England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM COVENTRY CROWN COURT
HH JUDGE ECCLES

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 December 2010

Lord Justice Stanley Burnton:

Introduction

1. This is our judgment on the appeal of Anthony O'Shea against his conviction on 18 October 2005 at the Crown Court at Northampton, before His Honour Judge Eccles and a jury, of two counts of incitement to distribute an indecent photograph of a child contrary to common law and three counts of attempting to incite another to distribute an indecent photograph of a child contrary to s 1 (1) of the Criminal Attempts Act 1981. On 15 November 2005 HH Judge Eccles sentenced him to 5 months' imprisonment on each count concurrent. He was disqualified from working with children and required to comply with the provisions of Part 2 of the Act (notification to the police) for 7 years. His appeal is brought considerably out of time, by leave of the single judge, who granted the necessary extension of time of 3 years and 5 months.
2. At the beginning of the hearing of the appeal, the appellant again applied for an adjournment, on the basis that the respondent had not given adequate answers to allegations made by the appellant and there would not be sufficient time for a fair hearing. We declined to adjourn the appeal. We were of the view that the appeal could fairly be heard in the 2 days allocated. However, we agreed to keep the question of adjournment under review. In the result, by adopting the course followed in civil claims of allowing the experts' reports to stand as their evidence in chief, the hearing was completed in the time allocated. In order to ensure that significant points had not been omitted inadvertently from counsels' final speeches, we permitted them to supplement their submissions in writing. As Miss Moore QC rightly commented, we expected to receive short focused supplementary submissions. What we did receive from counsel for the appellant were long and very full written submission, to which the respondent had to respond. We have considered them carefully. We do not propose to address in our judgment every point and every contention in them: we shall focus on the facts and issues that are, in our judgment, significant.
3. On the evening before the first day of the hearing of this appeal, Independent Television News broadcast an item on Operation Ore, suggesting that there were doubts over the safety of convictions. It was recorded on to a DVD, and we were able to view it. We ordered the production by ITN of material that had been referred to. It was duly produced by ITN on the morning of the second day of the hearing. Having considered it, we concluded that it did not bear significantly on the issues raised in this appeal, so that there was no good reason to adjourn the hearing.

The scope of this appeal

4. The appellant was one of a considerable number of persons who were charged with offences relating to child pornography in what was called Operation Ore. They were accused of accessing and downloading child pornography through an Internet website located in the USA called Landslide. In order to access that pornography, other than on a so-called taster page, it was necessary for the viewer to pay a subscription, and for that purpose to provide his credit card details and certain other information, to which we refer below. When the Landslide operation was closed down by the American authorities, it was found that there were numerous credit card details belonging to UK residents. The American authorities gave access to the Landslide computer, or copies of it, to the police in the United Kingdom. Among those whose credit card details were on the Landslide computer were those of the appellant.
5. Operation Ore gave rise to considerable publicity when the prosecutions of those accused of offences were being conducted, and there has been some publicity in relation to this appeal. On the part of the appellant's legal team, the appeal has been approached, and for much of the time conducted, as if it were a public inquiry into Operation Ore. We make it clear that it is and has never been such. This appeal has addressed one ultimate issue and one only, namely whether the appellant's conviction is or is not safe. Different prosecutions, and different convictions, involved different issues. We are concerned with the issues relating to the appellant's conviction only.

The grounds of appeal

6. The grounds of the appellant's appeal relate to what is said to be new expert evidence relating to the Landslide operation. As settled by his counsel, the grounds are as follows:

1. … Subsequent forensic examination of Landslide's computer records showed that the appellant was the victim of identity theft; that the computer records on which the prosecution relied were rife with fraud; that the specific subscriptions said to have been taken out by the appellant were contaminated with fraud.

2 The jury had been presented with a misleading and prejudicial account about the nature of Landslide and its website. They were told that Landslide advertised itself as a gateway to child pornography and that it denied access to anyone who did not specifically confirm that they wanted to view child pornography. This caused such prejudice to the appellant that he did not have a fair trial and his conviction is unsafe.

