England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
(His Honour Judge Orme)

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/07/2014

Lord Justice Pitchford :

Introduction

1. This is an application for an extension of time of 27 days for the renewal of an application for a further extension of time of 4 years and 6 months within which to apply for leave to appeal against conviction. For reasons that will appear below we grant the extensions of time required, give leave to appeal and allow the appeal.
2. On 23 August 2007, following a trial before His Honour Judge ("HHJ") Orme at Birmingham Crown Court, the jury found the appellant guilty of doing acts tending and intended to pervert the course of public justice, contrary to common law. He was sentenced to a term of 12 years imprisonment; four hundred and thirty days were ordered to count towards the custodial term under section 240 of the Criminal Justice Act 2003. The prosecution case depended mainly upon the evidence of Maria Vervoort, who said that the appellant had, by threats and inducement, attempted to persuade her to absent herself as a witness from the trial of five defendants for murder and to make a false statement to a solicitor.
3. The appellant was represented at his trial by Mr Benson QC and Ms Mahmood, and the prosecution was represented by Mr Raggatt QC and Miss Hancox. On 7 February 2008 this court (Sir Igor Judge PQBD, Davis and David Clark JJ) dismissed the appellant's appeal against sentence ([2008] EWCA Crim 348). The appellant first submitted his notice and grounds of appeal against conviction, drafted by Mr Bennathan QC, on 21 March 2012. The grounds concerned the reliability of the evidence of the complainant, Maria Vervoort, which had been explored comprehensively at the trial. Leave to appeal was, for that reason, refused by the single judge, Eder J.
4. Mr Bennathan QC renewed the application for leave to appeal, out of time. The application was listed before the full court with the appeal to follow should leave be granted. The appellant relies partly on the grounds placed before the single judge and partly on new material that emerged only after his refusal of leave, which, it is submitted, demonstrates that the jury's reliance upon the evidence of Maria Vervoort was misplaced and, therefore, the verdict is unsafe. The emphasis of Mr Bennathan's oral submissions was, in our view rightly, on the new material.

