England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
COOKE J

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2010

Lord Justice Stanley Burnton :

Introduction

1. In July and August 2008 Miran Thakrar and his brother Kevan Thakrar, with others, were tried at St Albans Crown Court before Cooke J and a jury. They were both convicted of 3 counts of murder and two counts of attempted murder and one of having a firearm with intent to endanger life. On each of the murders Miran Thakrar was sentenced to imprisonment for life with a minimum term of 42 years less time spent on remand. For the attempted murders he was sentenced to 15 years' imprisonment, and for the firearm offence 7 years imprisonment, all sentences to run concurrently. Kevan Thakrar received the same sentences save that his minimum term is 35 years less time spent.
2. They appealed against their convictions with leave of the single judge. Their grounds of appeal relate to the evidence of three witnesses from Northern Cyprus whose written statements incriminating them had been admitted as hearsay at their trial. Two of those witnesses has subsequently made a statement denying the truth of those statements. None of those witnesses was willing to give, and did not give, evidence on the hearing of these appeals. However, a fourth witness, Burhan Durgun, whose evidence was not before the jury, who had given two statements similarly incriminating the Appellants, and had subsequently made statements disputing his earlier statements, testified on a Skype link confirming his last statements and confirming the lack of truth of the incriminating parts of his earlier statements.
3. In summary, it was submitted on behalf of the Appellants that the judge had erred in allowing the three witness statements to be adduced in evidence before the jury; and that, in the alternative, the evidence and statements retracting the incriminating statements was evidence that this Court should receive; they showed that the incriminating statements were at best unreliable, if not false, and in view of the apparent value of those statements at trial this meant that the Appellants' convictions are unsafe.
4. At the conclusion of the evidence and submissions, we dismissed these appeals, and said that we should give our reasons for doing so in writing. We now do so.

The facts

5. These were by any standards ruthless, brutal offences. On 28 August 2007 at about 9.30 pm Keith Cowell, Matthew Cowell and Tony Dulieu were shot dead at the Cowells' home, 2 Plaw Hatch Close, Bishop's Stortford. Two women, Christine Jennings and Claire Evans, who were present in the house were stabbed and seriously injured. The appellant, Miran Thakrar (also known as Mike or Mayki) admitted that he was present at the scene and admitted stabbing Claire Evans. Claire's young daughter, Courtney was present in the house and was unharmed. Ian Jennings who had also been present at the house fled into the garden and hid while the killings and stabbings took place. The Cowells' dog was also shot and killed during the incident. The surviving witnesses reported that the attack was carried out by two men.
6. The weapon used to inflict the gunshot wounds was a Mac 10 automatic firearm. Twenty-five cartridge cases were found at the scene which probably represented one magazine of ammunition. From the position of the cases expelled from the gun, it appeared that five shots had been fired from the hallway through the door into the kitchen and other shots had been fired from the hallway through the living room doorway. Four shots were fired from the living room itself and further shots from the dining room into the kitchen. One unfired round was found. Eight or nine shots struck Matthew Cowell, six struck Keith Cowell and two struck Tony Dulieu.
7. Ian Jennings was a drug dealer who sold cocaine; the Cowells were also involved in drug dealing and Christine Jennings had a conviction for dealing cocaine.
8. Miran, Kevan and Jay Thakrar were brothers who lived with their mother and brother Deiron at 29 Lomond Way, Stevenage. Kevan had the use of the family car, a red Nissan Micra. Miran (who had no licence or insurance), Jay and Atul, their father, also used the Micra at times.