7. Ground 2, although not formally abandoned, was not pursued by Miss Griffiths before us. In essence, it contends that the jury could not be trusted to examine the evidence at trial and to try the issue whether the appellant did or did not access or try to access child pornography through Landslide fairly and without bias or prejudice because Landslide was said to be advertised as a child pornography site. There is no basis for such a contention. It is conclusively answered in paragraphs 103 to 109 of the respondent's skeleton of 9 November 2010. This appeal has essentially been about ground 1: the contention that Landslide was contaminated by fraud such that the Court must doubt whether the appellant was rightly convicted.

Fresh evidence: the applicable principles

8. As is apparent, Ground 1 depends on what is said to be new expert evidence: subsequent forensic examination of copies of Landslide's computer records. That expert evidence is that of the computer expert, Terence James Bates, who conducted the forensic examination relied upon by the appellant.
9. The power of the Court of Appeal to receive evidence that was not adduced at trial is contained in section 23 of the Criminal Appeal Act 1968:

"(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice –

…

(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."

10. Paragraph (d) of subsection (2) reflects the basic principle of our criminal law that ordinarily there is only one trial of a criminal charge. It is for the defendant at his trial to present his defence and to adduce the evidence, including the witnesses, reasonably available to him.
11. It is not unknown for appellants to seek to call on appeal the testimony of an expert other than one who gave evidence at trial. Such evidence may not have been available at the trial, particularly in cases in which scientific knowledge has progressed since the trial. In some cases, however, an appellant seeks to call as fresh evidence the testimony of an expert who could have given evidence at his trial. The Court will not readily allow such evidence to be adduced. The applicable principles were explained by Moses LJ in Martin T [2008] EWCA Crim 3229:

"33 The second observation we make relates to the expert evidence and relates to the importance of recognising that the criminal justice system does not allow two trials, first by a jury with one team of lawyers and secondly, possibly years later in the Court of Appeal, by a second who have managed to find an expert who would have said something different had that expert been called at the trial. The time to deploy expert assistance is at trial and not later. Of course there will be cases where the Court of Appeal will out of justice admit and rely upon evidence which might have been obtained at trial but was not, when that evidence falsifies and destroys the basis on which the earlier conviction was obtained. Justice may demand no less and many serious injustices by that means have been cured in the past, all the more so where scientific research and thought has developed. But that fresh evidence must have the impact which the statutory jurisdiction of this court dictates. It must be such as to undermine the safety of the verdict. It is not sufficient that it merely demonstrates that the original evidence from experts might have been assessed in a different way or a different conclusion on the expert evidence part of the case might have been reached unless it strikes at the fundamental basis upon which the verdict rested."

12. The present appeal is extraordinary in an important respect. Mr Bates is not an expert who has been instructed on behalf of the appellant since his trial. He was instructed before the trial, he prepared a report dated 5 September 2005 for the trial, and he was present at the trial. This means, in our judgment, that the Court should be especially cautious before admitting his evidence for the purposes of the appeal.
13. As is the normal practice of the Court of Appeal, Mr Bates testified, and was examined and cross-examined, de bene esse, that is, on the basis that we would decide whether to admit his evidence when we had considered it, and such other new evidence, including the evidence in response of the respondent's computer expert Dr Sharples.

