The Court of Appeal has upheld the convictions of Jonathan Beere and Daniel Payne – 2 members of the Freshwater Five – who were imprisoned alongside Jamie Green, Scott Birtwistle and Zoran Dresic for smuggling £52million of cocaine into the country.
Last month lawyers from the charity APPEAL, acting for Islanders Beere and Payne, presented judges with fresh expert evidence to disprove the prosecution’s case that they conspired to use a fishing boat to collect drugs from a containership in the English Channel and later deposited them in Freshwater Bay.
Following a 3-day hearing, with a variety of new pieces of evidence put forward, the judgement was reserved with the outcome finally revealed this morning (Thursday).
Following their 10-year battle of innocence, the appeal process has now hit the end of the road with the decision that the Grounds of Appeal do not cast doubt on the safety of the convictions.
In their summary, Sir Julian Flaux, Mr Justice Andrew Baker and Mr Justice Calver of the Court of Appeal said:
“Standing back and looking at the body of evidence available at trial as well as the further evidence now available, and recognising that the evidence is circumstantial, the Court concludes that this was a compelling prosecution case of conspiracy to import cocaine, and that the Grounds of Appeal do not begin individually or collectively to cast doubt on the safety of these applicants’ convictions”.
All of them men maintain their innocence.
Emily Bolton, Director of APPEAL and solicitor for the ‘Freshwater Five’, said:
“Miscarriages of justice don’t just happen in the trial courts – today one happened in the Court of Appeal. The Court handed down a judgment which simply underscores just how profoundly broken the criminal appeals system is in this country.
“There is no dispute that this is a case in which law enforcement and the prosecution failed to hand over crucial evidence to the defence at trial. As we showed in the court hearing, that new evidence undermines the prosecution’s case on several fronts and gives a totally different picture to that which was presented to the jury.
“Yet, in a yet another failure to correct a miscarriage of justice, the Court of Appeal has said today that none of this matters.
“The Court has substituted its judgement for that of the jurors in a way that fundamentally undermines the principle of trial by jury.
“Further, the Court’s ruling effectively gives law enforcement a licence to perpetuate evidence disclosure failures in future. It sends a deeply troubling message that they can withhold crucial information from judges, juries, and defendants and get away with it.
“We have no doubt that law enforcement holds further evidence which supports the Freshwater Five’s innocence. Yet our opaque, unaccountable justice system continues to prevent the truth from coming to light.
“To those with short memories, it is worth bearing in mind that it took three appeals before the Birmingham Six finally had their names cleared. The Freshwater Five, their families and the APPEAL team will keep battling for justice and reform.”
The Freshwater Five families have issued the following statement:
“This is a bitter and dark day for the men and their families. Yet again, our faith in the criminal justice system has been shattered.
“These men are innocent and have collectively spent decades in prison for a crime they did not commit. They have missed births, the deaths of close family members, and countless other irreplaceable family moments while our so called ‘justice’ system has kept them kidnapped behind bars.
“Today, in ruling against Jon Beere and Danny Payne, the Court has once again whitewashed over what has happened in this case, just four days after Jon’s father died, having lost his battle to hold out long enough to see his son vindicated. At this next funeral we will be mourning the death of Jon’s father, but also the death of British Justice. This pitiful judgement is just yet another example of the system protecting itself from embarrassment and criticism.
“If the Court of Appeal and the Criminal Cases Review Commission won’t correct this mistake, where else do we turn?
“British justice is broken, and we will never trust it again.
“But we have faith that the truth will out. In every round of this case, more and more people have come forward with information about what really happened. We are not the only ones waking up in the night worrying about this case – people involved in the original investigation are having trouble sleeping too – there are whistle blower protections and those with a conscience will come forward.
“The five men and their families would like to place on record their sincerest thanks to the legal charity APPEAL for their relentless work, and for walking through this nightmare alongside us. We also want to thank barristers Joel Bennathan QC and Annabel Timan for their painstaking advocacy, and the experts on the appeal who worked for hundreds of hours for free in their quest to uncover the truth.
“We ask for privacy during this difficult time, as we come to terms with this decision. The war is not over, and you haven’t heard the last of us. Once the dust has settled, we will be back fighting for this horrific miscarriage of justice to be overturned and making sure the public knows the full story of not just what happened here, but of the efforts that have been made to cover it up”
The history of the case
The Crown alleged at trial that in the early hours of 30th May 2010 Jamie Green’s fishing boat, the Galwad-Y-Mor, manoeuvred in the wake of the MSC Oriane in order to collect 250kg of cocaine jettisoned from the containership, which had travelled to the English Channel from Brazil.
No evidence was put forward showing that drugs had been present on either vessel, but holdalls of cocaine strung along a rope found floating in Freshwater Bay were recovered by Serious Organised Crime Agency (SOCA) officers the following day.
2 Hampshire Constabulary officers involved in the SOCA operation gave evidence that the afternoon before they had seen “10 to 12” items which were “approximately the size of a large holdall” and “tied together on a line” deposited from the Galwad-Y-Mor as it passed through Freshwater Bay. This description closely matched the drugs which were later found but was different to their earlier recorded description of seeing just “6 to 7” items thrown overboard. The trial judge suggested to the jury that the Crown’s claim that the clifftop officers had radioed in such observations, but that law enforcement failed to react in any way, was “extraordinary”.
The ‘Freshwater Five’ were sentenced to a total of 104 years’ imprisonment at Kingston Crown Court in 2011 after being convicted by an 11-1 majority jury verdict. Scaffolding business owner Jonathan Beere from Ryde, fishing boat skipper Jamie Green from Yarmouth and crewmember Zoran Dresic were each handed down 24 years’ imprisonment, while fishermen Daniel Payne and Scott Birtwistle received 18-and 14-year sentences respectively.
Fast forward 4 years and in 2015, Alexander McGuffie, an appellant in an unconnected case in which 3 of the same SOCA officers featured, had his conviction quashed because the Crown failed to inform his defence team of the “difficulties” with the observation evidence in the ‘Freshwater Five’ case. The Court of Appeal, in that case, observed: “there is a sustainable basis for a court to conclude that [a SOCA officer] 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.”
In 2018, the Crown Prosecution Service disclosed for the first time radar data from a Border Agency vessel called the Vigilant, which had been monitoring the MSC Oriane and Galwad-Y-Mor. The data had been extracted from the Vigilant’s Electronic Chart Display and Information System, or ECDIS, by a prosecution expert in June 2010 and stored on floppy disks which then sat in a safe for the intervening years.
The failure to analyse or disclose the ECDIS is described as a “major failing” by Joel Bennathan QC and Annabel Timan in court submissions made as part of the appeal application on behalf of Beere and Payne.
The new radar data showed that the Galwad-Y-Mor never got sufficiently close to the path travelled by the MSC Oriane to permit the transfer of drugs and that another small vessel travelled to Freshwater Bay, where the drugs were recovered, shortly after the Galwad had sailed nearby. This alternative suspect vessel was not known about at trial. Furthermore, the Vigilant was monitoring the MSC Oriane and discounted the Galwad-Y-Mor as the drugs-receiving vessel around the time when the transfer was supposed to have been taking place.
A surveillance plane also flew over Freshwater Bay after the Galwad-Y-Mor passed through yet failed to report the presence of any bags tied together on a rope in the water below.