Five men serving prison terms of up to 24 years for a £53 million drug smuggling plot have lost their bid to appeal – despite fresh scientific evidence suggesting the version of events presented by the prosecution at the trial was ‘impossible’.
Almost four years after the first of three investigations casting doubt on the convictions, the Criminal Cases Review Commission (CCRC), which has the power to refer possible miscarriages of justice to the Court of Appeal, has decided to take no action.
In doing so, it is rejecting expert evidence that the fishing boat reputedly used to pick up holdalls packed with cocaine from the English Channel never actually reached the spot where the bags might have been dumped. The CCRC has also disregarded fresh evidence from a recently retired senior drugs crime investigator, who found ‘serious discrepancies’ in the surveillance records.
According to the prosecution, the Galwad-y-mor sailed through the wake of the Oriane, but new evidence showed this did not happen proving the men did not pick up the cocaine
The CCRC’s 78-page ‘Statement of Reasons’, makes clear that it did not commission any of its own scientific tests, nor seek advice from a single independent expert to confirm or deny the men’s claim of innocence.
The statement’s author, CCRC commissioner David Smith, said he did not consider any such tests were necessary. In his view, there was still no ‘real possibility’ that the men might win an appeal.
Isle of Wight crab and lobster fisherman Jamie Green, who owned the 39ft Galwad-y-Mor, was jailed for 24 years in 2011, as was casual labourer Zoran Dresic and Mr Green’s lifelong friend, Jonathan Beere. Crewmen Danny Payne and Scott Birtwistle got 18 and 14 years respectively.
According to the prosecution, Green sailed his boat into the middle of the Channel in a Force 8 gale on the night of May 29, 2010. There, it was claimed, the Galwad-y-Mor crossed the wake of the Oriane, a Brazilian container ship, just after 12 rucksacks containing a total of 560 lb of cocaine had allegedly been thrown from its deck.
Working in total darkness, with waves up to 30ft, Green and his crew were said to have retrieved the bags in about two minutes. Then, after spending ten hours fishing, they returned to the inshore waters of the island’s Freshwater Bay, where, in broad daylight, the crew threw the bags back into the water. They were found next morning by another fisherman, and retrieved by the Serious and Organised Crime Agency (SOCA).
As previously revealed, defence solicitor Emily Bolton consulted a leading marine GPS expert, who concluded the closest the paths of the boats came to each other was 175 metres (190 yards). Moreover, he said the Galwad-y-Mor could not have sailed to the spot where the drug bags were subsequently found anchored to the seabed because the water is too shallow.
‘This new analysis, based on evidence that was not available at the trial, undermines the case put to the jury,’ Ms Bolton said. ‘It should have persuaded the CCRC to refer it to the Court of Appeal.’
She said the commission’s decision not to was ‘baffling and perverse’ – and said it had shown ‘a lack of understanding of the technical evidence’.
But the CCRC said the new evidence was unlikely to make a difference to the outcome because another expert, Mik Chinnery, had already told the trial jury it would have been ‘impossible’ for Green’s crew to collect the bags from the water, yet they still found the men guilty by majority verdict.
However, Mr Chinnery testified about the difficulty of locating and recovering the bags from the heaving sea, not the course of the boats.
But Mr Smith told The Mail on Sunday he disagreed that the trial expert was making a fundamentally different point. He added: ‘We didn’t consider the new analysis would make a difference.’
Mr Smith also rejected a new report from the Plymouth Marine Laboratory, which says currents on the night would mean any bags thrown from the Oriane would have floated away from the Galwad-y-Mor, not towards it. There were ‘too many variables’, Mr Smith said, and if the Galwad was ‘in the vicinity’ of the Oriane, then it was possible she did pick up the drugs.
As for the claim that the water was too shallow in Freshwater Bay, Mr Smith said it was uncertain whether the anchor to which the bags were tied was heavy enough to stop them moving from deeper waters where the boat could have sailed. He rejected suggestions that the CCRC should have conducted tests to settle this, saying: ‘I don’t think it can be established that the anchor didn’t move.’
The CCRC also rejected fresh evidence from Don Dewar, a retired senior anti-drug officer who found ‘inexplicable gaps’ in the surveillance records used to convict the men. Mr Smith agreed there were discrepancies, but not enough to show they had been fabricated.
The CCRC’s decision comes amid mounting concern at the plummeting rate at which it is referring cases for appeals – down from more than three per cent of applications five years ago to just 0.7 per cent last year – as it faces budget pressures.
Ms Bolton said the men now plan to challenge the CCRC decision with a judicial review.