Landslide

14. Landslide Inc. was a US company that provided what Mr Bates in his 2005 report described as subscription services to Internet users wishing to access pornographic material. An Internet user who accessed the Landslide site could, by paying a subscription by credit card, obtain access to other Internet sites displaying, in the case of the subscriptions attributed to the appellant, child pornography. One such site was called "Child Rape", and it is not disputed that the images that could be accessed on that site were of indecent child pornography. Less descriptive, but similar in relevant respects, were the other child pornography sites to which the appellant was alleged to have subscribed or attempted to subscribe, "Forchild" (a short form for "Children Forced to Porn") and "Baby World" [The Appellant's dealings with 'Babyworld' were relied on by the Respondent, but they were not made the subject of a count on the indictment because the Respondent did not have access to the content of the site and so there was no evidence that it was a child pornography site. The Child Rape and Forchild websites were run by a webmaster in Indonesia.
15. Landslide provided two membership services, the Adult Verification Service and KeyZ. Operation Ore was concerned with the KeyZ service. When someone purchased a subscription using KeyZ, he purchased a subscription to a single website. There were a small number of KeyZ registered web sites.
16. Someone interested in child pornography would first see a "taster" page, with small images of what could be expected to be available by a subscriber to the child pornography site. He could then progress to the subscription page of the Landslide site. A sample subscription page for Child Rape was in evidence at the trial. It is headed "Child Rape", and requires the viewer to enter his name, postal address, email address, and his credit card number and expiry date. In addition, he must choose a password to enable him to access the members' area of the site during the period of his subscription. At the bottom of the subscription page is the information for the subscriber:

"When you sign up for a KEYZ account, your credit card will be charged by Landslide Inc. The address you enter must match the billing address of your credit card."

17. Having entered the required information, and his selected password, after a credit card check the viewer would receive on screen a user name, and then could pass on to, and could view, the members' pages of, in this example, Child Rape. The subscription paid by credit card, doubtless after deduction of the credit card company's fee, was shared between Landslide and the webmaster in respect of whose website the subscription had been paid.
18. The Landslide computer recorded, in relation to each subscription or attempted subscription, the name, postal address, email address, credit card number, its month and year of expiry, the amount of the subscription if it was successful, its duration, the date and time of the transaction, the password chosen by the subscriber and the Internet address of the subscriber.

Internet protocol addresses

19. Internet Protocol ("IP") addresses are unique to the computer accessing the Internet. It is a numerical label that is assigned to any device participating in a computer network that uses the Internet Protocol for communication between its nodes. In other words, it is an address that is assigned to any device that is connected to a network that follows the Internet Protocol, i.e. the Internet. IP addresses enable the data transmitted by the accessed computer to be directed correctly to the accessing computer. In fact, both the accessing computer and the accessed computer have unique IP addresses, enabling data to pass between them in both directions. IP addresses are stored as binary numbers, but are shown in readable notations, such as 208.14.156.289.
20. Where a user accesses the Internet through a dial-up connection to a proxy server, his computer does not itself directly communicate with the web page, he communicates via the proxy server, and his IP address will register with the proxy server but not with the web site. The IP address that will be recognised by the computer of the website that he accesses will be that of the proxy server. A proxy server may enable several users to access the Internet simultaneously. Each of their accesses to the proxy server will be tagged by it, enabling the proxy server correctly to pass on down the telephone line the data it receives intended for that user.
21. When a person accesses the Internet directly, his computer may (and normally will) be allocated a different IP address each time he accesses the Internet. However, the proxy servers of Freeserve at the relevant time had their own unique IP addresses.