The events of 28 August 2007

9. Miran and Kevan Thakrar were in the red Micra at the Tesco Express, Waltham Cross on 28 August 2007 at 8.17pm. At 9.20 pm the Micra was at Bishop's Stortford Golf Club, where it rendezvoused with a BMW driven by Keith Cowell. The Micra was found burnt out at the Whitewebb golf course at 6 am on the morning after the murders.
10. A TomTom satellite navigation device was seized from 29 Lomond Way on 30 August 2007. Downloads from the device contained the following: "Braintree Road? Beacontree, (Dagenham)". Ian Jennings lived on this road.
11. A large blood-stained dagger was found at Lomond Way. The blood stains were found to have come from Miran Thakrar.
12. On 29 August 2007 at about 2 am Barry Spinks attended hospital with superficial burns to the right side of his face, temple, forehead, cheek and ear. He reported that he had sustained the burns after throwing petrol on a bonfire. The prosecution case was that it was he who had set fire to the Nissan Micra. At the time of the trial Spinks had been charged with assisting offenders by being involved in the burning of the Micra. He was serving a prison sentence for another matter and was due to stand trial at a future date.
13. Ian Jennings' drug dealings with Miran Thakrar were alleged by the prosecution to be the background to and to have provided the motive, in so far as there can be a motive, for the killings. Jennings dealt in 2 qualities of cocaine, "shine" which was the more expensive variety and "repress" which was the cheaper sort.
14. Jennings' evidence was that he had been introduced to Miran Thakrar by the Cowells. He supplied him with half a kilo of repress which he took to Keith Cowell's house, leaving Matthew and Keith then left to do the deal with Miran. Two or three days later he had a call from Matthew who was crying. Matthew said he had been threatened with being shot by Mike because the cocaine was not what was required. He responded by saying that it was too late to reverse the deal. He told Matthew to get Mike to phone him directly. Mike rang soon after and talked like some gangster rapper. He was saying that the cocaine was not good enough and that he would "put one" in Keith and Matthew Cowell and other members of his family. He said he would come looking for Ian Jennings. Jennings told Mike that it was too late to reverse the deal and there was no "shine" about, only "repress" so he would have to sell it on. Mike continued to threaten him so in the end he swore at him and put the phone down. Jennings then spoke to Keith Cowell and told him that he had told Mike that he would not get his money back, and told Keith to be careful in case there was any comeback.
15. A few days after the complaints and threats Jennings had a number of calls from Mike whose attitude appeared to be completely different. He said that he had sold the "repress" without much difficulty and apologised for what he said earlier. In a series of calls Mike offered him cannabis in various quantities of 1 to 20 kilos. Jennings told Mike that he was not interested. Mike asked him if he could get more "repress" but there was none available so he told him he could not. From previous experience, dealing with Mike seemed more trouble than it was worth. The calls between them continued; Mike would ask for cocaine and offer what he had to sell himself and Jennings would stall him.
16. Eventually Jennings agreed to sell 1 kilo of "repress" to Mike at the reduced rate of £30,000, which would mean that there would be nothing in it for his uncle, Keith Cowell, as he had to pay £29,500 for the drugs himself. Mike said he did not want to do the deal on the streets as he had before and so it was agreed that the exchange of cash for drugs would take place at the Cowell's house. The arrangement was that Mike would drive to Bishops Stortford Golf Club where Keith Cowell would meet him and bring him back to Plaw Hatch Close.
17. Jennings collected the kilo of cocaine from his supplier and travelled to the Cowell's house with his mother in his blue Mercedes. He was to leave the Mercedes for Nicole Cowell to use to go to a funeral. He had arranged for Tony Dulieu to drive them back to his mother's house in his black BMW.
18. The surviving witnesses to the killings and stabbings gave broadly the same account as to what had happened. Jennings said that he arrived at the house with the drugs and Keith told him that he had brought Mike to the house, but Mike was waiting round the corner with the money. He phoned Mike to tell him to come in, put the drugs on the dining table and went into the kitchen, leaving Keith and Matthew sitting in the living room. He got himself a drink at the sink and after a few minutes there was a knock at the door and someone came in. He expected it to be Mike. He saw two Asian men standing in the front room. One had a gun and they were telling everyone to get on the floor. He recognised the voice of one of them as Mike, from their telephone calls. It was he who held the gun. They said, "Get on the fucking floor." The gunman then shot the dog, at which he (Jennings) ran through the kitchen, into the passageway and out into the rear garden. As he ran he heard gunshots, breaking glass, crying and screaming. He ran to the side of the shed to climb the fence, but was unable to get over and fell into the stinging nettles between the fence and the shed. He got out his phone but the light showed up in the dark between the fence and the shed, so he turned it to silent for fear of being found. He could still hear shots, screaming and crying. He stayed in the stinging nettles until he heard a car screech off, when he peered out and saw the back of a small red car, either a Micra, a Corsa or a Mini. He saw and heard only one car drive off.
