Dunn & Ors, R. v

1. LORD JUSTICE GOLDRING: On 20th July 2006, in the Crown Court at Birmingham, James Dunn, Luke Turner and Craig Dooley were convicted of murder, Dunn by a majority of ten to two. On 21st July they were sentenced to life imprisonment, with a minimum term of 26 years for Dunn and 30 years for Turner and Craig Dooley. Co-accused called Liam Dooley and Gary Higgins were also convicted of murder. Dunn appeals by leave of the Full Court. The Full Court granted leave "on the basis that [the evidence of Maria Vervoort] may be different in material respects from what she said subsequently at the trial of Conrad Jones".

2. Luke Turner and Craig Dooley renew applications for leave to appeal against conviction after refusal by David Clark J. For reasons which have already been explained to their counsel and will become apparent, we adjourn their renewed applications for leave.

The facts

3. The deceased, Clinton Bailey, was released from prison on 1st April 2005. At shortly before 9 pm on 4th April 2005, outside the Three Horseshoes public horse in Coventry, he was shot. He died on 16th April 2005 in hospital. It was the prosecution case that he had become involved in a dispute between someone called Ronnie Murray, who was a friend of his, and Liam and Craig Dooley, who are brothers. There had been a previous incident in which Murray had punched Liam Dooley. The disputed detail of what led up to that incident does not for present purposes matter.

4. Murray claimed that Liam Dooley wanted £10,000 or he, Murray, would be shot. Murray was not prepared to pay. He contacted Dunn, who was a friend of his. He asked him to sort it out. Dunn told Murray that Liam Dooley would not drop it. Dunn's case was that he knew about the dispute, was asked to help by both sides but made it clear that he did not wish to be involved.

5. The deceased became involved. He knew both Murray and the Dooley brothers. It was the Crown's case that he offered to mediate. That involvement, said the Crown, led to his being shot.

The events of 4th April 2005

6. At about 11.05 that morning the deceased was dropped off in the vicinity of Proffit Avenue in Coventry, where Liam Dooley lived. The Crown's case was that there was a meeting between the deceased, Liam Dooley, Craig Dooley and a third man. The deceased called Murray twice. The first time he passed the telephone to Liam Dooley. They argued. Liam Dooley told Murray to forget it and to see what would happen. He then hung up. The second time was about half an hour later. The deceased called again. He referred to lads turning up with metal things. Murray took that to mean guns. He asked Murray, according to Murray, to bring the money. Murray said he was afraid for the deceased. In the background he could hear Liam Dooley's voice saying that they were going to put him in the van.

7. Murray said he tried to telephone Dunn. He could not get through until that afternoon. According to Murray, Dunn told him that the deceased was all right and had left them. The Crown suggested that that was clear evidence that Dunn had been present at the meeting, knew about the threats to the deceased and knew that at that stage the deceased was uninjured. If he was present at the time of the second call from the deceased, Dunn was present when, if Murray is right, guns were produced.

8. Murray's evidence was corroborated to this extent. The telephone evidence indicated that there had been contact between Dunn and Murray twice that afternoon.

9. Dunn disputed Murray's account. He said he had not been near Liam Dooley's place. He had not seen the deceased. They did not speak about the incident at all. He did not know therefore whether or not the deceased was injured.

10. Liam Dooley's account of the meeting was that he spoke to the deceased because he wanted a stolen car in order to rob a drugs supplier. Liam Dooley said that Dunn had nothing to do with the meeting.

11. At 12.17 that morning the deceased telephoned a man called Conroy to ask him out for a drink. He said nothing about being threatened with guns.

The Binley Park Inn

12. At lunchtime on 4th April 2005 the witness Maria Vervoort went to the Binley Park Inn in Coventry. She was with Higgins, with whom at that time she was having a relationship. Higgins contacted Dunn. He wanted some cocaine. Dunn arrived with another man. Vervoort said she did not know that other man. She said there was talk about trouble with Murray (referred to, she said, as "Ronnie") and that the deceased had been running his mouth off. Vervoort said that Dunn spoke of having already threatened the deceased once.

13. Dunn and Higgins disputed Vervoort's account. The conversation, they said, had not been about Murray or the deceased.

