SUMMING UP

POST TRIAL



APPEAL

TAPING

KEY PLANT





JUDGEMENT

1. LORD JUSTICE MOSES: This is an application for permission to appeal and for an extension of time of 10 years and eight months in respect of a conviction on two counts of murder. The applicant was convicted on a 10 to 2 majority on 7th December 1994 at Manchester Crown Court. Although this is an application and therefore would be dealt with shortly by this court, we will deal at somewhat greater length. We do so in part because one thing is plain, that members of the family caught up in offences which on any view, whether they be proved against this applicant or not, were horrific, must number themselves as those who suffer the consequences. We wish to make clear that we understand and sympathise with the enormous efforts over the years of those concerned with this applicant have made in order to seek to mount the appeal. We were impressed by Mrs Holt (his sister) who gave evidence of all the work that she had tried to do with others in order to establish that there were grounds of appeal. It is an acknowledgment of their concern and their effort that we have paid very careful attention to what on any view were helpful and succinct submissions made on behalf of this applicant by Mr Cosgrove QC as the product of all the work that he too has undertaken with the solicitors and his junior on this applicant's behalf. The submissions in short were masterly, but our task is to consider whether they have substance.

2. The allegation of the Crown was that the victims, Alan Singleton and Simon Bruno, were shot with a sawn‑off shotgun, fired by this applicant at an office of the premises Chestergate Autos in Stockport. These were premises owned by Mr Watson, managed by someone else, but of which the brother of this applicant, Walter Bourke, owned the lease. The applicant had no formal links with the garage but was, as it was alleged, involved in it. It was his concern at the business of the garage that led to him shooting those two men, as it was alleged, on 22nd November 1993. Believe it or not, they were Department of Transport inspectors. They were shot, so the prosecution said, because the lucrative business which was run by this applicant along with a number of garages had been seriously damaged by the fact that the licence to carry out MOT testing had been lost. It was the anger of this applicant, so it was alleged, that had driven him to murder those two men.

3. There was on any view firsthand evidence that this applicant was responsible for the murder and the real issue at the trial was whether the source of that evidence was so tainted, coming as it did from accomplices, that the jury could not safely believe it. The applicant himself chose not to give evidence and thus the evidence of those eyewitnesses was not contradicted. But the source was undoubtedly such that careful warnings about the absence of corroboration had to be given by the trial judge, Sachs J.

4. Mitchell was one of the witnesses who was said to be an eyewitness and had been working as a mechanic at another garage with which the Bourke brothers were concerned. The applicant, so he said, had been annoyed about the refusal of an application for a new licence to issue MOT certificates and so annoyed by the attitude of the MOT inspectors that he had taken a shotgun and fired it into a barrel. Mr Mitchell said that the gun was a sawn‑off double barrelled shotgun kept with a 'Walther' Pistol in a store room at the back of the garage.

5. The applicant when he heard news which he thought would show that the inspectors were going to come to Chestergate, where the murder took place, had borrowed a Ford Granada with blacked out windows and had gone to the garage driven by Mitchell to the Ministry Offices. The applicant had a shotgun with him and Mitchell placed a pistol under the seat. The visit to the offices came to nothing and the guns were put back into store.

6. On the day of the shooting, Mr Mitchell learned that one of the victims, Mr Singleton, was to come to the garage at 3.30 in the afternoon. That was 22nd November 1993. The applicant had possession, so Mr Mitchell said, of a red Sierra. There was evidence of the applicant's possession of a red Sierra from other witnesses ‑ that is Raymond and Gary Wain who said that a red Sierra had been bought by this applicant for 4,000 in a false name. Mr Mitchell said that the red Sierra had been driven to the garage with false numberplates fitted by Mr Mitchell. The applicant entered the garage, so Mr Mitchell said, wearing a Halloween mask and then shot the two victims, left and drove away.

7. He was, so the prosecution said, witnessed driving away by a number of witnesses but in particular Jonathon Keighron, a radio journalist. He was crossing the road out of which the car, the red Sierra, was driven but did not have in the short time he had to observe the driver an opportunity to see anything more than a quarter of the back of the left hand side of his face. He took the view that the man he saw had thick bushy shoulder length hair ‑ a description which no one suggested fitted this applicant.