19. After the car had gone he went back into the house and found Keith Cowell dead in the kitchen doorway, and his mother in the dining room trying to talk on the phone. He could see both Tony Dulieu and Matthew Cowell were dead in the living room, and he then phoned the emergency services. He could hear screaming and crying upstairs and his mother told him it was probably Claire and he should go up to see. He did this whilst still on the phone to the emergency services. The crying came from the front bedroom where he found Claire and her daughter, Courtney on the bed. Courtney said, "It's all right. Mummy didn't let them stab me." Courtney was uninjured but Claire was bleeding heavily.
20. On 4 September Jennings was involved in two identification procedures. He picked out a volunteer and Kevan Thakrar saying that the latter was the man with the gun. When he was shown the second set of pictures, having been told that he only had to pick one man out, he picked out Miran Thakrar as the man with the gun and said that Kevan Thakrar from the previous parade was the man without the gun.
21. Christine Jennings, Ian Jennings' mother, had driven to the Cowells with him. She gave evidence that while she was sitting on the sofa in their house two Asians had come into the room. The first was wearing dark clothing and holding a gun. He was shouting to them to get down on the floor. Both men were early to mid 20s and the man with the gun was shorter than the other. She described the shooting, and that the two men then went upstairs. When they returned, the gunman came back into the living room first. She looked up at him; the gun was pointing at the floor. He then lifted the gun up and aimed it at her and fired. It made a different sound from the noise made previously. He turned to the other man and told him to finish her off as he did not want any witnesses. He said, "Knife her," whilst taking the bottom of the gun and banging it on the shoulder of Tony Dulieu's body. She looked away knowing that she was about to be attacked with a knife. She felt a series of blows on her back, like being punched. She did not actually see the knife but guessed that was what it was. The man with the lighter top then ran his arm across her throat and said, "She's done, she's finished." Both men then left and she heard the car screaming away. She managed to get to the phone and dial 999.
22. Claire Evans gave evidence that she had met an Asian man called Mike three or four times before she was introduced to him at a pub after a funeral on 7 August 2007. She knew Mike as a cannabis dealer who dealt in skunk in small, medium and large quantities. He was a friend of her boyfriend, Matthew Cowell, who bought drugs from him. She knew that Keith Cowell was a cocaine dealer and that Matthew assisted him from time to time. She knew that Nicole Cowell was a user and she herself used it occasionally.
23. On 28 August 2007 in the evening she made herself a cup of coffee in the kitchen and as she walked through the front room to go upstairs she saw Mike. He asked her if Matthew was there and seemed surprised when she said he was. She told Matthew that Mike was downstairs and after a while he went downstairs and she watched television upstairs. She heard Christine Jennings come in the front door and immediately go upstairs to the lavatory. Christine said hello to her before going back downstairs. She heard someone at the front door and heard a male voice say, "Sit down mate." She did not recognise that voice but was not paying much attention as she was watching television. The door then went again and there was another voice saying, "Oh come in, come in mate." A male voice then shouted, "Get down on the floor, no one fucking move." It was said more than once. She was positive that on one of the occasions it was Mike's voice. She heard gunshots one after the other in quick succession. Someone then said: "Where's the briefcase? He's gone, he must have gone out the back." She then heard Matthew's voice saying, "That's my dad," and then someone else saying, "Get down," again followed by two or three shots. She could hear Christine shouting in pain and heard the dog either barking or yelping. She was in a panic, not knowing what to do, and so she went into Courtney's bedroom. She heard someone coming up the stairs and searching the bedrooms. The light was off in Courtney's room and she got into bed and pulled the covers over her and Courtney. She heard a voice saying, "She's gone, I think she's gone out the window." The door then opened and she saw a man against the light from the landing. She thought it was Mike. She said, "Mike, don't hurt me, I've got my baby." She then heard someone else come up the stairs and that person put the light on and she realised that the second person was Mike. The other man looked as if he was related to Mike. They shared the same facial features. They belonged to the same ethnic group and were about the same age, height and build though the other looked smaller than Mike. He was similar enough for her to mistake him for Mike initially. He had short, spiky hair and looked a little bit younger than Mike and she thought he was probably about five foot five. He looked more like an Asian than a black mixed race person, though she could not be sure exactly what he looked like.
24. As Mike came in he was holding a gun in his hand. It was a big gun, army green in colour with a hollow tube. She could see down the thick end of the barrel which was about two inches in diameter. He appeared to be holding the gun behind the door as it opened inwards, perhaps to prevent Courtney from seeing it. The other man had a knife in his hand with a blade about six inches long and one inch wide. The man with the knife said, "I can't do it," and handed the knife to Mike. She did not see Mike hand over the gun to the other man, but Mike did not have the gun as he approached her and began to attack her with the knife. He repeatedly stabbed her through the covers whilst trying to pull the covers back off her. She was trying to protect herself and the child. She looked up and was stabbed in the face. She put her hand up and was stabbed in the hand. She was stabbed again and again and said, "I'm dead, I'm dead," and the other man said, "Come on, that's enough, let's go," and Mike stopped and they left. She was in shock and could not move until Ian Jennings came upstairs on the phone to the emergency services.

