England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Kingston-Upon-Thames Crown Court
HHJ Campbell
T20097817 and T20107446

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/03/2015

Lord Justice Fulford :

Introduction

1. On 2 December 2011 in the Kingston-upon-Thames Crown Court before HHJ Campbell and a jury, the applicants Alexander McGuffie and Adrian Weekes were convicted unanimously on a retrial of one count of conspiring fraudulently to evade the prohibition on the importation of cocaine (a class A drug).
2. They were sentenced 9 December 2011 and, following successful appeals to this court against sentence on 28 January 2013, their final sentences are 12 years' imprisonment for McGuffie and 10 years' imprisonment for Weekes.
3. They both renew applications for leave to appeal against conviction following refusal by the single judge.
4. The disposal of the cases of their co-accused can be summarised as follows:

i) Jennifer Weekes pleaded guilty to a conspiracy to contravene section 170 Customs and Excise Management Act ("CEMA") 1979 and conspiracy to supply drugs. She was sentenced 7 years' imprisonment.

ii) John Charles pleaded guilty to conspiracy to contravene section 170 CEMA1979 and conspiracy to supply drugs. His sentence, following a successful appeal, was 6 years' imprisonment.

iii) Jagjit Rayit was convicted on the same offence as the applicants. Her sentence, following a successful appeal, was 7 years' imprisonment.