The car journey from the Binley Park Inn to Merrick Lodge

14. Dunn drove Vervoort and Higgins to the Merrick Lodge, where Higgins and Vervoort were staying. The unknown man who had come to the Binley Park Inn was in the car too. He was in the front passenger seat. Vervoort said that during the journey Higgins called the deceased. The deceased returned the call. The phone was put on to speaker. The deceased said the lads, said to be a reference to Liam Dooley and Dunn, were going to get it because there had been trouble. The unknown man was agitated. He said that they were going to shoot him (the deceased). They all laughed. Dunn said, "We're going to sort this out". Higgins said that the deceased trusted him and he would get him to the pub. When they had arrived at Merrick Lodge, Vervoort said she got out first. The others remained in the car for some five minutes.

15. Vervoort was cross-examined. Among other things, it was put to her, as was the case, that in a witness statement and when being interviewed by police she had attributed the threat to shoot to Dunn and not the other man before correcting herself. We shall return to this topic.

16. Dunn said there was no conversation about the deceased. He recalled no conversation in the car. The passenger was not agitated. There was no talk about shooting the deceased.

17. Higgins too disputed Vervoort's account. He said that during the journey he did speak to the deceased. They discussed meeting up for a drink. Dunn and the passenger were smoking weed. The phone was never on speaker. The, music in the car was too loud to hear what was said. There was no conversation about shooting or luring the deceased anywhere.

Dunn's evidence about what he did after dropping Higgins and Vervoort off at the Merrick Lodge

18. There was evidence of telephone traffic between Dunn and Liam Dooley that afternoon. We shall return to that topic. Dunn said he called to ask for money. Liam Dooley owed him £700 for drugs. He said that Liam Dooley called him to ask where he, Dunn, was.

Natalie Sealey

19. At 4 pm Natalie Sealey, a witness whose statement was read, went to the deceased's house. She said the deceased was sitting with a hammer, looking frightened. He told her to lock the door and close the curtains. He said he "might not be alive tomorrow".

The evening of 4th April 2005

The Three Horseshoes public house

20. Vervoort said that Higgins telephoned and told her to go to the Three Horseshoes public house. He wanted her to meet a friend. She said she did not want to go because she knew that something was going to happen. Higgins, she said, threatened her. He said that if anything went wrong he wanted her as a witness. He said that "little fella was coming down". Vervoort took that to be a reference to Dunn: that they were going to shoot the deceased. Higgins was to lure him into the car park. He was then to be shot.

21. She went to the Three Horseshoes. Her account of not being happy to go into the public house was to some extent supported by the taxi driver who took her. She had to be persuaded to leave the taxi. She did not want to. She described the deceased playing pool with Higgins. The deceased went outside to use his telephone. He returned to say they were coming down. Higgins said not to worry, he would go outside with him. They went outside. Higgins returned to the bar just after a loud bang. He told her to get a taxi because they were going. He wiped the glass, she said, he had been drinking from. She learnt they had a lift and to forget the taxi. During the journey back Higgins sought to telephone Dunn. He tried the deceased's telephone number. He could not get through to either.

22. Vervoort's telephone call for a taxi was made two minutes before a call said to be to the deceased from Liam Dooley.

23. When they returned to the Merrick Lodge, Higgins said, according to Vervoort, "that twat Dooley froze. He just stood there". He said too, according to Vervoort, that someone else shot him; that the deceased jumped over a wall and they shot him.

24. Higgins telephoned Conrad Jones. Twenty minutes later Conrad Jones turned up, said Vervoort. He was angry at the "stupid idiots for messing up the shooting".

25. When asked why she had not telephoned the police when she knew what was afoot, Vervoort said that she had been too scared.

26. Higgins' account was wholly different. When he went outside with the deceased he said he saw two men wearing balaclavas alight from a vehicle. One of them shot the deceased in the stomach. The other put the gun to Higgins' face and threatened him. That person followed the deceased over a wall. There was a volley of shots. He never mentioned the "little fella". He would not refer to Dunn in those terms.

27. Higgins said he did telephone Dunn. That would have been about cocaine.

The mobile phone evidence

28. The prosecution placed considerable reliance on mobile phone evidence. We have now been provided with the schedule to which in the course of his summing-up the judge referred. We summarise.

29. Liam Dooley called the deceased at 20.51. That was said to be the call to get him outside the pub. Although Liam Dooley in the trial said he was not near the pub, that call went through the best serving cell site for the pub.

30. Between 5.47 pm and 7.40 pm Liam Dooley was in contact with Craig Dooley three times. He had three conversations with the deceased between 6.17 pm and 6.24 pm. He called Dunn at 5.57 pm and 6.05 pm. There was an abortive call between the two of them. He called Turner at 6.06 pm. Liam Dooley later called Craig Dooley twice and Dunn twice. They were comparatively short calls. Liam Dooley said that the calls were to do with money for drugs. The Crown said they were to do with the setting up of the killing.