Maria Vervoort's evidence as a witness in the trial for murder

5. Maria Vervoort gave evidence in the trial at Birmingham Crown Court of five men charged with the murder of Clinton Bailey ("Bailey"): Gary Higgins ("Higgins"), Luke Turner ("Turner"), Craig and Liam Dooley and James Dunn ("Dunn"). By 4 April 2005 Maria Vervoort had been in a relationship with Gary Higgins for a period of about 12 months. Higgins was a drug dealer, described by Ms Vervoort as a violent man. She said that she stayed in the relationship only because she was terrified of him. They lived at her address at 78 Somerset Road, Coventry with her infant son. On 3 and 4 April, as a break from routine, Higgins and Ms Vervoort were staying at the Merrick Lodge Hotel in Coventry, while her son was in the care of his father. That afternoon they went for a meal in the Binley Park Inn. Ms Vervoort gave evidence that, at Higgins' request, James Dunn arrived with a bag of cocaine. At the table Higgins and Dunn discussed a dispute that had developed between Clinton Bailey, Ronnie Murray, Liam Dooley and Craig Dooley. Ms Vervoort and Gary Higgins were driven back to the Merrick Lodge Hotel by James Dunn. Another man was sitting in the front passenger seat of the car. Higgins said that he would phone Bailey and ask him what he had to say. He switched his phone to loudspeaker mode. Ms Vervoort did not understand the whole of the conversation, but the upshot was that Higgins was going to meet Bailey at The Three Horseshoes public house because Bailey trusted Higgins. Ms Vervoort understood that some harm was to come to Bailey as a result of this meeting. Ms Vervoort was dropped at the Merrick Lodge Hotel and Higgins went off with Dunn. Later, as she was getting ready to go out, she received a call from Higgins telling her to go to The Three Horseshoes to meet someone. She was reluctant because she thought that Bailey was going to be beaten up. Higgins insisted and she ordered a taxi. On her arrival Higgins had difficulty persuading her to leave the car but eventually she agreed to sit at the bar while the men played pool. The taxi driver confirmed Ms Vervoort's reluctance to leave the car. Higgins told her that she would be his witness "if anything happened". The time came when Bailey left the bar with Higgins. Higgins returned alone, told Ms Vervoort to call a taxi and started to wipe the glasses on the bar. In the meantime Clinton Bailey had been approached by a group of men in the car park outside the pub and was shot several times. After Ms Vervoort had telephoned for a taxi Higgins told her they did not need one. They were getting a lift from an Irishman. This turned out to be Michael McDonagh. Back at the Merrick Lodge Hotel Higgins was in a bad mood. He was saying that 'Dooley' had frozen; that people had messed up because, although Clinton Bailey had been shot, he was able to jump over a wall. In fact Bailey was taken to hospital where he died on 16 April 2005. It became apparent to Ms Vervoort that Higgins' role had been to lure Clinton Bailey to his death.
6. Ms Vervoort said that on their return to the hotel she overheard a mobile phone conversation between Higgins and Conrad Jones, the appellant. Higgins went downstairs and both men returned with drinks from the bar. They drank, took cocaine and spoke about the "stupid fucking idiots" who had messed up the shooting. Conrad Jones said that he was going to the Three Horseshoes to check out what was happening and to make sure that no one talked. The following day she and Higgins went to the hospital where Clinton Bailey was being treated. She remained outside while Higgins went inside to visit Bailey.
7. On 22 June 2005 Ms Vervoort was attacked in her home by two men. She gave evidence that she was dissuaded from pursuing a complaint to the police by Higgins and Conrad Jones, who told her that they would "sort it out". She was housed in a flat that she thought belonged to Jones. Later, she returned to her own home. On 12 September 2005 she telephoned the incident room from which the murder of Clinton Bailey was being investigated. By this time she and Higgins had separated. At 1.30 pm Ms Vervoort met DS Slevin and WDC Watson and produced documents she claimed to have received through her door at 78 Somerset Road on the day before the meeting. They appeared to be threats. A note read (as written): "justice will be FORE CLINTON". Fearing that she was being targeted by Clinton Bailey's associates she began to give an account of what she knew of the events surrounding the death of Clinton Bailey.
8. On 14 September 2005 Maria Vervoort was interviewed as a "significant witness" and in consequence she was taken into the witness protection programme. However, Ms Vervoort failed to act in the interests of her own safety. She received four warnings about her conduct and was eventually rejected by the programme.

