LEAVE TO APPEAL HEARING – 18^TH OCTOBER 2007, OLD BAILEY

Although Thomas has never been charged with any offence in relation to the Strangeways gun incident, it has blighted his time in prison.  For many years of his sentence he has been held under the highest security.  This means, in effect, that the authorities believe him to pose a risk of escape from ‘armed external’ elements. 

At the directions hearing on 24^th April 2007 at the Royal Courts of Justice, Lord Justice Moses raised security issues surrounding Thomas’s appearance at his forthcoming leave to appeal hearing with the prosecutor, Mr Bentham QC.

This is a moot point because one of the prime points to be raised at the Appeal was the prejudicial effect that the increased security had at the original trial. 

The original prosecutor, Sir Peter Openshaw, had given an affidavit for this Appeal that there had been no increase in security at trial following the gun find in Strangeways.(see Sir Peter Openshaws Statement.)

Lord Justice Moses, however, ruled that the hearing would have to take place at The Old Bailey – due to the need for high security.   So the Strangeways gun came to haunt Thomas’s Appeal as it had his Trial - despite the fact that he has never been charged in relation to this incident.

During the directions hearing, Lord Justice Moses was sat with a box on his bench.  Towards the end of the hearing, he spoke to Prosecuting Counsel, Mr Bentham, concerning the contents of the box.  Neither Mr Bentham nor anyone else in the court had any idea as to what he was referring. 

Lord Justice Moses mentioned that the contents were unintelligible but said that it is all to do with a corrupt police officer Dalziel, who illegally obtained the home address of Alan Singleton, one of the murder victims, from his car number plate.  This was carried out by Dalziel on behalf of David Watson, the director of Chestergate Autos, some weeks before the murders.  The defence did not know about this fact until after the trial – and the jury never heard evidence in respect of Dalziel, Watson or their conspiracy against Alan Singleton. 

To this day the defence counsel has not been permitted to view the contents of this box.  At the time of the murders and the trial in 1993-1994 there was full disclosure of evidence against a defendant.  All miscarriages of justice seem to occur when prosecutors conceal evidence pointing to other suspects. 

Lord Justice Moses told Thomas's QC, Mr Patrick Cosgrove to bring whatever material he wished to the leave to appeal hearing to substantiate the defence’s claim that there was an increase in security at the end of Thomas’ trial.   In this the family were hindered by the fact that the CPS and police were saying that no deployment records for the armed police were available.  In fact the acting court manager claimed that “it would be extremely rare in 1994 and around that period, to have in place the level of security referred to in the Notice of Appeal”.   

Fortunately by the time of the leave to appeal hearing in October, the family had managed to locate archived television news footage showing the armed police. They also made contact with a reporter who covered the television news at the time of the trial and he remembered the security and also saw snipers on the roofs.

Without this proof, Sir Peter Openshaw’s word would most certainly have been taken over that of Thomas and his family.  The tapes of the footage of the armed police escort after the gun had been found were played to the appeal court judges.  They saw that the van carrying Thomas had clear glass windows through which he was clearly visible, unlike the van used to transport him before the gun turned up which had obscured, high level darkened windows.  Although Lord Justice Moses conceded that the jury might well have seen the police with their guns, he rejected the proposition that they would connect this significant increase in the security surrounding Thomas to media revelations about the finding of the gun in Strangeways over the weekend.

Like Thomas’s family that Monday morning, who clearly remember a huge armed police presence, the members of the jury would have made their own way to court as they were not sequestered until the Monday afternoon.

In his judgement rejecting leave to Appeal Lord Justice Moses said:

A leading QC described Lord Justice Moses’ ruling a ‘whitewash’ and ‘an intellectually dishonest finding’.  Moses completely disregarded the fact that there was not one armed police officer but in fact several armed police officers and outriders on motorbikes.  In addition there were snipers on rooftops on the route from the prison to the court.

The press and broadcast media reports were overtly linking the gun to a remand prisoner “who planned to use the gun to break out if he was convicted and given a long sentence”.  It is clear on the evidence that the jury would be aware of the raised security and the media storm over the gun.   The risk of prejudice is palpable. 

 The contrast between security during the trial, and that on the day when they retired would not only have been noticeable – it would have been frightening. It would have been an especially phlegmatic juror not to believe that they were being protected from well organised, malevolent forces.