31. Luke Turner had contacted Liam Dooley earlier in the day.

32. There were calls between Higgins and Dunn on the day of the shooting. There was one call after the shooting. It was said the calls were about drugs.

33. In all, Dunn spoke to Liam Dooley some six times after 5.30 pm. He spoke to Luke Turner three times. There was no telephone contact between the defendants between 8 and 9 pm, in other words immediately leading up to the shooting.

The firearms evidence

34. Two hand guns were used. A single shot from one hit the deceased in the chest. The other had been fired at least ten times. Two of the three shots hit the deceased in the back.

The hearsay evidence

35. For present purposes we can deal with this briefly and in very broad terms. Before he died, Clinton Bailey, the deceased, was said to have named those who attacked him. Anthony Conroy took the deceased to hospital. He said the deceased named Luke Turner and the two Dooleys. He added a fourth man the next day, saying he was wearing a balaclava.

36. Kay Penman, the deceased's mother, said that the deceased told her on 4th April that it was Craig and Liam Dooley and Luke Turner (as it came out finally in her evidence).

37. Lisa Hulme said that he named those three on 5th April 2005.

38. Alan Christian said that on 6th April 2005 he named the two Dooley brothers and Dunn, together with a fourth man he was unable to identify.

39. Natalie Sealey said that he told her it was Dooley and Luke Turner.

40. On 5th April 2005 the deceased told the police he could not remember much, but he was attacked by two masked men, one with a hand gun, the other with a shotgun, and that the person with the hand gun had fired and hit him.

41. The judge admitted the hearsay evidence.

The submission on behalf of Dunn that there was no case to answer

42. At the close of the prosecution case there was a submission on behalf of Dunn that there was no case to answer. In finding that there was, the judge summarised the evidence in this way. First, he said there was evidence that Dunn actively participated in threats made to the deceased on the morning before he was shot. That came most clearly from Maria Vervoort.

43. Second, that evidence, in the judge's view, was reinforced by the evidence of Murray. Dunn had been able to reassure him that, the deceased, had got away all right from the threatening situation of earlier that morning.

44. Third, said the judge, there was the evidence of Vervoort about the conversation involving Dunn on the afternoon of 4th April at Binley Park Inn and, as the judge put it, "more importantly", in the following car journey. The jury would be entitled, said the judge, "to conclude that a decision was made by Jamie Dunn, Gary Higgins and the other passenger in the car jointly to get Clinton Bailey to the Three Horseshoes so that he could there be shot. Such an involvement on the part of Jamie Dunn is rendered the more plausible if the jury accepts the evidence of his involvement in the threats earlier in the day..."

45. Fourth, the judge referred to the telephone evidence. He observed that it was not suggested that Liam Dooley and Luke Turner did not have cases to answer. As he put it, "if the jury are satisfied that those defendants were indeed involved in the murder they would in my view be entitled to infer in the absence of evidence to the contrary, that the subject of those conversations was the projected shooting of Clinton Bailey, and that the plans for what actually occurred ... were made in a series of inter-related conversations over two hours in which Jamie Dunn fully participated".

46. Finally, the judge referred to Dunn's responses to the prosecution case. In interview he was unforthcoming. His defence statement suggested that such responses as he made were not truthful.

Craig Dooley's and Luke Turner's grounds of appeal

47. Although set out in different ways in different documents, the essential submission in both cases is that the hearsay evidence of the five witnesses should not have been admitted. The grounds do not refer to the recent decision in the European Court of Human Rights, sitting as a Chamber, in the case of Al-Khawaja & Tahery v United Kingdom[2009] ECHR 26766/05. In the first of those two cases a deceased's witness statement was admitted under section 23 of the Criminal Justice Act 1988. In the second the statement of a witness too fearful to attend trial was admitted under section 116 of the Criminal Justice Act 2003. The European Court of Human Rights held that the admission of that hearsay evidence, amounting as it did to the sole or decisive evidence against the appellant, involved an infringement of the right to a fair trial under Article 6, and in particular a breach of Article 6(3)(d). The implication of the court's decision in those cases was recently considered by this court in R v Horncastle & others [2009] EWCA 964. In that case the court held, and again we summarise very broadly indeed, that the right to confront a witness for the prosecution under Article 6(3)(d) was not absolute. It upheld convictions where the hearsay evidence was the sole or decisive evidence. The case of Horncastle is shortly to be considered by the House of Lords. It seems to us that the adjourned applications for leave to appeal against conviction should themselves be adjourned pending the outcome of the case of Horncastle & others in the House of Lords.

