R v McGrath
Neutral Citation Number: [2025] EWCA Crim 1103 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LUTON Her Honour Judge Mensah T20170359; T20167142 | Case No: 201900717 B1 |
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MR JUSTICE CAVANAGH
and
SIR NIGEL DAVIS
Between:
REX
-and-
ANTHONY FINBAR McGRATH
The Appellant appeared in Person.
Charlene Sumnall and Carolina Bracken appeared on behalf of the Crown.
Approved Judgment
Lord Justice Stuart-Smith:
On 23 January 2019 at the Crown Court sitting in Luton before HHJ Mensah, the applicant was convicted unanimously on a retrial of offences of fraud and perverting the course of public justice (counts 1 and 2) and three counts of fraud (counts 6 to 8). On 24 January 2019 he was sentenced as follows:
On indictment 20167142 (count 1), which was an offence of fraud contrary to section 1 of the Fraud Act, he was sentenced to 5 years' imprisonment.
On count 2 of the same indictment, an offence of perverting the course of justice contrary to common law, he was sentenced to 2 years and 6 months.
Under indictment T20170359 (count 6), which was a charge of fraud contrary to section 1 of the Fraud Act 2006, he was sentenced to 3 years consecutive to count 1.
On count 7 of the same indictment, another offence of fraud, he was sentenced to 2 years' imprisonment and
On count 8, which was a third offence of fraud, he was sentenced to 1 year imprisonment.
The total sentence was therefore 8 years' imprisonment. The applicant had a co-accused, his wife, Anne-Louise McGrath, who was acquitted on counts 3 to 8.
The applicant now renews his application for leave to appeal against his conviction, having been refused leave by the single judge in April 2021. Because of the extreme delays that we shall outline, he requires an extension of approximately 6 years to rely upon the grounds of appeal that he now wishes to pursue.
The Factual Background
Counts 1 and 2 alleged that the applicant had pretended that his home had been burgled on 15 April 2015 when it had not (count 1) and that he had given false information about the burglary including suggesting certain people as "suspects" and exaggerating the degree of loss he said he had suffered (count 2). Count 6 alleged that when applying for a mortgage from Lloyds Bank in and after October 2012, to facilitate the purchase of 132 Clarence Road in St Albans, the applicant submitted or procured a false employment and earnings reference purporting to come from Southampton General NHS Trust, knowing that the reference was false, not least because he was no longer employed by Southampton General NHS Trust on the date that the so-called employer's reference was given and in in any event the reference overstated his earnings.
Count 7 alleged that in June 2015 the applicant and his wife had applied of a further mortgage advance of £135,000 secured on 132 Clarence Road. The documents submitted in support included what purported to be tax returns for the applicant and his wife for the years 2011/2012, 2012/2013 and 2013/2014. The tax returns for the applicant purported to have been produced by Jerry McDonald, a chartered accountant at Johnston Carmichael LLP. They purported to evidence his net profit for those tax years as in excess of £86,000, £145,000 and £131,000 respectively. In fact, the tax returns were false documents. The applicant's fingerprint was found on a copy, demonstrating at least a physical connection with the accounts. The applicant had never been a client of Johnston Carmichael LLP between 2011 and 2017. Mr McDonald had not prepared the accounts or accounts for anyone called Anthony McGrath. The signature on the front cover of the accounts was not his and the logo shown on the front cover was not that of Johnston Carmichael LLP or any related firm. The applicant had submitted the false accounts to Lloyds Bank who granted the applicant and his wife a further advance of £135,000.
Count 8 alleged that the couple's earnings were not sufficient to keep pace with their increasing expenditure. This prompted them to mortgage a house in Somerton Road in Belfast, which they did using, said the prosecution, fraudulent means, namely by providing incorrect details about their respective incomes. As a result they secured an advance of £84,375. That mortgage was taken out by Mrs McGrath alone.
The procedural history
The applicant was represented at trial by solicitors, Messrs Kangs, and counsel, Mr Tyrone Smith KC. After the trial, counsel lodged grounds of appeal dated 20 February 2019. There was one ground, namely that the judge erred in refusing to a admit bad character evidence of a prosecution witness called Kevin McCarthy.
Following receipt of transcripts counsel was invited to perfect the grounds of appeal. Counsel sent emails dated 25 April and 10 May 2019 to the Criminal Appeal Office, requesting further time to lodge Perfected Grounds. Counsel also indicated that the applicant wished to put forward his own grounds of appeal. In a further email counsel said:
"The applicant has agreed to the submission of my ground of appeal provided that they are supplemented with grounds written by him. He is presently on 23 hour 'bang up' and does not have access to his case papers or regular access to a computer to draft a document. The applicant asks for an extension of time in which to lodge his own grounds of appeal by 15 August 2019."
It is to be noted that the original grounds, although only advancing one ground of appeal, stretched over 83 pages. As at May 2019, as we have just outlined, counsel informed the court that the applicant had agreed to the submission of his one ground of appeal provided that it was supplemented by others drafted by the applicant and extensions of time were given.
In early September 2019, the Court of Appeal office was informed that Mr Smith was no longer instructed and that Mr John Black KC had taken over. In late September 2019 the applicant informed the Court of Appeal office that he would be representing himself and moreover would be submitting his own grounds of appeal. Thereafter, throughout the remainder of 2019 the applicant submitted a large amount of documentation. In December 2019, the applicant was directed to submit one composite document setting out his grounds of appeal. This he did on 10 January 2020. The submission amounted to 214 pages and included 1472 paragraphs. In brief, his grounds were:
There was a failure to accede to an application to dismiss.
Counts 3 to 5 and counts 6 to 8 should not have been joined to counts 1 and 2.