Subsequent events

25. On 29 August 2007 Miran Thakrar and his girlfriend, Amanda Dansie took the 11.25 am flight from Heathrow to Northern Cyrus via Istanbul.
26. There was extensive telephone contact between the various accused after the murders. Text messages to mobile phones in Kevan's possession included the following sent by Miran on 2 September:

"Don't 4get my shorts jeans and t shirts.. No crap I don't wear. My phone is most important! And money. Wot about anil? Can he help us…? Need seans or p's number. I had 19 large b4 I left. Spent 2 on the ting and took 3200 with me so that leaves 13800. Plus the new food is 24000 equals 37800 we need it all asap and more u get me."

The prosecution alleged that a "large" is slang for a thousand pounds, and the "ting" slang for a gun, in this case the gun used in the killings.

27. On 2 September 2007 Kevan Thakrar was arrested prior to boarding a flight from Heathrow to Northern Cyprus. He had purchased a one-way ticket and was carrying only hand luggage.
28. Yilay Tufansoy arranged for Miran Thakrar and his girl friend Amanda Dansie to be collected in Northern Cyprus by his uncle Burhan Durgun and placed in a hotel. Burhan Durgun was identified from the telephone records relating to Yilay Tufansoy's telephone calls to his telephone 0533 845 0176. He duly collected them and took them to the Portofino Hotel in Famagusta. Dansie did not like that hotel, and they moved to the Palm Beach Hotel.
29. On 10 September 2007, the Hertfordshire police contacted the police in Northern Cyprus, seeking their assistance in connection with Miran Thakrar. On 3 December Police Officer Günay of the North Cyprus police, who was dealing with the United Kingdom request, located Miran Thakrar. He was arrested and returned to the United Kingdom on 3 December 2007.
30. On 24 December 2007, the CPS sent a letter to Officer Günay requesting his assistance in obtaining information, statements and documents in relation to the investigation of the murders. It contained an account of the murders, and asked the officer, among other things:

"To identify associates of Miran Thakrar whilst he was residing in northern Cyprus to ascertain if Thakrar divulged any details of the offences committed or made admissions to the offences with which he has been charged in England. If anything of evidential value was divulged witness statements to be obtained."

31. On 5 January 2008 Officer Günay took a statement, in Turkish, from Burhan Durgun. The statement was signed by Durgan and counter-signed by Officer Günay under a certificate stating in Turkish, "His statement was taken by me on 05.01.08 in Famagusta at 18.25 hours. He read it and signed it in my presence as being true." Durgun also signed the top of each page. It includes an account of a conversation with Miran Thakrar in an internet cafe in which he confessed, or more accurately boasted, of having committed the murders of which he was later convicted. The account included the motive for the murders, namely that he had been cheated/swindled by the victims on his purchase of cocaine; that the murders were with an automatic firearm; that there had been a young person in the house whom he did not shoot, and another person who had fled.
32. On the morning of 8 January 2008, Officer Günay took a statement from Selçuk Moran. It contains an account of a meeting outside the Vocational Lycée in Famagusta with Miran Thakrar and Tufansoy, who translated for them what Miran said. According to the statement, Miran Thakrar gave an account of the murders that he and his brother had committed. The statement is more detailed that the other statements taken by Office Günay. It included the facts that Miran Thakrar had been accompanied by his brother, who had also fired shots at the victims, that the bullets had run out, that with the weapon he hit the head of one of the victims and crushed it, that they did not harm the child, and that they had wasted a bullet on the dog. The statement was signed by Moran and counter-signed by the Officer.
33. Later that day, Officer Günay took a statement from Cahit Onbasi, a friend of Burhan Durgun. In his statement, Onbasi said he had been contacted by Durgun and asked to translate for him because he did not speak English and his nephew Yilay Tufansoy had two guests in Cyprus who did not speak Turkish. Onbasi agreed to do so. He knew Miran Thakrar and Amanda Dansie as Mayki and Amanda. He said that Mayki had told him about the murders he had committed, and about a knife wound in his hand. Mayki had said that his girlfriend did not have any involvement in the incident, and when she found out she returned to England. One night, at the Vocational Lycée in Famagusta, with Mayki, Yilay Tufansoy, Burhan Durgun and Muhammed Uzun, Mayki said:

"that he had been swindled/cheated because of the drug business, that he was with his brother at the time, that they were in a house, that he took out a machine gun from a bag that he had with him, that he shocked the people opposite him and killed them, that one of the people ran away, that he fired shots at the man who ran away, that afterwards he told his brother to kill the people upstairs, that his brother was now in this and that there was no turning back and that he had to kill them, that he sent his brother upstairs to kill people, and as the people lying on the floor had not died that he shot bullets to their heads and that the brains of the people he killed had come out and said how nice is that, it's like in the game, that his brother came down and told him that there was a child, that he (Mayki) went upstairs and put the knife into a lady's throat."

According to the statement, Onbasi did not believe what Mayki had said until he saw it in the newspapers.

34. Onbasi signed the statement, and Officer Günay counter-signed with a certificate confirming that Onbasi had read it and signed it in his presence as being true. The statement was timed as having been completed at 17.05 hours.
35. On 10 January 2008, Officer Günay took a statement from Muhammet Uzun. It was timed as having been concluded at 20.25 hours. Uzun said that he had gone with Burhan Durgun to meet Mayki and Amanda at the airport. Mayki had a wound in his hand. He referred to the incident outside the Famagusta Vocational Lycée, where they had a lot to drink. Present, in addition to himself, were Mayki, Selçuk Moran, Onbasi and Yilay Tufansoy. Yilay and Onbasi acted as interpreters into Turkish. The statement gives an account of Miran Thakrar's so-called confession which is broadly similar to the account in the statement of Onbasi, and was signed and counter-signed in the same way.
36. After having taken the statement from Muhammet Uzun, Officer Günay took a further statement from Durgun. It began by stating that he had just remembered certain things. He mentioned the wound in Miran Thakrar's hand. He referred to the incident at the Vocational Lycée. His account of what had been said by Mayki was again broadly similar to the accounts in the statements of Burhan Durgun and Onbasi. Durgun's further statement was signed and counter-signed in the same way as the others.
37. On 24 May 2008, Durgun gave a statement to a lawyer acting for Yilay Tufansoy, who had been charged with assisting an offender, retracting the statements he had given to Officer Günay. He said he had given a statement to the police in a car, and had signed it without reading it. It was on one page only: the first witness statement taken by Officer Günay is of 2 pages in Turkish. He denied saying anything about a visit to an internet café; he referred to what would seem to be the meeting outside the Vocational Lycée, but said that Miran Thakrar has said only that he had been at the murder. He asserted that he had not read his statement and it had not been read to him; the police were "very rough with me" so that he was afraid to say that he wanted to read it. He said that the pages he signed were long enough to contain more information than he had given. This statement was signed by Durgun and dated.

The Appellants' cases at trial

38. Miran Thakrar's case was that he had been coincidentally present in the Cowells' home for a drugs deal when the murders took place. The killers, who arrived after him, were two men he did not know, one of mixed race and the other black. They murdered the victims, and then threatened him at gunpoint and ordered him to kill the woman upstairs with a child. He was provided with a knife and taken upstairs and ordered to kill the woman. He stabbed her a number of times; he caused her serious harm but did not intend to kill her. He acted under duress. The killers left, and he left after them in the Micra. The first call he made was not to the police or emergency services (indeed, he never alerted either the ambulance service or the police to what had occurred) but to his Turkish Cypriot friend Yilay Tufansoy. He decided to burn the car because it had his blood over the steering wheel: he had received a cut from a knife wielded by one of the killers. He fled to Northern Cyprus because he was in fear of his life.
39. Kevan Thakrar's defence was an alibi. He denied being at the Cowells' home. He said he had been visiting a friend. His friend was not identified in his defence statement, but was later identified as Barry Spinks, who, as mentioned above, had coincidentally sustained burns from burning petrol and gone to hospital in the early hours of the morning after the murders.