Dunn's grounds of appeal

48. His position is different. Although there was some hearsay evidence concerning him, it was in the circumstances peripheral and is not suggested by Mr Bennathan on his behalf to be the basis of his conviction.

49. In Dunn's case it is submitted that in the light of "significant further material" concerning the witness Vervoort, the court cannot be confident that a jury would still accept her as an honest and reliable witness. Alternatively, it cannot be confident that a jury would still see her account as necessarily implicating the appellant in the murder. As a backdrop to the appeal of Dunn, the importance of the evidence of Vervoort is summarised.

50. Mr Bennathan submits that the evidence against the appellant was far from overwhelming. There was no specific role assigned to him. Reliance was placed on the detail of a conversation in a car journey. If there is any evidence suggesting that she is unreliable or untruthful, that would call into question the safety of the appellant's conviction, submits Mr Bennathan. There was, he submits, an ample basis to view Vervoort as a witness whose account needed to be approached with great caution. The further significant material indicates that she is a witness capable of changing her account to meet contradictory evidence. On occasion she can be shown to have lied about events surrounding the killing. The material, when taken as a whole, is said massively to undermine her general credibility such as to affect every assertion she makes. Mr Bennathan reminds us of the judge's observation in the summing-up that "Jamie Dunn says her evidence about that [journey in the car] is simply lies. If you think it is, that is the end of the case against Jamie".

Maria Vervoort and Conrad Jones

51. Vervoort alleged that she was under pressure to withdraw her evidence or not turn up for the trial. It became clear that she was removed from the local area and was in Newcastle when the trial began, in circumstances to which we shall shortly come. As it was put in the indictment which was laid against Jones, he, with others, "did a series of acts which had the tendency to pervert the course of public justice in that they offered a witness [Vervoort] inducements not to give evidence in criminal proceedings and also made physical threats towards the same witness to prevent them [sic] giving evidence in the same criminal proceedings".

52. Jones was tried three times. The first time was in January 2007. That trial was aborted. The second was in February 2007. The jury could not agree. The third was in August 2007. He was convicted. In the course of that sequence of trials Vervoort gave evidence three times.

The credibility matters deployed at trial and some subsequent developments regarding them

53. As a background to his submissions based upon the new material, Mr Bennathan refers to the material deployed at the appellant's trial. Cross-examination was primarily on behalf of counsel instructed for Higgins. That had the benefit to the appellant Dunn of his previous convictions not being before the jury. No criticism is made of that approach. Higgins obviously had a closer knowledge of Vervoort than Dunn.

54. The significant factors said to go to her credibility adduced at the trial were these.

55. First, in a family case at Coventry County Court in 2002 Her Honour Judge Fisher found that she had lied in her evidence. She rejected her account. We need not refer to the detail, although we have it well in mind.

56. Second, Vervoort claimed that her relationship with Higgins began with her being kidnapped and forced to have sex with him. She suggested that he was frequently violent towards her. She agreed that she had never been to a doctor. In the later trials she said that Gary Higgins had not been violent "at first".

57. Third, the police told Miss Vervoort that if she continued to associate with Gary Higgins her young son might be taken into care.

58. She accepted in cross-examination that Detective Constable Farr, the officer dealing with her allegation of assault in 2005, had raised this. In her significant witness interview she said her motive for coming forward was because "it's the right thing to do and it also helps me to get away from it all as well". The interviewing officer recorded that. He also warned her that she was in danger of damaging her credibility if it was thought she had co-operated simply to get rid of Gary Higgins. At a later trial she said the police who attended after she had been allegedly attacked on 23rd June 2005 told her that her child might be at risk from being in the same household as Higgins.

59. These events left her with the impression that continued association with Higgins would lead to her son being taken into care. That went to her credibility, submits Mr Bennathan.

