a motor car. Neither Cassidy nor Murphy has sought leave to appeal.
2.	A summary of the material facts is as follows. Just after 10pm on 3 December 2002 a masked gunman burst into the Thatched House Public House in Wavertree in Liverpool. He was accompanied by another masked male who was, apparently, unarmed. The gunman fired shots into the public house. One bullet injured Peter Hogg in the leg; another went through the body of John Navis, astonishingly causing him little by way of internal injury, but then it entered the abdomen of, and fatally wounded, Raymond Craven.
3.	The Crown’s case was that Craven was not the intended target. Rather, it was alleged, the real target was Liam Navis who was present in the pub. This assertion was based on what the Crown identified as a feud which had developed between the co-defendant Cassidy and Navis. The origin of this feud appears to have rested in earlier instances of disagreement or violence between the two men.
4.	In September 2002 the Navis family, who run the Waldeck Public House, refused entry to an after hours “lock in” to Cassidy and Murphy. An argument ensued.
5.	On 30 November 2002, two days before the shooting, there was a further incident in which it was alleged that Cassidy, again in the presence of Murphy, punched Navis.
6.	The Crown did not allege that the appellant was present at either of these incidents. On 3 December 2002 Navis sent out word that he wanted a “straightener,” i.e. a fight, with Cassidy. He told a mutual acquaintance, Andrew Schofield, of this desire, and Schofield was partly responsible for the arrangements for the fight. It was to take place at 5pm that afternoon at a park called the Mystery behind a boy’s club on Wellington Road, Wavertree.
7.	There followed a fatal misunderstanding. When Cassidy arrived for the arranged straightener he was accompanied by the appellant. The fight was close to a gym run by the appellant’s brother and was within walking distance from the appellant’s parents’ home in Grosvener Road. Whether it was the presence of the appellant, or some other sighting, Navis and his associates called for back up, which prompted a number of men to leave the Merryweather Public House to lend support to Navis. Their arrival at the Mystery, said the Crown, prompted Cassidy to believe he was being set up, that is lured to a quiet spot for something far removed from a one to one fight.
8.	The evidence suggested that both parties thought they had been set up by the other. Somebody, either Cassidy or the appellant, is alleged to have said “it’s a set up” as the two walked away.
9.	The Crown’s case was that the appellant’s mobile phone was then used to telephone Murphy. The Crown alleged that Cassidy was angry at the failed straightener. There is evidence that Cassidy telephoned Schofield moments later using Murphy’s mobile telephone. They exchanged mutually unpleasant observations about each other. From this dispute, it was alleged that Cassidy turned to murder.
10.	The case that Cassidy decided to go to the Thatched House armed with a firearm was primarily built through the evidence against Murphy. He, Murphy, admitted that he had stolen a Suburu motor car a few days earlier. He had then placed false plates on this vehicle. This he had done by obtaining the registration number of a similar vehicle which was advertised in the Automart. He was recorded by CCTV in the stolen car going to a petrol station in Wavertree at around 4.30pm on the day of the murder.
11.	When the gunman and his accomplice ran away from the Thatched House, they boarded the stolen Suburu as witnessed by Mr Russell, the landlord of the Prince Alfred Public House, situated directly opposite the Thatched House. There was, on Mr Russell’s evidence, a driver already in place. 
12.	The car was seen again, minutes later, approaching Greenbank Park a relatively short distance away from the Thatched House. There it was abandoned and set alight.
13.	Shortly before the shooting, a group of students including Suzanne Prescott and Rebecca Brady from Liverpool University, were making their way from one of the halls of residence in Greenbank Lane to the Brook  House Public House on Smithdown Road. As they did so, they saw a silver sporty car drive into Greenbank Park. This visit was said by the Crown to be a reconnaissance exercise, as it was to this very area that the getaway car went after the shooting.
14.	After the shooting at approximately 10.15pm the Suburu was seen and heard to drive into Greenbank Park where the occupants disembarked and set the vehicle alight. Another group was making its way from the Brook House Public House back to the halls of residence. Amongst their number were two students. The first of these was Alison Brighton. She was a first year student at the university. Her evidence was as follows. She walked along Greenbank Road and then a couple of metres into Greenbank Lane, when her attention was attracted by a speeding silver car. It was a silver saloon with at least two people in the front. The vehicle went past her and braked as she crossed the road from the park side of the road to the side where the halls of residence were situated. She described the driver of the car, as quite dark eyes a round face and Asian, definitely not white. She said the driver was darker than the passenger and she felt that she would be able to identify the driver, whom she had in her view for a second or so as the car drove past. She said: “I’m saying I was certain of my identification.” Under cross-examination she was referred to two witness statements in which she had given slightly fuller descriptions of the driver. She adopted these statements in evidence. In one of them she said she couldn’t see the front seat passenger but described him as white. She said that the driver was “round faced”, that his hair was dark and that he was not wearing anything on his head. She had the driver in her close view for a second or so as the vehicle passed her.
