Case No: 201300107 C1, 201302507 C1 & 201302510 C1
Neutral Citation Number: [2015] EWCA Crim 1815
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE BEAUMONT, The Recorder of London 
T20087387/7399
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/11/2015
Before :

LADY JUSTICE MACUR DBE
MR JUSTICE COOKE
and
HER HONOUR JUDGE CUTTS
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Between :

	Gavin GRANT
Damian Martin WILLIAMS
Gareth Damon DOWNIE	       1st Appellant
      2nd Appellant
      3rd Appellant

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	Regina	   Respondent	

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Mr N Rumfitt QC (instructed by MTC & Co Solicitors) for the 1st Appellant
 Mr J Lyons (Pro Bono) for the 2nd Appellant
Mr N RumfittQC (instructed by EBR Attridge LLP) for the 3rd Appellant
Mr M Heywood QC and Ms R Barnes (instructed by Crown Prosecution Service) for the Respondent

Hearing dates : 27 October 2015
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Judgment
Lady Justice Macur DBE : 
1.	      On 26 July 2010 the appellants, Grant and Downie, were convicted of murder and the appellant Williams of conspiracy to murder following retrial. They were each sentenced to imprisonment for life, with 25 years specified as the minimum term under s269 (2) Criminal Justice Act 2003. They all appeal against conviction by leave of the Full Court on the basis of non-disclosure of material potentially going to the credibility of the main prosecution witness, known as Susan Norwich. 

2.	     On 23 May 2004, Leon Labastide was shot dead outside his home in North West London in what was believed to be a gang related attack. Men were seen fleeing the scene and “powerful motorcycles were heard.” Grant was first arrested on 14 October 2004. He denied involvement in the murder. 

3.	     On 22 May 2004, an aggravated burglary had taken place at the home address of an associate of the accused in which armed men forced entry into the premises. Three young women jumped from a first floor window. Two of the women sustained injuries and the third, a 16 year old girl who became known by the pseudonym “Susan Norwich”, was to become the main prosecution witness although she did not co-operate with police at the time. 

4.	      No charges were brought at the time of Labastide’s murder and gang related attacks and killings continued in the area, including the murder of a man called Jahmal Moore. The appellant Grant was tried and subsequently acquitted of involvement in that offence. One of his co-accused who had been convicted then offered himself as an informant and made a statement implicating Grant. He did so to secure a reduced sentence.  However, the prosecution application to quash Grant’s acquittal was rejected. The then Vice President, Lord Justice Hughes, sitting with Penry-Davey and Stadlen JJ on 9 June 2009 considered the proffered evidence from M, the convicted co-accused, to be patently unreliable describing him as “a fluent and circumstantial liar who says whatever suits him and is adept at tailoring it to the known facts.”

5.	      However, in 2008 the police had already been led to Susan Norwich by M, also known as “Spider”, who alleged that he had shared a cell with the previous partner of a material witness to the Labastide murder. Police identified, located and travelled to her home to speak to Susan Norwich without warning. She gave an account of being present during a conversation in which Grant and Downie arranged to kill the victim, at Williams’ instigation, because he was believed to be responsible for the aggravated burglary as indicated above, and being present when Grant and Downie returned after the killing, but she refused to give or sign a statement. Eventually in September 2008 a draft witness statement was obtained from her and she was interviewed on tape as a significant witness. DS Wright was allocated to her as a liaison officer. 

6.	     The appellants were arrested and charged in October 2008. Grant denied the offences and declined to answer questions in subsequent interviews; Williams made no comment and Downie gave a prepared statement denying the offence and refused to answer further questions.

7.	      Susan Norwich’s level of co-operation with the police fluctuated constantly. She expressed fear for the safety of herself and her child but consistently declined witness protection. She told DS Wright that Williams’ mother advised her to retract her statement. Susan Norwich signed a witness statement in January 2009. It became clear that her real identity was known to the appellants. On 21 January 2009 she sent a number of abusive text messages to DS Wright since she believed that her identity had been disclosed by the Crown Prosecution Service. However, a few days later she signed her witness statement and attended an identification parade and identified the three appellants on 27 January 2009.

8.	      In April 2009 she signed a retraction statement but gave evidence as a prosecution witness in the first criminal trial held in autumn 2009. There is no doubt that she was a crucial prosecution witness. There was and is no sufficient direct evidence without her.