The Facts

5. In April 2009 a couple called Jagjit Rayit and Adrian Weekes (of 120 Sandhurst Road, London, with a mobile telephone contact number 07985455055) stayed at the Coconut Court Hotel in Barbados. Contained within the documentation created by the hotel was a contact number for "Jazz Rayit" of 831 6731 (see trial admission number 95). Adrian Weekes and Jagjit Rayit were partners.
6. On 23 July 2009 Adrian Weekes travelled again to Barbados. At 13.32 UK time (08.32 Barbados time) there was an outgoing call from 001246 83116731 ("6731") to the mobile telephone of Emmanuel Ugenyi, a taxi driver. On 1 August 2009 at 07.57 there were 25 telephone contacts or attempted contacts between the telephones of Jagjit Rayit and Ugenyi. Adrian Weekes left Barbados on 2 August 2009.
7. Adrian Weekes arrived in the United Kingdom from Barbados on 3 August 2009. At 07.13 his UK mobile number ending 3600 dialled a number in Barbados (2462499099) which was recorded in the memory of a handset that was later seized from Adrian Weekes's home under the name "Dan.man". It was the prosecution's case that this latter individual was involved in the conspiracy.
8. Thereafter Adrian Weekes used the 3600 number between 3 August 2009 and 10 September 2009, whilst he was in the UK. The SIM card packaging for the 3600 number was recovered during a search of his home address on 14 October 2009. Although during this period the 6731 number was not contacted by any of those involved in the conspiracy, the 3600 number was in touch with 07951728169, a telephone that the prosecution contended was used by McGuffie. This number was recorded in one of John Charles's mobile handsets under "A". 3600 was in contact with two numbers (0012462389702 and 0012468316990) in Barbados which were variously ascribed to a man called Wesley Mayers (who on two occasions contacted Duane Mayers, one of the airport workers who were responsible for placing the drugs at Barbados airport), "Bar", "Danny" and "Chubbs". The former of these numbers (9702) had sent text messages to the handset of Dwayne Clarke, the second Barbados airport worker responsible for hiding the cocaine which was ultimately imported by Weekes's aunt, Jennifer Weekes. It was the Crown's case that individuals who were involved in this criminal enterprise used these telephone numbers. 3600 was in contact with Ugenyi and 24259647 ("Nine.bar"), a number also allegedly utilised during this criminal enterprise.
9. Adrian Weekes arrived in Barbados on or around 10 September 2009, and thereafter his use of the 3600 number dramatically tailed off. At 21.25 Rayit made an unsuccessful call to the 6731 number and she sent text messages to that number the following morning. The clear inference suggested by the prosecution was that she was contacting her partner on a number he was using in Barbados.
10. On 12 September 2009, Wesley Mayer's 702 number unsuccessfully tried to contact Weekes's 3600 number.
11. On 13 September 2009 at 21.43 Rayit's mobile telephone sent a text message to the 6731 number and another text at 23.05 on 14 September 2009.
12. On 17 September 2009 Rayit sent a text to 6731 at 18.26.
13. On 20 September 2009 at around 06.20 Jennifer Weekes, together with her son Richard, walked through the arrivals hall at Gatwick airport having flown in from Barbados. In Ms Weekes's luggage was 2.47 kilograms of powder containing cocaine within the range of 42-44% purity and a street value of up to £200,000. She had collected the drugs from an "airside" public toilet at Barbados airport shortly before boarding the aeroplane, the drugs having been placed there by two airport workers, Jeremy Blackman and Duane Clarke. A number of officers from a unit of the Serious Organised Crime Agency, the Middle Market Drugs Partnership ("MMDP"), were on plain-clothes duty at Gatwick. Two of those Officers, Daryl Jones and Daniel Cleaves, gave evidence at trial as to suggested contact between McGuffie – who had been at the airport since 05.42 (as revealed by CCTV footage from the arrivals area) – and Weekes from the moment she reached the public area of the airport.
14. The Crown relied on particular pieces of CCTV footage relating to these events. In summary, on 24 September 2009 CCTV footage of poor quality from Gatwick South Terminal was viewed by DC Lawn and Graham Monk (the latter was a police neighbourhood support officer working at Gatwick Airport). Under the direction of DC Lawn, PC Monk located and retrieved certain footage covering a period close to 07.00 that related to Jennifer Weekes and McGuffie. This came from the hard disk drive on the servers for the airport. It was saved in a format called "visio wave". This material was then transferred onto a DVD, which PC Monk exhibited at trial.
15. Further material was viewed by DC Lawn in company with PC Monk on 20 October 2009, and selected passages between 05.00 and 07.00 were retrieved. These were also put onto a DVD and exhibited at trial.
16. The entirety of the original footage on the hard disk from Gatwick Airport was erased after 30 days. The destruction of this material has been the subject of some criticism on behalf of the applicant McGuffie. It is suggested the defence was denied the opportunity to establish where the officers were positioned and whether they were able to see the relevant events. They were also unable to investigate if there were occasions when McGuffie was not using a telephone at the time when the records revealed that a relevant telephone was in use.
17. DC Jones claimed to have seen McGuffie and Ms Weekes look at each other. The contemporaneous section of the log recorded that McGuffie met Ms Weekes. However, in an untimed addendum it was suggested that McGuffie "did not greet ...Ms Weekes), he shadowed (her) then walked off away from (Ms Weekes) towards the car park". In cross-examination DC Jones claimed that he communicated his observation by radio but the person compiling the log must have failed to record it. He testified that the entry in the original log in which it was suggested Miss Weekes was met by McGuffie needed to be changed because this did not occur.
18. DC Cleaves said he saw Jennifer Weekes look at McGuffie. She raised her left arm with her fist clenched and then lowered it while maintaining eye contact with McGuffie who smiled. His observation was not recorded in the contemporaneous part of the log but instead it featured in an untimed addendum (made about 12 hours later during a debriefing session). DC Cleaves was accused of lying about this suggested observation. There was a basis for suggesting that an entry that had read "subject 7 acknowledges subject 56 by smiling" had been changed to "subject 7 appears to acknowledges subject 56 by smiling". It was contended that McGuffie was speaking on a mobile telephone during these events.
19. DC Breen spoke of McGuffie as being "close to Jennifer Weekes and Richard Weekes and watches them closely but does not in fact associate with them". He made a witness statement on 30 September 2009, 10 days after the creation of the observation log, which did not contain any reference to McGuffie. In a further witness statement, also dated 30 September 2009, he added this comment about McGuffie. He explained in evidence on 11 January 2011 that he had completed two witness statements in order to ensure that the version served on Miss Weekes did not mention McGuffie because the police wanted to arrest him. He made it clear that there was no form of gesture as far as he could see between McGuffie and Miss Weekes.
20. The officer compiling the log, DC Parry, gave evidence that she may have failed to record the observations recounted by Jones and Cleaves.
21. The judge set out the detail of the observation evidence with care, and he highlighted the importance of this testimony as part of the prosecution's case against the defendants.
22. Returning to the remainder of the narrative, prior to Jennifer Weekes's arrival McGuffie was seen using a mobile telephone on a regular basis which, according to the prosecution, was the telephone with a number ending with 4534. It was a pre-pay, unregistered mobile telephone. Once Ms Weekes had arrived in the public area at Gatwick airport, the CCTV film footage reveals McGuffie walking parallel to Jennifer Weekes and her son, separated only by a metal railing. Jagjit Rayit had arrived at the airport at approximately 05.53 with a friend called Gloria Smythe. There is CCTV footage of Rayit and Smythe waiting near a coffee shop in the arrivals area, albeit they had no direct contact with McGuffie. There was regular telephone contact throughout the morning between Rayit's mobile telephone and the telephone number ending 4534 which, as just indicated, was said by the prosecution to be in McGuffie's possession. The majority of these calls were made when Rayit and McGuffie were very close to each other at the airport.
23. The taxi driver, Emmanuel Ugenyi, met Jennifer Weekes. He was well known by her family. At 07.29 Ugenyi drove out of the airport car park and he delivered Jennifer Weekes to her home address, 56B Childebert Road, Balham, London. McGuffie and Rayit left the airport separately, although neither of them had collected anyone. At 07.21 the telephone with the number ending 4534 made a call to a mobile telephone with a number ending 4937. This latter telephone was in John Charles's possession when he was arrested. Also found on Charles were two mobile phone top up receipts for the number 4534. Ugenyi received a call from Adrian Weekes (on 3600) at 07.47. At 08.52 Charles arrived at Jennifer Weekes's home address. He left a few minutes later carrying a light coloured plastic bag. His car was stopped shortly afterwards by officers from the Middle Market Drug Partnership. A green plastic bag containing three packages wrapped in birthday wrapping paper was seized. One of the packages was slightly torn and inside was a clear-wrapped hard white substance: cocaine. In the passenger foot well there was a large bag containing a cutting agent called benzocaine. An insurance policy in McGuffie's name was also seized. At trial McGuffie claimed he had sold the car to Charles.
24. Cell site evidence revealed that the 4534 number was activated on the mobile network on 7 August 2009 and connected to the pre-pay service on 12 August 2009. It was first utilised about 2 ½ hours after McGuffie had flown into the UK from Malta, at 19.34 hours on 19 September 2009, and it was used for the last time at 09.29 hours on 20 September 2009, shortly after Charles's arrest. Someone in possession of this number called various people who the applicant McGuffie admitted knowing, including John Charles who, as already noted, was found with top up vouchers which had been used to add credit to this number. During this period it was in contact with various Barbadian numbers. One of these numbers related to Wesley Mayers who (as set out above) on two occasions contacted Duane Mayers, one of the airport workers responsible for placing the drugs at Barbados airport. There were 19 attempted or successful calls between this number and Rayit's mobile whilst both McGuffie and Rayit were at Gatwick (see [22] above). There were 36 attempted or successful calls to Rayit after both McGuffie and Rayit had left Gatwick at approximately 07.30 going through to just before 09.30 hours. 4534 was used to make calls to the mobile telephones of Anthony Lee (a co-accused), Simon Ludlow (the brother of the former partner of McGuffie), Anthony Mayer and Paul Wynter, all friends of long standing of McGuffie. This number was within the South Terminal at Gatwick airport at the same time and in the same location as McGuffie. When McGuffie left Gatwick, the cell site route for 4534 coincided exactly with McGuffie's journey back to his home South London. This was supported by an ANPR photograph of his vehicle taken at 07.30 hours on the A217 when the cell site evidence placed the 4534 phone in exactly the same location.
25. Although this was strong evidence against McGuffie, there were a number of points that he was able to advance as regards the telephone evidence. First, there was a basis for suggesting that McGuffie was inside the terminal at 06.56 when the 4534 telephone was probably used outside the building to make a call. Second, the CCTV footage showed the applicant leaving the car park at a time when the 4534 telephone was being used; therefore, if the timer on the CCTV was accurate, McGuffie did not make that call. However, we interpolate to observe there was an issue over the reliability of the timer on the CCTV cameras. Moreover, on most, if not all, occasions when McGuffie is shown on the CCTV footage apparently making calls on a mobile phone, the 4534 telephone was, according to the billing and cell site records, being used within the South terminal. McGuffie stressed that the relevant prosecution expert witness expressed the view that the person using 4534 was also the user of another telephone, 6985. However, that latter telephone had been used when the applicant was outside the United Kingdom. Finally, it was suggested on McGuffie's behalf that cell site analysis is an inexact science.
26. It is necessary, separately, to focus on the telephone number ending 6731. On the 19 and 20 September 2009 calls were made between the numbers 4534 and 6731; as set out above, the prosecution attributed the latter number to Adrian Weekes, who (as set out above) had travelled to Barbados on 10 September 2009, returning to the United Kingdom on 24 September 2009. He had been accompanied by his father.
27. Furthermore, as already observed, on 16 April 2009 Rayit booked a room at the Coconut Hotel, Barbados. She provided contact details entered onto the booking record that included the telephone number ending 6731. Rayit suggested that Adrian Weekes and their two children would be staying.
28. On 20 September 2009 at 06.02 the number 6731 contacted 4534 in a call lasting 1 minute 26 seconds at a time when McGuffie was at Gatwick airport. Once that telephone call concluded, the 4534 number called Jayit. At 07.11 the number 6731 called 4534. At 7.18 the 6731 number called the taxi driver, Ugenyi for 1 minute 6 seconds. 4534 called 6731 before calling John Charles at 07.21. In addition, generally during the time Adrian Weekes was in Barbados Rayit called the 6731 telephone number. However, it is to be stressed that there was no direct evidence (as opposed to inferences based on the evidence) that the 6731 telephone was in Barbados at the relevant time.
29. Of particular importance, at 08.51 20 September 2009 the telephone number 3600 (which Adrian Weekes did not dispute was in his possession) contacted 4534 (the number attributed to McGuffie) for 2 minutes 17 seconds.
30. McGuffie was arrested on 28 November 2009 and interviewed. He gave a prepared statement denying all involvement in importing drugs and money laundering. He said he might have been at the airport meeting friends but he was unable to give any specific details. He knew Charles and had done so for a number of years. He said he could trust Charles to "pay rent or place bets for me". Jayit and Adrian Weekes were also interviewed; both declined to answer questions.