The judge had erred in failing to accede to a submission of no case to answer.
He was misrepresented by trial counsel. In view of his criticism of trial counsel the applicant was invited to waive privilege but he failed to respond until much later.
There was an "irregularity of verdicts" in that he was convicted on all counts while his co-accused (his wife) was acquitted.
Shortly before the close of evidence count 1 was amended to his detriment.
The trial judge was biased.
The summing-up was defective. First, because there was a lack of a Lucas direction and secondly, because there was a failure to sum-up the defence case and thirdly, because there was a failure to provide guidance as to the relevant law on fraud.
There was fresh evidence in the form of witness statements, "notes" taken at the application for a search warrant and the applicant's new interpretation of the prosecution's evidence.
Following service of these grounds the applicant continued to send documentation to the Court of Appeal office, which led to a formal direction from the Registrar directing him to provide a document not exceeding two pages of his grounds of appeal. The applicant did not comply with that direction.
The Crown's response was to serve responses to counsel's original ground of appeal and the applicant's own grounds. The applicant lodged a response to those grounds of opposition. The Crown's response dealt in detail with the grounds advanced by the applicant. Of possible relevance were as the following. First, it was contended that Sean McGrath and Florin Alexa were not prevented from being called by the judge but by decision of the defence. Second, it dealt in detail with the allegedly "new" evidence from Sean McGrath, Florin Alexa, Kathryn Mullen and Imran Hamid demonstrating that the information from these potential witnesses had all been available at the time of the trial and therefore was not to be regarded as "fresh evidence".
On 5 February 2021, nearly 4½ years ago, the single judge refused leave on all grounds providing detailed reasons that are set out in Annex 1 to the Court of Appeal note, which the applicant has. Since then the applicant has consulted two firms of solicitors, at least five English counsel and one member of the Irish Bar; but he comes before the Court today having dispensed with the services of all those lawyers, including Mr Jeremy Moore, a solicitor who remained instructed by the applicant for a period of over 3½ years from December 2021 until 30 June 2025, when he withdrew in the light of criticisms made of him by the applicant in letters sent openly to the Court of Appeal office. In the light of his solicitor's withdrawal Mr Robert English, the most recently instructed barrister, also withdrew.
The procedural chronology since the single judge's decision must be set out in a little detail. As we have said, the single judge refused leave on 5 February 2021. The applicant renewed his application on 26 February 2021. Following refusal the applicant indicated that he would be instructing Mr Richard Wormald KC. On 27 April 2021, Mr Wormald sent the office an email in which he said that he thought it was unlikely that he would be representing the applicant. In the event, Mr Wormald was not retained. Mr Wormald had stated that there was a possibility of an Irish barrister wanting to review the matter. That barrister was a Mr Diarmuid Phelan. By email dated 28 May 2021, the Court of Appeal summary writer contacted Mr Phelan. He responded by email dated 29 May 2021, outlining his involvement but he did not at any stage come on the record.
On 28 June 2021 and 14 July 2021, the summary writer received emails from Stephensons Solicitors saying they were instructed. Subsequently they conducted a waiver of privilege excercise in respect of the trial solicitors Messrs Kangs. The court was not provided with any further documentation and was subsequently informed by Stephensons that they were no longer instructed - that being by an email on 2 February 2022. By email dated 6 December 2021, a new firm of solicitors, with the relevant solicitor being Mr Jeremy Moore, were instructed. As we have said, Mr Moore then remained instructed until 30 June 2025. On 28 October 2022, the summary writer was informed that Mr Howard Godfrey KC had been retained and instructed. By email dated 10 January 2023, Mr Godfrey, in answer to a chaser from the court, informed the summary writer that he was no longer instructed. On 25 February 2023, the summary writer was informed that Mr Richard English had been instructed to act as counsel. Thereafter, Mr English had lodged revised and amended grounds of appeal on 21 July 2023 and a further advice on 25 September 2023, which dealt with the applicant's mental health and to which we will return.
Mr Richard English was instructed almost exactly 2 years after the single judge's decision. The revised and amended grounds of appeal that he submitted in July 2023 sought to rationalise the focus of the renewed application. First, he endorsed Mr Tyrone Smith KC’s single ground, namely that the judge erred in failing to admit evidence of bad character on the part of Mr Kevin McCarthy. That remained ground 1. Ground 2 was now that the judge had failed to give a cross-admissibility direction and that, as a consequence, the conviction was unsafe. Ground 3 was based upon an understanding that the judge had refused to permit Mr Sean McGrath to give evidence at the trial. The prospective evidence from the applicant's brother (Mr Sean McGrath) was said to go to two issues. Sean McGrath had provided a statement dated 15 October 2018 and a second on 30 October 2018. First, he would speak about "financial discussions surrounding the applicant's wife and co-accused Anne-Louise McGrath". It was recognised that there were issues of admissibility of some of the evidence. It was said to give contextual evidence concerning the provision of a contract of employment said by the prosecution to be bogus. Second, it was said to go to an issue surrounding a fireplace. Putting it neutrally for a moment, the applicant had provided a photograph of the fireplace in his family home in Ireland to illustrate what had been stolen in the burglary from his home on the Luton Hoo estate. Sean McGrath would say that there were in fact two fireplaces similar in style, so that the fact that there were still a fireplace in the home in Ireland did not undermine the suggestion that there had been a fireplace in the applicant’s home at Luton Hoo. This ground alleged that Mr Smith KC had acted contrary to his instructions in failing to call Sean McGrath to give this evidence and that this rendered the conviction unsafe. The revised ground 3 recorded that Mr Smith had told the judge in open court that he was not calling Sean McGrath and that the applicant had agreed that approach after full discussion.