15.	The second student was Ryan Penniston. As he made his way home, he too saw the car. Curiosity caused him to look through the railings of the park to see where the car had gone. As he did so, he could see the shadow of the outline of the car; he heard a noise which suggested that two doors had opened and closed. Then he heard the words “Which way now, Pete?” It was the Crown’s case that this question was asked of the appellant.
16.	Cell site evidence of the activities on Murphy’s phone suggested that the call made on his mobile phone at 10.28pm was made in the vicinity of Greenbank Park. This information, served on the morning of the first day of the trial, caused particular embarrassment to Murphy because it contradicted the terms of his defence statement that he was at home at the material time, and he was compelled to explain in evidence the fact that his defence statement was false.
17.	Two weeks after the shooting, upon learning that the police had been looking for him, the appellant went to a local police station to ask if the desk sergeant knew what it was about. A check was made and he was arrested. He made no comment when interviewed.
18.	The Crown’s case against the appellant relied on three strands. 
(1)	His friendship and association with his co-defendants Cassidy and Murphy, and in particular that he had accompanied Cassidy to the striaghtener at 5pm on the day of the shooting.
(2)	The use of a mobile phone whose number bore the last three digits 233 (hereafter referred to as “233”) attributed to him which not only evidenced his association with Cassidy and Murphy but also ceased to be used entirely on the early morning of 4 December – following the killing – a feature common to the phones of Cassidy and Murphy.
(3)	The question “Which way now, Pete” overheard by Ryan Penniston as the occupants fled from the Suburu in Greenbank Park moments before it was set alight.
19.	None of these three strands alone was sufficient to found a prima facia case of participation in these offences by the appellant, but taken together they were held by the judge to provide evidence on which a jury, properly directed might convict. The judge so held, rejecting a submission at the close of the Crown’s case that there was no case against the appellant to be left to the jury.
20.	Six grounds of appeal are relied upon. The single judge gave leave to appeal on three. The other three, which emerged later, concern non-disclosure by the Crown of material information or alternatively non appreciation of the significance of that material information on the part of the defence team or some members of it. We granted leave to appeal on the three additional grounds prior to adjourning the appeal part heard in September.
Ground 1 the judge was wrong to reject the submission of no case. 
21.	The judge dealt with this at pages 3 – 6 of transcript 1A. He began with 233 which the appellant neither, admitted nor denied was his mobile phone. The judge said it was open to the jury to conclude this mobile was used by the appellant. He was plainly right on the evidence and Mr Fitzgerald Q.C., who has appeared for the appellant on this appeal, does not really suggest otherwise. Privileged material that has recently been disclosed in relation to other grounds of appeal confirms that it was his.
22.	The judge referred to the mobile phone activity between 233 and Murphy and Cassidy’s phones. He said:
“I am satisfied that it is open to the jury to conclude....233 was used by him…….
In addition to the contact between 233 and Cassidy’s mobile telephone there is contact between 233 and Murphy’s mobile phone. There were three calls from Murphy’s number to 233 between 9am and 11.08 on 3 December. Shortly after this time, for at least one call Cassidy was using Murphy’s phone to speak to Andrew Schofield at 11.49. Further, after the abandoned striaghtener at 5pm, when Cassidy and (the appellant) were seen together, within 25 minutes the 233 phone was used to contact Murphy’s phone. This was at 17.23. At 17.43, twenty minutes later, Murphy’s phone was used by Cassidy again to telephone Andrew Schofield……..
Cassidy’s phone was able to receive incoming calls, as it did from the Murphy phone at 19.40.”
23.	He then pointed out that after the killing 233 went silent. Not only was there no contact with Cassidy and Murphy, but there was no contact between 233 and the appellant’s family members. As we have already mentioned all three defendants’ phones stopped transmitting after 3 December.
24.	The judge said there was evidence that went beyond mere association. The appellant was sufficiently friendly to accompany Cassidy to the straightener at 5pm on the evening of the killing and when one added Penniston’s evidence: “Which way now, Pete?” provided evidence on which the jury could convict.
25.	Obviously the defence made great play about Alison Brighton’s evidence, pointing out she was firm and clear in her evidence that the driver of the getaway vehicle had dark eyes, a round face and was Asian, a description that manifestly did not match the appellant. But, he added, it was open to the jury to be sure she was wrong. It would also, we would observe, be open to the jury to conclude she was right but that there was a fourth man in the car who was the recipient of the question, “Which way now, Pete?”
26.	In our view the judge was right not to withdraw the case from the jury.
Ground 2 misdirections to the jury.
(a) Ryan Penniston’s evidence.
27.	Mr Fitzgerald submits the judge should have given the jury a warning about the dangers of accepting Ryan Penniston’s evidence in the same way as if it had been identification evidence. That is he should have given a Turnbull direction but, as David Clarke J pointed out in argument, it was not a case of a witness identifying a voice. There were in our view no special dangers in accepting Penniston’s evidence. It was simply a matter for the jury to decide whether they accepted what he said he had heard. If they did, it was a matter for the jury to evaluate the weight of that evidence in the context of the appellant’s association with Murphy and Cassidy.