The allegation of witness intimidation

9. On 13 October 2005 Ms Vervoort telephoned DS Slevin to inform him of an intimidatory approach made to her by two men. She was again interviewed as a significant witness on 17 October 2005. She gave an account that shortly after she had arrived in Bridlington on or about 12 October, she met by chance a friend, Pat Gough. They went out together that evening. The following morning, having visited a launderette, she was returning to her apartment when she saw a white van parked a short distance away. Two men got out. They told her that Conrad knew where she was and things needed sorting out. She recognised the older man as someone she had seen with Higgins in the past. The younger man made a call and it was apparent that he was talking to Conrad Jones. She was told that the message from Jones was that he and Jamie Dunn should be left out of any statements she made to the police. Ms Vervoort pretended that she had not mentioned them. It was suggested that she obtain a copy of her account to the police from Higgins' solicitor. The two men implied that her brother, who was in prison, could come to harm; if, however, she did what she was told she would be safe to return to Coventry.
10. Following the interview, police officers spoke to Pat Gough and discovered that she and Ms Vervoort had met in Bridlington by arrangement, not by chance. This was put to Ms Vervoort and she admitted it, making a witness statement to that effect on 17 October 2005. On 27 October 2005 the witness at first refused to confirm that her recent complaints had anything to do with Conrad Jones, but later confirmed that, in this respect, she had told the truth.
11. DC Robert Williams was a family liaison officer who, on 13 April 2006, was assigned to monitor the welfare of the witness. On 29 April 2006 Ms Vervoort told DC Williams that she was under pressure from her mother and half sister, Rachel Nally, to attend a firm of solicitors in Derbyshire for the purpose of making a further statement. She was to say that she had been instructed by Paul Kettell ("Splodge") to blame Higgins for the murder. Higgins had a previous conviction for the manslaughter of Paul Kettell's father. The inference the police were intended to draw was that Splodge had a motive falsely to accuse Higgins. Ms Vervoort told DC Williams that she believed Conrad Jones was the organiser of the planned change of story. She said that Rachel Nally's partner, John Power, was a close associate of Conrad Jones and Rachel was acting as an intermediary. Ms Vervoort did not attend the solicitor's office and attempted, unsuccessfully, to record her mother and sister acknowledging the falsity of the new story she was being asked to adopt.
12. On 6 June 2006 DC Williams contacted Ms Vervoort's mobile phone. She confirmed that she would give evidence and had experienced no further problems. On 8 and 9 June DC Williams attempted to make further contact but failed. He visited Ms Vervoort's last known address in Burton–upon-Trent and the property appeared to have been abandoned.
13. The trial of Higgins, Dunn, Turner, Craig Dooley and Liam Dooley for the murder of Clinton Bailey commenced at Birmingham Crown Court before Underhill J on 7 June 2006. Ms Vervoort did not appear. She was in Newcastle-upon-Tyne. At 12.40 pm on 10 June DC Williams received a missed call from Ms Vervoort and he made a return call. Ms Vervoort told him that 'last Sunday' (4 June) two men and a woman had come to her home and told her that she had 20 minutes to pack. She had been taken to a place 200 miles away. She declined to say where she was or to name the people who had removed her from Burton-on-Trent. At 3.30 pm Ms Vervoort rang again. She explained to DC Williams that she was in Newcastle with two men and a woman whom she again refused to name. She was to remain there for four weeks. DC Williams' impression from her manner was that she was being kept against her will. Ms Vervoort said that she was outside a public house, which she named, being watched from the window. She had to return to the bar to avoid detection. The call was terminated. DC Williams was instructed by his senior officer to go to Newcastle and retrieve the witness, if possible. On Sunday, 11 June 2006, at about 9.00 am, Ms Vervoort again called DC Williams saying that she had been able to leave the house without being noticed. She was in a taxi that conveyed her to DC Williams and his colleague, DC Rawson. The officers took Ms Vervoort to a place of safety.
14. On 12 June 2005 Ms Vervoort was interviewed at a hotel as a significant witness by officers who had not before had contact with her. The interview was again recorded. She told the officers that her sister Rachel had been making offers of money to persuade her not to attend trial. Rachel said the offers came from Conrad Jones. Conrad Jones was Gary Higgins' friend and the other four, Craig and Liam Dooley, Luke Turner and Jamie Dunn, worked for Jones. Ms Vervoort repeated the account of earlier conversations with her mother and sister that she had given to DC Williams on 29 April 2006. She said that in May, Rachel had contacted her again, asking her to meet her at Nottingham railway station. Rachel was on her way to Skegness to spend a holiday with John Power accompanied by Power's daughter and niece. They had to change trains at Nottingham. She met Rachel who gave her £200. The arrangement was that when Rachel returned from Skegness she would again meet Ms Vervoort. She met Rachel at Nottingham on her return journey. Rachel led her from the station to a side street and there she saw Conrad Jones sitting in a car with another man. Ms Vervoort was told by Conrad Jones that this was her chance: if she went to court she was dead; if she stayed away she would be paid £15,000. Later, her sister phoned to tell her that Conrad said they had to leave immediately. Ms Vervoort responded that she could not go that day. Instead, they met in Burton-on-Trent on Saturday 3 June, booked into the Queens Hotel for the night and left for Newcastle on Sunday, 4 June. There, they booked into the Premier Inn and on the following day they were approached by two cockney men who said they were associates of Conrad Jones. Ms Vervoort was to stay away for at least four weeks and during that time she must not leave her sister's sight. The following week the men were going to give Ms Vervoort £15,000. In return she was to purchase a video camera with which to record a statement to the effect that pressure had been exerted on her by the police and by Splodge to provide a false account. Ms Vervoort did in fact purchase a video camera from a pawn shop for £50 but she made no recording. She was given a new phone and told to dispose of the old one. In fact she placed it in the lining of her suitcase and used it to phone DC Williams on 10 June. Both phones were handed to the police on Ms Vervoort's return. While in Newcastle the two women met a taxi driver whom they called Gee. He let them stay in his house in Wallsend until Ms Vervoort made her escape. Ms Vervoort agreed that she was not kept a prisoner but she was afraid of the consequences of leaving Newcastle until, on Sunday morning when her sister was still in bed, she was able to leave the house without being noticed.
15. On 16 June 2006 the appellant was arrested and detained in custody on suspicion of attempting to pervert the course of justice. On 26 June 2006 Ms Vervoort gave evidence before Underhill J and the jury in the trial for murder. She said that she thought the day she had first travelled to Nottingham to meet Rachel was 29 May 2006 and that the meeting with Rachel and Conrad Jones took place on Friday 2 June 2006.
16. On 25 July 2006, five days after the defendants had been convicted of murder, Maria Vervoort was again interviewed as a significant witness on the subject of her meeting with Conrad Jones and her journey to Newcastle. She confirmed that on Monday 29 May or Tuesday 30 May she made her first train journey to Nottingham to meet Rachel. She caught the train at Burton-on-Trent and arrived at between 12 noon and 1.00 pm. The journey took about 45 minutes each way. As a result of their meeting Rachel missed the next train to Skegness and had to wait for another. During that week Rachel phoned her again and said that they had to meet straight away. The second meeting took place on Thursday, 1 June or Friday, 2 June. Ms Vervoort took the train to Nottingham at about 1 pm. Having met Rachel she was taken outside the station to meet Conrad Jones, who was sitting in a silver coloured Mercedes car. She was offered £15,000. She arrived home in Burton-on-Trent between 3 pm and 4 pm on the same day. Rachel then phoned on Saturday, 3 June and on that day arrived in Burton-on-Trent. On Sunday 4 June they went to Newcastle together.