60. Fourth, in October 2005, as part of a police protection scheme, she was living in Bridlington in East Yorkshire. On 17th October 2005 she reported that she had been approached by two men who threatened her on behalf of Conrad Jones. She spoke too of a "chance meeting" in Bridlington with a friend from home called Patricia Gough. That account was recorded and signed in a witness statement. When the police spoke to Miss Gough it became apparent that that had been an arranged meeting. Vervoort subsequently confessed that she had lied about it. She said she wanted company, but was concerned about losing her place on the protection scheme if she admitted contacting friends. She agreed that she would have persisted in the lie on oath, but for Miss Gough telling the police the truth. The suggestion is that if Vervoort was prepared to lie to get some company, how much more would she be prepared to embellish an account so as to ensure that all those she identified as associates of Higgins were fully implicated.

Our view on the evidence deployed at trial

61. It is not, in our view, surprising that these matters did not cause the jury to reject Miss Vervoort's account. Such lies as she may have told were in a wholly different context. Moreover, as it seems to us, the subsequent developments regarding those matters are peripheral and do not begin to call into question the safety of the murder conviction. It seems to us that to pretend to have met a friend by chance when in fact it had been arranged does not begin to suggest that Vervoort would lie falsely to implicate Dunn in an offence of murder.

The subsequent matters said to cast doubt on her credibility:

Vervoort's allegation at the second trial that Conrad Jones had ordered the murder

62. At the second trial Vervoort said that Jones had ordered the murder. There was no mention of that in any of her various witness statements. When cross-examined about it, she said she had told Detective Sergeant (as he then was) Slevin that Jones had ordered the killing but had done so "off the record". She said that she had been told "it was put to Mr Raggatt [for the prosecution] and he said there wouldn't be enough evidence anyway to take him to court". In re-examination she said she had heard that Jones had ordered the killing. She had believed it. Her belief was based upon what others had told her.

63. Mr Bennathan accepts that there may have been undisclosed conversations between Vervoort and the police. The re-examination conducted as it was by Mr Raggatt suggests, he submits, as much. Mr Bennathan's criticism is one of process. The police should not have told her of Mr Raggatt's involvement. The court, he submits, cannot have confidence in the handling of this witness.

64. As it seems to us, the position is this. We must assume that the prosecution have disclosed what they are obliged to disclose. What the witness said in the present regard does not go to her credibility. If, as she says, the comment by DS Slevin about Mr Raggatt was made, it might have been unwise. It does not, as it seems to us, begin to call into question the safety of the conviction.

65. As to what she said about Jones and what she knew, according to her by way of hearsay, that may be thought to be consistent with her evidence as to what Jones said when he came to the Merrick Hotel on 4th April 2005. As we have already said, according to her he was angry at the "stupid idiots for messing up the shooting".

When Vervoort first spoke to the police about the murder

66. On 23rd June 2005 Vervoort called the police. She said she had been attacked at home. That attack was not fully investigated as she declined later to co-operate with the police. She was to make it clear that she believed the attack had been an act of revenge by friends and associates of the deceased. She said that shortly after the attack Higgins told her he would find the attackers and exact revenge on them. One of the officers investigating that crime was Detective Constable Farr.

67. The first police records of contact in relation to the murder are on 12th September 2005. On 14th September she was interviewed as a significant witness. She made a witness statement. In that statement she, among other things, claimed that the relationship with Higgins had been under duress. She gave an account of his criminality. She implicated the appellant Dunn in the shooting of the deceased.

68. When cross-examined in Jones' third trial, Vervoort said she had told the police at her local police station about the murder "off the record" some months before. She said it was officers from the Little Park Police Station, the local police station, to whom she spoke. She had been given, she said, Detective Sergeant Slevin's telephone number as the man she should contact.

69. Enquiries have been made as to whether Vervoort did mention the murder to the officers at the local police station. Police Constables Barnes and Barratt (the last now Kimberley) have been spoken to. They say that conversations with Vervoort were about the drug dealing of Higgins and about Jones. There was no reference to the murder or to the deceased.

70. In a recently served witness statement of Inspector Slevin (as he now is) he mentions indirect contact with Vervoort in late August or early September 2005. A detective constable from Little Park Police Station enquired on Vervoort's behalf whether she would qualify for witness protection for her and her child. Slevin advised that as far as the murder was concerned she was not a witness and did not qualify for such protection. A week or two later she came forward to become a witness.

71. Mr Bennathan submits that the jury should have been told that she had been refused protection. That provides, he submits, an additional motive for her to become a prosecution witness. Had it been disclosed, she could have been cross-examined upon it.

72. We accept that these were matters for disclosure or investigation if not then apparent. However, it does not seem to us that Mr Bennathan's submissions provide a sound argument to impeach the safety of the conviction. It seems to us implausible that the jury would think that Vervoort might implicate the appellant Dunn falsely in order to obtain protection.