9.	     The defence case ran at trial was that Susan Norwich had fabricated the account. She had close links with gang members and was in a relationship with a man called Cephanis who the defence believed had been involved in the murder of Jahmal Moore. She had concealed this relationship from the police. When giving evidence she was aggressive and prone to outbursts. The issue for the jury was whether the evidence of Susan Norwich was credible and reliable.  The jury were unable to reach verdicts in relation to the Labastide case on which the three appellants were subsequently retried.

10.	      On 10 March 2010 Susan Norwich was arrested for serious drug offences following a search of her home address during which a significant amount of heroin had been recovered. She was charged. DS Wright was informed the next day. On 6 June 2010 she was further arrested for breach of bail conditions, possession of cannabis and assaulting a constable in the execution of his duty.

11.	     The defence were informed of these arrests and provided with a log of police contact with Ms Norwich from first dealings with her until the start of the retrial.  Prior to her cross-examination, the appellants were made aware that DS Wright had attended Susan Norwich’s plea and case management hearing  in the Crown Court at Bristol on 2 July 2010 and that the case had been adjourned for reasons canvassed by the parties with the judge in chambers, to which DS Wright had not been privy. Susan Norwich was cross examined amongst other things about her own arrests, as well as alleged inconsistencies in her evidence between the first and second trials in 2009 and 2010 and her blowing “hot and cold” about giving evidence. She was not cross-examined as to whether she had at any time been offered any inducements or anticipated receiving any assistance in relation to the drugs charges she was facing in Bristol in exchange for her giving evidence in the 2010 trial.   

12.	     On 23 July 2010 the appellants were convicted as indicated above by a majority. No appeal arises from the summing up or trial process. They were sentenced on 26 July 2010. There is no appeal against sentence in the event that these convictions are upheld.

13.	     On 29 July 2010, Susan Norwich changed her plea to guilty. She received a suspended sentence of imprisonment, which was entirely unusual in the circumstances of the case she faced. Unsurprisingly, it was suspected that she entered into a deal with the police involved in the prosecution of the appellants.  What is clear is that she was provided with “a text” as a direct result of the assistance she had provided in giving evidence in the appellants’ trial. Further disclosure was made by the Prosecution, including Susan Norwich’s solicitor’s file – she having waived privilege, and police message “M 719” which referred to a “text”.  Prosecuting and defence counsel in Susan Norwich’s own case have provided their recollection of events during the drug offences proceedings. The appellants now contend that there is clear evidence that two police officers acted in bad faith in withholding information and that taking all the other circumstances of the trial into account there is a real possibility that the jury would have arrived at a different verdict if the necessary disclosure had been made. The full court gave permission to appeal on the renewed application of leading counsel for the appellants Grant and Williams, and junior counsel for the appellant Downie. 

14.	      Witness statements have been recently prepared by Peter Hine, Acting Detective Inspector responsible for dealing with “Trident” appeal cases, in relation to the enquiries made “both covertly and overtly” with regards to the events of police contact with Susan Norwich at the time of her appearance as a witness in the re-trial and as defendant in the drugs case in Bristol. They have not been subject to cross examination, nor have the officers who are accused of malpractice. We consider that the appellants leading counsel, Mr Rumfitt QC’s, stance on this is entirely realistic; he has no wish to delay the appeal. We have had regard to the information they contain but have drawn our own conclusions on the facts.

15.	      The respondents acknowledge a failure to disclose relevant documentation which did meet the test for disclosure but argue this did not render the conviction unsafe on the basis that there was no real possibility that the jury would have arrived at a different verdict had the message referring to a text and the circumstances in which it had been drafted been disclosed. The papers in Norwich’s case were disclosed to the defence as unused material prior to the retrial. The defence cross examined her on the facts arising from this material which in turn enabled the jury to consider the credibility of the stance she was maintaining in the face of those proceedings. During cross-examination she was warned by the judge regarding self-incrimination and predominantly refused to answer specific questions relating to the facts underlying her prosecution. It was open to the defence to cross-examine Norwich on whether (i) she had been offered any inducements in respect of those proceedings to give evidence against the appellants in the retrial or (ii) she expected any assistance given that she had already been a prosecution witness in the original trial and would have been entitled to assistance on that basis. The defence did not do so. The receipt of a “text” was something to which Norwich was entitled and this would have been known to the defence. The police did not give evidence on her behalf during the appellants’ case.