Maria Vervoort as a witness in the appellant's trial

17. The appellant's trial for perverting the course of justice commenced before HHJ Ross on 2 June 2007 but was halted on 9 January when defence counsel withdrew representation following a breakdown of his relationship with the appellant. The trial recommenced on 30 January but the jury were discharged on 21 February when they were unable to reach a verdict. The third trial commenced on 3 August 2007 before HHJ Orme.
18. The prosecution relied upon Maria Vervoort's evidence to establish the following case against the appellant:

i) On or about 12 October 2005 the appellant sent two men to Bridlington to issue threats to the witness as to the consequences of implicating him and James Dunn in the events surrounding the murder of Clinton Bailey;

ii) In April and May 2006 the appellant used Rachel Nally to convey to Maria Vervoort his message that she must change her account so as to place the blame for the murder of Clinton Bailey on Paul Kettell (Splodge);

iii) The appellant organised the meeting on 29 May 2006 between Rachel Nally and Maria Vervoort during which she was told she would be paid to stay away from the murder trial due to commence on 7 June;

iv) In May or early June the appellant himself spoke to Maria Vervoort by telephone to reinforce his threats and inducements;

v) The appellant organised the further meeting on Thursday, 1 June or Friday, 2 June 2006 between Rachel Nally and Maria Vervoort at Nottingham railway station. In a street nearby the appellant personally re-iterated his threats and inducements to persuade her not to attend the trial;

vi) The appellant organised Maria Vervoort's flight from Burton-on-Trent to Newcastle, supplying Rachel Nally with money and arranging for the threats and inducements to be repeated to the witness in Newcastle.