Ground 4 related to fresh evidence from John Perry, by a statement dated 2 March 2022, and Brian Hamell by a statement dated 15 June 2019, who were said to have come forward since the airing of a television programme in April 2019, some 20 months before the single judge's decision, which touched on the question of the fireplace or fireplaces.
The revised grounds settled by Mr English recognised that ground 3 was not identified in the original Appeal Notice so that leave would have to be required. We note in passing that the same could be said for ground 4. The revised grounds asked for permission to substitute them for the grounds that had previously been submitted by or on the applicant's behalf other than Mr Smith's original ground 1.
The hearing of the renewed application for leave was listed for 13 October 2023, some 2½ years after the single judge's decision. In addition to his revised grounds, on 25 September 2023, Mr Richard English submitted a further advice in which he raised significant concerns about the applicant's wellbeing. He also informed the court that although the applicant had authorised the lodging of Mr Richard English's revised grounds he wanted Mr Richard English to make submissions that Mr English was not prepared to make as he did not consider them arguable.
On 9 October 2023, Mr Tyrone Smith KC provided his response to the suggestion that the judge had refused to permit Sean McGrath to give evidence and provided detailed responses to various paragraphs of the applicant's own grounds, ie those advanced by the applicant in January 2020 which Mr English sought to have withdrawn and substituted by his own.
On 10 October 2023 the Crown provided a second supplemental response addressing Mr Richard English's revised grounds. As an overarching submission the Crown submitted that grounds 2, 3 and 4 were new grounds that were out of time and that there was no application for permission to appeal out of time in respect of them. Ground 1 had been responded to in the original Respondent's Notice. Ground 2, cross-admissibility, was rejected because the judge had (a) directed the jury to consider each count separately and in relation to each count directed the jury to the specific evidence that underpinned each count. In relation to grounds 3 and 4, Mr Sean McGrath's witness statement was given during the currency of the trial and could not properly be regarded as fresh. No attempt was made to identify a gateway to admission of the hearsay evidence the statements contained, and doubt was cast on the evidence of two fireplaces because the applicant had sent a photograph of the fireplace installed in the family home as "receipts/pictures of items taken". Whether or not the fireplace in Ireland was the only one and whether there was another one that had been stolen in the alleged burglary were issues in the trial on which any relevant evidence could have been called and on which the jury evidently disbelieved the applicant. The Crown relied upon the fact that the applicant had sent an email to a Mr Paul Chesney on 29 April 2015, 14 days after the applicant had reported the burglary at the Bothy, which was his home, offering a fireplace for sale with the observation that "I don't like to have it in my basement at the Luton Hoo and hope you can receive it" attaching a photograph of the Irish fireplace.
Mr Perry's witness statement was dated 15 June 2019 but was not referred to in the applicant's grounds submitted in 2020. It was therefore the prosecution's position that it did not satisfy the requirements of section 23. Mr Hamell's witness statement was with the applicant when he submitted his grounds but was not referred to. Once again, it was the prosecution’s position that it did not satisfy the requirements of section 23.
In the light of the difficulties created by the late submission of additional material and the information about the applicant's mental health the court adjourned the hearing and gave directions including:
"...
A representation order is granted for counsel and solicitor for the purposes of obtaining medical evidence dealing with the applicant's current condition.
At the appeal hearing the application for permission will be heard and if leave is granted the substantive application
...
The applicant may respond to the observations of Tyrone Smith KC. The response must occupy not more than five A4 pages formatted in a normal fashion. When providing his response the applicant shall (insofar as he is able) attach those documents referred to by Mr Smith in his note...
If and to the extent that it is necessary to do so and has not been done already, the applicant is directed to serve (a) any fresh evidence application (b) any Form W (c) any application for an extension of time.
If it is necessary to do so the respondent may respond to documents served by the applicant above.
The applicant's solicitors must promptly inform the court when any medical evidence becomes available and, unless the issue falls away, what the report says.
...
Not more than 28 days before the date listed for hearing the applicant will serve a skeleton argument to assist the court and which will set out the issues which are to be considered and in suitable skeleton form the applicant's case on those issues.
The respondent serve a skeleton argument in response to the applicant skeleton not more than 14 days before the date fixed for a hearing."
It should have been clear to anyone that the directions given on 13 September 2023 were intended to bring the issue of the applicant's renewed application, as it then stood, before the court in an orderly manner that protected the applicant against the risk that he was not fit to give instructions. That issue was resolved by July 2024, when the court was informed by his solicitors that the applicant was fit to give instructions. The adjournment was also because his previous counsel Mr Tyrone Smith KC had responded on 9 October 2023, four days before the hearing, and it was considered important that the applicant should have an opportunity to respond to Mr Smith's comments.
What in fact happened is as follows. The case was listed for hearing on 7 February 2025. At some point, the applicant terminated Mr Richard English’s instructions. Mr Richard English attended court at the adjourned hearing only to assist the court where possible and appropriate and he was authorised by the applicant to apply for the hearing to be adjourned on the basis that the applicant wanted to instruct fresh counsel. The applicant did not respond and has never responded to the observations of Mr Tyrone Smith as permitted by direction 5. Although some additional witness statements have been provided and the court was being asked to consider the admission of evidence from Andreas McGrath, Sean McGrath, Brian Hamell, John Perry and Niall Woods at the adjourned hearing in respect of whom Form W had been served, there was no Gogana statement in relation to any of them. No application for extensions of time had been served as required by direction 6(c) and the applicant had not served a skeleton argument as required by direction 12.