The evidence against the appellant

22. At his trial, the principal evidence against the appellant consisted of entries in the KeyZ access log of the Landslide computer recording 7 transactions between 24 April 1999 and 16 August 1999. Each entry included the name "Anthony Oshea", his correct address, one of his then current email addresses and the password entered by the user. 4 transactions recorded his correct credit card number and that his card had been debited with the sum of $24.95, one for Forchild, two for Child Rape and one for Babyworld. The first entry included a credit card number that was a variant of the correct number (the last 4 digits were 2761 instead of 2631), and no debit to the card was shown. The third entry showed a number that was not a credit card number; it was followed some 30 minutes later by the next transaction, when the correct credit card was recorded but it was not in fact debited. The email address was a Freeserve address.
23. Freeserve was the appellant's Internet service provider: he had a dial-up subscription with it. Freeserve made a number of proxy servers available to its subscribers. A subscriber accessing its services would dial in to its system, and access the Internet through one of those servers. As mentioned above, a subscriber accessing the Internet through a proxy server would be recognised by a third party website as having the Internet address of that server. According to Dr Sharples, the third party website would send data back to the subscriber over the Internet using the proxy server's Internet address. The proxy server would have tagged the subscriber's access to it, so that the data incoming from the website would be passed on down the telephone line to the subscriber's computer.
24. The Landslide system automatically sent an email confirming a successful subscription to the email address entered by the subscriber. It follows that on each successful subscription recorded by the access log, a confirmatory email would have been sent to him. In addition, the Landslide computer recorded the Internet address of the computer accessing its web site.
25. In addition, the Landslide computer recorded the IP address from which the appellant accessed the Internet. For each of the transactions attributed to the appellant at his trial, the IP address recorded was one of the addresses allocated to Freeserve.
26. Each of the passwords recorded by the Landslide computer against the appellant's name was a variant of a password or name he had used in the past. By way of example, the password "trimtrim123" was entered for the transaction of 16 August 1999 timed at 07.30, and "trimtimy" for the last transaction, times on the same day at 22.49. One of the appellant's previous email addresses had been trimtim456@aol.com, and the username he had used for another site had been "trimtrim". He had sent an email dated 9 February 1999 quoting this email address and password complaining that he had been wrongly billed with the sums of $19.95 and $29.95. This email of 9th February 1999 was before the jury.
27. The appellant's credit card was debited with the sterling equivalents of the sums shown on the Landslide access log. His credit card statements were retained and filed by him, and were seized by the police when his home was searched. Each of the debits was shown as paid to "Landslide Productions" with an address in Fort Worth, with the same dollar sum as that recorded in the access log. He annotated the statement dated 4 May 1999, which included 2 sums paid to Landslide, each of £15.92, shown as the equivalent of $24.95 "£40 paid 8/5/99". The respondent's wife gave evidence on his behalf. She told the court that he used to check his credit card statements. There were examples of his email complaints that his credit card had been wrongly debited. He made no such complaint in relation to the Landslide debits.

The defence at trial

28. At the trial, the appellant's case, like that before us, was that he had never accessed the Landslide website. It followed that he was not responsible for the transactions attributed to him. They were fraudulent, made by someone using his credit card and other details without his permission. He adduced alibi evidence that on the dates and times in question he had not been at his computer.
29. In support of his case, the appellant called a computer expert, namely Andy Fisher. As mentioned above, Mr Bates was also instructed. His report was served on the CPS by letter dated 12 September 2005.

The appellant's contentions on this appeal

30. We stated above that it is important to focus on the issues in the present case. It is not that the appellant accidentally accessed the Landslide Internet site and paid his subscriptions in the belief that he would access adult pornography. His case at trial and before us was and is that he had never accessed the Landslide site, and that the entries on its computer attributed to him must have been made by someone else. The theory put forward on his behalf is that a webmaster, presumably the webmasters of the Child Rape, Forchild and Babyworld sites, had dishonestly acquired and used his details in order to benefit from the credit card payments that resulted.
31. One of the difficulties with the fraudulent webmaster theory is that the webmaster of Babyworld was German, whereas the webmaster for Childrape and Forchild was Indonesian. The theory therefore has to posit at least two fraudulent webmasters. As will be seen, there is a further similar difficulty for the appellant: see paragraph 33(v) below.
32. Mr Bates accepted that the Landslide computer was working as it should and as shown on the access log. In particular, he accepts that on each occasion that the access log shows that he paid a subscription, it sent an email to his email address.
33. The new evidence put forward by Mr Bates is that there are indications, if not proof, of wide-spread fraud on the Landslide computer. In addition to that general assertion, he said:

(i) There were numerous indication of fraud on the Landslide computers. An important indication was the high proportion of DNVs, i.e. apparent subscribers who having subscribed did not visit the website for which the subscription had been paid.