The car journey and the account about the shooting

73. On 12th September and 13th September 2005 Vervoort gave accounts to the police of what was said in the car journey from the Binley Park Inn to Merrick Lodge. The police made handwritten notes. Mr Bennathan has taken us through them with great care. On neither day, assuming the notes' accuracy, did she say she had heard the comment, "That's it, I'm going to shoot him". The first time she said that was on 14th September 2005 during a tape recorded interview. She said the comment "shoot him" was made. Detective Sergeant Slevin noted that that was the first time she had said that.

74. There was no cross-examination on this topic. The Crown submit that the notes were disclosed during or shortly before the trial. Whatever the recollections of counsel who represented the appellant and Higgins might now be, it seems to us clear, having heard Mr Raggatt on the topic, that they were disclosed. Leading counsel have confirmed that there was no tactical reason not to pursue such cross-examination. Counsel for the appellant has made the point that, and we paraphrase it to some extent, had he seen the material it would have been deployed. It may be that the material or its significance was missed. It is impossible now to say why it was not deployed.

75. Mr Bennathan submits that whatever the reason for the absence of this evidence before the trial jury, it might have led to a different verdict in the case. It was a highly important piece of evidence going to the issue of involvement.

76. We observe that had there been cross-examination such as is envisaged, that would have laid open the notes for re-examination. Within them, when read as a whole, there was evidence which was clearly very damaging to the appellant. We of course accept, as Mr Bennathan submits, that counsel did not for such a tactical reason decide not to deploy the material.

77. This is plainly not fresh material. Mr Bennathan submits that we should consider the evidence under section 23(2)(d) of the Criminal Appeal Act 1968, which requires us to have regard to "whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings". We are prepared, without deciding the point, to consider this evidence de bene esse.

78. We bear in mind that, as Mr Raggatt points out, there was cross-examination on a very significant aspect of what Vervoort said about the shooting: see paragraph 15 above. That did not lead the jury to reject her account. It does not seem to us, having regard to the matter in the round, that cross-examination such as suggested by Mr Bennathan would materially have affected the outcome of this case.

At whom was the comment in the car about shooting directed?

79. In her evidence at the appellant's trial, Vervoort said that the comment in the car about shooting was with reference to the deceased. She said too that "the man in the passenger seat said again he was going to shoot Clinton".

80. Mr Bennathan submits that in the third Jones trial Vervoort said that the comment had been made, but the context suggested it was likely to have been aimed, not at the deceased, but at Murray. In the circumstances he submits, the jury in the appellant's trial had been misled in a very important matter. It cast doubt upon Vervoort's integrity and reliability.

81. We have looked with care at the relevant extracts from the cross-examination to which we were taken. It is not necessary now to set them out. The position in the round, as it seems to us, is this. The witness said persistently she knew that someone was to be shot. Dunn and Higgins were involved. Nearer the events, both in interview and in the first trial, she said it was the deceased who was to be shot. The deceased was in fact shot. It does not seem to us in all the circumstances that what she said in the third trial calls into question her credibility, as Mr Bennathan submits, or affects the safety of the verdict.

2nd June 2006

82. Vervoort said that on 2nd June 2006, at Nottingham railway station, she met her sister, Rachel Nally. Rachel Nally took her outside the station where Jones was waiting. He, among other things, threatened her. There is, submits Mr Bennathan, substantial reason to doubt that that face to face meeting actually occurred. He so submits for this reason. Jones instructed his lawyers to commission cell-site research. The report which was prepared, and which Mr Raggatt accepts, did not indicate that Rachel Nally, using phone 679, her telephone, was in Coventry on 2nd June 2006. Vervoort's phone (991) made calls which suggested it remained in Burton-on-Trent for the day. Neither phone called the other on that day. That pattern contrasted with the pattern for 29th May 2006, the date when a first meeting at Nottingham railway station between Vervoort and her sister Rachel Nally was spoken of by Vervoort.

83. The witness' response in the Jones trial in cross-examination was that a friend must have borrowed the 991 phone.

84. Mr Bennathan draws the court's attention to the different pieces of evidence which indicate that Vervoort had always spoken of having one phone at this particular time, namely 991. It was only after she had been directly challenged that she claimed, as she did, that she had a multiplicity of phones when living in Burton.