Instead of complying with the orders made by the court the applicant had served his own new grounds in January 2025, with an accompanying document which he calls a skeleton argument. The January 2025 submission is dated 1 January 2025 and states that it was sent to the Registrar of the Court of Appeal on 15 January 2025. The substantive submissions run to 36 pages. With enclosures the January 2025 submission runs to 294 pages in all. His submission on a page signed by him states "I wish to withdraw all previous other submissions in entirety and replace them with this single submission." At or about the same time he applied to vacate the adjourned hearing date of 7 February 2025 to permit him time and assistance in appointing further counsel and gathering a complete set of documents. What was described as "a draft" of his replacement grounds was served on or about 17 January 2025 it was incomplete. The full set of papers were not received by the court office until 30 January 2025. Adopting the most generous interpretation possible to the applicant he has been fit to give instructions or conduct his defence since July 2024. There is no possible justification for his wholesale failure to comply with the court's orders or for serving yet another iteration of his campaign - a word which we use advisedly - just 8 days before the hearing. For completeness, we record that on 6 February 2025 his solicitors provided a copy of a further statement made by Sean McGrath dated 26 October 2022. No explanation for the late submission of this statement has been provided. On the basis of what the court was told in October 2023 and on 7 February 2025, we understand that at least one reason for the multiple iterations of proposed grounds of appeal stems from disagreement between the applicant and successive counsel about what may properly be argued in support of an application for leave to appeal. Whether or not that be right and making all due allowance for the fact that the applicant until very recently had been a serving prisoner, it cannot provide a reasonable or sensible excuse for the delays and multiple iterations that have occurred.
The Crown responded to the applicant's January 2025 submission on 23 January 2025. It was plain from the terms of that response that the Crown did not have all the documents that were included in the applicant's submission to the court. The balance of the papers were provided to the prosecution between 23 January and 7 February 2025.
Faced with the applicant's fundamental and very late shift of position, combined with the fact that Mr English although present and instructed to make the application for the hearing to be adjourned was not otherwise instructed to represent the applicant, and that the applicant was not present, on 7 February 2025 the court "through gritted teeth" adjourned the hearing once more. Amongst the orders made on the adjournment the court directed that the applicant was to be produced in person on the adjourned hearing. The adjournment was described in the court's order as a "final adjournment".
The adjourned application was re-listed to be heard on 16 May 2025. On that occasion Mr Moore attended as did Mr Robert English, who had taken the place of Mr Richard English and was fully instructed. However, because of administrative error over which neither the applicant nor this court had any control, the applicant was delivered by the prison authorities to the Old Bailey rather than to the Royal Courts of Justice and by the time that this error was known it was irretrievable. On Mr Robert English confirming that the applicant would, as predicted, be most unwilling for the hearing to take place in his absence and in the light of the reasons that underlay the direction that he should be produced, the court adjourned the hearing yet again. In the course of that hearing the court pointed out there were still no Gogana statements in respect of the various witnesses whose evidence the applicant wished to have admitted. In a vain attempt to ensure that the hearing would eventually be able to proceed in an orderly fashion, the court granted a representation order for junior counsel for the preparation and presentation of the application, directed that Mr Moore should attend the next hearing and directed that there should be a further directions hearing in advance of the adjourned hearing which was duly listed for 25 July 2025 - that being today.
The directions hearing took place on 10 July 2025. At the directions hearing, Stuart-Smith LJ gave directions for the adjourned hearing. However, in advance of that hearing the applicant wrote letters to the Court of Appeal office on 16 May 2025 and 16 June 2025, which were critical of both solicitors and counsel and disclosed an extensive schedule of communications between the applicant and Mr Moore. As a result, Mr Moore and Mr Robert English both considered themselves to be professionally embarrassed and unable to continue to represent the applicant. They therefore withdrew on 30 June 2025.
On 18 July 2025 the Court of Appeal office received a letter from Mr Henry Hendron which the court treated as an application to adjourn the hearing on 25 July 2025. Mr Hendron said that available new counsel had not been found and that the applicant was not competent to conduct the hearing himself. The application was refused on the same day. On 21 July 2025 the applicant wrote requesting an adjournment on the basis that he was attempting to secure representation and was currently in discussions with Richard Wormald KC who, it will be remembered, had limited involvement but ultimately was not instructed in April 2021. The application was refused on 23 July 2025. On 23 July 2025, the applicant was released from prison on licence.
The principles to be applied.
Extension of time
The principles as to extension of time are well known. In R v Hughes[2009] EWCA Crim 841 at [20], it was said that an extension would "be granted only where there is good reason to give it and ordinarily where the defendant will otherwise suffer significant injustice". In R v Thorsby[2015] EWCA Crim 1, it was stated:
"... the principled approach to extensions of time is that the court will grant an extension if it is in the interests of justice to do so."
It was also said in that case that:
"... the public interest embraces also, and in our view critically, the justice of the case and the liberty of the individual ..."
And:
"... the court will examine the merits of the underlying grounds before the decision is made whether to grant an extension of time."
It was also noted that the passage of time may put the court in difficulty in resolving whether an error occurred and, if so, to what extent.
In R v N and LE (Vinh Cong) [2013] QB 379 at [86], the court confirmed that an applicant has no general right to advance what is in effect fresh instructions for the purposes of an appeal:
"It has been made plain in numerous decisions of this court, that a defendant is provided with one opportunity to give his or her instructions to his legal advisors. His defence is then considered and advanced and he is advised about his plea in the light of those instructions. It is only in the most exceptional cases that the court would consider it appropriate to allow a defendant to advance what in effect would amount to fresh instructions about the facts for the purposes of an appeal against conviction."
In R v Wilson[2016] EWCA Crim 65, the court reiterated that applications for extensions of time must be supported by an explanation for the delay in making the application and it is not enough to rely simply on the merits of the grounds of appeal.