(ii) The context of one of the entries ascribed to the appellant, namely that dated 16 August 1999 and timed at 07.30 and given the user code ao169, which was adjacent to those of someone referred to as RG. The entries attributed to RG were, in the opinion of Mr Bates, indicative of having been made fraudulently. In his written submissions the appellant contends that "forensic examination shows clearly that [RG's] transactions are suspect".

(iii) The fact that the transactions recorded against the appellant's name had been entered from a computer with a Freeserve IP address was not conclusive of the fact that such a computer had been used to access the Landslide computer. It was possible to disguise the IP address of a computer, and indeed to assume the IP address of a Freeserve proxy server without accessing the Internet through one of the Freeserve servers.

(iv) He had found on the Landslide computer the customer database of a company named Levenger. That database had the information that could be used to make fraudulent subscriptions and debits to credit cards of customers. No reason was apparent why this database was on the Landslide computer, and it was submitted on behalf of the appellant that it must have been for fraudulent purposes.

(v) A transaction on the Landslide computer attributed to the appellant that had not been referred to at the trial. It included an America On Line email address, and had been given the code AO123. It was common ground that that address had been the appellant's at the apparent date of that transaction. The website visited was called Lolitalinks. Its webmaster was American.

(vi) One of the subscription sites that could be accessed through Landslide was Keyzsexyplace. In Mr Bates view, it was entirely fraudulent.

(vii) At the appellant's trial, the prosecution case was that there were not and could not have been fraudulent transactions on the Landslide computer. The judge summed up to the jury to this effect. The true picture was very different. Analysis of the subscribers who did not subsequently visit the website for which a subscription had been paid indicated that there was a large number indicative that the subscriptions were fraudulent. This analysis was referred to as DNVs ("Did Not Visit").

34. On the basis of this evidence, it was submitted that the jury had been misled at the appellant's trial. Had they known of the prevalence of fraud on Landslide, they would, or might have, returned different verdicts.

The prosecution evidence in reply

35. The prosecution called as their computer expert Dr Sharples. He differed from Mr Bates on the issue of the prevalence of indications of fraud on the Landslide computer records.
36. In relation to DNVs, Dr Sharples pointed out that the exercise carried out by Mr Bates considered only whether subscribers had immediately accessed the site to which they had subscribed. Because IP addresses will normally change when a user logs off the Internet, and then accesses the Internet again, it is impossible to identify from IP addresses alone (as Mr Bates had sought to do) whether or not an apparent subscriber has returned to the Internet site to which he has subscribed.
37. Dr Sharples agreed that the access logs for Keyzsexyplace appeared to indicate fraudulent activity, probably on behalf of the Keyzsexyplace webmaster, for reasons set out in the Scott Schedule that both parties had completed in accordance with the Court's interlocutory directions. However, he pointed out that there was no indication of similar activity displayed within the access log for any other Landslide website. Mr Bates agreed with this.
38. There was only one issue of fact relating to the specific transactions ascribed to the appellant on which Dr Sharples and Mr Bates disagreed. Dr Sharples told us that, while it was possible for an Internet user to disguise his IP address, it was not possible for him to assume the IP address allocated to someone else, and specifically Freeserve. In other words, if the Landslide computer recorded that it had been accessed from a Freeserve proxy server, it had been.
39. The prosecution sought to introduce evidence that, as a result of information received as part of Operation Ore, the home of RG (referred to at paragraph 33(ii) above) was searched and he was interviewed. He admitted that he had visited websites offering child abuse imagery; movies showing indecent images of children were recovered from his computer; and he was subsequently cautioned.
40. There was one item of fresh evidence that was undisputed, namely another transaction apparently made by the appellant on the Landslide website. It was referred to by the number given to it by the Landslide computer, namely AO123.

Should the appellant's application to adduce fresh evidence be allowed?

41. In the present case, as in many cases, the considerations that the Court is required to take into account are interrelated. However, we shall seek to address them individually, while bearing this in mind.