The Prosecution's Case

31. The prosecution case was that the applicants knowingly and intentionally agreed to smuggle cocaine into the United Kingdom; it was suggested McGuffie was the organiser and the person in possession and control of the 4534 phone. It was said Adrian Weekes played an important organisational role in Barbados and the UK. Although Adrian Weekes had family in Barbados, it was suggested it was a reasonable inference that the main purpose of his being in Barbados was as part of the criminal enterprise which culminated in the importation on 20 September 2009.

The Applicants' Cases

32. In evidence McGuffie denied not only that the 4534 number belonged to him but also that he and Jennifer Weekes had acknowledged each other at the airport. He said he did not know her, Rayit or Adrian Weekes. He accepted that he had a friendship with John Charles. He said they helped each other out and he had sold Charles the car in which he was arrested. He indicated he was at the airport to meet a friend called Frank Carson. They were Chelsea Football Club supporters and Carson had at told him that he had tickets to a game against Tottenham Hotspur Football Club. When Carson's father informed him that his son was flying in from Spain on 20 September 2009, he decided to meet him. He used his telephone to contact Carson as well as his (McGuffie's) partner, Sonia Scott. In the event, they did not meet up at the airport. There was evidence that Carson arrived at Gatwick later that morning having purchased 4 tickets for this particular football match.
33. Adrian Weekes did not give evidence. Apart from the fact that Rayit gave the number 6731 as her contact in April 2009 at the Coconut Hotel, Barbados he maintained there was no evidence from which it could safely be inferred that there was relevant use by him of that telephone. However, it is immediately to be noted that the only contact between Rayit's mobile telephone and the 6731 number was when Adrian Weekes was in Barbados. He denied any involvement in this criminality.

Grounds of Appeal

Alexander McGuffie

34. The original grounds of appeal, on which leave was refused, have been superseded by new grounds of appeal filed by counsel, Mr Bennathan Q.C., who was instructed after the single judge refused leave to appeal against conviction. It is to be emphasised that the original grounds of appeal are no longer pursued.
35. In summary, the applicant suggests his conviction is unsafe because the reliability of the observation evidence has been fundamentally undermined by material that was unavailable to the applicant at the time of this trial. It is submitted that if it had been deployed as part of his case it may have led to a different outcome.

The CCTV

36. Trial admission 96 (d) was in the following terms:

The original full hard disk material from Gatwick Airport was erased after 30 days and is no longer available for any camera angle in this case. Any material not retained is erased after this 30 day period.

37. At trial the following exchange occurred during DC Lawn's evidence:

Q: You effectively selected what you felt was important?

A: That is correct, yes.

Q: And the rest of it was simply erased, was it not?

A: We took the footage that was downloaded that had the suspects, defendants on camera. That is what was taken".

[…]

A: Everything else that didn't have the defendants on was not kept.

38. Mr Bennathan in his written Grounds of Appeal queries whether the footage was destroyed as claimed.
39. However, in preparation for this appeal, the position has been clarified. On 29 January 2014 a statement was taken from Anthony Gilbert, a Security Regulation and Police Liaison official at Gatwick Airport. His evidence is that in September and October 2009, as now, CCTV recordings at Gatwick Airport were retained for only 30 or 31 days, and then they were erased because the system had only limited storage capacity. There was no backup store or archive and the "data is gone".

The Log

40. Counsel suggests that there is a credible basis to suggest that the addendum to the log (see [18] above) was altered in the sense that an original entry "subject 7 acknowledges subject 56 by smiling" and was changed to "subject 7 appears to acknowledges subject 56 by smiling". Therefore, it is contended the two words – "appears to" – were a later addition. This suggested addendum to the log was not signed by the supervising officer and it is undated. The ESDA ("electrostatic detection device") expert, Mr Robert Radley, has set out in his report that all of the entries were entered sequentially save for the words "appears to". As regards that entry he suggests there is "weight" in the proposition that these words were written shortly after the text to which they were added. He puts the matter thus:

There is no considerable difference in the burr striation patterns that would suggest that these words have been written at a considerably later point in time or under significantly different circumstances.

In summary, whilst the evidence on this point is not strong, it does favour the proposition that the addition to this Addendum has been made shortly after the time of the main writing of the same and there is no significant evidence to support the proposition that these words were written at a significantly different point in time.

41. It is right to note in this context that the observation evidence from DCs Breen and Jones was not criticised by counsel then acting on behalf of the applicant. Indeed, he relied on their accounts to undermine the observation evidence of DC Cleaves which included the suggestion – as set out above – that Miss Weekes raised her left clenched fist whilst maintaining eye contact with the applicant.

R v Green and others

42. The applicant relies on evidence given in the case of R v Green and others. We note this constitution of the Court of Appeal Criminal Division has heard a renewed application by one of the defendants in that case, Edward Henry Austin, for leave to appeal at the same time as the present case. In the Green investigation, officers from the Middle Market Drug Partnership were engaged in observations on the Isle of Wight. The present trial and the trial of Green and others overlapped. As set out above, the observations in this case took place on 20 September 2009, whilst in Green the officers were on surveillance duty in May 2010. McGuffie's first trial was in January 2011 at Kingston Crown Court but the jury were discharged and a retrial was ordered. The first trial relating to the Isle of Wight investigation was in June 2011 at Kingston Crown Court. McGuffie's second trial was in November and December 2011, again at Kingston Crown Court. The second Isle of Wight trial took place in October 2012 at Kingston.
43. It is suggested that by the end of the first Isle of Wight trial the following factors arising out of the case of Green and others was known to some of those intimately involved in the prosecution of the applicant:

i) Two of the relevant officers, Paul Jeans and Andrew Dunne, had been posted to make observations on the coast of the Isle of Wight. The contemporaneous observation log recorded that at 18.53 on 30 May, they saw a lobster boat captained by the defendant, Jamie Green, "throw 6 or 7 items overboard at intervals".

ii) By the time of the first trial, Jeans and Dunne had made witness statements in which they claimed they had seen items that were "[…] dark in colour and were approximately the size of a large holdall. They were tied together on a line and were dispatched from the boat one after another, totalling 10 to 12. The last item was a red floating buoy". This description matched very closely the appearance of the drugs when they were recovered. In evidence, they maintained they had telephoned this account to a senior officer and a member of the Serious Organised Crime Agency ("SOCA"). We observe that a potential problem with that suggestion, which was of some importance in the case, is that until the following morning neither SOCA nor the local police had any idea as to where the drugs were to be found.

iii) The same evening the police searched the boat and arrested those found on it. Because the officers from SOCA were unaware as to where the drugs had been put, and they ransacked and part dismantled the fishing boat in an attempt to locate them.

iv) The next morning a fisherman found holdalls full of cocaine secured together in the sea in the area where officers Jeans and Dunne had been watching. He called the police.

v) The SOCA officers from the Middle Market Drug Partnership held a debriefing. These included DCs Parry, Lawn, and Breen (who were all involved in McGuffie's trial). As set out above, by this stage the drugs had been found by the fisherman.

vi) After the debriefing, DC Breen summoned Jeans and Dunne to meet him in a car park. They made addendum entries to the observation log whilst sitting in the back of his car, in which they set out they had seen the holdalls thrown from the lobster boat. At trial they could not account for the absence of this account from the contemporaneous log given they claimed that they had radioed in the details of these observations as the events were unfolding.

vii) In the course of the cross examination of DC Parry (the officer compiling the log in both the instant case and in Greene and others) the Association of Chief Police Officers ["ACPO"] Guidelines were put to her, in particular that she was under a duty to put a line through unused pages (i.e. to cross though unused pages to stop later additions); she replied she had not been trained in that way.

