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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wishart v R. [2025] EWCA Crim 704 (06 June 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/704.html
Cite as: [2025] EWCA Crim 704

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IMPORTANT WARNING: this judgment includes mention of a man referred to during the hearing as "C". As explained in paragraph 3 of the judgment, nothing may be included in any publication of this judgment which names or is otherwise capable of leading to the identification of "C".

WARNING: reporting restrictions apply to the contents transcribed in this document, as noted above and as explained in paragraph 3 of the judgment. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
Neutral Citation Number: [2025] EWCA Crim 704
Case No: 202201439 B3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH
HH Judge Statman
T20047171

Royal Courts of Justice
Strand, London, WC2A 2LL
06/06/2025

B e f o r e :

LORD JUSTICE HOLROYDE, VICE-PRESIDENT
OF THE COURT OF APPEAL, CRIMINAL DIVISION
MR JUSTICE GOSS
and
MR JUSTICE BOURNE

____________________

Between:
KEVIN WISHART
Applicant
- and -

THE KING
Respondent

____________________

Narita Bahra KC and Rachel Ferrari (assigned by the Registrar of Criminal Appeals) for the applicant
Gillian Jones KC and Genevieve Reed (instructed by CPS Appeals and Review Unit) for the respondent

Hearing dates: 9, 10 April 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10:30am on 6 June 2025 by circulation to

    the parties or their representatives by e-mail and by release to the National Archives.

    Lord Justice Holroyde:

  1. In July 2005, in the Crown Court at Woolwich, the applicant Kevin Wishart pleaded guilty to theft and firearms offences. He now applies for an extension of time of more than 16 years to apply for leave to appeal against his convictions. The applications have been referred to the full court by the single judge. They are coupled with, and dependent upon, applications pursuant to section 23 of the Criminal Appeal Act 1968 ("s23") to adduce fresh evidence from Mr Michael Gillard, a journalist, and Mr Daniel Williams, a retired Detective Constable.
  2. On 9th and 10th April 2025 this court heard submissions, and heard, de bene esse, evidence from Mr Williams and from two other former police officers. Judgment was reserved, to be given in writing at a later date. This we now do.
  3. The court ordered, pursuant to section 11 of the Contempt of Court Act 1981, that nothing may be included in any publication of this judgment which names or is otherwise capable of leading to the identification of the man referred to during the hearing as "C".
  4. Summary of the facts:

  5. On 27 March 2004 the applicant, together with Kevin Fox and Paul Rayson, drove to the premises in Enfield of Johnson Matthey PLC, a company which processed precious metals. It was alleged that they had the assistance of a security guard at the premises, Steven Blackman. They loaded gold bars valued at about £1.5 million into their vehicle. As they left the scene, they were stopped and arrested by officers of the Metropolitan Police Service ("MPS") Flying Squad, who were involved in an operation known as Operation Rowlock. Firearms were recovered from the vehicle.
  6. The applicant and his co-accused were initially charged on indictment with robbery and a number of firearms offences. In a defence statement, the applicant asserted that he had not voluntarily been involved in the events at Johnson Matthey: he had participated in what he believed to be a theft made to look like a robbery, but had done so under duress as a result of threats of death or serious injury made by a man referred to at trial as "C". He sought disclosure of material relating to C.
  7. Fox and Rayson each asserted that the enterprise was a theft, not a robbery, and that they had been entrapped by agents of the state. Blackman accepted that there was a robbery, but asserted that he had acted under duress by C and others.
  8. Mr Williams, then DC Williams, was for a time the disclosure officer in relation to the prosecution of the four accused.
  9. The trial:

  10. The trial began on 30 March 2005. It appears to have been dominated, for a number of weeks, by issues relating to disclosure.
  11. Police officers called as prosecution witnesses gave evidence to the effect that they did not know C, that they had not known that the Johnson Matthey premises were the target, and that there had been no entrapment.
  12. In mid-July 2005 all four accused applied to stay the indictment as an abuse of the process. The submissions of their counsel raised two issues: had there been material non-disclosure by the prosecution which prevented the accused from having a fair trial? Had the applicant, Fox and Rayson been entrapped into committing an offence by the state and/or its agents and or senior management within Johnson Matthey?
  13. On the second of those issues, defence counsel submitted that there was an irresistible inference that the police knew, before 27 March 2004, that a robbery would be carried out at the Johnson Matthey premises. It was submitted that there had therefore been a failure by the prosecution to disclose material confirming that prior knowledge of the target premises. The prosecution case was that the police did not have prior knowledge of the precise target, and that the Johnson Matthey premises were never more than a "best guess". The allegation of material non-disclosure was therefore denied, and the prosecution submitted that in any event, there was not a scintilla of evidence of entrapment.
  14. At the invitation of all counsel, the judge initially stated his provisional views, but without giving a formal ruling. Having analysed the evidence and the submissions in some detail, the judge said, in relation to the complaint of material non-disclosure, that he was "left with a deep sense of unease" that all had not been revealed to him. As to entrapment, he said that he had not seen anything which, on the balance of probabilities, would lead him to the view that the accused had been entrapped by the state, the police, or the police acting in concert with senior representatives of Johnson Matthey.
  15. On the following day, 20 July 2005, the prosecution were permitted to add a new count 2, a charge of theft, which was put forward as an alternative to count 1, the charge of robbery. The judge then gave a ruling in which he stayed count 1 as an abuse of the process because of "the issue surrounding count 1 and the way in which non-disclosure, in my judgement, had taken place". He held, however, that there was "nothing which points to material non-disclosure in regard to count 2", and nothing in relation to the issue of duress which would lead him to stay count 2. The trial process, he said, was well equipped to deal with the issue of duress.
  16. Following that ruling, Fox, Rayson and Blackman all pleaded guilty to count 2. Fox and Rayson also pleaded guilty to counts 3 and 4, which were charges of having a firearm (in each case, a self-loading pistol) with intent to commit an indictable offence, namely theft.
  17. The trial continued against the applicant. He gave evidence in which he put forward his defence of duress.
  18. On 28 July 2005 the judge gave a ruling withdrawing that defence from the jury. No recording or transcript of that ruling is now available; but it is clear, from a note helpfully provided by trial counsel, that the judge made his ruling on the basis that the applicant had had clear opportunities to withdraw from the crime.
  19. The applicant then pleaded guilty to counts 2, 3 and 4. On the following day, he was sentenced to a total of 6 years 6 months' imprisonment.
  20. No appeal was brought at the time. The applicant served his sentence.
  21. In 2012 the applicant made an application to the Criminal Cases Review Commission ("CCRC") for a review of his conviction. The CCRC considered the application but did not refer the case to this court.
  22. In 2018 the applicant made a second application to the CCRC. Again, it was not referred to this court.
  23. The applications to this court:

  24. Notice of this application for leave to appeal was lodged on 9 May 2022. The applicant seeks an extension of time of 6,101 days. No explanation has been given as to why on two occasions he made applications to the CCRC but did not then make an application for leave to appeal against conviction.
  25. At the same time as giving notice of appeal, the applicant applied for permission to call as a witness Mr Gillard, who was said to be able to give fresh evidence contained in a witness statement dated 1 April 2022. Mr Gillard said in that statement that he had, since 2019, taken an interest in matters relating to Mr Williams and the MPS. He stated that he had been contacted by the applicant "to discuss his concerns about police corruption" raised during the trial in 2005. The applicant was pursuing a complaint with the Independent Office of Police Conduct ("IOPC") but had been unsuccessful in his attempts to obtain a copy of the witness statement which he understood Mr Williams had made to that Office. Mr Gillard stated that he had obtained a copy of that statement, dated 10 December 2018, from "a confidential source", and in 2021 he provided a copy to the applicant. He did not state the precise date on which he did so.
  26. Application was also made for permission to call Mr Williams as a witness and for a witness order to secure his attendance. The application stated that Mr Williams had given only limited evidence for the prosecution at the trial, but that he could now give evidence of "corruption within the Flying Squad at the time of the investigation" and evidence that the applicant's "defence of entrapment was withheld from the court".
  27. The application referred to the witness statement by Mr Williams dated 10 December 2018 ("the 2018 statement"), which was said to have been "prepared in relation to different proceedings".
  28. The 2018 statement declares its purpose to be to highlight to the IOPC "serious corruption and criminality which is centred on the conduct of police officers attached to the Flying Squad between 1998 and 2011". It contains allegations of grave misconduct by a number of officers.
  29. Only 14 of the 2018 statement's 85 paragraphs could be said to be directly relevant to the present proceedings. Mr Williams alleged, in summary, that C had been used as a participating informant to incite the offence; that officers had lied on oath when they denied having known in advance that the Johnson Matthey premises were the target; and that Detective Inspector Andrew Smith (the Senior Investigating Officer in Operation Rowlock) had specifically instructed Mr Williams that no action was to be taken in respect of C, thereby preventing compliance with the disclosure obligations which were necessary to ensure a fair trial of the accused.
  30. The grounds of appeal:

  31. Two grounds of appeal are advanced: first, that fresh evidence demonstrates that evidence of entrapment was withheld from the court by the Crown, such that the trial ought to have been stayed for abuse of process (ground 1); and secondly, that fresh evidence demonstrates that the judge erred in removing the applicant's defence of duress (ground 2).
  32. When referring the applications to the full court, the very experienced single judge observed that "it is not easy to see the connection between the allegations made 13 years after the trial touching on police misconduct and [the applicant's] decision to plead guilty". She helpfully directed that the case be listed for directions by the full court.
  33. The directions hearings:

  34. At a directions hearing on 23 May 2024, counsel for the applicant acknowledged that the 2018 statement was inadequate for the purposes of the present proceedings. The court allowed time for solicitors on behalf of the applicant to obtain a more focused statement from Mr Williams.
  35. A further directions hearing was listed for 11 July 2024. It was vacated, and the court's directions were twice varied on applications by the applicant, in order that the solicitors should have more time to obtain the statement from Mr Williams.
  36. Eventually, the court was provided with a statement by Mr Williams dated 30 August 2024 ("the 2024 statement"). It was 109 pages long, and accompanied by a very large bundle of 75 documents referred to as exhibits. The applicant no longer sought a witness order to secure Mr Williams' attendance, but now sought directions to enable Mr Williams to have the assistance of an intermediary.
  37. At a further directions hearing on 12 September 2024, the court accepted that the applicant's solicitors had encountered difficulties in seeking to obtain a statement in conventional form from Mr Williams (who described himself as "no friend of the applicant"). It is relevant to note that Mr Williams has informed the court that he has been diagnosed as suffering from a number of enduring conditions and disorders, including ASD (Autism Spectrum Disorder), ADHD (Attention Deficit Hyperactivity Disorder), PTSD (Post-Traumatic Stress Disorder) and anxiety.
  38. The court observed that Mr Gillard had no first hand knowledge of any relevant event: he could provide some information as to the sequence of events, but could give no evidence relevant to either ground of appeal. The applications therefore substantially depended on the proposed fresh evidence of Mr Williams. The court described the 2024 statement as –
  39. "… a most unsatisfactory document. Whereas the statement of December 2018 was brief and inadequate, this document is of inordinate length and contains much which can be of no conceivable relevance to the grounds of appeal."
  40. The court went on to note that, despite the solicitors' attempts to obtain a statement in conventional form and limited to relevant matters, Mr Williams had prepared the statement himself and had included in it much about past issues between him and the MPS which were not relevant to the present case. In the result, the court observed, it was further away from making progress than it had been at the first directions hearing, and the applicant ran a very substantial risk that any application to adduce the 2024 statement as fresh evidence would fail on the grounds that it was largely irrelevant and in parts incoherent. In those circumstances, the court stated, no meaningful directions could be given, and the respondent could not be expected to address any disclosure issues which might be said to arise from the 2024 statement.
  41. The court gave further directions designed to remedy this very unsatisfactory state of affairs. The applicant's representatives subsequently prepared a 35-page document in which they extracted those parts of the 2024 statement which were said to be relevant and admissible.
  42. A substantive hearing, at which the court would consider all applications and (if leave be granted) would determine the appeal, was listed for 9 and 10 April 2025. It was common ground between the parties that Mr Williams would have to give oral evidence and be cross-examined, but that the application in relation to Mr Gillard could be considered on the basis of his witness statement.
  43. The court later made an order permitting Mr Williams to give his evidence from a remote location and to have the assistance of an intermediary when giving evidence. Counsel for both parties provided Mr Williams with advance notice of the topics about which he would be questioned.
  44. Before the substantive hearing, the respondent made an ex parte application (on notice to the applicant's advisers) in relation to the applicant's remaining requests for disclosure of material. The court ordered no further disclosure.
  45. The substantive hearing:

  46. On the morning of the hearing Mr Williams sent a further statement to the court, in which he referred to difficulties which he would face in trying to remember matters which were not contained in his statements, and asked for various arrangements to be made in order to assist him.
  47. In the event, Mr Williams was examined and cross-examined in an entirely appropriate manner, and gave his oral evidence (via a video link) without apparent difficulty. The intermediary who was present with him did not find it necessary to raise any issues.
  48. We summarise the key features of his evidence.
  49. Mr Williams' evidence:

  50. Mr Williams served as a police officer from 1997 to 2021. He provided the court with details of the commendations he had received. He has no criminal convictions. The events with which this court is concerned occurred during a period in 2004-2005 when he was serving as a Detective Constable seconded to the relevant branch of the Flying Squad. In later years, he was the subject of police disciplinary proceedings (in which all but one very minor allegation were eventually withdrawn); was the subject of a criminal prosecution (in which he was ultimately acquitted when the prosecution offered no evidence); brought proceedings against the Police Federation (which were settled to his satisfaction after he had been granted permission to apply for judicial review); and brought proceedings in the Employment Tribunal (which were settled to his satisfaction). Despite this history, he said, he bore no malice towards the MPS or individual officers and was not seeking revenge.
  51. Mr Williams stated that his 2024 statement was true. He gave evidence that he had been involved in the arrest and interview of one of the accused, and had acted as the disclosure officer in Operation Rowlock. In the latter role he compiled a number of schedules of non-sensitive and sensitive unused material (though not all of them were available at the time of this hearing). He said that he had accurately logged all the material he had received and had not omitted from a schedule anything which should have been included. His superior officers had not told him to omit anything from the schedules he signed off. He had felt, however, that he was not being given all the material he should have been given. He also felt that he lacked the autonomy which he had enjoyed when involved in other police operations.
  52. Mr Williams gave evidence that he had regularly raised with his superiors, in particular Detective Inspector Smith and Detective Sergeant Stephen Summers, his concern that he was not being given all the material he should. The response, he said, was that he was told to process the material he was given. He said that he followed his instructions.
  53. Mr Williams said that he had raised concerns about the decision not to investigate C, who he felt should have been arrested. His superior officers had not done what he wanted, but he accepted in his oral evidence that he was not the investigating officer.
  54. We note that in his 2024 statement, Mr Williams had described himself as "nosey"; and had asserted that, having expressed his view that C should be considered a suspect, he had been instructed by DI Smith to take no action in respect of C. He stated that, when he argued his point further –
  55. "DI Smith tapped his nose, which was an action I understood to be used in the MPS to indicate that someone was an informant, or 'snout' on more than one occasion. I never saw an official document confirming that [C] was an informant, however, I was effectively warned in a manner I perceived as 'Don't push it Williams, he is an informant'. In my usual manner I did raise this a couple of times before the trial before I gave up all together, I believe I raised it when there was a relevance for some reason, each time DI Smith would tap his nose to put an end to the conversation. To be clear I am sure he wasn't simply scratching or doing something other than to make a specific gesture for my attention."
  56. Mr Williams gave evidence that on 27 March 2004 he had attended the final police briefing before the events at Johnson Matthey. He said that on that day he was told by a superior officer, though he could not remember who, that Johnson Matthey was the target. He stated that he had believed for some time before that date that Johnson Matthey was the target, and he thought other officers were being dishonest when they said otherwise.
  57. By the time of the trial, Mr Williams said, he had ceased to be involved in Operation Rowlock and was focusing on a trial in another court ("Operation Aleric"), in which he was both an investigating officer and the disclosure officer. Other officers had taken over the disclosure role in relation to Operation Rowlock. Mr Williams' evidence was that he felt he had been excluded. His impression, he said, was that his superior officers took the view that it was their case, and that he was seen as just the disclosure officer, and not important.
  58. Mr Williams stated that he had given evidence at the trial, but had been asked few questions and no issues were raised in relation to disclosure.
  59. In cross-examination, Mr Williams accepted that he had only been seconded to the Flying Squad in early March 2004; that he had been on extended leave from mid-September to December 2004; and that he had been involved in, and focused upon, Operation Aleric from March 2004 to June 2005 (and therefore throughout the time of his involvement in Operation Rowlock). He accepted that in relation to Operation Rowlock he had not been involved in police planning, did not have direct access to any intelligence received by his superiors, and had not been invited to attend strategy meetings, disclosure conferences, or disclosure and PII hearings. He also accepted that he had not been given any material saying that Johnson Matthey was the target. He said, however, that by the day of the offences it was clear that Johnson Matthey was the suspected target. He stated that he had been told not to schedule that.
  60. Mr Williams further stated that he had raised an oral complaint with DI Smith, "largely because I felt frustrated in my role". He said he had also informally expressed his unhappiness to a CPS lawyer involved in the trial, and "had the impression he understood", but he thought the lawyer "would probably just have advised me to keep my head down". He accepted that, although he was accusing a number of police officers of misconduct, his formal complaint had not been made until he was involved in Employment Tribunal proceedings in 2015, after he had been arrested in 2014.
  61. The respondent's witnesses:

  62. After Mr Williams had concluded his evidence, Miss Jones KC indicated that she did not wish to adduce any evidence for the respondent. She did, however, tender both Mr Smith and Mr Summers for cross-examination.
  63. Mr Smith confirmed that he had been the Senior Investigating Officer throughout Operation Rowlock, and in that role had overall responsibility for disclosure of unused material. He said that when Mr Williams joined the operation he was inexperienced, and he was therefore under supervision. Mr Smith stated that junior counsel for the prosecution had access to all the unused material, but he accepted that there had been failures of disclosure which had blighted the trial.
  64. Mr Smith rejected the suggestions that he had told Mr Williams not to record any material. He also denied that he had ever told Mr Williams that Johnson Matthey was the intended target: he said that the surveillance of the applicant, Fox and Rayson, and the intelligence received by the police, led them to consider a number of premises in Enfield as possible targets, with Johnson Matthey being the "best guess". But even at the final briefing on the day of the theft, Johnson Matthey was not known to be the target.
  65. As to C, Mr Smith accepted that there was material showing that the applicant had used a motorcycle registered to C. Otherwise, he said, C formed no part of the investigation in Operation Rowlock, and was not a suspect. He denied that Mr Williams had asked him to investigate C, adding that he did not know what evidence Mr Williams could have referred to: there was very little information about C in the applicant's defence statement, and nothing which could be followed up or investigated.
  66. Mr Summers confirmed that he had been the officer in the case, with knowledge and oversight of the disclosure of unused material, throughout Operation Rowlock. He accepted that there were disclosure issues at trial and that he should have done a better job. He stated that he had passed to Mr Williams all the unused material of which he was aware. He accepted that during the trial a video recording made by a police officer based in a different branch had been produced: Mr Summers stated that he had not previously been aware of it, and it had never been given to him by the other branch.
  67. Mr Summers denied that he had ever instructed Mr Williams not to record any material. He said that Mr Williams had never told him that he thought C should have been investigated as a suspect. Mr Summers said that he was aware, before the defence statement, of the material showing that the applicant had used a motorcycle registered to C: he had tried to arrange for C to make a witness statement about that, but C had refused to engage with the police.
  68. The submissions:

  69. The court has been assisted by lengthy and detailed written and oral submissions from both parties. We are grateful to all counsel. We shall summarise the arguments very briefly, but we have considered and taken into account all the points made.
  70. For the applicant, Miss Bahra KC relies on well-established case law to the effect that in three broad categories of case, a conviction may be found to be unsafe even though it was based upon a guilty plea. She submits that the necessary long extension of time should be granted because the fresh evidence on which an appeal would be based did not exist until some 13 years after the trial, and was not available to the applicant (despite his requests to the IOPC and to the CCRC) until 2021, when Mr Gillard provided him with a copy of the 2018 statement. She further submits that the fresh evidence of Mr Gillard and Mr Williams should be received by the court pursuant to s23.
  71. As to ground 1, Ms Bahra KC submits that the evidence of Mr Williams as to what he heard from other officers shows that there was material in the possession of the prosecution which would have supported a defence of entrapment, but it was deliberately and improperly withheld in order to protect C and to protect MPS from potential litigation by the victims of crimes which could have been prevented. She points, for example, to Mr Williams' assertions in his 2024 statement that every member of the Operation Rowlock team knew from the first week of the investigation that Johnson Matthey was the target, and that officers had committed perjury at the trial by giving evidence to the contrary. She also points to Mr Williams' assertions that he had been excluded from meetings, kept away from some unused material, and prevented from pursuing lines of enquiry. She submits that Mr Williams' fresh evidence shows that the nature and extent of the non-disclosure of relevant material had been withheld from the defence and the court until he came forward as a whistle-blower.
  72. As to ground 2, Miss Bahra KC submits that, for similar reasons, the fresh evidence shows that the defence of duress would have been available to the applicant. She invites the court to accept Mr Williams' evidence that he was told not to schedule material relating to C or to pursue lines of enquiry which could have been relevant to the applicant's defence of duress. She also submits that, if proper disclosure had been made, the applicant would in any event have been able to advance the defence of entrapment.
  73. In summary, Ms Bahra KC submits that Mr Williams' evidence is capable of belief, and that there is no reason not to believe it. She submits that, if the fresh evidence now available had been before the court at trial, the judge would not have ruled that there was no evidence of entrapment, and would not have withdrawn the defence of duress from consideration by the jury. The convictions are therefore said to be unsafe.
  74. For the respondent, Miss Jones KC submits that both grounds of appeal are entirely reliant on the evidence of Mr Williams. She points out that the basis on which the judge withdrew the defence of duress from the jury was unaffected by any issue as to whether there was unused material showing C to be a violent criminal. She submits, in respect of grounds 1 and 2, that Mr Williams provides no evidential foundation supporting a defence of entrapment or supporting a conclusion that the judge was wrong to withdraw the defence of duress from the jury. Rather, she submits, Mr Williams has put forward mere assertions and suppositions, largely based on hearsay evidence as to what he was told by other officers when socialising, and on office gossip. Miss Jones KC further submits that the matters raised by Mr Williams in relation to C were dealt with during the trial, as were issues of non-disclosure, and that he has provided no evidence which shows that the police knew Johnson Matthey to be the target. She points out that Mr Williams was a junior officer, and that on his own account he had been largely excluded from the case by the time defence statements were served. She submits that his evidence should not be received by the court pursuant to s23, subsection (2) of which requires this court, when considering its power under s23(1)(c) to receive any evidence which was not adduced in the court below, to have regard in particular to –
  75. "(a) whether the evidence appears to the Court to be capable of belief;
    (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
    (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
    (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."
  76. Miss Jones KC submits that at its highest, Mr Williams' evidence is that he believed C to have been an informant in Operation Rowlock – a belief which appears largely to have been based on his account of DI Smith tapping his nose.
  77. The respondent relies on a note of disclosure which was provided to the applicant's legal representatives before this hearing. It relates to one matter which was dealt with as part of a PII hearing at trial, but which is no longer sensitive. Information was provided to the judge to the effect that C was the main target of an investigation by another agency into an unrelated crime, a fact which was sensitive at the time of the trial in the present case, but he was not a target in Operation Rowlock. Given his junior role in Operation Rowlock, the applicant was not party to that information at the time. Miss Jones KC suggests that may provide another reason why the tapping of the nose (if it took place at all) may have been no more than an indication that Mr Williams should not be nosey.
  78. Miss Jones KC points out that the applicant had only joined the Flying Squad in the month in which the arrests were made, and was throughout focused on his dual roles in relation to Operation Aleric. He was not involved in the planning of Operation Rowlock, and cannot say what unused material may have been scheduled by others. His impression that he was being excluded is based on his comparison with other cases in which he was involved in the investigation and not only in disclosure. It is submitted that his allegations of dishonesty and misconduct by other officers reflect his lack of understanding of aspects of Operation Rowlock in which he was not involved, and that his evidence to this court adds nothing to what was extensively ventilated at trial.
  79. Analysis:

  80. Reflecting on the submissions, our views are as follows.
  81. We agree with counsel that both grounds of appeal depend upon the evidence of Mr Williams. We therefore think it important to begin by emphasising that the issue for us is whether his evidence casts doubt on the safety of the applicant's convictions. We are not concerned with any other or wider allegations Mr Williams has made about police corruption. Nor are we concerned with the rights and wrongs of the many other issues which have arisen in the past between Mr Williams and the MPS.
  82. We need not address in detail the legal principles relating to an appeal against a conviction based on a guilty plea. In the circumstances of this case, and if the submissions of the applicant were accepted, we accept that the applicant could in principle succeed in his appeal notwithstanding his guilty pleas. We therefore focus on the merits of the grounds of appeal.
  83. As we have indicated earlier in this judgment, appropriate arrangements were made to ensure that Mr Williams was able to give his best evidence. We note the following features of his evidence.
  84. First, on his own account, Mr Williams was seconded to the Flying Squad only a short time before the arrests; and although he was actively involved on the day of those arrests, his principal role was in relation to disclosure. He performed that role under supervision. He was throughout also involved in a more prominent role in Operation Aleric, which was his primary focus. He had effectively ceased any involvement in Operation Rowlock before the trial began. He was not the only officer who recorded unused material and compiled schedules.
  85. Secondly, Mr Williams properly recorded all the unused material which came into his possession, and scheduled it appropriately; but he accepts that he does not know what material was received by other officers, and so does not know what they recorded and scheduled. Because the applications to this court were made so long after the trial, only a few schedules remain in existence, and it is not possible to repeat the thorough review of the disclosure process which took place at trial.
  86. Thirdly, although Mr Williams aspired to a greater role, he occupied a junior position in the Operation Rowlock team. Because that was so, he was not involved in any planning or policy decisions, or in running the operation. He was not privy to all the intelligence which came to his superior officers, and he was not involved in the making by the prosecution of PII applications. Given his junior position, his limited experience and his commitment to Operation Aleric, we do not find that in any way surprising, and we do not see any evidence to support his feeling that he was being left out when he should have been included.
  87. Fourthly, although Mr Williams has subsequently made serious allegations against a number of officers, he did not do so at the time, and did not make any written complaint until 2015, at a time when he had been accused of a criminal offence and was engaged in proceedings in the Employment Tribunal. We cannot accept that he said anything to a CPS lawyer which indicated serious misconduct by other officers in relation to disclosure (see paragraph 51 above): we think it inconceivable that the lawyer would have taken no action if given such an indication.
  88. Fifthly, on a number of key points Mr Williams' evidence is contradicted by the evidence of Mr Smith and Mr Summers and is unsupported by any independent evidence.
  89. Sixthly, much of what Mr Williams said in his statements and in his oral evidence was the subject of detailed investigation at the trial. For example, the evidence linking C's motorcycle to the applicant, and the evidence relating to the belated production of the video recording made by officers from a different branch office, were matters which defence counsel were able to address at trial. So, too, were the acknowledged deficiencies in the prosecution's disclosure of unused material: it is clear that a great deal of time was devoted at trial to investigating disclosure issues, and we have referred in paragraph 12 above to the judge's expression of "a deep sense of unease" that there may have been material non-disclosure.
  90. Against that background, we turn to consider what fresh evidence Mr Williams has provided which was not available to the judge at the trial.
  91. It was never clear, from the 2018 and 2024 statements, what admissible evidence of fact (rather than opinion or speculation) Mr Williams could give about any relevant matter. His oral evidence did not remedy that deficiency.
  92. As to whether relevant material was improperly excluded from the disclosure process, all Mr Williams says is that he believed that to have happened. However, neither he nor counsel has been able to identify any independent support for that belief. It seems to have stemmed from Mr Williams' dissatisfaction that the investigation was not being pursued in the way he thought it should be, and his frustration that he was not able to enjoy the autonomy he had been granted in other investigations. Although Mr Williams asserts his belief, we think it important to keep in mind that he was a junior officer who was not involved in any planning or intelligence, did not know everything about the case, and was not involved in the PII applications which were heard by the judge. Similarly, Mr Williams suggests that unspecified steps must have been taken to ensure he was not cross-examined at trial about disclosure issues; but it is important to remember that he had ceased to be involved in disclosure before the trial, and that much of the trial had been taken up with disclosure issues before he entered the witness box. In those circumstances, his expression of belief and his suggestions or speculations can provide no basis for a finding that relevant material was in fact wrongly withheld from the applicant and from the court.
