INCOMPETENCE OF THE DEFENCE TEAM
After being remanded to Strangeways in November 1993 and suffering from shock and trauma at the situation in which he had found himself, Thomas met various inmates who recommended a London ‘solicitor’ called Paul Rextrew who worked for Attridges Solicitors.
Rextrew, a former detective turned legal executive, was instructed to act for Thomas in preparation of his defence. After reading the depositions, Rextrew told Thomas that the case against him was very weak. The CPS had dropped the case against his brother even though they were supposed to have been together at the murder scene. Thomas nevertheless instructed Rextrew to mount a robust defence. He told him to interview numerous witnesses and to commission a forensic report to discredit Mitchell’s seventh and final account of what happened at the time of the murders. His instructions were largely ignored, including his request to Rextrew to arrange an identity parade.
As the preparation of the case was under way, Rextrew said that the case for the Crown was so poor that the jury would not accept the standard of prosecution witnesses. This being the case, Rextrew was of the opinion that there was no need to run a defence. Thomas strongly disagreed and insisted that a full defence be mounted, including a defence of alibi. In other words, Thomas was adamant that he was going to give evidence at court.
Rextrew’s preparation of the case was appalling. He rarely visited his client and effectively ran the case from London, presumably acting on his own view that there was no need to run a defence. Thomas very rarely saw him and despite numerous requests he failed to trace and interview key witnesses or commission forensic experts. He was not even present at the trial.
Thomas asked Rextrew to have the padlock and the key that opened it forensically tested but this was not done. (See key plant .). He was also asked to challenge the incongruity of Mitchell’s ‘eye-witness’ statement by consulting forensic experts. This was done at the last minute and completely destroyed Mitchell’s credibility. But defence counsel ruled that the report came too late to be served on the prosecution and could not therefore form part of the defence. This was a major blow because Mr Ferguson did not effectively present this powerful evidence that challenged the veracity of Mitchell’s statements. Simply put, he could not have been where he said he was. He was lying.
Neither Thomas nor his family had previous experience of how to prepare a defence. The report supplied by Paul Rextrew to Mr Ferguson QC was woefully inadequate. Just before the trial, Mr Ferguson went to see Thomas and spent just one hour with him. We now know this is an absolute scandal.
On the first day of the first trial when the first witness, David Mitchell, had given evidence, it was obvious to all that Mr Ferguson had no proper knowledge of the case. Neither he nor Rextrew had even read the depositions or the unused material. Crucially, Mr Ferguson was in no position to cross-examine Mitchell.
At the start of the second day of the first trial while in a court holding cell, Thomas told Mr Ferguson that he did not know the case. Mr Ferguson agreed that he had been lamentably prepared and said he would ask for two more days. He told Thomas that if he could not get this extra time, Thomas would have to sack him.
Mr Ferguson then went to see the prosecution to ask for two extra days. However, during this meeting, it became apparent that at least two members of the jury knew one of the widows and this led to the jury being discharged.
Mr Ferguson should have told Thomas that his case was so badly prepared and resigned from it at that stage. Indeed an honourable man would have resigned and would have strongly advised Thomas to get a new legal team. This he did not do. Mr Ferguson would have known that no real work had been done in preparing Thomas’s defence but it was clear that he did not care.
He decided to continue representing Thomas and, in the time between the first and second trial, he saw Thomas for approximately six hours. He managed to receive instructions on the three main prosecution witnesses; Mitchell, Ridgeway and McGahey. Of course there were other witnesses in this case coming to give evidence against Thomas. Both Mr Ferguson and junior counsel later conceded that they were forced to prepare the case on the run.
Thomas asked them both to ask the judge for further time to prepare the case and for the trial to be moved out of Manchester. Mr Ferguson said this would not be wise, as it would make the court more prosecution biased.
Thomas had already served an alibi statement and wanted to give evidence to this effect and to call witnesses to this effect.
No instructing solicitor was present during these hasty meetings between Thomas and legal counsel - and no statements were taken from key witnesses who would have been extremely valuable to Thomas’s defence. As a consequence Thomas was put under enormous pressure not to run a defence – Rextrew’s original strategy by default.
Despite the fact that both defence and prosecution forensic experts had subsequently agreed that Mitchell’s testimony could not be true in respect of his position in the room, defence counsel allowed an earlier forensic report to be read unchallenged.
Mr Ferguson did not even seek to discredit Mitchell on this point under cross-examination – and yet it went to the heart of his credibility.
During the trial, Gary Waine, a witness for the prosecution, gave Thomas a rock solid alibi. On his evidence Thomas was at his own garage at the time of the murders and could not possibly have been at the scene of the crime.
In his summing up, Mr Justice Sachs conveniently ignored this clear evidence of alibi by incorrectly moving the sighting of Thomas by Mr Waine forward in time. This discrepancy in Waine’s evidence was repeated at the leave to appeal hearing on 18th October 2007. Lord Justice Moses wrongly relied on the trial judge’s summing up instead of reading the handwritten notes that were taken at the time by the prosecutor.
At the leave to appeal hearing, Moses was scathing of the fact Thomas did not run a defence in 1994. He said that to not run a defence forty years ago was acceptable, but twelve years ago it was not acceptable. He said that he remembered the trial and that he himself took an adverse inference from the fact that Thomas did not run a defence.
If Lord Justice Moses is correct, then the advice given to Thomas by Mr Rextrew, Mr Ferguson was twenty-six years out of date.
It was only after the conviction that we learnt that Rextrew was not actually a solicitor. He had previously been a police officer but was allowed to retire from the police force under a cloud after fighting allegations in respect of Operation Countryman.
When Mr Ferguson was asked by Thomas’s solicitor in 2007 for his recollections of the trial, he stated that he had no memory whatsoever of the case or any of those involved in it.