viii) DC Parry was also asked how she had heard sufficient to record "throwing six to seven items" overboard but not that the items were in fact 10 to 12 holdalls tied together with a buoy at one end. Her explanation was that she may have misheard what was said because off a poor radio connection.

ix) During the trial, the existence of a Surveillance Management Record ["SMR"] was revealed. That document had been completed in a manner that misleadingly suggested officers Jeans and Dunne were at the main debriefing.

x) It also emerged that the way in which the addendum entries of officers Jeans and Dunne were added was in breach of the ACPO directions on maintaining the records of surveillance and the debriefing procedures for those observations.

xi) When asked to explain why officers Jeans and Dunne were not called to the SOCA debriefing, the two local officers said they did not know, and DC Breen, the supervising SOCA officer, said he had thought it might have been due to tiredness.

xii) DC Breen was asked to explain why he had not signed the log at the end and he suggested this may have been on account of his own tiredness.

xiii) DC Breen agreed that it had been his responsibility to fill in the starting time, the finishing time, and the location of the debriefing in the SMR but he had not done so.

xiv) In his summing up, His Honour Judge Dodgson commented that the claims of the officers Jeans and Dunne to the effect that they had seen the holdalls dropped into the water and passed that information on, given the police had no idea where the drugs were to be found, were "extraordinary".

xv) After the trial complaints were made about the observation evidence and the handling of the relevant logs, in light of the matters set out above. The resulting investigation was underway at the time of the Applicant's trial.

44. Against that background, it is suggested there has been a major failure in disclosure. McGuffie was unaware during his trial that two of the police officers who he suggested had played a part in creating false and manufactured observations had been criticised in a recent case by another judge for breaching various guidelines in their handling of observation records and were the subject of an investigation for misconduct. It is emphasised that McGuffie's evidence at trial involved a clear denial of any involvement with those arriving from Barbados and that if this material had been known to trial counsel, he may have presented the case differently, particularly as regards officers Breen and Jones.
45. The trials of McGuffie, on the one hand, and Green and others, on the other, were prosecuted by and presided over by different members of the bar and different judges.
46. Following the complaints, officers Jeans, Dunne and Green were investigated by the Independent Police Complaints Commission ("IPCC"). The investigation was concluded on 8 April 2013. Whilst noting inconsistencies, it was decided there was no evidence to demonstrate that the officers had fabricated their accounts or that there had been an agreement to manufacture evidence or to commit perjury. It was accepted that there had been failings as regards the administration of the logs (e.g. times and dates had not been properly recorded; the absence of certain officers from the debriefing exercise had not been noted, resulting in a misleading impression; procedures relating to a debriefing were not followed; a "Z line" was not put through blank pages). It was concluded that there was no case to answer as regards misconduct and no further action was taken. As a result, there are no disciplinary or misconduct findings against any of the officers concerned.
47. Undaunted by those limited criticisms, Mr Bennathan emphasises that this is a case in which the same team of observation officers have been the subject of a "series" of complaints, and that these complaints were outstanding at the time of the instant trial. It had been alleged that the members of the squad had lied and created false entries and it is suggested that the existence of these complaints should have been disclosed, regardless of the IPCC's later findings. It is argued, following the decision in Regina v Z [2000] 2 AC 483, that an acquittal does not act as a bar to the introduction of relevant facts in a later trial (see the speech of Lord Hutton at page 505 A – D).
48. Mr Bennathan submits that the prosecution's responsibilities on disclosure are clear. He reminds the court that in R v H and others [2004] UKHL 3; [2004] 2 AC 134:

14. Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.

49. Mr Bennathan has helpfully taken us to the relevant statutory provisions and guidance as regards disclosure. First, the Criminal Procedure and Investigations Act 1996 includes the following provisions:

2. General interpretation.

[…]

(3) References to the prosecutor are to any person acting as prosecutor, whether an individual or a body.

(4) References to material are to material of all kinds, and in particular include references to—

(a) information, and

(b) objects of all descriptions.

[…]

3. Initial duty of prosecutor to disclose

(1) The prosecutor must—

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused , or

[…]

50. The Code of Practice made under the Criminal Procedure and Investigations Act 1996 sets out, inter alia:
51. 3. […] the disclosure officer must give the prosecutor a copy of any material which falls into the following categories (unless such material has already been given to the prosecutor as part of the file containing the material for the prosecution case)

[…]

(  any material casting doubt on the reliability of a prosecution witness;

[…]

52. The Attorney General's Guidelines on Disclosure in its present iteration (3 December 2013) contains the following:

Disclosure: general principles

4. Disclosure refers to providing the defence with copies of, or access to, any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed (section 3 CPIA).

5. Prosecutors will only be expected to anticipate what material might undermine their case or strengthen the defence in the light of information available at the time of the disclosure decision, and they may take into account information revealed during questioning.

6. In deciding whether material satisfies the disclosure test, consideration should be given amongst other things to:

a) the use that might be made of it in cross-examination;

b) its capacity to support submissions that could lead to:

(i) the exclusion of evidence;

(ii) a stay of proceedings, where the material is required to allow a proper application to be made;

[…]

c) its capacity to suggest an explanation or partial explanation of the accused's actions;

[…]

7. It should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.

Investigators and Disclosure Officers

26. Disclosure officers must specifically draw material to the attention of the prosecutor for consideration where they have any doubt as to whether it might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.

53. By section 100 Criminal Justice Act 2003 bad character of a witness can be introduced if:

100 Non-defendant's bad character

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

[…]

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole,

or

[…]

(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)—

[…]

(c) where—

(i) the evidence is evidence of a person's misconduct, and

(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,

the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;

[…]

54. It is submitted that evidence of the kind in issue in the present case (viz. the criticisms that can be made of the observation evidence in Green and others) is admissible in criminal proceedings under section 100 for the reasons given by Lord Phillips in O'Brien v Chief Constable of South Wales Police [2005] UKHL 26; [2005] 2 AC 534 when he observed:

41. […] Evidence which indicates that a police officer has fabricated admissions in a previous case is not evidence "as to credit alone", if it is alleged that the same officer has fabricated evidence in a subsequent case. The position is now governed by section 100 of the 2003 Act which renders admissible, with the leave of the court, evidence of the bad character of a person other than the defendant if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole.

55. In summary, it is argued that for evidence to be admissible it must be cogent, and in the present context there should be a sufficient link established by the similarities between the alleged misconduct in the two investigations or cases, such as to give it probative value.
56. Finally, although the judgment only dealt with the issue of credibility (the "trustworthiness" of one of the principal officers and his colleagues), we are reminded that in R v Maxine Edwards [1996] 2 Cr App R 345, this court allowed an appeal on the basis that the applicant's conviction was rendered unsafe because the jury might have taken a different view of the case if they had known that some of the officers in the case had allegedly fabricated similar confession evidence and the Crown had decided that as a result the convictions in those other cases could not be considered reliable. In the course of giving the judgment of the court Beldam LJ said at page 350:

[…] the fact remains that in 1993 the degree of suspicion of the trustworthiness of the evidence of Constable Carroll, and those with whom he was working from day-to-day was such that the Crown considered convictions based upon that evidence could not safely be supported.

Once the suspicion of perjury starts to infect the evidence and permeate cases in which the witnesses have been involved, and which are closely similar, the evidence on which such convictions are based becomes as questionable as it was in the cases in which the appeals have already been allowed.