Does the evidence appear to the Court to be capable of belief?

42. In our judgment, potentially the most important evidence given by Mr Bates is that referred to at paragraph 33(iii) above.
43. We have no hesitation in rejecting this evidence as incapable of belief. It was mere assertion, unsupported by any published or other material or any reasoning. Mr Bates was unable to explain how, if computer A accessed on the Internet records a Freeserve IP address as the IP address of the computer B accessing it, the data transferred by A could go to an IP address other than the Freeserve IP address.
44. We note that Dr Type, the computer expert instructed by the CPS at the trial, in her witness statement dated 4 February 2005, said:

"The [KeyZ] access logs cannot be used to trace a particular user's accesses across more than one session, however, as the allocation of IP addresses usually occurs dynamically, meaning that the same user can access the Internet using the same computer and the same Internet Service Provider, but may be allocated a different IP address (within the range of IP addresses owned by the ISP) on each occasion. …

Each of the IP addresses [recorded for the Anthony O'Shea subscriptions] are registered with the UK-based Energis (and were previously registered with Planet.net.uk) who provide Internet services to Freeserve (now Wanadoo)."

45. Dr Type returned to the subject of IP addresses in her witness statement dated 20 April 2005:

"Several different IP addresses have been recorded for 'Anthony O'Shea' …"

She set out the IP address recorded for each of the transactions in question, and continued:

"Each of those IP addresses are registered with the UK-based Energis … who provide Internet services to Freeserve.

Mr Fisher … correctly comments that the IP addresses in question were assigned to Freeserve …"

See too Mr Fisher's evidence at trial on 13 October 2005, page 5 of the transcript.

46. Thus the subject is not new; it was identified at the trial and was the subject of expert evidence; as we have seen, Mr Fisher, the appellant's expert, did not disagree with Dr Type's evidence. Mr Bates was available at trial to contradict that evidence, but did not do so. His failure to do so in 2005 is relevant to the issue under section 23(2)(d) as well as paragraph (a). Moreover, his evidence in 2005 as to the practical possibility of a webmaster impersonating a Freeserve IP address in 1999 would have been more reliable than his vague even more retrospective evidence on this point in 2010. Lastly, in our judgment Mr Bates' evidence must be considered with caution. Quite apart from other reasons, in our view his denial to us of having signed a confidentiality agreement in the case of Grout was a deliberate lie, maintained until his signed agreement was produced to him. It is also relevant that he has been convicted of perjury as a result of his misrepresenting his qualifications when giving evidence.

Does it appear to the Court that the evidence may afford any ground for allowing the appeal?