Other evidence in the trial

19. The appellant denied that he visited Gary Higgins at the Merrick Lodge Hotel on 4 April 2005 and that he had any involvement in the aftermath of Clinton Bailey's murder. He denied that he was responsible for any threat or inducement to Maria Vervoort and, in particular, that he spoke to her on the telephone or spoke to her face to face in Nottingham.
20. Michael McDonagh gave evidence that on 4 April 2005, having driven Gary Higgins and Maria Vervoort to the vicinity of the Merrick Lodge Hotel, he returned to the Three Horseshoes public house. Later, Conrad Jones arrived; he walked around the pub and then left. McDonagh said that since making his witness statement he had been approached on two occasions by the appellant's son, Truman, and asked to speak to the appellant by phone. He told the appellant untruthfully that he had not mentioned his name in his statement. McDonagh felt threatened.
21. The prosecution sought to attribute a mobile phone number 694 to the appellant. The handset itself was never recovered. However, the call information created a strong inference that the appellant was the user of the phone. Cell site evidence was consistent with the use of the 694 phone at or near the appellant's home, 747 Sewell Highway, between 8.29 am and 5.53 pm on 4 April 2005. Calls made between 8.21 pm and 10.42 pm (including calls to James Dunn and Gary Higgins) captured cell sites that were consistent with the appellant's movement to the vicinity of The Three Horseshoes public house, the Merrick Lodge Hotel and then back to The Three Horseshoes. No calls were made by the 694 phone after 20 April 2005. If the jury accepted this evidence it tended to support Maria Vervoort's evidence of the appellant's movements on the night of the murder.
22. Two mobile telephones were recovered from the appellant's home, numbers 844 and 505. They were used to make contact with the defendants, James Dunn and Gary Higgins, who had been remanded in custody pending their trial for murder.
23. Rachel Nally gave evidence in the defence case. She knew Gary Higgins through her former partner, John Power. She said that as far as she could tell Higgins and Ms Vervoort had a good relationship until Higgins started seeing another woman in June or July 2005. She said that she met Maria at Nottingham station on 29 May 2006. There was no second occasion. On 1 June she returned alone from Skegness to Coventry. She said that she spoke with Maria by telephone on 2 June. Maria had decided that she was going away to avoid giving evidence; the volition was her own. They met in Burton on 3 June and attended a birthday party for Maria's friend, Amanda. Ms Nally said that Maria's first intention was to go to Blackpool but she was unable to make the arrangements so they went to Newcastle instead. They used false names to book into a hotel. They then met Gee and stayed at his home. She denied that their stay in Newcastle was anything to do with Conrad Jones and denied that there were two men shadowing their movements. She said that was complete rubbish. On Sunday morning Maria had gone. Rachel Nally said that it was Maria who told her that Splodge was behind the killing of Clinton Bailey. She had not been asked to put that story to Maria.