It is impossible to be confident that had the jury which convicted this appellant known the facts and circumstances in the other cases in which Constable Carroll had been involved, that they would have been bound to convict this appellant. In our view, that is the appropriate test.

Adrian Weekes

57. It is alleged that the summing-up was materially flawed in two key respects, in that the judge:

i) Incorrectly summed-up the crucial telephone evidence insofar as it related to the applicant; and

ii) Invited the jury to conclude that the telephone 6731 was in his possession at a material time on an impermissible basis.

58. The case against Adrian Weekes depended centrally on the telephone contact between him and others and in this regard the applicant suggests that the following points are properly to be made:

i) There was no evidence of any connection between the applicant and the two airport workers who placed the drugs in the airside lavatory at Grantley airport or that the applicant went to the airport at the same time as Jennifer Weekes.

ii) There are no scientific links (e.g. DNA or fingerprints) to link the applicant with the drugs.

iii) There is no subscriber or billing data for the 6731 telephone number.

iv) The contact between the 6731 telephone number and Jagjit Rayit and McGuffie's telephones was dependent on the billing data for those telephones.

v) There was no basis for suggesting that the applicant and McGuffie knew each other.

59. Mr Munday Q.C. on behalf of Adrian Weekes argues that the only basis for the assertion that the applicant had used the 6731 number at any material time was that Ms Rayit had given this number to an hotelier as a means of contact for herself when in Barbados in April 2009 (albeit the reservation was made for the applicant and Ms Rayit) and that her telephone (07533794901) had been in contact with the 6731 number in September 2009.
60. At one stage during the first day of the summing up on 1 December 2011 the judge said:

And you will find calls on the 19^th and 20^th September to and from the 6731 number, and of course that number is in Barbados. So who was at the other end of the phone? Well, it was not Ms Rayit, was it, because we know that she was in the UK at the time. And it is a matter for you, but you may think that that suggests that it must have been Mr Weekes. Because he was in Barbados, and as I say, and I will come on to it later, the number is attributed to him and Ms Rayit.

[…]

So far as Mr Weekes is concerned, and again I will be coming on to the case involving him later, but you may remember Mr Munday telling you that the attribution of phone numbers to Adrian Weekes was not accepted by his defence. […]  But if the prosecution are right in attributing phone numbers to him, then it may be worth having a look at call number 1927.   That is a call from the 6731 number, and I will just remind you briefly that that is attributed to Ms Rayit and Mr Weekes, because it is the number given on a hotel booking form which we will look at later.  But that phone call from the 6731 number in Barbados, at a time remember when Ms Rayit is in the UK, at 6.03 in the morning.  If it is Mr Weekes making that call, firstly what is he doing making it at that time in the morning ,and secondly what is he doing making it to the 4534 number?  

61. During the discussions that followed in the absence of the jury at the time of the midday adjournment, it was accepted that there was no evidence that the telephone had been in Barbados at the relevant time. The judge indicated that he intended to correct any mistake on his part, albeit he wanted time to reflect on the matter overnight.
62. The judge returned to this subject the following day, as follows:

Now, let me turn to the case against and for Adrian Weekes.  Mr Weekes, as you know from admission 54 onwards, was in Barbados from the 10^th September, returning overnight on the 23^rd and 24^th September.  That trip, flights and accommodation, was paid for by his father, Mr McConnie.  Now, the case against Mr Weekes depends on telephone contact that the prosecution allege that he had.  And as you know the prosecution have attributed to Mr Weekes a number of phones, or phone numbers.  First of all, there is the phone number ending in 3600.  Now, the reason the prosecution attribute that number to Adrian Weekes is to be found in your jury bundle at page 167, and that shows the packaging for the SIM card.  It is a SIM card which has that number ending in 3600 on it.  And that was found during the search of the address that Mr Weekes at that stage shared with Ms Rayit.  Not only does the number come from there, but it is also to be found at page 10 of your jury bundle in Jennifer Weekes' phone, the data recovered from her phone, and in her phonebook it appears under the name Adrian.  So two reasons why the prosecution say the 3600 number is his.

  

The next number is the one ending 3620.  That is attributed to Adrian Weekes' mother, Joan, and also attributed by the prosecution to Mr Weekes himself.  Again, if you look at page 10 in the jury bundle you will see that number recorded in Jennifer Weekes' phone book under the name Joan.  You may think, however, that you should be extremely cautious before attributing any use of that phone to Adrian Weekes as opposed to attributing it to his mother.

Now, the third number – and it is an important one in the context of the case against Mr Weekes – is the number ending in 6731.  Now, you will have noticed that that number is attributed not only to Adrian Weekes but also to Ms Rayit.  And you will remember where the evidence for that number comes from.  […]  And it is that booking form for the Coconut Court beach resort.  And you will remember that it is a booking apparently made by Ms Rayit, but it is made for her and for Adrian Weekes.  And that is the number that Ms Rayit gives as a contact number, the one ending 6731.  I should point out, before we go any further, as Mr Dodd has asked me to, that there has been no suggestion by the Crown that that 6731 number was used by Ms Rayit.  But the Crown contention is that it was being used at various times by Adrian Weekes.

Now, as you know, because you heard Mr Munday tell you, none of those attributions are accepted by the defence for Adrian Weekes.  Before any of those numbers can have any significance when you are considering the case against Mr Weekes, or obviously before any of those numbers could have any significance, you would have to be sure that it was Adrian Weekes who was using that number.  Because clearly if you are not sure of that then it cannot be evidence in the case against him.

It may be helpful for you to bear in mind that it appears that in September of 2009 Adrian Weekes and Ms Rayit were partners.  We have not heard any details about that, we do not know what sort of state the relationship was in, but the evidence appears to be that they were partners.  And you may think […] there are many many occasions when phones attributed to one of them are contacting phones attributed to the other.  And you may think that is consistent with them being partners.  But for instance, when you are considering whether the prosecution have proved that the 3600 number was being used by Adrian Weekes, you may find it helpful just to look at the number of times that Ms Rayit's phone contacts that number.  It is entirely a matter for you, but it may be evidence from which you can infer that it was Adrian Weekes using the 3600 number.  And you can do the same exercise to a very much more limited extent with the 6731 number.

  

If you are sure in the case of any particular number attributed to Mr Weekes that he was actually using that number, if, and only if, you are sure of that, well then you must go on, must you not, to look at the contacts between that number and other numbers in this case. […] in summary, you will find that the 3600 number had contact with the 8169A number.  It had contact with the Wesley Mayers number.  It had contact with the Jennifer Weekes number.  Again, you may well take the view, "Well, so what?  She was his aunt, there's nothing sinister about that."  But the fact is there is contact between the 3600 number and Jennifer Weekes' number.  You will also find contact between the 3600 number and Mr Eugenie.

  

Now, as you know, from the 10^th September Mr Weekes was in Barbados.  And there are calls when he is in Barbados between Ms Rayit's 4901 number and the 3620 number attributed to Adrian Weekes' mother and to Adrian Weekes.  And again, you will find examples of that.  And you will also find – and this may be more significant – calls between Ms Rayit's number and the 6731 number.  Now, as we will see in a moment, the 6731 number is important because of other contacts that that phone has later on.  And you will find examples of calls between Ms Rayit's number and the 6731 number, for instance on page 61/109, page 64/109.  And there are others.