16.	      The recollections of the advocates in Susan Norwich’s own criminal case are obviously provided in good faith. We proceed on the basis that her defence counsel correctly assessed the case against her as strong and awaited his chance to advise her on the likely outcome of a trial. He may have given an indication of this to the prosecution advocate at the beginning of July, and prior to his application for a ‘Goodyear indication’ to account for the endorsement on the prosecution file on 2 July 2010, three days prior to the start of the appellants’ retrial on the 5th. It is apparent that he did expect an officer in these appellants’ criminal trial to attend at the hearing of Susan Norwich’s case.  

17.	      We have come to the clear view that the documentation now made available entitles Mr Rumfitt QC correctly to describe the conduct of two police officers, ex DI Horsley and DS Wright in terms of ‘impropriety’. The nature of the contact between DS Wright and those who represented Susan Norwich in early July quite clearly contemplated the provision of a text regardless that he explained in his note prepared in the course of the post trial investigations that his use of the word “text” in the internal police message dated 2 July 2010 (M719) was shorthand for a letter to be given to her legal representatives in Bristol describing her assistance and to which she was entitled. The letter subsequently produced for the purpose of her sentencing dated 28 July 2010 is demonstrably inaccurate and misleading. The text was unauthorised. DI Horsley attended and gave evidence before the sentencing judge in chambers, contrary to the practice enunciated in R v X [1999] 2 Cr. App. R 125. Fortunately, in order that the appellants should be under no illusion, we have a transcript of the proceedings. There is some rectification of the picture of Susan Norwich’s willing and unwavering assistance in the trial of the appellants but it is not a candid account. For the avoidance of doubt, we note that the contact log is not a complete record of the contacts between police and Susan Norwich, but are satisfied that material contacts were, at least in the main, noted. 

18.	     Mr Rumfitt QC recognises that this impropriety in itself is not sufficient to overturn the convictions. He exonerates trial prosecution counsel from any professional misconduct and is certain that they too were unaware of events. This, he argues, highlights the point. The police’s concealment of the matter from prosecution counsel was a tacit acknowledgement of the devastating effect of the information on the defence cross examination of Susan Norwich.

19.	      Mr Heywood QC, who did not appear in the trial below but appears on behalf of the respondent in the appeal, assisted by trial prosecution junior  counsel, confirms that trial counsel were not aware of the information that has subsequently come to light. If we correctly perceived that he suggested that the prosecution duty of disclosure was rendered redundant by the absence of information available to counsel, or the policing authority in London or else that different rules apply in cases in which it is difficult for the prosecution to obtain the assistance of witnesses to gang related offences we firmly squash the notion. We accept unequivocally Mr Rumfitt QC’s argument that there is a corporate knowledge implied by the possession of the relevant information that falls to be disclosed by any arm of the prosecution. We note that whilst Mr Heywood QC attempts to “airbrush” the behaviour of the officers, he nevertheless concedes that the misconduct described above in terms of the text may well have led to disciplinary procedure if DI Horsley remained in office.
 
20.	     The issue for us, therefore, is whether the disclosure of this information prior to the trial commencing, or as events evolved, prior to the cross examination of Susan Norwich would have likely made a difference to the verdict of the jury correctly directed. The impact that it would have had upon the conduct of the trial by those who represented the appellants and the additional potential for showmanship, in albeit proper, cross examination is, with respect, otherwise irrelevant.  

21.	      It was submitted that, had the defence known that counsel for Susan Norwich had it in mind before she gave evidence in the murder trial to seek a Goodyear direction thereafter with a view to a plea and sentencing help from the police for the drug offending by way of a text, it would have sought and obtained an adjournment of the murder trial until the drugs matter had been resolved. We consider that to be an unrealistic submission. On a murder retrial of this kind, there would have been no such possibility of an adjournment and the reality is that the defence, with such disclosure as had properly been given, would then have had some pieces of paper and material to use in cross-examination on the point of which they could not already have failed to be aware – namely that, whether Susan Norwich pleaded or not, she would be entitled to some credit against sentence for any assistance given to the police.  