(b) Failure to correct the fourth person suggestion.
28.	We are satisfied that the Crown never advanced the case on the basis that there was a specific number of people in the car or indeed that the appellant was in any particular seat. Our conclusion is confirmed by the judge’s observation at p. 11 of the transcript of the submission of no case. The evidence that connected the appellant with the car was the question, “Which way now, Pete?” What the appellant is seeking to suggest is that there were only three people in the car and that Alison Brighton’s description of the driver rules out the appellant. However, it is clear to us that the Crown throughout left both options open.
29.	It was never in the appellant’s interest to advance the possibility of there being a fourth man for the obvious reason that he did not want to have to explain away two individuals either of whom could have been the recipient of the “Which way now, Pete?” question. It was in his interests for there only to be one individual and to rely on Alison Brighton’s evidence.
30.	It is interesting to see how the Crown put the position in its final speech. Mr Benson said at page 1 line 27:
“But who were the men in the car? That is what you are here to try. Or, more accurately put: are you satisfied so that you are sure that three of the men in the car – if there were more than three, the Crown cannot discount the possibility there might have been a fourth, I will come to that in due course – when it arrived and when it left were Lee Cassidy, James Murphy and (the appellant)?”
And at page 3, line 25:
“Alison Brighton, an important witness, who no doubt my learned friend Mr Lawson-Rogers will refer to at some length, was she correct when she said the driver of the Suburu car was Asian? If there were only at that time three men in the car, we can say no, honest witness but a mistaken witness.”
And at page 15, line 6:
“Members of the jury, we therefore suggest that you can be sure that James Murphy was in that car and you can therefore be sure that Lee Cassidy was in that car. I said at the outset, I said at the very beginning of this case, the prosecution alleged that there were at least three in that vehicle. Who else was there? As a matter of common sense, it is going to be someone, is it not that they know and someone they can trust?”
And at page 17, line 20:
“We, on behalf of the prosecution, invite you to conclude that there were at least three. We cannot exclude there may have been somebody in the passenger seat whilst that vehicle was sitting in Prince Alfred Road.”
Then when the judge came to sum up he said at page 9 line 26:
“They left at least a driver in the vehicle who you may consider was getting ready for a quick getaway.”
And at page 10, line 14:
“The gunman was supported by the second man in the public house and at least by the getaway driver.”
And finally at page 41, line 13:
“Mr Benson argues that Alison Brighton, honest witness though she was, has made a mistake and you can be sure of it. Alternatively, and in any event, he says it does not exonerate (the appellant) because the evidence of his involvement is based on his links with the other men and the comments made. There need not only have been three persons present.”
31.	What of the evidence as to the number of people in the car? It seems to us that the eye witness evidence left entirely open whether there were three or four people in the car. What the jury may have decided by inference from the evidence that they accepted is, of course, a different matter and one cannot prey into the jury’s thought process which is of course dependent on the evidence they accepted and the evidence they rejected.
32.	Mr Russell’s evidence was not challenged by the defence. It was read and summarised by the judge at page 36 of his summing up:
“He saw the large silver vehicle in the middle of the road with the rear in line with the last door of the Thatched House. The lights were on and the engine was running. You may think he was ready for a quick getaway. Two men ran towards it. One got into the offside behind the driver. He was smaller than the second man, who tried to get in through the same door but then ran round the back. The car was rocking as if trying to drive off, or waiting to drive off. He saw the man hanging out of the window. It had taken a minute or two for the two men to get in the car.”
33.	Alison Brighton described the driver in clear terms that did not match the appellant. But she also described in her statement, which supplemented her evidence, that she did not see the front passenger except that he was white.
34.	No complaint was made about the way the case was left to the jury on the fourth man possibility, and in our view there can be no justified criticism of the way the judge summed up the case. It was not in the appellant’s interest to highlight the possibility of a fourth man. The appellant’s case was run on the basis that if Alison Brighton’s evidence was correct, and there was no reason to suppose she was mistaken, then the appellant was ruled out of the vehicle. That, however, overlooked the “Which way now, Pete?” evidence, assuming the jury accepted it.
(c) Inadequate directions as to the phone alleged to be the appellant’s.
35.	 The appellant put the Crown to proof that the 233 phone was his by not admitting that it was his. We do not think that anything the judge said would have caused the jury to misunderstand that it was for the Crown to prove that it was. It was inevitable that if the jury thought the phone was plainly the appellant’s they might have gone on to ask, “why did he not admit it?” They were entitled to do so.
(d) The judge invited the jury to speculate. 
36.	The judge told the jury that, “you know, of course, that Pay-As-You-Go phone do not require subscriber names”. There was no evidence to that effect, but it is a matter of common knowledge. The judge referred at some length to the evidence concerning a phone called the 799 phone. It was part of the evidence and he was entitled to do so. 