 

Now, I said yesterday that the calls to the 6731 phone were made when that phone, the 6731 phone, was in Barbados.  And in your absence Mr Munday has pointed out that I should not have said that because in fact there is no direct evidence that the 6731 phone was in Barbados.  It may be that by looking at the pattern of phone calls, and in particular phone calls from Ms Rayit, you will come to the conclusion that it was, but that is entirely a matter for you, and as I say there is no direct evidence that that phone was in Barbados as opposed to being in the UK.

But you are entitled to take in to account that that 6731 number is phoned by Ms Rayit on a number of occasions when we know that Mr Weekes was in Barbados.  The 6731 phone, I remind you, the contact number that Ms Rayit gave on that Coconut Beach resort reservation.  Well, clearly if it is Ms Rayit using the 4901 number she is not phoning herself.  And you must decide whether there is proper evidence on which you can come to the conclusion that the 6731 number was indeed the number of Mr Weekes.  But you must be very careful, as I have said, before attributing the 6731 number to Mr Weekes.  Bear in mind that the only evidence as to its attribution, only direct evidence, comes from that booking form and it is not a booking form, apparently, that he even filled in.

Now, reverting to the contacts that you will find as you go through the schedule.  At your page 81/109 you will see Mr Eugenie, the taxi driver, trying to contact the 3600 number.  At pages 84 and 85 there is a large number of text messages, it covers most of two pages of text messages sent by Ms Rayit's 4901 number to the 6731 number.  And by now we are up to the 19^th September, which of course was the date before the importation.  I do not know, and no one I think has explained, whether all of those text messages were individual text messages that were received, or whether it was a lot of attempts to send one text message.  But the fact is that at the very least there are a lot of attempts to send texts, or a text to the 6731 number.  And you are entitled to ask yourselves, "Well, was that Ms Rayit texting her partner?"  The reason that is important, the reason it is important for you to decide are you sure that the 6731 number was being used by Mr Weekes, as I said, is because of other contact.  And in particular, contact with the 4534 number.  For instance, contact number 1863 which is at page 88/109.  You will see from event 1863 that the 6731 number contacts 4534.  Whether that is significant depends obviously on the conclusion you have come to about the 4534 number.  But if you have come to the conclusion, or if you do come to the conclusion, that the 4534 number was being used by someone who was involved in the organisation of this importation, well then obviously it may be significant that the 6731 number contacts that number.  And if you look, immediately after contacting that number then contacts Ms Rayit's number.

On the 20^th September at three minutes past six in the morning the 6731 number again contacts 4534, and there is a conversation for one minute and 26 seconds.  Now, leaving aside whether that is a phone call made from Barbados or from the UK, the fact is that 6731 is ringing 4534 just after six o'clock in the morning.  And as we know, about an hour before Jennifer Weekes comes through in to the arrivals part of Gatwick airport.  And if you follow it through, at 6.20 the same number, 6731, attempts contact with Ms Rayit and does so again at 6.58.  At 7.11 the 6731 number does contact 4534, that is on your page 95.  At 7.17 the other number attributed to Mr Weekes, the 3600 number, sends a text to Jennifer Weekes and still at 7.17 tries to contact Jennifer Weekes.  And then at 7.18, so one minute later, phone 6731 phones Mr Eugenie, the taxi driver, and speaks to him for one minute and six seconds.

Now again you may want to think about that.  That is only of significance in Mr Weekes' case if you are sure that Mr Weekes was using the 6731 number.  But if he was, the fact that he contacts or attempts to contact Mr Eugenie does suggest, does it not, that he knew of the arrangement that Mr Eugenie should pick up Jennifer Weekes?

 

At 7.19 in the morning, so shortly after Jennifer Weekes has emerged from Gatwick airport, there is phone contact again between 4534 and 6731.  At 7.47 Mr Eugenie is phoned again, but this time not by the 6731 number but by the 3600 number.  And I have already been through the reasons why the prosecution attribute that to Mr Weekes.  And the same comment applies, does it not?  If you are sure that it was Mr Weekes using that 3600 number, then again the fact that he is ringing Mr Eugenie suggests that he knew that arrangements had been made for Eugenie to take Jennifer Weekes from Gatwick airport.

Later that day, at 23 minutes past one in the afternoon, the 9286 number – and you will remember what the prosecution say, and the evidence about that, that the 9286 number is the successor to the 4534 number – at 13.23 that afternoon, on your page 106, the 9286 number phones the 3600 number.  And that on your schedule is events 2142, 2143 and 2144.  And then later there are further calls to Mr Eugenie's number from both 6731 and 3600.  

And so as I say, the case against Mr Weekes depends really entirely on the phone contact that the prosecution allege.  And so you are going to have to go through a two stage process.  One, decide whether you are sure that Adrian Weekes was using some or all of the numbers attributed to him.  Two, if you are sure in the case of any of those numbers that Adrian Weekes was using that number, then you must ask yourselves is the pattern of contact with other phones, and the timing of contact with other phones such that you are sure that there could be no innocent explanation?  Obviously if you are not sure of that, verdict not guilty.  Only if you are sure that he was using a particular phone or phones, and from the pattern of contact and the time of contact that there could be no innocent explanation, only in those circumstances would you find him guilty.

63. Against that background it is emphasised that Adrian Weekes had not admitted that the 6731 telephone number had been correctly attributed to him or that it was in Barbados on 19 and 20 September. It is submitted that he was not obliged to challenge prosecution assertions that were not founded on evidence or on sustainable inferences based on the evidence. Mr Munday argues that he first raised this issue "at a suitable time". It is said that the judge failed to rectify the error he made as to the location of the telephone using the 6731 number timeously or adequately, and the applicant contends that there was no sustainable basis for the jury to conclude that the telephone using this number was in Barbados at the relevant time. It is contented that the timing and the pattern of the telephone calls did not properly admit of the conclusion that Rayit was calling Adrian Weekes in Barbados.
64. Mr Munday argues that the judge should not have analysed the pattern of the telephone calls during the summing up in the manner we have set out above, and it is suggested that the jury should have been directed not to undertake this exercise. In the alternative, it is argued that Mr Munday should have been permitted to make a second closing speech.

The Respondent's Submissions

Alexander McGuffie

65. As regards the CCTV evidence, it is submitted by Mr Hughes Q.C. that the uncontested evidence is that this material was erased 30 or 31 days after the relevant events. Accordingly, it is argued that this ground of appeal is without foundation.
66. It is observed that McGuffie's counsel at trial did not challenge the greater part of the entries on the log and it is emphasised that the evidence of DCs Jones and Breen was used to undermine the evidence of DC Cleaves. Moreover, Jones and Breen are said to have given some evidence that assisted the applicant. It is emphasised that only some of the complaints generated in the case of Green and others were upheld as regards DCs Breen and Parry. Those findings did not result in disciplinary proceedings for misconduct. It is argued that it is unlikely that this material would have been deployed by counsel acting for McGuffie at trial, if he had been aware of it, and that the judge might well have refused to permit cross-examination on this issue if an application had been made. Prosecuting counsel were unaware of the complaints or the investigations arising out of the Isle of Wight case. It is submitted there has been no failure in disclosure in those circumstances.

Adrian Weekes

67. It is unnecessary to rehearse the respondent's submissions as regards this applicant because they broadly coincide with the conclusions we have reached as regards the merits of his grounds of appeal.