Furthermore a radio journalist, who was one of the independent witnesses at the trial and who also came to give evidence for the defence at the appeal hearing, said that at the time of the trial all the people in his office were telling him that he ought to be careful.  They knew that he had given evidence, albeit positive for Thomas had his defence been properly conducted, and from the various media reports they all connected this gun to Thomas Bourke.  Anyone who took an interest in the local news would have made this connection.

The radio journalist repeated this fact before the judges at the leave to appeal hearing, but they chose to ignore it and Lord Justice Moses made no mention of it in his judgement even though it corroborated the fact that the jury might well have reached the same conclusion.

Lord Justice Moses said that he would only accept the point as a ground of appeal if it could be proven that it did influence the jury.  At this moment in time it is difficult to prove this as no effort to speak to the jury has ever been made.

However, during the November 2008 trial of the drug dealers John Haase and Paul Bennett (see Post Trial), it was revealed that Thomas DID in fact have a protected jury.

All attempts by Thomas’ team to discover documentation relating to security at the court was blocked by bureaucratic indifference:

1. There is no reference to any secret meeting or indeed any meeting between Peter Openshaw QC and Mr Justice Sachs – although this is now a known fact.

2. There is no reference in the log to an increase in security after the Strangeways’s gun turned up.

3. There were no special arrangements for the jury according to this log.  Why therefore were they sent to two separate hotels on two successive nights and why is this fact not logged? See the acting Clerk of the Court, Mrs Bergin's statement in answer to this question.

4. On the morning of the directions hearing, it was served upon the defence that the Recorder of Preston, Anthony Russell (Openshaw’s junior at the time of the trial), would not make a statement in support of Openshaw’s recollections of there being no increase in security, stating the “passage of time” as his reason.  However the following month when he was asked about his recollections of covert recordings, he stated, “I have taken the opportunity of discussing with Mr Openshaw the question of whether there were any PII applications in relation to covert recordings of Thomas Bourke’s dealings with his solicitors.  Both our recollections are we were never informed of any covert recordings of Thomas Bourke and his solicitor.  We are sure that if such a recording had been brought to our attention, we would have remembered it because it would be so obviously important and highly sensitive”.

5. Boxes of court papers relating to Thomas's original trial have disappeared from the court without any explanation.

We believe that Thomas being mentioned as being responsible for a gun in Strangeways at a crucial part of his trial is far more memorable than covert recordings.  We are sure that Mr Russell would have spoken to Mr Openshaw regarding their memories of this event as well.  This surely demonstrates the selective nature of the memories of both these eminent men.

In his Judgement, Lord Justice Moses accepted the fact that the two drug barons, John Haase and Paul Bennett, with the connivance of their Customs handler, Paul Cook,interfered in Thomas’s trial process by having the gun planted in HMP Manchester (Strangeways).  He accepted that they did this with the sole intention of destroying the integrity of Thomas’s trial so they could gain credit with the authorities in a bid to secure themselves the Royal Prerogative of Mercy and thus an early release from prison.  Indeed the conniving Customs Officer described Thomas’s conviction at trial as a “spectacular result for the boys”.  See Post Trial.

We now know from the Manchester solicitor’s gist of 1997 in connection with another trial, that this tactic of the police and other government agencies putting up criminals to interfere in others’ trials was prevalent in Manchester between 1993 and 1997.  It is possible that if Lord Justice Moses had been aware of this, he may have ruled differently.  That said, having accepted that two drug barons and a Customs Officer conspired together to sabotage Thomas’s trial, the only just and logical decision was to quash the conviction.  The fact that he chose not to has led to independent observers in the legal profession calling this part of his Judgement one of the ‘most perverse’ decisions the Court of Appeal has reached in recent times.  They called it a ‘Cheater’s Charter’. 

This decision by these judges means that it is acceptable for anyone, be they Customs officials, Customs informers, participating informants or, by definition, any criminal or agent of the state, to interfere in the trial process with impunity.

Their Lordships turned a blind eye to the fact that agents of the State conspired with criminals to interfere directly with the judicial process.  The ultimate end of their complicity was, in essence, to nobble the jury and send an innocent man to jail.  With this judgement anyone’s right to a fair trial in this country no longer exists.

We have been advised that we cannot go to the House of Lords as it is not a Public Interest point of law.  We beg to differ and hope anybody reading this site will support us in our view.

The second point of appeal concerned a red Ford Sierra, which was linked to the murders.  A man acting suspiciously in a red Ford Sierra was seen by a number of independent witnesses in the car park adjacent to the crime scene inside Chestergate Motors. 