8. After the murder it was alleged by the prosecution, supported by another accomplice, a Mr McGahey, that the applicant had told Mr McGahey to take the red Sierra back to the Wains and he gave Mr McGahey a bag, so Mr McGahey said, with a shotgun, the clothes he was wearing, the mask and ammunition to hide in the loft of Mr McGahey's house where there were also other guns. The clothes were burnt. Neither of those witnesses had given that account to the police when they were first seen. Their explanation was that they were frightened to do so.

9. The journey that the car was alleged to have taken included going outside a house where the applicant's girlfriend, Rebecca Shallcross, lived, but as Mr Cosgrove pointed out some of the timings, as one might expect in a case such as this, did not fit. There was evidence that the applicant had told certain people what he had done, in particular Mr McGahey said that he said: "I've done both of them."

10. There was further evidence about the bag in which the shotgun and other weapons were placed, namely that it had been closed with a padlock which the police said could be opened by a key found on the applicant's keyring, although there was substantial dispute at the trial as to whether that was merely a plant by the police since there was at least not wholly satisfactory evidence of continuity about the key on that keyring.

11. What was of importance to the defence was that in the car that was subsequently recovered there was no evidence of there having been a gun that had been fired, let alone any evidence to link this applicant with the car. As we have said, the applicant did not give evidence.

12. We turn then to the first ground of appeal which in this application Mr Cosgrove QC says amounts to an arguable ground of appeal in respect of which there is a reasonable explanation for it being advanced so late. The ground of appeal is that there is evidence to show that the jury might have been unfairly adversely influenced into bringing in the majority verdict in favour of conviction by circumstances, none of which were of the applicant's doing, which might have unfairly prejudiced them against him.

13. Mr Ferguson QC, who was at that time defending this applicant, concluded his speech for the defence on 1st December 1994 and the judge started his summing‑up on Monday 5th December. There had been no particular security surrounding the trial during its course. But on Monday there is evidence to suggest that there was heightened security. We have seen news reports of the arrival of the van carrying the applicant and still photographs that for the purposes of this application we are prepared to accept does show heightened security, although the evidence of those involved at the time suggests that none of those involved in prosecuting the case were consulted about it or knew anything about it. In particular Crown counsel at the time, Mr Peter Openshaw QC (as he then was) had no knowledge of it. But we have seen newspapers that must have been available at lunch time and more importantly the television photographs.

14. The cause of the heightened security relates to the finding on the Friday in Strangeways Prison, where the applicant was being held, of a gun. The material advanced as a result of the researches of counsel, solicitors and the family seems to show that the gun was brought into the prison by a man called Haase and another man called Bennett at least with the knowledge, if not the connivance, of an Officer of Customs and Excise. Whether that could be proved or not is not to the point. We, as we emphasise, are prepared to assume it. There is material to show that its presence in the prison was part of a twisted plan by Haase of revealing the existence of the gun so that he might curry favour in relation to any sentence passed on him and on Bennett for having revealed the presence of the gun and certainly there is ample material to show that a technique such as that, but also taking place in relation to other guns, were the means by which Haase sought to reduce sentences for offences he had committed. It goes further. The material, so it is suggested, shows that Haars' plan was to curry favour by effectively framing this applicant as being responsible for bringing the gun in, thereby increasing the need for heightened security thereby created an atmosphere and circumstance which might prejudice the jury against this applicant.

15. At first blush it does not seem particularly relevant as to how it was that the heightened security came to be put into place. After all, if it did not have any or might not reasonably be supposed to have had any effect upon the jury how it came to exist is nothing to the point. But Mr Cosgrove submits that since it is plain on the material which he wishes to proffer that there was, as he put it somewhat portentously, if he will forgive me saying so, an officer of the State or of the Crown responsible, that taints the whole trial process. He says where it can be shown that an officer of the State is responsible for seeking to pervert the course of justice by unfairly inducing circumstances which would prejudice a jury against the defendant, that of itself, coupled with the real risk that the jury were prejudiced, is enough to afford an arguable ground of appeal.

16. We do not agree. First, we think there is no material upon which it could be reasonably argued that the jury might have been unfairly prejudiced against the applicant. True it is that there had not been heightened security before that final day, but we find it quite impossible to accept that the jury might have been influenced, even if it be assumed that they observed an armed police officer accompanying the van which it would also have to be assumed they knew was carrying this applicant. Still less do we think there is any substance in the belief that they would have attributed the security to the finding of the gun in the prison and then noticed the newspaper reports and read them in such a way as to link this applicant with the finding of the gun. There was nothing in any television report or in the newspapers which mentioned this applicant. The highest it was put was that it might have related to a man on remand. We think the links are far too remote to establish any risk of there being prejudice to the applicant.