Ground 3 lurking doubt.
37.	Given that there was a case to leave to the jury and given that the appellant elected not to give evidence, it is difficult to see how the court can be persuaded that there is a lurking doubt about the safety of this conviction in the absence of some specific factor to create one. The judge gave the jury the appropriate warning about the appellant’s failure to give evidence. That failure was of course capable of being regarded by the jury as adding support for the Crown’s case. 
38.	In our judgment, if we are not persuaded for some specific reason that the conviction is unsafe, the appellant does not succeed on lurking doubt or any general feeling of unease about the conviction.
Grounds 4, 5 & 6 – the “new” evidence
39.	We turn to grounds 4, 5 and 6 which relate mainly to information about one Gerard Cole, part of which was either undisclosed by the prosecution or unknown to the defence advocates at the time. These grounds are expressed as follows:
(4) there is now available evidence that was not known to the appellant or his lawyers at the trial that points to the involvement of one Gerard Cole as the driver of the getaway vehicle instead of the appellant.
(5) there was material non-disclosure in that the matters referred to in Ground (4) above were not disclosed to his lawyers before the trial by the Crown.
(6) further, or in the alternative, the existence of this evidential material relating to Cole’s potential involvement as the getaway driver which was not known about by the defence or adduced before the jury at trial renders the verdict unsafe.
40.	These grounds are interlinked. What makes the matter not entirely straight forward is that some information about Cole was disclosed and appreciated by the defence team; some was disclosed but its possible significance not appreciated by some, at least, of the defence team and some was simply not disclosed, full stop. It is against this somewhat unusual background that the court is called upon to consider the exercise of its powers under section 23 of the Criminal Justice Act 1968 to permit the introduction of fresh evidence that was not adduced at the trial.
41.	The submission is, broadly, that if the defence lawyers had been aware of this material the defence might, depending on the instructions of the appellant, have been run differently resulting in his acquittal. Therefore the conviction is unsafe and the appeal should be allowed.
42.	Put shortly it is suggested that Cole matched more closely than the appellant Alison Brighton’s description of the driver of the getaway vehicle and that his mobile phone records, which were not disclosed, showed frequent traffic with Cassidy and Murphy’s mobiles as well as the appellant’s mobile. A good case could have been made out that he, rather than the appellant, was the third man or at least enough doubt could have been thrown on the Crown’s contention that the appellant was the third man.
43.	The appeal was originally listed for hearing over two days in September. There came a point during the hearing when we were so unclear about what material had been in the hands of the appellant’s counsel, what material had not been disclosed but should have been, what use the defence team would have made of all the material about Gerard Cole had it been disclosed, and in particular what if any difference it would have made to the way the defence was run, that we adjourned the hearing in order to have the assistance of Mr Lawson-Rogers Q.C. who was the leading counsel for the appellant at this trial, and also his junior.
44.	The material we now have falls broadly under the following heads.
(1)	Cole’s mobile phones records which show:
a)	that during the period 1 November 2 to 4 December 2002 Cole’s mobile phone.
(i)	called Cassidy’s mobile phone 103 times;
(ii)	is called by Cassidy’s mobile phone 53 times;
(iii)	called Murphy’s mobile phone 65 times;
(iv)	is called by Murphy’s mobile phone 76 times.
b)	also, on 3 December 2002 at 11.30pm Cole’s mobile phone called Murphy’s mobile telephone. At 12.41 on 5 December Cole’s mobile phone called a landline attributable to Cassidy. 
c)	On 30 November 2002 Cole’s mobile telephone called The Thatched House public house on two occasions. 
These telephone calls have to be seen against the context that the appellant’s mobile phone, 233, made and received the following calls in the same period;
i)	to Cassidy’s mobile phone 78 times
ii)	from Cassidy’s mobile phone 43 times
iii)	to Murphy’s mobile phone 16 times
iv)	from Murphy’s mobile phone 27 times
Much of the material had been disclosed at the trial.  Cole’s mobile telephone records, however, had not. They were not disclosed, so it appears, because they were regarded as “sensitive” and in any event not material to be disclosed because it was not considered that the records might undermine the case for the prosecution.  There was no PII hearing and it is our view that the records should have been disclosed.  The matter does not on the face of it appear to have been properly considered by the prosecuting authorities, but for reasons that will become apparent it is not necessary to go into that issue.  There is no suggestion of bad faith.
(2)	The complete document message form M.163, an internal police document, i.e. all three pages of it.  What appears to have happened was this.  The document was disclosed, but due to an administrative error the defence solicitors were only sent the first page.  However, they never asked for the subsequent page or pages, although it would have been obvious on inspection of the front page that that was not the complete document.  The front page contained information about Cole, including his mobile telephone number.  The second and third pages contained some further information about him.