47. Having considered the summing up and what is put forward as fresh evidence, to the extent that it is credible, and the submissions made on behalf of the appellant and the respondent, we have come to the very clear conclusion that it does not afford any ground for allowing the appeal. In other words, we have no doubt that the appellant was properly convicted, and would on the evidence now put forward, to the extent it is credible, again be properly convicted.
48. We accept that, if Mr Bates' views as to fraud on the Landslide computers had been before the jury, the summing up would have been different. But that is not the question for us. The question for us is whether the new evidence now put forward, viewed objectively, could have led a reasonable jury, properly directed, to arrive at different verdicts. We emphasise the word "could": it is not for us to determine whether we would or would not have convicted the appellant, but rather whether there is any doubt as to whether a reasonable jury would have convicted him. Put differently, the question is not whether other transactions by other persons may have been fraudulent, but whether there is on the evidence now available any realistic doubt that the transactions which were the basis of the counts in the indictment against the appellant were made by him. If we concluded that there is any such doubt, then provided the new evidence is admitted his convictions are unsafe and should be quashed.
49. The appellant's only answer to the prosecution's case is that the transactions in question were made by a fraudulent webmaster. This is pure conjecture, unsupported by any evidence relating to those transactions.
50. First , there is no evidence that the webmaster had access to the data concerning the appellant that were used in these transactions. The appellant contends that the webmaster could have obtained it from an email sent by the appellant to protest against the wrongful debiting of his credit card account as a subscription for "Web's Youngest Women", following the cancellation of his membership. The email was dated 9 February 1999, and concerned debits similar in amount to those that were the subject of the indictment. This contention is hopeless. The email was not addressed to the webmaster of the Childrape and Forchild websites and there is no evidence he had access to it. It did not give the postcode of the appellant's address, or his credit card details (other than the last 4 digits), and it gave as his current email address ANTHONY@dpos.freeserve.com rather than anthony@adpos.freeserve.com as entered in the transactions in issue. At his trial, the appellant admitted that the latter was his principal email address.
51. Thus there is no explanation for the possession by the fraudulent webmaster of all of the information relating to the appellant on the Landslide computers, including the passwords to which we have referred. We have no sensible explanation as to why the fraudulent webmaster should have entered such a password, when he could have used any password. We have no sensible explanation as to why he would have entered the appellant's correct email address, which would have led to the appellant being notified by email of the (on his case fraudulent) membership of the website. We have no explanation for the appellant's failure to react to that email.
52. The evidence at trial was that the appellant checked his credit card statements, confirmed by his notes on them and by the fact that he protested at the wrongful debiting of his credit card account in relation to amounts similar to those now in question.
53. In relation to the fact that Freeserve IP addresses were recorded for the appellant's transaction, Ms Griffiths QC was reduced to suggesting that the appellant's hypothetical fraudulent webmaster had accessed the Freeserve proxy servers. For that purpose he would either have required to be a subscriber to Freeserve, and in the days of dial-up access to make an expensive international telephone call from Indonesia, or a colleague in, say, England, with a subscription.
54. These suggestions are fanciful in the extreme. The appellant's theory (for it is no more than such) that he was the victim of the machinations of a fraudulent webmaster is, in our view, pure speculation. There is no evidence that fraudulent debiting of credit cards on the Landslide website would have resulted in moneys being received by a webmaster before the credit card holder had challenged the transaction and it had been the subject of a charge back by the credit card companies. There is no evidence of wholesale challenges to credit card debits. There is no evidence that any webmaster had access to the KeyZ or Landslide data.
55. In his police interview the appellant refused to say whether the credit card used for the transactions in question was his. When asked "Can you offer any explanation as to why these child pornographic sites were accessed using your credit card details, your password, … and with a password Trimtrim and your home address details?" he made no reply. His solicitor then asked to consult him, since the password had not previously been mentioned. When the interview was resumed, the appellant said, "…you asked me about the password 'trimtrim'." "I've never heard of it, I didn't even know I had a password. It's got absolutely nothing to do with me. The only explanation I can give is someone is impersonating me. …" Given that the appellant had previously had the email address trimtrim456@aol.com, and used the user name "trimtrim (see his email of 9 February 1999), this answer was misleading, and deliberately so.
56. It is also surprising in the extreme that if the supposed fraudulent webmaster was able to debit the appellant's credit card account, he did so for such limited amounts and on relatively few occasions. This, is however, a minor point.
57. There is no evidence that the Levenger data had been stolen (as assumed and asserted by the appellant), and such evidence as there is points strongly against the fraudulent use of the data. There were details of some 28,000 customers on the Levenger database, but only 21 of these were on the Landslide customer list. Moreover, not all of those 21 had subscribed to child pornography (through KeyZ), and some of their transactions on the Landslide website preceded the placing of the Levenger data on the Landslide site. The appellant's details were not on the Levenger database. It is irrelevant.
58. The appellant's case is not made any easier by the discovery of transaction AO123. It was dated 8 November 1998, and therefore preceded those that were the subject of the indictment. It related to a site in the USA called Lolita Links. Its content may appear from its title. The transaction involved the same credit card details, but the appellant's then America On Line email address. The appellant denies that he was responsible for that transaction. If it provided any information concerning the appellant available to the fraudulent webmaster who ran Forchild and Childrape (and there is not evidence that he had access to it), it remains a mystery how the latter learnt of the appellant's change of Internet service provider and email address.
59. Lastly , it is quite clear that the RG transactions were genuine. It is inconceivable that child pornography would have been found on his computer, that he would have admitted accessing child pornography in interview and by accepting a caution, if those transactions were fraudulent. Indeed, the fact that they are genuine demonstrates that a finding of indicia of fraud (which is what Mr Bates said he found in relation to those transactions) is not proof of fraud.
60. For these reasons, at the end of the day we are entirely confident that the appellant was rightly convicted. There is no real possibility that a reasonable jury, faced with the evidence we have considered, would not conclude that he was the person responsible for the transactions in issue. We have no doubt whatsoever as to the safety of his conviction.
61. In these circumstances, it is unnecessary to consider the application of paragraph (d) of section 23(2), but for completeness we shall do so.