The Crown correctly points out the current iteration of the grounds of appeal is nearly 6 years out of time. Only ground 2, which essentially repeats the original ground settled by Mr Smith and was refused by the single judge, can be said to be based on a ground that has been brought in time. The need for there to be good reasons for an extension of time is separate and distinct from the need to be there to be good reasons for an applicant to be allowed to vary their grounds. Where an applicant seeks to vary the grounds particularly after the decision of the single judge, the principles to be applied are those set R v James[2018] EWCA Crim 285; [2018] 1 WLR 2749 (see paragraphs 35 and 38). Of particular relevance to the present applications are 38(iii), (v) and (vi):
Once an application for leave has been considered by a single Judge, if the applicant wishes to advance fresh Grounds that have not in substance been considered by the single judge, they require the leave of the court. Applications to advance fresh Grounds must be accompanied by an application to 'vary' the notice of appeal. If there is any doubt as to whether a Ground is ‘fresh’, an application to vary should be made.
…
In deciding whether to vary the Grounds of Appeal, the full Court will take into account the following (non-exhaustive) list of issues:
The extent of the delay in advancing the new ground/s.
The reason for the delay in advancing the new ground/s.
Whether the issues/facts giving rise to the new Grounds were known to the applicant’s representative at the time he or she advised the applicant regarding any available Grounds of Appeal.
The overriding objective (Crim PR 1.1) namely acquitting the innocent and convicting the guilty and dealing with the case efficiently and expeditiously
The interests of justice.
The application to vary would not require 'exceptional leave' (by demonstrating substantial injustice) but the hurdle for the applicant is a high one."
Admission of fresh evidence
The test for the admission of fresh evidence is equally well-known. When considering whether to receive new evidence the court shall have regard in particular to (a) whether the evidence appears to the court to be capable of belief; (b) whether it appears to the court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of the appeal, and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings. As we have said, no good reason has been put forward to explain the need for an extension of time to vary the grounds or for the admission of the current iteration of the "fresh evidence" that the applicant wishes to adduce. We have nonetheless, in the broader interests of justice, considered whether and to what extent the applicant's January 2025 grounds have substance.
Disclosure
We start by referring to an application for disclosure. Both by his solicitors and on his own behalf since he has been acting in person, the applicant has applied for extensive orders for disclosure. We are assured by Ms Sumnall (counsel for the prosecution) that she has considered the requests and has satisfied herself that none of the requested documents fall within the principles governing post-conviction disclosure and/or that the documents falling within the principles do not exist. Specifically, she has confirmed that there is no page 2 to what I shall call "Southampton reference". There is no basis upon which we could properly go behind that assurance. As we explained during submissions, an application for leave to appeal is not an opportunity to embark on what would be a cross between a public inquiry and a retrial. So we turn to the January submission.
The Proposed Grounds of Appeal
The January 2025 submission advances nine grounds of appeal. Ground 1 is that there is fresh evidence in the form of witnesses which he seeks leave to call pursuant to section 23 of the Criminal Appeal Act 1968. Much but by no means all of the proposed evidence is either hearsay, opinion or speculation. To the extent that it is not it relates largely to the existence of one or two fireplaces, to which we will return when considering whether the proposed grounds of appeal arguably cast doubt on the safety of the applicant's convictions on counts 1 and 2 or more generally.
Dealing with each witness in turn who is included in the most recent list of those he wishes to call, the first is his brother, Andreas McGrath. Most of the witness statement consists of what appears to be speculation and opinion evidence about the basis for payments from Balrath Capital, a company formed by Conor McGrath and with which Andreas McGrath was not involved. It provides information about the state of the applicant's marriage, which is partial and difficult to reconcile with other information since it asserts that the applicant and his wife separated in 2006 despite their being evidently together in 2015 and 2018 as demonstrated by the evidence in the case including the ages of their four children. In relation to the fireplace, the witness statement asserts there were two fireplaces, one attached in the family home in Ireland and one removed to England by the applicant. The only reason for such evidence not being provided at trial appears to be that Andreas McGrath fell out with the applicant over ownership of some of the items that the applicant had taken from the family home.
Next, Sean McGrath, in respect of whom we have to deal with two witness statements, one dated 28 February 2023 and a further statement dated 28 February 2025. The witness statement dated 28 February 2023, seeks to explain why he did not give evidence at the applicant's trial. It is said that the only location that was available from which he could give evidence was his brother's Conor's home and that he was never told why that was the case. This is to be seen in the context of the response from Mr Tyrone Smith KC who, while agreeing that Sean McGrath was uncomfortable using the same video link that was to be provided for Conor McGrath at Somerville House (Conor McGrath being a prosecution witness) that was not the reason why Sean McGrath was not called. Inquiries had been made for him to give his evidence from elsewhere but, according to a further statement, Sean McGrath was told that no other facilities were available.
According to Mr Smith, there were several negatives to calling Sean McGrath. The applicant still wanted him to be called but Sean McGrath then indicated that he did not wish to be called. As a result, on 5 December 2018 Mr Smith informed the judge that Sean McGrath was not to be called and that the applicant agreed to that course of action. Subsequently, the applicant has produced the second statement from Sean McGrath, dated 28 February 2025. No explanation is provided for the late provision of this statement. In it the witness asserts that money received by the applicant's wife which was used when applying for remortgage was "an advance corporate fee payment from Conor McGrath’s UK company for medical services that the applicant's wife was to deliver to [the company] but which she ultimately failed to deliver." The second purpose is said to be "to explain that the McGrath family have been in the ownership of two very similar red fireplaces for many years."