22.	      Mr Rumfitt QC argues that a different verdict was a real possibility since he and other defence counsel  would have had available to them the reason why Susan Norwich was “prepared to put herself through the trial process again”. He concedes that her time in the witness box in the first trial would have been difficult in view of the ammunition available to be deployed against her. That is, she was questioned as to the veracity of her evidence against the appellants on the basis that she sought to protect the identity of the murderer with whom she had a child and thereby sought to protect him. With refreshing candour, counsel admits that the line of cross examination failed spectacularly in the retrial when DNA results established conclusively that he was not the father of Susan Norwich’s son; whatismore, the absence from the retrial of the patently unreliable prosecution witness, M (“Spider”) said to have been privy to confessions by the appellants, removed any further mileage from attempting to demonstrate her association with rival gang members.
  
23.	     At the time of the retrial Susan Norwich was a witness in a precarious position as mother to two young children liable to be incarcerated. Whilst he asked her questions about the impact of her arrest for drug offences upon the welfare of those children, Mr Rumfitt QC said he did so to thwart any attempt that may be made to seek the sympathy of the jury by reference to the danger to her children she had created in giving evidence against the appellants. He argues that in light of her previously displayed antagonism towards the police there was reasonably no thought in the minds of the three experienced criminal leading counsel for  the appellants that she would have ‘struck a deal’ with the police and the prospect of uninformed cross examination on such a point was a risky option. Yet they could not fail to be aware that any assistance she had already given to the prosecution in the first trial and any further assistance in the retrial would inevitably lead to a request for a text on any later sentencing for the drug offences, whether she pleaded guilty or not.  It was open to the defence to cross-examine on the basis of expectation of benefit in the drugs trial by virtue of giving evidence in the murder retrial but the force of such cross-examination would, as must have been realised, if attention had been directed to the point, have been diminished because she had already given evidence in the first trial, long before the drugs offending in similar vein to that which she gave at the retrial. 
 
24.	      We agree that this can properly be categorised as a ‘one witness’ case with scarce corroborative detail provided by independent witnesses. We have no doubt that the defence would have utilised the non disclosed material to dramatic effect; probably more so in relation to the challenge to the particular police officers’ evidence than to that of Susan Norwich, having regard to the transcripts of her evidence in both trials and her undoubted spirited rejoinder to matters raised in cross examination of her in relation to her credibility. We recognise the force of the arguments made on behalf of the appellants and have little doubt that, but for the undisputed chronology relating to Susan Norwich’s position as witness for the prosecution first and defendant in her own right later and the fact of the nature of the evidence she gave in the first trial, we would regard these convictions as unsafe.

25.	      However, a careful appraisal of the relevant timeline in relation to her providing information and evidence to the police and a reading of the transcripts of her evidence during both trials convince us that these convictions are safe. That is, she first ‘engaged’ as a potential witness for the prosecution in 2008 at a time when it could not be suggested that there was a realistic contemplation that she would trade false evidence for the prospect of her own criminal conduct being overlooked; her ‘significant witness interview’ was taped in September 2008, she signed a witness statement in January 2009 and gave evidence in October 2009; between 2008 and 2009 she was subject to a degree of witness intimidation and on occasions showed strong antipathy towards the police, on one occasion signing a retraction statement. Her arrest for possession with intent to supply Class A drugs was made on 10 March 2010. The fact of her arrest and intended prosecution was known to the appellants’ counsel at re-trial.  

26.	      There was a transcript of her evidence from the first trial which was patently used before the jury in attempts to undermine her reliability. Notably, she had been cross examined in the first trial, as she was reminded in the second, in relation to her alleged willingness to give false evidence to escape the prospect of her own prosecution for perverting the course of justice. She was challenged entirely properly but robustly on matters going to her credibility, not least the difference in her accounts, but showed remarkable resilience in the face of attack. Significantly, in our view in the light of the context of this appeal, her evidence in the retrial contrasts to some degree with that in the first in so far as it displays a greater vagueness about matters of detail. She cannot be demonstrated to have ‘firmed up’ her factual evidence, whether with an inducement of the text or otherwise.

27.	      The misbehaviour of the police officers may well have created a distraction but we are not satisfied in all the circumstances of this case that a conscientious jury properly directed would have been left in doubt as to Susan Norwich’s credibility by explicit reference to the “text” or the circumstances existing when she gave evidence and the possibility of police assistance in relation to a sentence for her drugs offending. The broad consistency of her evidence at the first trial and the retrial remained entirely compelling. Consequently, these appeals against conviction are dismissed.