All three prosecution witnesses – Mitchell, McGahey and Ridgeway - eventually gave statements identifying a red Sierra hatchback – reg. No. F340 PTM – as the getaway car.

In fact, on the day in question, this car was only ever independently linked to McGahey – and it was only recovered after the police arrested him.

After Thomas’s conviction, TV Producer Bob Duffield uncovered new evidence in relation to sightings of a red Ford Sierra in the car park at Chestergate.   Shortly before the killings, two passers-by were called across to lift the back of a red Sierra, which was stuck over a small wall.   Both witnesses said that police officers later took their palm prints – presumably to see if there was a match on the recovered red Sierra – F340 PTM.  In fact the police returned to take further prints a second time, although no statements about this line of enquiry were ever disclosed to the Defence.

Behind the scenes, police instructions to show the red Sierra hatchback F340 PTM to these witnesses were unexpectedly withdrawn.   The reason for this is now clear.   When Bob Duffield showed them a photograph of the hatchback, they both immediately said this was not the car they lifted in Chestergate car park.  The one they lifted was a red Ford Sierra Sapphire – which is not a hatchback. It is a saloon car with a boot.

The true significance of this can only be understood in the context of two glaring pieces of negative forensic evidence concerning the recovered red Sierra hatchback.

·         There were no gunshot residues inside the car – although the recently discharged shotgun was “seen” on the front passenger seat

·         Distinct black tyre marks on the workshop floor did not match the tyres of the hatchback – although it was “seen” wheel-spinning in a hasty exit.

Bob Duffield established that there was independent evidence to show that the red hatchback F340 PTM could not have been the red Sierra seen in Chestergate car park.   By analysing contradictions in the evidence given by McGahey – and timed sightings of F340 PTM by independent witnesses – it was clear that there must have been another red Ford Sierra in the car park.

In this context the presence of a red Ford Sapphire, confirmed by the helpful passers-by, is significant in many interlocking ways:

·         It explains the failure of police to find palm-prints on F340 PTM;

·         It explains why F340 PTM cannot forensically be linked to the murders/murder scene;

·         It could have been the murder vehicle;

Their Lordships rejected this ground by relying on the unreliable and mendacious evidence of McGahey and others:

“Mr Cosgrove QC says that it would have been powerful ammunition for the defence to deploy before the jury the knowledge that there was another red Sierra in the vicinity.  That would have helped explain why there was no forensic material to link the shooting or this applicant with the other red Sierra and might have suggested that the car associated with this applicant through the evidence of the Wains was not the car from which the murderer emerged. We find this suggestion wholly fanciful.  The knowledge that there was a second red Sierra in the vicinity cannot, in our view, possibly have helped this applicant.”

In his research Bob Duffield listed numerous Police Actions linked to sightings of red Sierras in the wake of the murders that had been redacted or totally blanked out.  All requests to review these Actions have been rejected.

In particular, we would be interested to see if there is a record on file of a burned out Ford Sierra Sapphire being found during the course of the murder investigation. 

The third point concerned the genuinely independent witness, the radio journalist, who saw the driver of the red sierra emerging from Chestergate Motors and said that it was not Thomas.

This ground was not accepted because Lord Justice Moses said that his evidence was not strong enough.  It should be noted that this witness was certain that the man in the car was not Thomas.  Just after the murders, when his memory was fresh, he reported this fact to DI Richardson (see conduct), a fact that Richardson does not dispute even though he failed to report it.  Had this fact been passed to the defence, the witness would have become a witness for the defence and his information would probably have resulted in an acquittal for Thomas. 

The fourth and last point concerned the police illegally taping legal visits between Thomas and his legal team prior to the trial in 1994.

In his Judgement, Lord Justice Moses said that any such tape is unlikely to see the light of day.  He made no reference to the fact that after the appeal was lodged, Greater Manchester Police destroyed several items of evidence, including four unmarked cassette tapes.

We only received the list of the destroyed items on 18^th October 2007, the morning of the leave to appeal hearing.  We are unsure if Lord Justice Moses saw this list.  If he did, we cannot understand why he made no mention of this fact.  (see taping)

Thomas was not granted leave to appeal.  He was not even granted an extension of time for leave to appeal.  In his Judgement, Lord Justice Moses states, “….quite apart from the merits we would have found no basis whatever for extending the time in bringing this appeal to so long a period.  In those circumstances, we refuse the extension of time and these applications are dismissed”.