On the first topic the witness statement gives Sean McGrath's belief about what was in his brother's Conor's mind when monies were paid to the applicant's wife and asserts that Conor believes that the evidence given at the Crown Court was incomplete. The second topic includes evidence about the existence of various antiques including two 18th century red Rococo fireplaces that were originally in Somerville House, one of which remains there and the other of which the applicant took to Garden Bothy in pieces.
The next witness is Mr John Perry, who says that his witness statement is dated 3 March 2023. Mr Perry says that he has known the extended McGrath family since approximately 2001. He states there were two very similar red marble antique fireplaces, the first of which is still fitted in Somerville House and the second of which was taken by the applicant to Scotland when he went to work there. Although it is his understanding that the second one was stolen from the Garden Bothy he evidently has no personal knowledge and says nothing about storage of the fireplace in England. The text of this statement appears to be the same as the statement previously advanced under ground 4 of Mr English’s July 2023 grounds which are now withdrawn. There is no explanation for this duplication of text or the different dates.
The next witness is Mr Niall Woods whose witness statement is dated 17 February 2023. Mr Woods says that he supplied the applicant and fitted at Somerville House a red Rococo fireplace some 20 years before (ie circa) 2003 and that he supplied but did not fit a similar Rococo fireplace to the applicant at his Dublin apartment. It is not clear when this second fireplace was supplied to the applicant.
The next witness is Mr Joseph O'Brien, whose witness statement is dated 26 February 2022. Mr O'Brien is the executor of the applicant's mother. He asserts that the Somerville House fireplace has been in position for 50 years (cf the witness statement of Mr Woods). He says that he saw a second similar fireplace stored at Somerville House in pieces (not in the applicant's flat) and that he later saw it in the Garden Bothy in a short shipping container although the date for that is not given. Yesterday or this morning we were given a further witness statement from Mr O'Brien who continues to assert his close connection with the McGrath family. It is not otherwise necessary to deal with his last statement.
It is to be noted that, according to the most recent list, the applicant no longer pursues the calling of Lorcan Donnellan, Florin Alexa, Kathryn Mullen, Imran Hamid and Brian Hamell who he had previously said he wished to call.
There are some fundamental difficulties in the way of all of this evidence. It is not necessary to concentrate on all those difficulties but the following major points emerge. First, despite the matter being raised at two previous hearings there are no Gogana statements. This is a serious omission in circumstances in which all of the witnesses have long-standing connections with the applicant and there is no very obvious reason why the evidence of those who are not the applicant's brothers could not reasonably have been called at trial and there is no explanation why it was not. Second, these statements are relied on primarily in support of the applicant's case that he did not lie when he said that a fireplace had been stolen during the reported burglary. The existence or otherwise of the second fireplace (the other one being in the Irish home) was an issue that was significantly litigated at trial. All of the witnesses whose evidence the applicant wishes to adduce are either related to the applicant or are long-standing friends or acquaintances of the applicant. All would have been able to give their evidence about the fireplaces in the same terms at the trial although the applicant’s bad relations with his brothers meant that one was a prosecution witness and another would not have been willing to give evidence. There is no reasonable explanation why the evidence could not have been collected and adduced at trial and it is not therefore fresh evidence.
There is however an even more fundamental question which is whether, even if the evidence of the witnesses were to be accepted, their evidence would afford a ground for allowing an appeal. The issue about the reported theft of the fireplace was only one aspect of the prosecution's case and evidence on counts 1 and 2. Taking the fireplace in isolation, there was evidence upon which the prosecution were entitled to rely in relation to the fireplace including first, the terms of the emails he sent to the police before and when attaching a picture of what proved to be the Somerville fireplace. The first email said he would send "pictures of the items taken" and the subsequent email attached the picture of the Somerville fireplace. Second, there was evidence of a sale of a fireplace in April 2015 to a dealer (Mr Paul Chesney) which, if it was accepted to be another fireplace than the one in respect of which he claimed, would imply the existence of not two but three fireplaces. Quite apart from that, the evidence adduced at trial in support of counts 1 and 2 was very powerful. There was no doubt that the applicant alleged that there had been a burglary, and that he tried to blame Florin Alexa. Nor is there any doubt that at the time he was in desperate financial straits. He needed and would try to use the insurance claim as security for a further loan from his bank. The evidence on counts 1 and 2 included evidence about the awkward access to and the small size of the cellar from which a large number of items were said to have been stolen, the exposed nature of the property and the configuration of the kitchen window through which access was said to have been gained to the house. It also included evidence that a remarkable number of items that had been included in the insurance claim were found still to be in possession of the applicant or the applicant's wife as summarised at paragraph 189 of the prosecution's opening at trial. We note in passing that the applicant's evidence to the jury was that he had a number of items that were identical to those that had been stolen. That explanation was evidently rejected as untrue. By way of example there was evidence that a painting of Cannes which the applicant said was his and had been stolen was found in the possession of its true owner. That was the second painting that the applicant claimed to have been stolen, with the applicant having changed his story about the first allegedly stolen picture when it was found still to be hanging in the Garden Bothy and also by way of example, a pair of distinctive sapphire drop earrings, matching those for which the applicant had claimed, were submitted to Bonhams for sale in 2016 by the applicant's wife. These were only two examples out of a large number on which the prosecution were entitled to, and did, rely.
Given the weight of the other evidence on counts 1 and 2 and the jury's evidence rejection of the applicant's version of events at trial, we reject the submission that the witness evidence that the applicant wishes to adduce, even if taken at face value, can arguably cast doubt on the safety of the applicant's convictions for counts 1 and 2. In these circumstances, the test for admission of fresh evidence is not met and we refuse the application under ground 1 so far as it relates to evidence about fireplaces.