The disputed application at the trial

40. At the trial before Cooke J, the prosecution decided that they could not rely on the first or second statement of Durgun. The Northern Cypriot witnesses other than Officer Günay were unwilling to come to the United Kingdom, and there was no, or there was thought to be no, video link in Northern Cyprus that could be used for them to testify from there; and in any event they were unwilling to testify. The prosecution successfully applied to adduce in evidence the written statements of Cahit Onbasi, Muhammed Uzun and Selçuk Moran that had been taken by Officer Günay. As stated above, these statements incriminated Miran and Kevan Thakrar because, if true, Miran had admitted to them that he had committed the murders and attempted murders, and he had said that he had done so with his brother. It is accepted that the only brother this could have been was Kevan.
41. It was accepted by the prosecution that the evidence of Miran Thakrar's confessions that they sought to adduce was multiple hearsay: hearsay evidence of a confession that was itself hearsay. It was admissible only if the requirements of section 121(1)(c) of the Criminal Justice Act 2003 were met. The prosecution submitted that the judge should be "satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the latest statement to be admissible for that purpose".
42. The Appellants submitted that the statements should not be admitted in evidence. They were highly prejudicial; the Appellants would be unable to cross-examine the witnesses or to challenge the contents of the statements in any meaningful way. In addition, there were defects in the evidence relating to the giving of the statements. English police officers had requested to be present when the statements were taken, and had requested that the statements should be recorded; their requests had not been complied with by the North Cyprus police. No lawyer had been present when the statements were taken. The police, and in particular Officer Günay, had had conversations with the witnesses that had not been recorded in writing. It was remarkable that although there had been early contact between the North Cyprus police with, in particular, Burhan Durgun, the alleged confessions had not emerged until much later. There were suspicious similarities between the statements purporting to have been made by different witnesses independently. For example, each of the accounts of the incident outside the Vocational Lycée stated that Miran Thakrar spoke outside the Vocational Lycée "in an excitable manner". Burhan Durgun's English was poor in the extreme, yet his first statement included an account of what MT had communicated to him "with his hand gestures and movements" that could not have been so communicated. None of the statements referred to a willingness to give evidence. Under the law of Northern Cyprus, witnesses may be compelled to make statements, and the threat or possibility of compulsion affected the reliability of the statements. In addition, the fact that the witnesses could not be compelled to come to the United Kingdom to testify meant that they were free to say whatever they wished without fear of contradiction or challenge. For all these reasons, which were cumulative, the statements should be excluded under the power conferred by section 126 of the 2003 Act and/or under section 78 of PACE.
43. For Kevan Thakrar, Mr Lovell-Pank QC submitted to the judge that in addition to the matters put forward by Mr Kelly on behalf of Miran, the statements were not an admission by his client but an assertion by a defendant that another had committed a crime. The case against Kevan depended on a weak identification by Ian Jennings, and the hearsay was being used, wrongly, to support a weak case.
44. For the prosecution, Mr Trimmer QC submitted that the confession implicating Kevan could not be redacted without giving the impression that Miran had given an account of the murders that failed to mention that he had been involved with another man, something that might lead the jury to doubt its reliability.
45. Officer Günay gave evidence at the trial, once on a voire dire and again before the jury. He explained how the statements had been taken. The judge found his evidence to be convincing, and there is no challenge to that finding.
46. The judge considered the matters listed in section 114(2) of the 2003 Act with a view to deciding whether the interests of justice required the admission of the statements. As to paragraph (a), he held that the probative value of the statements was high, by reason of the details they contained that must have come from an eyewitness to the murders and attempted murders. It had not been suggested that those details had come from the United Kingdom police or suggested to the witnesses by Officer Günay. As to paragraph (b), there was no other means for the prosecution to adduce the evidence of what Miran Thakrar was alleged to have said. He, however, could give evidence as to whether there had been any such meetings and conversations as were described in the statements. As to paragraph (c), the evidence in the context of the case as a whole was of obvious importance. As to (d), (e) and (f), the judge referred to the evidence, which he accepted, of Officer Günay, and said:

"These were formal statements, the witnesses were aware of the purpose of the statements and it is hard to see why any of the Cypriot witnesses would have invented their evidence, or why the North Cypriot Police should wish to do so. The statements are signed statements by those witnesses and the suggestion that there has been police pressure is not convincing."

47. The judge considered the matters referred to in paragraphs (g), (h) and (i). As to (g), he held that section 116(2)(c) applied, since the witnesses were outside the United Kingdom and it was not reasonably practicable to secure their attendance, and it was not possible for the prosecution to adduce oral evidence of what Miran Thakrar had said; as to (h), it was open to him to testify as to what he had said; and as to (i), the jury would be directed in due course as to the lack of testing of the statements, but the appellants would be able to testify themselves. The judge concluded:

"I bear in mind the differences in the witness statements as to exactly what Miran, Cahit Onbasi or Yilay said on the occasions in question. In what in ordinary parlance is second or third hand hearsay, there is of course the possibility of distortion in transmission. Furthermore, in the present case not only is there an extended chain of communication but there was interpretation by amateur translators, and drink had been consumed by those present outside the Lycée.