(3)	Police action 27, which indicates that the police were interested in any Asian associates of Cassidy (no doubt because of Alison Brighton’s evidence) and in which Cole is described as “is IC3 but is Asian-looking”.  It appears the defence did not have this document because the defence solicitor was unable, because of other commitments, to complete the inspection exercise.
(4)	Various witness statements touching on Cole’s description or involvement in various events relating, broadly, to the background to the shooting.
45.	We have been provided with a helpful statement from Detective Chief Inspector Carr, which summarises the police interest in Cole during the investigation.  DCI Carr was initially deputy senior investigating officer into the murder of Raymond Craven and later the senior investigating officer.  This statement was prepared in November 2005. It was not of course in existence at the time of the investigation but it helpfully summarises information that could have been gleaned from various documents in the unused material. In summary, what he says is this.
46.	It was known at the time that Cole was a close associate of Cassidy.  It was also known that Cole was of mixed race.  There was not, and indeed never has been, any evidence or intelligence to connect Cole to the murder.  The police never had reasonable suspicion on which to arrest Cole for the murder.  Nevertheless, DCI Carr felt it prudent to commence administrative preparation for an identification procedure for Cole, should one become necessary.  One never, in the view of the officer, became necessary.  DCI Carr saw no reason to distinguish Cole from any other associates of Cassidy, Murphy or the appellant, who were of mixed race or dark skinned.  Cole was, however, arrested on an unrelated matter.  The arresting officer obtained an account of his movements on the night of the shooting and these were later confirmed by his girlfriend.  The officer also formed the view that Cole was not of Asian appearance.  Cole volunteered his mobile telephone number, something not done by either Cassidy, Murphy or the appellant.  A search warrant was executed at Cole’s home address but nothing was found that could link him to the murder.  His telephone billing was examined and showed, as we have mentioned, a pattern of contact with Cassidy and Murphy over a considerable period of time.  That pattern was no different on the night of the shooting to any other night of the preceding weeks.  All that could be deduced from the billing was that Cole had possibly been used as a conduit for communication between the parties in the dispute both before and after the shooting.  Unlike Cassidy, Murphy and the appellant, Cole continued to use his mobile telephone after the shooting.  It was decided there were no grounds for arresting Cole for the murder and no grounds to justify proceeding with an identification process.  Surveillance was mounted upon a motorcar known to have been used by Cole.  The reason for this was that there was evidence that Cassidy had been seen as a passenger in the vehicle and the police wished to locate Cassidy.
47.	We refer to the various categories of material beginning with Cole’s mobile phone records.  It is important to have in mind the limited nature of what was not disclosed, namely calls from Cole.  Calls to Cole could be found on the disclosed records relating to Cassidy and Murphy.  Junior counsel for Cole at the trial, Mr Richard Pratt, recollects that he knew Cole’s mobile phone number.  It was on the front page of M163.  In any event, the appellant would have known it.  No efforts were made by the defence team to seek further information about Cole’s mobile phone activity on the night of the killing or to analyse what was available by way of incoming calls.  Mr Lawson-Rogers said that they had no reason to do so.  The point can also be made that neither did the appellant suggest it.  What Mr Lawson-Rogers says is that if the defence had been provided with Cole’s mobile phone records and had appreciated that Cole was a possible match to the driver of the get-away vehicle, there would have been discussion with the appellant about the possibility of introducing Cole into the case as a candidate for the driver of the get-away vehicle.
48.	As to M163, it is said not have reached counsel, even the first page, which certainly reached the appellant’s solicitors. What the document reveals is:
•	Cole’s mobile phone number.
•	that he had been on 8 December 2002 arrested on suspicion of another matter .
•	he was a good friend of the deceased.
•	he was last in the Thatched House Public House two weeks before the killing in company with Cassidy, Murphy and Thomas.
•	he is a friend of Cassidy.
•	he first learned of the murder at 23.00 hours on 3 December 2002 when he telephoned a friend called Pane. Pane was a taxi driver and was with Craven after he was shot.
•	At 00.45 hours on 4 December 2002 he was stopped by an armed response unit in Earle Road, Wavertree driving his Vauxhall vectra. The police said they were looking for a silver car.
•	he told the police that he did not have any mobile phone or land line number for Cassidy; a statement which it is now said was untrue.
The document reveals a number of other matters that are of no relevance to the present appeal.
49.	Turning to police action A27, this was raised on 4 December 2002 at 20.10 hours. It requested, “research any Asian associates of Cassidy or the injured parties.” The result records that Cassidy knew Cole who is “IC3 but is Asian looking.” This was in the unused material but did not reach counsel.
50.	There are several other actions and messages that, broadly, bear out the summary by DCI Carr to which have referred.
51.	It is a matter of some debate to what extent Cole matched the description “Asian looking”. Certainly the photographs we have been shown of Cole do not indicate he is remotely “Asian looking”. 