17. Mr Cosgrove, with his conspicuous frankness, accepts that absent any real risk of a link the case cannot be got off the ground. We do not think in any event that there is any addition to the force of the point by the allegation that in some way a customs officer was involved or connived at the tortuous machinations of Haase and the other. The case is miles away from those cases where the State must take responsibility for seeking to pervert the law in order to bring a man to trial, still less to secure his conviction. The material, in our judgment, simply is not there to render the point arguable.

18. We turn to the second ground of appeal. There was, in the unused material, material to show that not far away from the site of the murder at the other end of the car park another red Sierra. It is clear that that information had it stopped there was available to the defence at the time. It ought to be noted that in those days, in 1993/1994, red Sierras were not that uncommon and indeed the material now disclosed by the prosecution shows that a number of red Sierras were of interest to them at one stage until eliminated from their enquiries in the light of the eyewitness observation that there was a red Sierra involved in the actual murder. But what Mr Cosgrove QC wishes to point out is that the police were particularly interested in the nearby red Sierra to such an extent that those who had been involved with seeking to remove it from a place where it had got stuck over a ramp, had twice been requested to give their finger and palm prints. That fact and their particular interest in the red Sierra were not disclosed to the defence. 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.

19. 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. It would have been laughable to suggest to the jury that this applicant had had the misfortune to buy on a short term basis a red Sierra using a false name and have false numberplates placed upon it by Mitchell at around the same time the actual murderer was himself using a red Sierra for the purposes of the murder. So striking a chance would not have been credible. We do not think that it could possibly have afforded the defence any benefit to have been able to use the material which has now emerged about another red Sierra. We dismiss the second ground of the application.

20. The third ground relates to the evidence to which we have already referred of Jonathon Keighron. We had the benefit of hearing him give evidence before us. We accept that he was an honest witness seeking to do his best. He was called to show that although his description and identification of the man in the red Sierra was known to the jury not to fit this applicant, he had in fact far more positive evidence to give to demonstrate that this applicant was not the man in the red Sierra who committed the murder. That evidence arose because whilst he was giving evidence Mr Keighron told us he looked at the man in the dock and had taken the view that that was not the man in the red Sierra. Moreover, he spoke to an officer, DCI Richardson, who we are told has no recollection of the matter, after he had given evidence explaining that the man in the dock was not the man he saw in the car and he said he felt relieved about that.

21. When he came to give his evidence it was not perhaps quite as strong as we had expected it might be. He said he thought that the man in the dock did not look particularly similar in any way and when he spoke to DCI Richardson at first he told us he said he did not feel that the person in the dock looked a great deal like the person in the Sierra ‑‑ not particularly strong evidence although he added to that later to say that he did put it in stronger terms to DCI Richardson. But none of that apparent vagueness is at all surprising. The witness Keighron saw the man in the red Sierra for but a fleeting moment. What was, as he told us, particularly significant was his thick hair and that was what had remained in the memory and we are quite satisfied it was that which led him to believe that this applicant was not the man in the car because no one ever suggested that this applicant had thick hair, still less that it was a significant feature of his appearance. We do not accept that the evidence of Keighron has the impact for which it was contended. Any description he gave one way or the other has to be viewed in the context of that fleeting glimpse of the quarter of the back of his head. In those circumstances we dismiss the third ground of the appeal.

22. The fourth ground of the appeal relates to the non‑existence of covert tapes. Mr Cosgrove QC submits that there are real grounds for believing that an unlawful tape was taken of legally professionally privileged conversations between this applicant and his solicitor. It almost goes without saying that such a tape no longer exists, as Mr Cosgrove QC points out, it would not, would it? Mr Bentham QC says that extensive investigations have taken place. Conscientious enquiries have been made and no such tape has been revealed. But however conscientious enquiries might be, however careful the subsequent investigation that for our part we regard as being exceptionally thorough, such a covert tape is unlikely finally to see the light of day. We therefore have to look at what evidence there is that such a covert tape did exist and might have enabled the prosecution at an early stage of the investigation to hear a discussion between this applicant and his solicitor.