Was there is a reasonable explanation for the failure to adduce the evidence in those proceedings

62. As mentioned above, Mr Bates was instructed for the trial, had produced a report for the trial, and was present at the trial.
63. The appellant's Form W, his notice of his application to call Mr Bates, stated:

"The defence were not given full and proper access to the computer material on which the prosecution was based."

64. For the purposes of the trial, the prosecution made available two computers with the Landslide information at court. There was a dispute between the CPS and the appellant's solicitors as to the terms of the confidentiality agreement that the CPS required Mr Fisher to sign. The dispute was referred to HHJ Eccles, who made an order on 17 December 2004 regulating Mr Fisher's access to the Landslide material. Mr Fisher was duly given access, and was also provided with a copy of the Landslide access log. We can see no reason why Mr Bates could not have had access on similar terms, had he been content to accept them.
65. We required the basis for the appellant's contention that Mr Bates could not reasonably have given evidence at the trial to be put into writing. Two documents were produced, both of them statements signed by Mr Bates and dated 11 November 2010. One was as follows:

"I have no idea why I was not called to give evidence at the O'Shea trial."

The other was as follows:

"I was not told why I was not called to give evidence.

I assumed that it was because I had told counsel that I was unable to assist with material I had not seen."

In our judgment, this is either no, or an inadequate, explanation.

66. It is significant that:

(i) The appellant did not seek to appeal, and does not now seek to appeal, his conviction on the ground that any order of the trial judge relating to disclosure of Landslide material prevented him from fairly presenting his defence.

(ii) His grounds of appeal do not include any complaint as to the conduct of his trial counsel or solicitors. Before us, he was represented by different solicitors and counsel.

(iii) Mr Fisher did not testify that he had been hindered by restrictions placed on his access to Landslide material.

67. It is also relevant that, although Mr Bates had signed a confidentiality agreement in relation to at least one other Operation Ore case (Paul Grout) in which he had been instructed, Mr Bates refused to do so in this case. We have been given no good reason for his refusal. It would have been quite wrong to have allowed him unrestricted access to the Landslide material without such an agreement. Indeed, there was evidence before us that he had broken the agreement he had signed in the case of Paul Grout.
68. In our judgment, the most important evidence now given by Mr Bates relating to the transactions in issue in this appeal is that referred to at paragraph 33(iii) above. That evidence is generic: it does not and did not depend on access to all of the Landslide material. It could have been given by him at trial, as indeed could his other evidence about the prevalence of fraud and identity theft on the Internet. He has had years to produce the evidence for his assertion relating to the Freeserve IP addresses, but has put none before the Court. Moreover, no one has explained why the hypothetical fraudulent webmaster should bother to impersonate a Freeserve proxy server.
69. In our judgment, it has not been shown that there is a reasonable explanation for the failure to adduce the evidence of Mr Bates at trial.

Conclusion

70. For the above reasons, we refuse to admit the new evidence put forward by the appellant. His appeal will be dismissed.