Discussion

Alexander McGuffie

68. During the trial there was considerable focus by counsel on behalf of McGuffie on the contents of the log and its reliability. In order to demonstrate the extent to which this was of concern to this applicant, we have summarised the main references to this document by the judge during the summing up.
69. DC Jones initially went to the wrong terminal (the North Terminal). An entry on the log for 6.28 set out: "White male, ginger hair, blue Ralph Lauren polo shirt, blue jeans, trainers. Waits in main arrivals hall at Gatwick airport reading The Sun." In an addendum, entered at the debriefing round about 18.00, it was added that "This male was seen at 05.40 initially. He later met a female and left Gatwick airport." DC Jones in evidence said he reported this to Officer Parry at 5.40. However, until Jones gave evidence during the first trial there was nothing to indicate that this related to events at the North Terminal. The judge observed that this may "show at the very least a rather cavalier attitude on the part of Mr Jones. And you may think that at the debriefing he should have made it absolutely clear that at the time that he saw that man he was in the North Terminal rather than the South Terminal". The judge added that this evidence "may just cause you to think about other evidence that Mr Jones has given".
70. The entry at 7.07 states that Jennifer and Richard Weekes were met by a white male. A later addendum puts the position very differently. It describes McGuffie looking at Jennifer and Richard Weekes and walking alongside Jennifer Weekes, before walking towards the car park. DC Jones said that he could not remember if he actually used the word "meet" on the radio system to Ms Parry. He said that Jennifer Weekes and McGuffie did not walk up to each other, but he acknowledged her arrival when they looked at each other. There is no reference, however, in the addendum of this mutual acknowledgement.
71. DC Cleves testified that at 7.07 Jennifer Weekes pushed her baggage trolley through arrivals. She walked along the railings parallel to Mr McGuffie, who was on her left hand side. They were looking at each other and DC Cleves suggested "I saw Jennifer Weekes look at Mr McGuffie. She raised her left arm with her fist clenched and then lowered it, while maintaining eye contact with Mr McGuffie."He said that McGuffie's reaction to her gesture was to smile.
72. There was no mention of that event in the 7.07 entry on the log. Instead, it was added later. During cross-examination, DC Cleves agreed that this observation was critical, and he said he passed this information to DC Parry (who was keeping the log) as soon as possible, to the best of his memory. He was, in reality, suggesting that she was responsible for not recording this information. However, when questioned during the first trial he said "I believe I did tell someone that day, I can't recall who. Probably on the journey from Gatwick." He was accused by defence counsel of lying. He agreed that part of the discussion at the debriefing was to the effect that McGuffie had not met Jennifer Weekes and was not part of the convoy going back to London.
73. The accuracy of the log was clearly relevant to the issue of whether the officers who contributed to the observation evidence in the present trial – including DC Breen and DC Parry (who were involved in the observations in both cases) – may have created a false account at to what occurred at Gatwick Airport. Indeed, those events were at the centre of the case against McGuffie. To a significant extent, the prosecution's allegations depended on the accuracy of the account by the officers as to what they saw shortly after the arrival of Jennifer and Richard Weekes at Gatwick airport. The log, including the later addenda, was a key component of this material. Critically, DC Parry compiled the log in the present case and in Green and others. The allegations against McGuffie would have been seriously undermined if the jury had decided that the log was potentially unreliable, in the sense that false information had deliberately been included or added to it. This raised the issues of whether i) the observing officers reported the events reliably to DC Parry who was making the log, ii) DC Parry faithfully recorded the information on the log as it was passed to her and iii) misleading addenda were entered onto the log during the debriefing session or at some other time.
74. As the judge observed to the jury, there were a number of anomalies as regards the observation evidence in the present case: the alterations to the log were extensive; the evidence of the officers was inconsistent; and notable detail, relied on by the officers in evidence, was lacking in the original section of the log. In our judgment, it would have been open to a jury to conclude that the events rehearsed above as regards the essentially contemporaneous case of Green and others tended to indicate that two key officers in the instant case (DCs Breen and Parry) were prepared to break the rules as regards compiling observation logs. Furthermore, there is a sustainable basis for a court to conclude that DC Breen had taken steps to persuade two local officers to give false observation evidence that linked the fishing boat with the holdalls that were later discovered. Although not all of the officers in the present case had been involved in Green and others, the history to the observations in that case may have undermined, in a general sense, the reliability of the evidence as regards what occurred at Gatwick in the present trial.
75. Evidence which tends to indicate that police officers have fabricated observations in an overlapping case is not evidence simply going to credibility if a sustainable line of defence for an accused is that the same officers (or some of them) fabricated evidence of a similar nature to that relied on in the current proceedings. As set out above, under section 100 Criminal Justice Act 2003, evidence of the bad character of a person other than the defendant is admissible, with the leave of the court if, and only if, it has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole. The fact that a complaint had been made in Green and others was, of itself, of little value, but it should have acted as a trigger to alert the officers that there was material that was relevant in the present trial as bad character evidence as to whether the officers (or some of them) had provided unreliable observation evidence.
76. The introduction of evidence of the bad character of a witness is not necessarily dependent on formal adjudications having been made against that individual (see R v Miller [2010] EWCA Crim 1153; [2010] 2 Cr App R 19, at paragraphs 20 and 21). Instead, it will usually be necessary for there to be "sound material" (as opposed to "kite flying and innuendo") that establishes the alleged bad character. In the present circumstances, it is a question of whether there was sufficient connection between the evidence in the two cases such as to mean that the observation evidence in the case of Green and others had substantial probative value in relation to a matter which was a matter in issue in the proceedings, and was of substantial importance in the context of the case as a whole (see section 100 Criminal Justice Act 2003).
77. As set out above, during this case counsel for McGuffie focussed significantly on the detail of the observations and the entries in the log, and the criticisms of the evidence in the first Isle of Wight trial would potentially have thrown light on whether there had been similar failings in the instant case. This went to one of the issues in the case, namely whether the observation evidence was accurate and whether the jury ought properly to rely on it. Counsel acting for McGuffie would, in all likelihood, have adopted different tactics if he had realised that DC Breen's reliability and honesty as regards observation evidence was open to doubt following the events in Green and others. Mr Scobie QC, then appearing for the applicant, exploited the differences between DC Jones and Breen, on the one hand, and DC Cleaves, on the other, as regards the latter's evidence that Jennifer Weekes's raised a clenched fist and had eye contact with McGuffie, and whether he smiled. Armed with the material from Green and others, it is likely he would have adopted a more forthright attack on the evidence of the three detective constables, Parry, Breen and Jones.
78. This was a strong case against McGuffie, but we are unable to conclude that the jury would inevitably have convicted the applicant if the observation evidence in Green and others had been properly explored. We stress that a criminal trial should be focused on the central issue or issues in the case and it should not be diverted by subsidiary or collateral matters which only have indirect or marginal bearing on the allegations the accused faces. That said, it is impossible to be confident that the jury would have convicted this applicant if they had known about the facts and the circumstances of the observations in the Isle of Wight trial, given it was proximate in time and there were close similarities in circumstances.
79. For these reasons, we grant leave and quash McGuffie's conviction. We will hear submissions as regards a retrial.
80. Before departing from McGuffie's case, we observe that since the uncontradicted evidence presented to this court is that the original CCTV footage was destroyed 30 or 31 days after these events, there is no merit in that discrete ground of appeal.