Cross-examination of Maria Vervoort

24. Mr Benson QC had access to call and cell site data relating to Maria Vervoort's phone (991) and Rachel Nally's phone (679) for 29 May, 1 June and 2 June 2006. The cell site data demonstrated the movement of Maria Vervoort's phone from Burton-on-Trent to Nottingham and back again between 12.40 pm and 4.30 pm on 29 May. Rachel Nally's phone travelled from Coventry to Nottingham on 29 May at some time between about midday and 2.20 pm.
25. However, there was no such cell site confirmation for a meeting on 1 or 2 June 2006. The evidence suggested that Rachel Nally travelled from Skegness to Coventry on 1 June and remained in Coventry on 2 June. Maria Vervoort's phone used cell sites exclusively in Burton-on-Trent on both 1 and 2 June. Ms Vervoort agreed that she received a call from DC Williams at 1.26 pm on 1 June (at a time when she must have been in Burton-on-Trent) but during their conversation she mentioned nothing about the proposition put to her by Rachel on Conrad Jones' behalf on 29 May, three days before. Ms Vervoort confirmed that her second meeting with Rachel took place either on Thursday, 1 June or Friday, 2 June. Asked by Mr Benson QC to explain how her mobile phone was being used exclusively in Burton-on-Trent on both days, she replied that she must have left her 991 phone behind. Asked to explain contact (calls and texts) made by that phone from Burton-on-Trent to Ms Vervoort's friends, she said that a woman called Paula Clarke was staying with her in her apartment in Burton-on-Trent. It would have been Paula who was using the 991 phone. It was not, she said, a surprise that Paula was calling and texting Maria's friends because Paula had introduced her to most of her friends, so they were her friends too.
26. When Mr Benson QC pointed out that there was a gap in time in the use of the 991 phone on 2 June 2006 between 1.30 pm and 3.00 pm, Ms Vervoort accepted his suggestion that this interval would have been insufficient for her to catch a train from Burton-on-Trent to Nottingham, attend her meeting with Rachel Nally and Conrad Jones, and catch a return train arriving in Burton at 3.00 pm. Ms Vervoort's own estimate of the journey time had been 45 minutes each way but that left no margin for the period when the meeting must, on her account, have taken place, and assumed that the return train was immediately available. Mr Raggatt QC, for the prosecution, made it clear to HHJ Orme that, while Ms Vervoort had made the concession, this was not a proposition that the prosecution accepted. However, the prosecution advanced no further evidence to contradict Ms Vervoort's own concession as to timing. In the light of disclosure subsequently made by the prosecution (paragraph 31 below) Mr Raggat's observation to the judge should have been but, to our knowledge, was never withdrawn.
27. Mr Benson QC reminded the witness that on 28 February 2008, at the previous trial, when asked questions by Mr Raggatt QC, she had said that the only person to whom she had lent her phone in Burton was a person called Les with whom she was in a relationship. When asked why she had not mentioned her flatmate Paula, who, she was now saying, regularly used Maria's phone because her own was out of credit, she replied that she did not want to get Paula Clarke involved. However, she agreed that the only phone she had taken with her to Newcastle was 991 and she never went out without one. Ms Vervoort was handed a list of contacts retrieved from the memory of her 991 phone. She was asked which of those contacts, if any, was Paula Clarke, her flatmate. She said that Paula Clarke was listed by her nickname, 'Peaches', against the number 178. In re-examination Mr Raggatt QC returned to the subject of Peaches. Ms Vervoort confirmed that the number listed for Peaches was 178. Mr Raggatt asked the witness to examine the 991 call record for 2 June. The 991 phone was not used to make a call (or send a text) to or to receive a call (or text) from the number 178 on that day. Ms Vervoort accepted Mr Raggatt's suggested explanation that since, as she said, Peaches Clarke was in possession of both the 991 and the 178 phones, there would not have been any communication between them. This evidence, if honest, provided the prosecution with the explanation for the absence of call site evidence confirming Maria Vervoort's journey to Nottingham on 2 June 2006.

Post-trial disclosure by the prosecution

28. There the evidence concerning the alleged face-to-face meeting with the appellant remained until 19 June 2009. On that day, following an order from the Registrar in the course of James Dunn's appeal against conviction, the service provider O2 disclosed that the subscriber for the number 07743 297178 between 27 October 2003 and 27 October 2008 was Mark Peel, who gave an address in Birmingham. It would appear that in the appeal of James Dunn, Mr Bennathan QC argued that Maria Vervoort's evidence about the use of her 991 phone on 2 June was demonstrably false. Although Ms Vervoort claimed that Paula Clarke was a close friend, there was never any contact made between the 991 and 178 numbers. It is unclear whether the significance of the identity of the 178 subscriber was fully appreciated. While acknowledging the force of Mr Bennathan's argument, the Court (Goldring LJ, Burton J and the Recorder of Kingston-on-Hull: [2009] EWCA Crim 1371) concluded that this aspect of Maria Vervoort's evidence did not undermine the credibility of the account she had given of events surrounding the murder of Clinton Bailey.