Turning to the evidence of Sean McGrath, we are satisfied that the reason why no further evidence was given by Sean McGrath at trial was because a tactical decision was taken not to call him as explained by Mr Smith KC, whose account is corroborated by the transcript of the hearing on 5 December 2018. His evidence about the fireplaces does not afford any ground for allowing an appeal for the reasons just given. His evidence about what he believes to have been in his brother’s Conor's mind is inadmissible speculation. It does not and could not reasonably render the appellant's conviction on any count unsafe. The jury heard extensive evidence about the nature of the payments by Balrath Capital to the applicant's wife and evidently rejected the applicant's account. That evidence included, first, that Mrs McGrath gave evidence that she had never worked for Balrath Capital in any capacity, which was accepted by the applicant. Second, Conor McGrath stated that the idea he would pay that much money in advance for work that may never have been done was a "commercially fantastical" idea. Third, none of the money was declared as income to Mrs McGrath's accountants or to HMRC. Fourth, part of the money paid from Balrath was a one-off purchase of a car of the applicant's. Fifth, part of the money was a loan from Conor McGrath to the applicant, part of which was paid back. Sixth, part of the money was Conor McGrath buying a Rolex watch from the applicant which was confirmed in text messages and in evidence.
Quite apart from the inadmissible and hearsay nature of Sean McGrath's proposed evidence about his brother's intentions and the absence of any reasonable explanation as to why such evidence, to the extent that it might be ruled admissible, was not adduced at trial, we reject the submission that the evidence may arguably afford any ground for allowing an appeal against either part or all of his convictions. For these reasons the proposed "fresh" evidence does not satisfy the requirements of section 23. Leave is refused on ground 1.
Grounds 2 and 3 may be taken together. Ground 2 is that the judge erred in refusing to adduce evidence of a bad character of a prosecution witness, Kevin McCarthy. Ground 3 is that Kevin McCarthy's misconduct continued following his convictions and during his contact with the applicant from 2012 to 2015. It is to be noted that ground 2 was originally put forward by trial counsel Tyrone Smith KC and became ground 4 of the applicant's grounds for which leave was refused by the single judge. In our judgment, the single judge was right to refuse leave on the predecessor to count 2 for the reasons he gave, and ground 3 adds nothing.
The applicant continues to assert that almost everyone with whom he came into contact was dishonest and responsible for both the burglary and the fraudulent mortgage application. He now wishes to assert that the guarantee of a loan facility of £7,000 for Mr Florin Alexa (his builder's foreman) was fraudulently completed by someone dishonestly accessing his phone; that Mr Alexa stole nearly £8,000 from him by a Pay Pal credit transfer; and to insinuate that the St Albans mortgage broker who arranged all of his transactions and with whom it is said he was in a relationship at the time, must have acted dishonestly in securing the loans because they were of no advantage to anyone but the professional and building contractors to whom the monies were paid. We note in passing that we were told, and accept, that the Crown made clear that the applicant's relationships were no part of the prosecution case.
The applicant attempted to persuade the jury that he was the victim of a large-scale fraud perpetrated on him by the bank, the bank's employees and building contractors. In the course of the trial he suggested that the fake accounts which had his fingerprint on them were not his responsibility but may have been prepared by or in conjunction with a man called "Steffan". The jury did not believe him. As was said during submissions, the trial was not a dress rehearsal. The jury had ample evidence to justify the rejection of the applicant's case including the inconvenient fact that the fake accounts for 3 years were produced after Ms Measure had asked the applicant to produce 3 years’ finalised accounts and the applicant had said that he would do so. Furthermore, it was the applicant's case at trial that he could not say whether it had been Mr McCarthy whose convictions he wanted to put in or a Mr Stringer who had introduced him to Steffan. In those circumstances, the judge was right to refuse leave to adduce Mr McCarthy's previous convictions.
In his submissions on ground 3 the applicant relies upon the statement of Mr Alexa dated 6 October 2017. An earlier iteration of his submissions had sought permission to rely upon that evidence as fresh evidence. No such application has been made in the January 2025 submissions. No explanation has been given that would justify treating the statement as fresh evidence and it was self-evidently available at the trial. The various bank and similar documents had all preceded the trial. They could have been deployed then had the applicant so wished if there anything in them. No reasonable explanation has been provided for why they were not. Had an application been made we would have refused it. In our judgment, there is no substance in ground 3 that could even arguably undermine the safety of the conviction on count 7 or generally. Grounds 2 and 3 represent no more than an attempt to reargue issues that were properly ventilated at trial. Leave is therefore refused on both grounds.
Ground 4 is that "there is evidence to show that count 6 and 7 were entirely misrepresented” at trial. The evidence is in the form of "home repossession proceedings K000WD201 currently in the Watford County Court". The document upon which the applicant wishes to rely is an amended defence and counterclaim of the applicant who is the first defendant in possession proceedings brought by Lloyds Bank against the applicant and his estranged wife, which the applicant appears to have signed on 4 June 2024. It alleges breach of duty on the part of Lloyds Bank or those for whom the bank are said to be responsible. More generally, he relies upon the assertion that the mortgage taken out from Lloyds in 2013 was redeemed in 2015 and replaced by a larger mortgage. Neither the document nor his assertion about the redeeming of the mortgage in 2015 undermines the safety of his conviction, which was based upon his fraudulent misrepresentations in procuring the 2013 mortgage. We leave out of account the demonstrable fact that, when the bank was concerned that it may be lending on the security of Clarence Road when it was not habitable, the applicant sent the bank photographs of the kitchen at Luton Hoo Garden Bothy (where he was living during the building works to Clarence Road) representing that that was the kitchen at Clarence Road and that it showed that Clarence Road qualified as habitable. Leave is refused on ground 4.