Despite this the essence of the evidence of all those present is to the effect that Miran confessed to direct involvement in shooting and stabbing a number of people, although some of the details differ. There does appear to be a difference perhaps between the understanding of those who heard the confession only in translation and Cahit Onbasi who heard it direct from Miran in English. There may be difficulties about the reliability of some of the details transmitted, but the overall message is clear and the value of confession evidence of this kind, with whatever muddled parts contained within it, is so high in the context of this case, bearing in mind Miran's own defence case statement, that the interests of justice require the admissibility of all the statements of the Cypriot witnesses. Having taken into account all the matters that are referred to and, indeed, any others which the Court considers relevant, I have come to a clear view that the statements ought to be admitted."

48. In consequence, the statements of the three witnesses went before the jury, and as mentioned above Officer Günay gave evidence to the jury as to his taking of the statements.

The evidence on appeal

49. Before us, we received de bene esse the oral evidence of Burhan Durgun over a Skype link, together with his written statements dated 8 January 2009, those of Muhammed Uzun and Cahit Onbasi retracting their statements to the police, statements of the lawyers involved in the taking of those statements, and the oral evidence of Officer Günay, who was present in Court. In addition, the interpreter in North Cyprus gave evidence as to what is denoted by the Turkish word for brother.

The Appellants' contentions on appeal

50. The contentions of the Appellants may be divided into two: those challenging the decision of the judge to admit in evidence the statements of Selçuk Moran, Cahit Onbasi and Muhammed Uzun, and those relying on the fresh evidence, other than that of Officer Günay, referred to in the preceding paragraph of our judgment. There is also a short point to be addressed on the summing up.

The challenge to the judge's decision to admit the three statements

51. For Miran Thakrar, Mr Kelly largely repeated the submissions made to the judge. For Kevan Thakrar, Mr Lovell-Pank adopted Mr Kelly's submissions and again largely repeated the submission made to the judge. He added that the unfairness of the admission of Miran's alleged statement as to his brother's part in the murders and attempted murders was such that Kevan should have been tried separately, since if he had been the prosecution would not have been permitted to adduce Miran's confession before the jury.
52. In our judgment, the judge dealt with the admission of the statements impeccably. They were admissible under section 121, their value was considerable and there was every reason to consider them to be reliable. What is striking about the statements, particularly that of Selçuk Moran, is that they contain facts, consistent with unchallenged evidence, that could only have been known to an eyewitness. We refer in particular to the fact that the gun was used to strike one of the victims, and to the killing of the dog. It has not been suggested that these details had been given to the North Cypriot police by the English police. They were not included in the letter of request of 24 December 2007. There is no evidence that these details were public (having been included in a newspaper report or on the Internet or otherwise) when the statements were taken. The judge was entitled to accept the evidence of Officer Günay as to how the statements were taken. It is impossible to see what motive the makers of the statements could have had for inventing Miran Thakrar's confessions, and difficult to see what motive the North Cypriot police could have had for concocting the confessions, even if they had the information to be able to do so. In our judgment, the judge was right to hold that the statements were admissible and entitled to reject the defendants' applications to exclude them. We reject the submission that the exercise of his discretion was unreasonable. Indeed, we would have decided as he did.
53. In relation to Kevan Thakrar's separate points, we do not see that there would have been any justification for excluding that part of Miran's confessions that incriminated his brother. If Miran did confess or boast as described in the statements, it is impossible to see why he should have falsely incriminated his brother if in fact someone else was his accomplice. It follows that the reliability of that part of his confession was as high, and the evidence given Kevan's defence as valuable, as that part that incriminated Miran himself. The suggestion that Kevan should have had a separate trial is unreal: this was plainly a case for joinder. In any event, we do not accept the premise of Mr Lovell-Pank's submission that if Kevan had been tried alone, Miran's confession statements would not have been admitted in evidence.
54. It follows that the challenge to the judge's decision at trial to admit the hearsay evidence fails.