52.	The fourth category we have described as various witness statements. Schofield was a cousin of Liam Navis and gave evidence at the trial. He was involved in the arrangements for the straightener and went to its intended scene. His witness statements referred to Cole, describing him as a mate and saying that Cole was also mates with Cassidy and Murphy. In one of his witness statements he referred to having met Cole and Payne at about 2pm on 3 December 2002. Cole told him Cassidy had just been in the Heron gym and Cassidy was fuming over Liam Navis offering him a straightener. Later in the same statement he said Billy Navis had told him that on 30 November 2002 Cole had phoned Craven at the Thatched House and told him, “you are all going to get shot.” Whether this was a threat or a warning is unclear. What is clear is that the whole of the defence team was aware of this hearsay statement but that it did not precipitate any action on their part any more than did the statement of Elaine Navis in which she said Craven had received a call from Cole in which Cole had said “ he’s gonna smoke everyone in the Thatched.”
53.	The defence team also had a statement from Danielle Lloyd in which Cole was described as, “of tanned complexion, mixed race but not black”. Cole had introduced her to Murphy and Cassidy. They also had a statement from Maria Magill, Cassidy’s girlfriend. She said: “he is of mixed race black/white, his skin is light so he just looks tanned….he has short dark hair.”
54.	There is one other piece of material to which we should refer.  It does not relate directly to any of the grounds of appeal, because it emerged very late in the day.  But it is another plank in the appellant’s argument that if its existence had been appreciated the case might have been run differently.  This material came to the attention of the appellant’s advisers and the Crown the day before the adjourned hearing of the appeal.  It comprises a message followed by an action.  The message is that Shirley Jane Hennessy, a barrister, contacted the police on 6 December 2002 to report that she had seen a number of males at about 22.15 on the night of the murder running from Greenbank Park and about thirty feet away from her.  The lead male was white, around 5ft 10 inches tall, aged seventeen to nineteen with short blond collar length hair, slightly spiky on top.  He was wearing a red bomber jacket and dark trousers.  The other males were white and of similar size and age.  She was not prepared to make a written statement.  An action was raised to ascertain the number of males, to which the answer was four.  The lead male with the spiky hair appeared to have had it dyed blond.  
55.	Mr Lawson-Rogers has no recollection of ever having seen this material.  It is said the police made repeated but unsuccessful efforts to obtain a statement from Miss Hennessy, and what we do not know is why neither of the other defendants ever, so far as we are aware, pursued the matter.  The material was available to all defendants in the unused material.  The description of the lead male did not fit either Cassidy or Murphy.  As far as the appellant was concerned it was never in his interests to introduce the possibility of a fourth man.  We were never addressed at any length upon what might have been done with the Hennessy material had its significance been appreciated.  We are not persuaded of the likelihood of any use being made of it on behalf of the appellant as it would not have helped, and might well have hindered, the argument that he did not match the description by Alison Brighton of the driver.
56.	We are grateful to Mr Lawson-Rogers for coming to court and giving evidence.  He told us he never saw M163 and he had no discussion with the appellant about Cole being “Asian looking”.  He never saw Cole’s mobile phone records for the obvious reason they were not disclosed.  His junior’s position was the same.  It was an important part of the appellant’s defence to challenge the allegation that he was the driver.  The defence was aware of Cole being an associate of Cassidy and Murphy but they were not aware of the police interest in him.  They would, subject to the appellant’s instructions, have deployed this and adduced the fact that Cole was not put on an identification parade.  Put shortly, he said, “because we never made the link, we never undertook the exercise.”  To suggest someone else was the driver would not have made the case against the appellant any worse.  Evidence could have been obtained from the officer in charge of the case by cross-examination.
57.	When cross-examined by Mr John Benson QC for the Crown, Mr Lawson-Rogers made a number of, in our view important, concessions.  First that he would be surprised if they had not asked the appellant for his help in identifying who was the third man.  But re-examination he said that as the appellant was not there, “we would not have asked who was the driver?” Secondly, that the telephone evidence was the real problem and that all three phones had gone silent after the killing.  Third, that the appellant was never going to give evidence and that he did not admit 233 was his mobile.  Fourth, the appellant never made any suggestion who else might be in the frame for having assisted Cassidy and Murphy.  As to Mr Russell’s evidence, as he only seemed to identify three people, they were content for his evidence to be read.
58.	We have been provided with a statement from the appellant saying that, if he had known all he now knows about Cole being a suspect and his phone calls on the day of the murder, he would have wanted the issue raised in court.  We attach little weight to this statement; we attach rather more to the evidence of Mr Lawson-Rogers.
59.	The appellant, in waiving privilege, disclosed among other things, the notes of a consultation on 22 September 2003 and a proof dealing with various aspects of the evidence.  His case was that he was not responsible for the shooting and he did not believe Cassidy or Murphy were either.