  93. As to whether the Johnson Matthey premises were known in advance to be the target, Mr Williams's evidence amounted to no more than the assertion in his 2024 statement that "every member of the Operation Rowlock team knew from the first week" (see paragraph 60 above). That assertion of opinion is flatly contradicted by Mr Smith, who as Senior Investigating Officer was far better placed than Mr Williams to know what the intelligence showed. A list of the various premises in Enfield which were potential targets was produced at trial and was the subject of evidence. Nothing emerged at trial to contradict the prosecution case that the Johnson Matthey premises were only ever the "best guess"; and nothing has emerged since beyond Mr Williams' written assertion. In his oral evidence, Mr Wiliams himself referred at times to his "belief" that Johnson Matthey was the target; and he substantially undermined the assertion in his 2024 statement when he accepted that by the time of the final briefing Johnson Matthey was the "suspected" target. Thus the proposed fresh evidence can provide no basis for a finding that the Johnson Matthey premises were known in advance to be the target.
  94. As to the applicant's use of a motorcycle registered to C, Mr Williams' evidence to this court added nothing to what was known at trial; and Mr Summers was able to confirm that attempts to speak to C on that topic had been unsuccessful. Neither that aspect of the case, nor anything else, provides any support for Mr Williams' assertions about C being protected from investigation.
  95. Furthermore, it became increasingly clear during Mr Williams' oral evidence that much of what he had asserted in his 2018 and 2024 statements was based on hearsay, office gossip, unattributed social chitchat and mere supposition. Most strikingly, the high-water mark of his written and oral evidence as to the basis for his assertion that C had been a participating informant was his statement (quoted in paragraph 46 above) that Mr Smith had tapped his nose by way of warning him off the topic. If that gesture was made at all (which Mr Smith denies), there are a number of alternative explanations for it, including that suggested by Miss Jones KC (see paragraph 65 above). It is a hopelessly inadequate basis for suggesting that the applicant's convictions are unsafe.
  96. We have referred in paragraph 63 above to the requirement in s23(2)(c) to consider whether the proposed fresh evidence would have been admissible at trial. When inadmissible opinion, hearsay and speculation are excluded, there is very little left which might in principle have been admissible; and what does remain is contradicted by the evidence of Mr Smith and Mr Summers. In the light of their evidence, which we accept, and in the absence of any independent support for Mr Williams' evidence, we are not persuaded that Mr Williams' evidence on those disputed issues is capable of belief.
  97. But even if we could be so persuaded, and even if the serious weaknesses in Mr Williams' evidence were not present, his evidence could not provide any support for either of the grounds of appeal.
  98. As to ground 1, we have noted at paragraphs 12 and 13 above that the judge had seen nothing which would lead him to find that the applicant had been entrapped, and found no basis for staying count 2 as an abuse of the process. That ruling cannot have come as any surprise to defence counsel: even if there had been non-disclosure of material, it would be a substantial leap from there to a view that the accused had been entrapped into going to the premises, armed with guns, and stealing a large quantity of gold.
  99. The judge had carefully considered the defences of each of the accused and the details of the evidence, including the attack which had been made on Mr Smith's integrity and credibility; and although he found that there may have been material non-disclosure, which was a factor in his decision to stay count 1, there was nothing which would cause him to find that there had been non-disclosure such as to lead to a stay of count 2. Mr Williams' expressions of his beliefs and suppositions cannot provide any basis for a different conclusion now.
  100. As to ground 2, we have noted at paragraph 16 above that the judge ruled that the defence of duress should not be considered by the jury because the applicant had had clear opportunities to withdraw from the crime. It is therefore clear that the basis of the judge's ruling was a fatal weakness in the applicant's assertion of duress, and would not be affected by any finding in relation to non-disclosure of material relating to C. It follows that evidence to the effect that there had been an improper withholding of such material could not have assisted the applicant, and the defence of duress would still have been withdrawn from the jury. We accept the respondent's submission that the applicant has no answer to that point. The proposed fresh evidence of Mr Williams cannot provide an answer.
  101. Conclusion:

  102. For the reasons which we have given, we conclude that much of Mr Williams' proposed fresh evidence would not have been admissible at trial. Insofar as it would have been, and even if it were capable of belief on disputed points, it could not afford any ground for allowing the appeal on either ground. We therefore decline to receive it pursuant to s23.
  103. It follows that we also decline to receive the fresh evidence of Mr Gillard (which is irrelevant, in the absence of fresh evidence from Mr Williams), and it is unnecessary for us to consider the respondent's application in respect of the evidence of Mr Smith and Mr Summers.
  104. The consequence of our declining to receive fresh evidence from Mr Williams is that the basis of the proposed appeal falls away, and there is no arguable ground of appeal.
  105. It is therefore also unnecessary for us to consider the merits of the application for an extension of time: even if we could be persuaded that there was a reasonable explanation for the passage of so many years, there would be no purpose in granting the extension of time, because an appeal cannot succeed.
  106. The applications for an extension of time and for leave to appeal against conviction accordingly fail and are refused.

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