Arrest of the appellant and further disclosure

29. In June 2012 the appellant was released from prison on licence. On 6 November 2012 he was arrested with his then solicitor for a further suspected offence of attempting to pervert the course of justice. A probe had been fitted in the solicitor's car because he was under investigation for other matters. In October 2012 the appellant and his solicitor drove to the home address of Marc Albert Peel. The purpose of their visit was to find out whether Mr Peel had a nickname. He confirmed that his nickname was 'Peach'. As a result of this visit and the contents of the probe recording, the appellant was prosecuted and tried before HHJ Inman QC at Birmingham Crown Court. The appellant's case was that no improper pressure had been placed upon or inducement made to Mr Peel; he and his solicitor were merely investigating the truthfulness of Maria Vervoort's evidence in his 2007 trial. The appellant maintained his innocence of both allegations of perverting the course of justice. The jury returned a verdict of not guilty.
30. Shortly before his trial, and for the first time, on 25 June 2013, the prosecution disclosed that there was entered in the Police National Computer in respect of Marc Peel a nickname, 'Peachy'. The court has not been informed of the date when the prosecution and the police were first made aware of Peach's identity.
31. The 2013 prosecution was handled by the Serious Organised Crime Agency ("SOCA"). It was recognised that the police may be in possession of material from the 2007 trial that should be disclosed to the defence. The SOCA needed to consult with Miss Hancox, junior counsel at the 2007 trials, and the disclosure officer in the case. Neither of them was made available; they were said to be on long-term sick leave. A consultation took place with Mr Raggatt QC at his chambers on 19 June 2013. Mr Raggatt required sight of further material. On 25 June the defence sought specific disclosure. Mr Raggatt's view was that there had been no breach of the prosecution's disclosure obligations. On 27 June the prosecution made a PII application to HHJ Inman QC. Having considered the material, comprising an undisclosed form of surveillance (which Pitchford LJ has also examined during interlocutory proceedings), the judge ordered the prosecution to make a formal admission in the following terms:

"As far as the meeting at Nottingham railway station is concerned, the Crown accepts that Conrad Jones did not go to Nottingham on 1 June 2006. On the 2 June 2006, Conrad Jones is known to have been in Coventry until 14.25 where he was driving a blue BMW. He is known to have been in Coventry at 18.00 when he was driving a blue BMW. His whereabouts between those times is not known."

32. Nottingham is some 53 miles from Coventry. The appellant could hardly have travelled from Coventry to Nottingham by car in less than an hour. We sought from Mr Raggatt QC an explanation as to the reason why it had taken six years for the appropriate admission to be made. We were informed that Mr Raggatt was aware of the surveillance material in late 2006 as a result of a consultation with junior counsel and the disclosure officer. He cannot now recall the extent of the detail known to him. He took the view that since the witness was imprecise in her recollection of the date and time of the meeting between herself, Rachel Nally and the appellant the surveillance material was not relevant. We disagree profoundly. Following the trial for murder, in which Mr Raggatt QC and Miss Hancox were counsel for the prosecution, on 25 July 2006 Maria Vervoort took part in a recorded significant witness interview from which it is clear the purpose was to explore with her, among other things, the dates and times of her meetings with Rachel Nally (see paragraph 16 above). On 10 August 2006 she signed a witness statement based upon her answers in interview. If there had been any earlier doubt, there was none by 25 July 2006 that the meeting to which Ms Vervoort referred must have occurred, if it took place at all, on Thursday 1 June or Friday 2 June 2006. We fail to understand how the prosecution could have distributed a Note of Opening for the 2007 trial in which it was suggested that the precise date and time of the second meeting with Rachel "may well not matter". It was said:

"Rachel Nally had set the meeting up on his [Conrad Jones'] behalf but what matters is that it took place and what was said between them, not exactly when, which of course Maria Vervoort did not note or keep records about."

33. The prosecution was in possession of sensitive material the effect of which was altogether to exclude 1 June 2006 as the date of the second meeting and to cast considerable doubt upon 2 June 2006 as the alternative if, as Maria Vervoort maintained, she met Rachel and Conrad Jones early that afternoon. Furthermore, the prosecution knew that the defendant was putting forward an alibi for both days supported by other witnesses. Doing the best we can to avoid the temptation of hindsight we can only regard the failure to make the disclosure in early 2007 that was subsequently made in June 2013 as a lamentable failure of the prosecutor's obligations (see R v H and Others [2004] UKHL 3, [2004] 2 AC 134 at paragraphs 14, 18 and 36). Had it not been for the appellant's arrest on 16 November 2012 and his subsequent prosecution these matters may never have come to light. In the course of his judgment on behalf of the court in Dunn, Goldring LJ observed that the Court must assume that the prosecution had performed its duty to make appropriate disclosure of relevant material. That, of course, is the case unless the court has reason to doubt the proper performance of the prosecutor's obligations. Unhappily it was an assumption that proved to be inaccurate.