60.	Paragraphs 5 and 6 of the consultation notes are revealing as to the intended tactics at the trial.  Paragraph 5 records the desire to keep a low profile and distance the appellant in the eyes of the jury from the co-defendants.  A submission would be made (as it was) at the close of the prosecution case.  It was a weak case.  Paragraph 6 records:
“If we introduce speculation as to other possible murderers, there is a danger that we move closer to Cassidy and Murphy and might detract from the standpoint that we know nothing about these events.  We want nothing to do with it.”
61.	The note also records that the appellant had heard that Cassidy was involved, so thought it was better to get rid of his telephone.  Also, it was a small community where everybody knew everybody else.  The word on the street was that Cassidy and Murphy were responsible and the appellant recognised he might be blamed by association.  
62.	Apart from Cole’s mobile phone records it does not seem to us that the Crown failed in its disclosure obligations.  In any event it seems to us there was sufficient material available to the defence for enquiries to be made about his mobile phone records.  The defence had been supplied with his number (junior counsel at any rate knew about it) and the appellant could, at the least, have ascertained details of calls made to Cole from the material that had been disclosed.  Most, if not all, of the material the appellant now has could, so it seems to us, with reasonable diligence on the part of the appellant’s then solicitors, have been available at the trial.  That, however, does not provide the answer to this appeal.
63.	Mr Benson’s submissions can be summarised as follows.  First, there was sufficient material known to counsel for the defence to have pursued the Cole aspect of the case had the defence been minded to do so.  In this regard, a distinction has to be drawn between counsel’s position and the appellant’s position.  The appellant knew a good deal more about Cole than did counsel, not of course the various documents that did not percolate through to counsel, but this was a close knit community and Cole was well known to the appellant.
64.	Mr Benson submits that the Cole aspect was not pursued, and, perhaps more importantly never would have been pursued, because of the appellant’s loyalty to his close friends and associates Cassidy and Murphy.  Mr Benson submits, and we can see some force in this, that the introduction of Cole would necessarily have strengthened the case against Cassidy.  The judge advised the jury to start with Murphy; if the case against him was established to go on to Cassidy and if it was established against both of them then to go on to the appellant.  The jury appear to have accepted this advice because they returned verdicts first against Murphy and later against Cassidy and the appellant. The stronger the case against Cassidy the stronger the case against the appellant.  The jury must have accepted the “Which way now, Pete”? evidence and the only candidate was the appellant.  Cole’s name was not Pete.  The material now disclosed by the defence reveals, as the Crown submitted all along, that 233 was the appellant’s phone.  The phone records show how closely he was associated with Cassidy and Murphy and the fact that Cassidy, Murphy and the appellant all disposed of their mobiles shortly after the shooting, whereas Cole did not, was always, and would remain, a telling point against the appellant.
65.	If the appellant introduced Cole into the case he faced not only the anger of Cole but also that of Murphy and Cassidy.  It seems to us that it would have been very difficult to introduce Cole into the case even as to a partial match to Alison Brighton’s description of the driver, without a very high risk of damaging Cassidy’s case (and in consequence his own).  There would also, it seems to us, be a serious direct danger to the appellant by introducing Cole’s mobile phone records into the equation.  First it would draw attention to the appellant’s closer association with Cassidy and Murphy and second, in the light of the “Which way now, Pete?” evidence it would bring the possibility of a fourth person in the car very much more into play.  If Cole was going to be introduced into the case, it was going to have to be done as a positive assertion that he was the driver; it would be almost impossible, and probably ineffective, to advance such a case on a vague assertion. Any assertion that Cole was the driver, or even a vague floating of the possibility before the jury, would have entitled the Crown to adduce any evidence tending to exclude him from involvement in the crime. 
66.	If all the additional material had been in the hands of and its significance appreciated by Mr Lawson-Rogers we think it likely he would have taken the appellant’s instructions upon what use might be made of it.  We think it possible, but unlikely, that the appellant’s instructions would have been such that the trial took a significantly different course.  We think it likely, although we cannot be certain, that the case would have been conducted in the same way as it was.  
67.	Nevertheless, we go on to ask ourselves this question.  What if the instructions to Mr Lawson-Rogers were to make the best use of it he could?  It is impossible to predict with any precision how the trial would then have unfolded.  Prudent counsel would proceed on a step by step basis, backing off when more damage than good was likely to be caused.
68.	This case does not fit into the ordinary category of one where the court is asked to consider fresh evidence on appeal.  Nevertheless, we think the correct approach is to consider these grounds of appeal on the basis that all the material to which we have been referred, regardless of whether its existence was not disclosed or its potential significance not appreciated, is properly to be regarded as fresh evidence.  Section 23(1) (c) of the Criminal Appeal Act 1968 entitles the court to receive any evidence which was not adduced in the proceedings below if it thinks it necessary or expedient in the interests of justice to do so.
69.	The court is required, when considering whether to receive any such evidence, to have regard in particular to four considerations.  These considerations are:
(1)	whether the evidence appears capable of  belief;
(2)	whether it appears that the evidence may afford a ground for allowing the appeal;
(3)	whether the evidence would have been admissible on an issue which is the subject of the appeal;
(4)	whether there is a reasonable explanation for the failure to adduce the evidence at the trial.