Fresh evidence

55. The first question for us was whether Burhan Durgun's evidence was capable of belief within the meaning of section 23 of the Criminal Appeals Act 1968. Since he denied that he had ever made a statement to the effect that Miran Thakrar had confessed to the murders and attempted murders, his evidence to us, if credible, cast serious doubt as to the reliability, indeed the genuineness, of the statements of Selçuk Moran, Cahit Onbasi and Muhammed Uzun adduced in evidence before the jury.
56. We have to say that as Durgun's evidence progressed, we became more and more convinced that he was manifestly lying in seeking to retract his original statements. The inference we draw is that his original statement was true. He was clearly uncomfortable giving evidence. He had signed both of his original statements in more than one place. It would have been obvious to him that his statements were important: why otherwise would the police have asked him to give one and reduced it to writing? Much of the statements is undisputed, and clearly came from him. He said that some of what Mayki communicated to hm at the internet café came through others, so that he was not limited to hand signs and signals. His evidence was internally contradictory. While saying that he had not said that Miran had confessed to him at the internet café, or otherwise, he said that the police had put pressure on him to go to England to give evidence, promising to find girls, a nice hotel and drugs for him. That allegation had not appeared in any earlier statement and is simply incredible. Nor do we believe that the Cypriot police told him not to go to England because his government would not be able to help him if he got into trouble. There was no reason for him to be in trouble if he had told the truth.
57. Quite apart from the evidence of Officer Günay, we would have rejected Burhan Durgun's oral evidence as incredible. That he was lying to us in denying that Miran had ever confessed to murder was confirmed by the evidence of Officer Günay. Like the judge, we were impressed by him and unhesitatingly accept his patently honest evidence that Durgun did make the statements including the confessions voluntarily.
58. In addition, we have no conceivable explanation as to how the facts as to the crimes contained in Durgun's first two statements and those of Selçuk Moran, Cahit Onbasi and Muhammed Uzun could have been included in them if Miran was not their source.
59. It follows that we reject the subsequently obtained factual evidence as incredible.

The meaning of "brother"

60. It appears that the Turkish word for brother can also mean a close friend. It follows, submitted Mr Lovell-Pank, that if Miran did say that his brother had been his accomplice, he could have been referring to a close friend rather than his blood brother. Although this point had not been made at trial, it cast doubt on the safety of Kevan's conviction.
61. This point fails for three reasons. The first, and most obvious, is that the language in which Miran made his confession was English, not Turkish. This submission implies that English words meaning "close friend" were translated into Turkish as "brother". That is highly unlikely, and is in any event not supported by any evidence. Cahit Onbasi spoke English and his statement is his recollection of what Miran said in English. Secondly, there was other evidence pointing to Kevan's participation in the offences. He was indisputably with Miran not long before the killings in the red Micra, and there was no telephone contact between them during the period of the killings, which would suggest they were together. He was identified as the second man. Lastly, Barry Spinks, the person named as his alibi, did not give evidence at trial and had put forward a patently false story as to how he received his petrol burns.

A special direction to the jury?

62. Mr Lovell-Pank submitted that in addition to the normal hearsay direction, the judge should have given a special direction in relation to that part of Miran's alleged confessions that implicated Kevan. It was not an admission contrary to interest, but an allegation against another person. Mr Lovell-Pank was, however, unable to formulate an appropriate direction. We were not surprised. This was not a case of a defendant who might have sought to slough off responsibility for a crime by blaming someone else. This was a case of a defendant boasting of his murders, and describing how he had committed them with his brother. If, as the jury accepted, the confessions had been made, no reason was advanced why Miran should have sought to incriminate his innocent brother. In our judgment, no separate or special direction was necessary.

Conclusion

63. We have no lurking doubt as to the safety of these convictions. Miran Thakrar's story was inexplicably inconsistent with the evidence of the survivors of the massacre (for that it was) and was inherently incredible. Why should the murderers have left him alone to survive and give evidence of their crime? Why did he not contact the emergency services in order to try to save those who might still be alive? Why did he have the red Micra burned, if the only reason for burning it was that his own blood was on it? Why did he flee the country, to a jurisdiction from which extradition was believed to be difficult if not impossible? After all, if the murderers had been content to leave him alive at the scene, why should they kill him afterwards? His boasting of the murders after he committed them was consistent with his bragging to Aaron Puleston which was in evidence before the jury.
64. For reasons we have already mentioned, there was strong evidence supporting Kevan's participation in the killings.
65. It followed that the appeals had to be dismissed.