23. The evidence is that after his arrest one of the officers obtained authority to place a covert listening device in the cell in which this applicant was detained. Indeed it was that very cell in which this applicant was visited by his solicitor and we have seen a chronology which makes that good. Indeed it is confirmed because at least after the solicitor visited this applicant, this applicant and his brother were allowed to meet together in the cell. An unusual course of conduct, the logical explanation of which can only be that there was a covert listening device placed in the cell designed to see if any conversation between the two brothers might be of assistance to the prosecution. But it does not stop there. It is suggested that there is further material to show that the prosecution did indeed make a covert tape of a conversation between this applicant and his solicitor, consisting of a transcript of a conversation between this applicant's brother and another solicitor, Mr Kwasnick. It is necessary to outline the context in which Mr Kwasnick appears upon the scene.

24. Mr Kwasnick had been a solicitor instructed by this applicant in relation to the allegation of murder, but apparently he had not felt it advisable to act in relation to that allegation and a different solicitor was retained. Indeed that solicitor visited this applicant on 27th November 1993. The circumstances in which Mr Kwasnick, that solicitor's, conversation with this applicant's brother was taped and transcribed appear to us to be as follows. Mr Kwasnick visited this applicant's brother with another member of the firm of solicitors at 12.30. He initialled an entry in the custody officer's record as follows:

"Mr Kwasnick and Mr Elliot solicitors to see WJB in interview room, not as legal representatives but as non‑privileged visitors."

The entry, and we have seen the original, is then signed underneath that with the initials of both Mr Kwasnick and Mr Elliot and the next entry is at 12 55:

"Solicitors have left custody office. Detained person returned to cell."

We should add that this applicant's brother was detained at that time in relation to being an accomplice to the murder.

25. The defence say that there is no basis for thinking that Mr Kwasnick and Mr Elliot were not acting as solicitors at the time. The signature was obtained as a device and thus it is that a tape was made and transcribed of legally professionally privileged conversations which should never have been taped. That lends force to the suggestion that two days before the prosecution had unlawfully recorded a conversation between this applicant and his solicitor in relation to the murder. Added to that is the knowledge that certainly one of the officers who would have had custody of tapes and of marshaling the exhibits has, to put it no higher, a decidedly shady background that has led to him being cast from the force, although under the guise of a rather more polite explanation.

26. We think there is merit in the submission that the only reason for bringing the two brothers together in that cell would have been for the purposes of listening and recording their conversation. That would therefore have been in the very cell in which the applicant was himself discussing his case with his own solicitor. We also accept that it would be a serious matter which would have serious consequences for the fairness of the trial were it to be established that there was a real risk that the prosecution had obtained legally professionally privileged conversations with this applicant and his solicitor. But we are unable to make and link the steps between the different points advanced by the prosecution. We heard and saw Mr Kwasnick. We are quite unable to accept that he signed that entry for any other reason than for the fact that he was not visiting Mr Walter Bourke, the applicant's brother, in any capacity other than as a private visitor. In other words, he had made clear to the police officers that he was not going to see him as a solicitor. There was thus no basis upon which the police would not be allowed to transcribe that conversation.

27. There is, and this applicant and the family must face this fact, no evidence at all, even assuming the fact that they were listening to the two brothers, no basis whatever for saying that unlawfully the police listened to or recorded a conversation between him and his solicitor. This court in considering whether it is arguable that the verdicts were unsafe cannot act on mere speculation or suspicion. There must be some substance in the evidence which this applicant seeks to call so long after the trial. In our judgment there is none and we dismiss the fourth ground of this application.

28. We turn then to the application for an extension of time. In relation to that this applicant's case becomes even more difficult. Mr Cosgrove QC with conspicuous frankness tells us there is no basis for suggesting that the defence did not have in their hands material by which this appeal could have been advanced much earlier than it has been. He was only instructed in 2001 but in relation to grounds 2, 3 and 4, as he accepts, this application could have been launched far earlier than it was. In relation to ground 1 we accept that until there was material to show that this applicant was not responsible for bringing the gun into Strangeways and thus the heightened security, that ground could not be advanced. That seems to us to be a good point. But it does not explain the lapse of time between 2001 and 2005 when the application was launched.

29. We do not wish in any way to diminish the effort and hard work that has been done in this case, but 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.