However, the overriding consideration is the interests of justice.
70.	Taking these considerations in turn, the evidence appears capable of belief.  It would have been admissible on the issue whether the appellant was one of the murderers.  Apart from the mobile phone records of Cole, which should have been disclosed but were not, we do not think there is a reasonable explanation for failure to adduce the remainder of the evidence.  Had the defence solicitors done their job properly it would have been in the hands of leading and junior counsel.  The most critical question is whether the evidence, taken as a whole, may afford a ground for allowing the appeal.  
71.	We have kept in the forefront of our minds the words of Lord Bingham in R v Pendleton [2002] 1WLR72, 83F:
“But the test advocated by counsel in Stafford and by Mr Mansfield in this appeal does have a dual virtue to which the speeches I have quoted perhaps gives somewhat inadequate recognition.  First, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict.  The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard.  For these reasons it will usually be wise for the Court of Appeal, in any case of difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict.  If it might, the conviction must be thought to be unsafe.”
72.	We are, as we have said, sceptical about the use to which the material would have been put.  Mr Lawson-Rogers said in evidence that he knew nothing about Miss Hennessy, but that if he had he would probably have tried to have her interviewed.  She had of course said she was not prepared to make a statement.  But assuming this hurdle was overcome, and she was prepared to give evidence, where did that take the appellant’s case?  Whilst on the one hand it might be said that her descriptions of the men, such as she gave, did not match the appellant or Murphy or Cassidy, she identified four men and the evidence was damaging to the appellant’s case, that the Crown was only suggesting three, and that Alison Brighton’s description of the driver did not fit him.  We certainly did not get the impression from Mr Lawson-Rogers that the appellant would have been rushing to try and call Miss Hennessy as a witness.
73.	What then of the material relating to Cole?  The fundamental difficulty for the appellant to bring Cole into the case was his friendship with Murphy, Cassidy and the appellant and the potential, and possibly unforeseeable, damage it might do to all their cases.  There was some suggestion that the murder was committed by a wholly unrelated gang and may have been drug related.  Murphy said he had sold the car on the afternoon of the murder to four men, one of whom was Asian.  The introduction of Cole, a close friend of Murphy and Cassidy, as matching Alison Brighton’s description of the driver, was not going to help them.
74.	Introducing Cole, even peripherally, by cross-examining the officer in the case, seems to us to be an exercise that was unlikely to be productive.  Any evidence that he could have given could not undermine the three strands of the case against the appellant.  These were (1) friendship and close association with Cassidy and Murphy and presence at the proposed straightener hours before the shooting; (2) his mobile phone traffic with Cassidy and Murphy and the common feature of all the phones going silent, and (3) Penniston’s evidence, “Which way now, Pete?” which the jury plainly accepted. Furthermore the description of Cole in A27 as “Asian-looking” although superficially attractive as matching Alison Brighton’s description of the driver (dark, round eyes, Asian) is not borne out by the photographs of Cole, a matter which the police appreciated as their enquiries progressed.
75.	Also, Cole was never a suspect for the offence except in the very broadest sense of the word.  He was never arrested and there was no evidence whatsoever to connect him with the crime (unlike the appellant).  It is difficult to see how the police could have justified putting Cole on an identification procedure.
76.	Even if the appellant managed to introduce evidence about Cole to persuade the jury that he might have been the driver rather than the appellant, that still left Penniston’s evidence, which placed the appellant in the get-away car.  The defence would still have faced the problem of explaining why the appellant was not a fourth person. What would the jury have concluded if they considered the position on the basis that Cole might have been in the car? The introduction of Cole, a man with darker skin, would have lessened or removed the problem which the jury faced with Alison Brighton’s evidence as to an Asian looking man who was definitely not white. It would not have affected the position regarding the evidence of Ryan Penniston, “Which way now, Pete?” That was evidence which we know the jury accepted and which they considered would in the circumstances only have been directed to the appellant: he could not otherwise have been convicted. The introduction of the Cole material would not have affected that conclusion.
77.	We have accordingly come to the conclusion that the test in Pendleton is not met.  We consider that the fresh evidence, however introduced, would not reasonably have affected the decision of the jury to convict.  We do not think the evidence would afford any ground for allowing the appeal and we decline to admit it.  In our judgment the verdict is safe, with or without the fresh evidence.
78.	There is one further point with which we should deal.  Mr Fitzgerald submitted, in the alternative, that because the issue of Cole as a suspect was never addressed by the appellant’s legal advisors he did not have a fair trial.  We do not think that this way of putting it adds anything to the conventional approach to questions of fresh evidence which we have followed.  If the evidence would not have affected the outcome, its omission does not mean that the trial was unfair.
79.	Accordingly the appeal against conviction is dismissed.