85. As to the possible use of her 991 phone, Vervoort said that a friend called Paula frequently borrowed it. She might have had it on 2nd June and she might have been using it on that date. As an explanation for the number of Vervoort's friends and family called by that phone, she explained that Paula had become friendly with many of her social circle.

86. At the end of cross-examination in the third Jones trial, Vervoort was asked to find Paula's number in her mobile phone book. She found a number stored under the name "Peaches". She said that Peaches was Paula. Since the final Jones trial, those acting for the appellant sought further details and documents about the 991 phone and the Peaches/Paula number.

87. To seek to test the proposition that Peaches or Paula was a close friend of Vervoort at the time of her stay in Burton, a check has been made as to how often 991 and 167 were in touch one with the other. There was no call or text between them. Mr Bennathan submits that that turns what was already an implausible account into an absurd one.

88. He submits that, when viewed overall, the phone material raises doubts as to Vervoort's claim that she travelled on the day she said she did and saw Jones. It suggests that the account of the Nottingham confrontation was false. That, it is further suggested, is emphasised by what she said about "John", a topic to which we shall very shortly come.

89. In summing up the evidence regarding 2nd June in the third Jones trial, His Honour Judge Orme indicated that there was some uncertainty about the date. The prosecution accept that the meeting to which Vervoort referred was probably on 2nd June. Mr Raggatt told us that he relies on the witness' account.

90. We shall approach the issue in this way. Does what Vervoort said about the meeting of 2nd June 2005 so call into question her reliability, taken in conjunction with the other evidence, as to affect the safety of the conviction? It will become apparent that we do not think that it does.

Newcastle and a hand gun

91. On 10th June 2006 Vervoort contacted her police handlers. She was in Newcastle. By then the trial had begun. She claimed to have been kidnapped. That allegation was disclosed to the defence at the trial. Detective Constable Williams recorded her as saying that when taken from the safe-house at which she had been staying, "no weapons had been brandished". Later it is said she said: "she again confirmed that her captors were not in possession of weapons".

92. On 12th June 2006 she was asked about the two men and their descriptions and actions. She was asked why she was scared of them, why they were such a threat, why she could not leave Newcastle. She never mentioned a gun or any weapons. She made a witness statement of some 12 pages in which she described why she had been obliged to stay in Newcastle. She gave descriptions of the two men.

93. On 25th July 2006, some five days after the murder convictions, Vervoort said that one of the two men who were attempting to keep her in Newcastle had been armed with a hand gun. That was subsequently written up in a witness statement of 10th August 2006. She said that her sister Rachel Nally had introduced her to the two men as friends of Conrad Jones. She described the "big guy" having a "small black handled hand gun sticking out of the waistband of the top of his jeans". That was the first time a hand gun had been mentioned.

94. Vervoort was cross-examined about this at the third Jones trial. Mr Bennathan suggests she gave a confused answer, suggesting that Detective Constable Williams had misunderstood what she was saying. No-one, submits Mr Bennathan, could be confident in those circumstances that one of the men in Newcastle had had a gun. If she had made that up, he submits, she was capable of making up a conversation implicating the appellant Dunn in the shooting in this case.

Vervoort's description about the Newcastle men

95. In her accounts to the police, Vervoort spoke of two cockney men in Newcastle. On 12th June 2006 she described both of them. She did not suggest she had seen either before. She was not asked. In a further interview of that date she was. She claimed she had seen the slighter man in Coventry before. She repeated that in a further interview of 12th June and in a witness statement of the same date in these terms: "I think I have seen one of these men before in Coventry".

96. On 25th July 2006, shortly after the conviction, Vervoort told the police that "John" had been in Jones' company in Nottingham on 2nd June 2005, but she had never seen the slighter man before.

97. That change of account, submits Mr Bennathan, is manifestly implausible. When combined with the telephone material, it shows that her account of the entire meeting of 2nd June 2005 is deeply suspect.

Our overall view

98. By section 23 of the Criminal Appeal Act 1968 this court "may, if [it] thinks it necessary or expedient in the interests of justice ... receive any evidence which was not adduced in the proceedings from which the appeal lies": see section 23(1)(c). In considering whether to receive that evidence we are obliged to have regard, in particular, to whether it appears that the evidence may afford any ground for allowing the appeal. If the fresh evidence may call into question the credibility of Vervoort so as to render the conviction of the appellant Dunn unsafe, then we are obliged to admit the evidence. It is not a question of this court replacing the jury's views with its own, as the respondent in its skeleton argument submits.