Discussion and conclusion

34. Mr Bennathan QC now submits that had the jury in 2007 been aware of the new (2013) material when examining the credibility of Maria Vervoort's account of her face-to-face meeting with Conrad Jones, they would have been likely to conclude that she had not told the truth. The admission made by the prosecution so narrows the period within which the alleged meeting could have occurred that a meeting on 2 June was highly improbable. The cell site evidence for Rachel Nally's 679 number was inconsistent with the alleged meeting. Maria Vervoort's explanation at trial for the inconsistent cell site evidence relating to her own 991 number was demonstrably false. Peaches was not a person called Paula Clarke, sharing an apartment with Maria Vervoort in Burton-on-Trent, but a man who lived in Birmingham with whom there had been no telephone contact at all. It is beyond belief, it is submitted, that Maria Vervoort should have known a man and a woman both with the nickname Peaches or Peachy but mistakenly attributed the number 178 to the wrong person. This evidence casts considerable doubt upon the existence of a person called Paula Clarke sharing Maria Vervoort's accommodation in Burton-on-Trent. When DC Williams visited the property on 8 June it appeared to him to have been abandoned. Of lesser importance, but notable nonetheless, was Maria Vervoort's insistence that on 1 or 2 June Conrad Jones was sitting in the driver's seat of a silver Mercedes, which she identified by means of its characteristic badge, when the surveillance evidence for 2 June showed him to be driving a blue BMW. It is submitted that the room for honest mistake was vanishingly small. There is at least a real possibility, it is submitted, that the jury would have concluded that Ms Vervoort invented the face-to-face meeting with Conrad Jones.

Conclusion

35. We accept these submissions. Mr Raggatt QC argued that the issue of the face-to-face meeting with Conrad Jones formed such a small part of the case against him that this Court should conclude that the verdict was nonetheless safe. We are conscious of the Court's judgment in Dunn that the safety of the verdicts of murder was not affected by Maria Vervoort's unsatisfactory evidence of personal intimidation by the appellant. However, in that appeal the Court concluded that her underlying account of the circumstances of the murder had been consistent. Indeed, as we have noted, her evidence was supported by Michael McDonagh and the 694 telephone evidence. In the present case, however, the appellant was charged with perverting the course of justice. The only occasion when Ms Vervoort claimed to have been threatened face-to-face by the appellant was at a meeting on 1 or 2 June 2006. We do not accept that this was a peripheral issue in the context of the case against this appellant. On the contrary, it was central both to the witness's credibility on the issue of intimidation by the appellant and to the particulars of activity by the appellant on which the prosecution relied against him. If the jury had concluded that no such meeting had taken place, the impact upon Ms Vervoort's account of several other alleged events for which she claimed the appellant was responsible must, we conclude, have been significant. It is possible, if not probable, that the other evidence would have been sufficient to convict the appellant but we cannot conclude that would have been the conclusion of the jury. There were several other inconsistencies in Maria Vervoort's evidence that the jury would have had to confront. None of them was sufficient to persuade the single judge to grant leave and, respectfully, we agree. However, we cannot conclude that the issue we have identified could be segregated from an assessment of Ms Vervoort's credibility in general. In our judgment the verdict is unsafe and the conviction must be quashed.
36. When reserving judgment we invited counsel to make submissions as to whether, if the appeal was allowed, a re-trial should be ordered. We are grateful to counsel for their timely written submissions. Having considered (i) the seriousness of the alleged offence, (ii) the history of the proceedings set out in this judgment and (iii) the release of the appellant from the custodial portion of his sentence in June 2012, we have concluded that it is not in the public interest to order a re-trial.
37. Further to an application made on 17 June 2014 in writing, we grant a representation order in favour of Hadgkiss, Hughes and Beale, solicitors, to cover work reasonably done in support of the applications since 13 January 2013, but the appropriate sum of costs will be the subject of detailed assessment at the direction of the Registrar.