Adrian Weekes

81. The prosecution opened and thereafter prosecuted the case against Adrian Weekes on the assumption that it was uncontested that the 6731 number was in Barbados at the relevant time (19 and 20 September 2009). It is of note that the extensive telephone schedule set out the 6731 number along with the names "Adrian/Jagjit Rayit". By way of contrast, at least one other number was left unattributed because defence counsel had indicated that the alleged link with a particular defendant was in dispute. The "blue" telephone number 4534 (as it appeared on the telephone schedule) was said to have been used by McGuffie, but it was left "unnamed": McGuffie's name was not linked to it on the schedule because his counsel at trial had informed the prosecution that this was a live issue in the case, given he did not accept it had been in his possession. In contrast, Mr Munday failed to reveal that the same contention was going to be advanced for the 6731 number in Weekes's case. The prosecution's opening written note dated 7 November 2011 was littered with instances of the assertion that the telephone using the 6731 number was in Barbados at the relevant time. No attempt was made to correct this misunderstanding. In Weekes's Defence Statement he merely set out that only some of the telephone numbers were correctly attributed to Weekes. No further particulars were provided. Until Mr Munday made his closing speech, he had not asserted any positive case. He did not ask any questions of witnesses. He did not make a submission of no case to answer, and he did not call the applicant to give evidence.
82. That the judge in those circumstances misunderstood the case being presented by Weekes was entirely unsurprising. The Criminal Procedure Rules stipulate at Rule 3.2 that active case management by the court is necessary in order to further the overriding objective. One aspect of this requirement concerns the early identification of the real issues. The parties are obliged actively to assist the court in fulfilling this duty, with or without a court order (Rule 3.3). Those defending Mr Weekes failed to comply with the letter or the spirit of that important requirement. We stress that this duty, which rests equally on the prosecution and the defence, does not breach an accused's protection against self-incrimination. The applicant was under a statutory obligation pursuant to section 6A Criminal Procedure and Investigations Act 1996 to indicate the matters of fact on which he took issue with the prosecution and to set out, in the case of each such matter, why he took issue with the prosecution. As Hughes LJ (VP) explained in R v Rochford [2011] 1 Cr App R 11:

21. […] Do legal professional privilege and the defendant's privilege against self-incrimination survive s.6A ? The answer to that is "Yes". What the defendant is required to disclose by s.6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate, although of course they may bear on what is going to happen at the trial. Nor is he obliged to incriminate himself if he does not want to. Those are fundamental rights and they have certainly not been taken away by s.6A —see the reasoning in the slightly different context of the Criminal Procedure Rules in R. (Kelly) v Warley Magistrates' Court [2007] EWHC 1836 (Admin); [2008] 1 Cr App R 14 (p.195).

[…]

24. […] What (the defendant) is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it. […]

83. Having laboured under a misapprehension about the 6731 number until corrected by Mr Munday, and having taken some time carefully to reflect on the issue, the judge gave the jury directions (set out above) which in our judgment put the matter on an entirely fair footing.
84. It was an inevitable consequence of having failed to alert the prosecution, the judge or the jury until the last moment as to one of the critical issues on which Weekes relied – namely it was unproven that the 6731 number was in his possession at the material time – that the first significant concentration in the case on whether the 6731 telephone was used by Weekes whilst the drugs were being imported into the UK only occurred after Mr Munday had made his closing speech. Given this issue did not emerge until after prosecuting counsel had addressed the jury, it was left to the judge during the summing up to highlight the main parts of the evidence (most particularly the relevant entries on the telephone schedule) that were potentially relevant to this issue in order to help the jury decide whether the pattern of use of the 6731 and 3600 numbers supported the prosecution's contentions. Mr Munday argues that the judge should either have allowed him to make another speech or he should have directed the jury not to undertake any analysis of the evidence that was in their possession, in the sense of forbidding them to compare the use that had been made of the two telephones. We unhesitatingly reject both contentions. Mr Munday conceded during the course of his submissions that he deliberately abandoned the opportunity of making a submission of no case to answer, at least in part, because he wanted "to keep his powder dry" in order to delay revealing this aspect of Weekes's defence until after the prosecution's closing speech. It would have been wholly apparent to Mr Munday that once he disclosed that he did not accept the assumptions as regards the 6731 telephone on which the prosecution and the judge had been proceeding, the judge would thereafter need to direct the jury as to the evidence in the case that was relevant to that issue. Therefore, if Mr Munday wished to address the jury on the basis that the evidence did not support the proposition that the telephone was in Weekes's possession, he should have undertaken that analysis during his closing address. There is no merit in the submission that he should have been allowed to make a second speech in order, for example, to compare the use of the 6731 and 3600 telephone numbers or that the judge should have ordered the jury not to consider whether the evidence of the use of the two telephones supported the prosecution's case that the 6731 telephone was in Weekes's possession at the relevant time.
85. Mr Munday suggested that a useful analogy is to be found in the direction that judges routinely give to juries not to act as experts, for instance by attempting to resolve disputed handwriting by conducting their own analysis and comparison. In our view, that is a wholly inapposite comparator: the rationale behind the direction in those circumstances is that the jury will not have the skills to enable them to perform the role of an expert, whereas in the present situation they were well placed to decide what inferences, if any, could properly be drawn from the various strands of evidence that related to the use of particular telephones. There was no reason for the judge to direct the jury that they should simply accept Mr Munday's submission that the prosecution had failed to establish that the 6731 telephone had been correctly attributed to Weekes.
86. In any event, the prosecution's case had always depended to a significant extent on the pattern of telephone calls, and it was inevitable that the jury would need to consider with care whether sustainable conclusions could properly be drawn from the use that was made of the various numbers. The case was opened to the jury on this basis. Given there is no suggestion that Mr Hughes Q.C. departed from his full written Note when opening the case to the jury on behalf of the prosecution, we quote the material passage in full:

63. Given the pattern of telephone calls, in particular the regular contact with [Jagjit Rayit], the prosecution assert that it is [Weekes] who is using the Bajan telephone, 012468316731, at all material times, as well as his own UK mobile telephone 07533313600.

87. In conclusion, having failed to reveal what could be said to be the real issue in his lay client's case until the very last moment in the trial, we consider that it is wholly unmeritorious for Mr Munday to criticise the judge for highlighting for the jury some of the central features of the evidence in order to help them resolve whether the 6731 telephone was used by Adrian Weekes on 19 and 20 September 2009, given this had not previously been revealed as something that was in contention. On the evidence the judge summarised for the jury during the summing up, there was a proper basis on which they could conclude that the pattern of telephone calls demonstrated that this applicant was using the 6731 telephone on 19 and 20 September 2009 (e.g. the timing and the extent of the contact between this number and numbers associated with Jagjit Rayit, as well as the contact with the taxi driver). Essentially, given the links between Jagjit Rayit, Adrian Weekes, the taxi driver and the 6731 number (including the booking at the Coconut Court hotel); the utilisation of the 6731 number during the central events; and an element of change in the use of the 3600 and 6731 numbers depending on whether Adrian Weekes was in the UK or Barbados (albeit there was contact with the 3600 number after 7.00 on 20 September 2009), the jury were entitled to conclude he was in possession of the 6731 number whilst in Barbados at about the time Jennifer and Richard Weekes arrived at Gatwick airport. Mr Munday accepted that it was open to the jury to conclude that whoever was in possession of the 6731 number at this stage was a part of this conspiracy, and the jury clearly resolved that this was Adrian Weekes. They additionally concluded – in our view wholly sustainably – that this revealed his involvement in the conspiracy.
88. We therefore refuse Weekes's renewed application for leave to appeal against conviction.