99. In considering whether the evidence now relied upon does call into question the safety of the conviction, it is necessary to put Vervoort's evidence fully into context. While it was plainly very important, it was not the only evidence capable of implicating the appellant. It stood with other significant evidence which, the jury could infer, supported it.

100. First, there was Murray's evidence. The jury was entitled to conclude from it that Dunn was present when the deceased was earlier threatened at Liam Dooley's, or knew the detail of it. Those threats, it was entitled to conclude, included a reference to guns. He knew that the deceased had not then been attacked. What Murray said did not depend upon Vervoort. It fitted into the sequence of events as described by Vervoort however.

101. Second, there was the evidence that the deceased was very frightened because of the threats. We have referred already to Sealey's evidence. Her evidence was consistent with Murray's in that regard.

102. Third, the telephone traffic provided, as it seems to us, powerful evidence capable of implicating all these defendants. Dunn, as we have set out, participated in that telephone traffic at times which, the jury could infer, were significant. It was too significant that there was telephone contact between Dunn and Liam Dooley. There is clear evidence of Liam Dooley's participation in the murder.

103. In short, the telephone evidence is entirely consistent with Vervoort's evidence.

104. Fourth, in interview the appellant was not forthcoming. When he did respond, what he said was not true.

105. The jury were warned by the judge to approach Vervoort's evidence with care. The judge accurately set it out in context. It may be, and it is not entirely clear from the transcript, that he indicated that they should not make their final decision about Vervoort's credibility until they considered the other evidence about Dunn and Higgins. We put that to one side. What he undoubtedly told them was:

"At the end of the day ... it is for to you decide how much weight you put on the evidence of Maria Vervoort and I know you will consider it very carefully both in its own right and from the assistance you will get from the other evidence which forms part of a broader picture."

106. We have already to some extent commented upon the recent material. It seems to us important to make a number of further general points about it, however.

107. Vervoort was cross-examined some three times in the course of the Jones trial in very great detail. It would be surprising if there were not inconsistencies in the most truthful witness' testimony in the circumstances that faced Vervoort in those trials. It is not suggested that she ever changed her broad account insofar as involving the appellant in this shooting in the broad way that she describes. She has, in other words, generally, in our view, been consistent.

108. While we accept as, the directions in the third Jones case made clear, that a conviction in that trial does not inevitably lead to the conclusion that that jury accepted everything said by Vervoort, it seems to us clear that it must have accepted, at the minimum, that she was telling the truth when she said that Jones, in at least one of the particulars set out in the indictment, sought to prevent her giving incriminating evidence in the murder trial. It plainly did not conclude, in spite of the unrelenting and detailed cross-examination highlighting what were said to be significant inconsistencies, that she was a witness whose word could not be relied upon.

109. The murder trial took place nearer the event in question. By the time of the final Jones trial some two and a half years had elapsed since the events in question. It would be surprising if Vervoort could remember everything by then or not make mistakes. She was interviewed at considerable length much nearer the events, as we have already observed, in September 2005.

110. Mr Bennathan rightly reminds us of what was said by Lord Bingham in Pendleton [2002] 1 WLR 72, where at paragraph 19 he said:

"It will usually be wise for the Court of Appeal in a case of any difficulty, to test their own provisional view by asking whether the evidence if given at trial, might reasonably have affected the decision of the jury to convict. If it might, the conviction must be thought to be unsafe."

111. The emphasis was put in a slightly different way in the more recent Privy Council decision of Dial[2005] 1 WLR 1660, where Lord Brown said:

"Wherever fresh evidence establishes that a material prosecution witness told a lie, the question arising for the appeal court's determination is whether that realistically places the appellant's guilt in reasonable doubt. That necessarily must depend upon all the evidence in the case. However barefaced the lie and however central to the prosecution case the witness who told it, the Court of Appeal is bound in law to address that question. Even in the case of ... murder it cannot be right to allow an appeal, without more, simply on the basis that the State's main witness has been shown to have told an outright lie. The court is not in such circumstances exonerated from undertaking its analytical task. And if it remains sure of the appellant's guilt and upholds the conviction, the court is not thereby depriving the appellant of due process."

112. We have concluded, having had regard to the whole of the evidence and paid very careful heed to Mr Bennathan's well-argued submissions, that there is nothing which leads us to conclude that the conviction in the case of this appellant was in any way unsafe. We remain sure of his guilt and accordingly we uphold the conviction.