Ground 5 is that:
"There is evidence to support the contention the conviction on count 6 is unsafe, namely that there is an accountant's reference which was sent in February 2012. This provides an opportunity to compare handwriting entries made on both it and the income and employment reference document on which the prosecution relied to convict him."
Comparison of handwriting is properly the subject of expert evidence which is not available. There is nothing demonstrable in the absence of such evidence. In addition, the comparison document on which the applicant relies (CACD1-1708) is a previously undisclosed document dated 8 February 2012 that could, if the applicant had wished, been deployed at trial. The applicant's case at trial was that the Southampton reference was genuine and had been filled out and sent by someone at Southampton. He now wishes to assert that it was filled out by the bank and then sent to the hospital. Quite what input the hospital had in this version is unclear. In any event, the applicant's case ignores a significant part of the Crown's case on this document, which was that as he was no longer employed by Southampton General it could not have been properly provided at all. When a reference is supplied by the hospital, a file copy is kept on the employee's HR file. The applicant's file did not contain this document. Further evidence was that the fax number on the top of the document was not that of the HR Department but that of the Oral and Maxillofacial Out-patient Unit. It did not separate out the basic salary and the banding supplement as the banding supplement is likely to change it is always an important factor in mortgage applications and is separated out in this fashion. That was the evidence of the witness Elizabeth Brown.
For these reasons, which essentially adopt those more fully set out at paragraph 78 to 80 of the respondent's latest skeleton and in the first two Respondent's Notices, the comparator document does not qualify for admission as fresh evidence and this ground is no more than an attempt to re-argue the merits of count 6, where the jury had ample evidence on which to convict and did so after hearing the case and evidence that the applicant wished to advance. Leave is refused on ground 5.
Ground 6. This ground is an extension of ground 5, namely that there is evidence about the size of his salary at Southampton Hospital. The applicant seeks to adduce the evidence from various payslips in support of both grounds 5 and 6. None of this is fresh evidence. All could have been available and deployed at trial. There is no explanation why they were not. Accepting that the payslips indicate that the appellant's gross pay was not far from £93,000, and that an email from Natasha Measure dated 19 November 2012 shows that she knew he was now working at the Royal National Orthopaedic Hospital, the basis for count 6 remains that the Southampton reference was forged and was forged by or on behalf of the applicant. There was ample evidence to support that conclusion. The jury heard the applicant's account and did not believe him. That was a course that was properly open to them and is not undermined by the deployment of his payslips. Leave is refused on ground 6.
Ground 7 is that:
"The judge erred in her ruling that a proposed agreed fact relating to the health of a prosecution witness, Conor McGrath ('CMG'), [the applicant's brother] was irrelevant and inadmissible."
In our judgment, the response of the respondent at paragraphs 85 to 91 of their consolidated skeleton provides a complete answer to this ground:
Conor McGrath gave evidence. He was not cross examined that at the time he provided his witness statement nor when he was giving evidence, he was vulnerable because of mental health difficulties. This came about because of an attack upon him during the Applicants evidence in chief.
It was accepted by DC Brecknock that when he first contacted Conor about making a witness statement he was told that Conor was in hospital with meningitis. The Applicant denies this and maintains that Conor was hospitalised due to mental health difficulties. He goes so far as to now suggest that meningitis is a medical euphemism (a falsification of medical records) made by medical professionals to protect members of the medical fraternity with mental health issues. Conor McGrath is not a member of the medical fraternity.
As set out in Mr Tyrone Smith KC’s McCook response the medical evidence does not support this. The medical evidence shows that at the critical point in time (that being August/September 2017) Conor was in hospital with meningitis.
A decision was initially made between the parties that no more would be said about the mental health issues. The Respondent later received Conor McGrath’s’ medical records (after Sean McGrath the Applicant’s and Conor’s brother and Conor’s GP had breached patient confidentiality and sent them to the Applicant and his legal team) on the 10th January 2019. They showed that he had in the past although not at the critical time in question, had some mental health issues. As such the Respondent could not and did not assert in closing that the Applicant was lying or vindictive about this. All that could be done and was done in closing was to point out that this was not put to Conor in cross examination so that he had the opportunity to answer it. It was pointed out that this was a common theme of his evidence in as much as allegations were made by the Applicant in evidence that were not put to witnesses such as Dc Brecknock and Edward Phillips.
The Learned Judge was entitled to rule as she did that this evidence was not relevant to the issues the jury had to decide. The Judge could not force any party to make formal admissions as to this even if it had been relevant and admissible. The Co-defendant was not agreeable to the fact as drafted and was unlikely to have made it.
The respondent submits that the Learned Judge was right in her ruling and that Conor’s mental health at a non-relevant time if admitted would not have rendered a different verdict on any count and accordingly this ground of appeal is also ill conceived and should be rejected. It does not cause the conviction on any count to be unsafe.
Further, the Applicant has failed to put all of the documents which he has access to on this topic before the Court. The key document is the letter from Dr Sean McGrath, dated 5th December 2018; it deals with Conor’s health at the time of the meningitis inpatient treatment and the allegation made by the Applicant that Conor was 'psychotic'. This can be found at Appendix 3 (CACD1 1913). None of this material was in the possession of the Crown at the point of the Applicant giving evidence. It was not before the Learned Judge. It was available to the Applicant before the Respondent."
It is sufficient to add that the letter of 5 December 2018 states that:
"Conor has never been diagnosed or treated for a psychotic illness at any time in his life."
Leave is refused on ground 7.
Ground 8 is that:
"[There is] a copy of the contract of employment … between Balrath Capital Ltd [Conor McGrath's personal company] and [Anne-Louise McGrath to provide medical services]. In testimony Conor McGrath denied existence."
The applicant seeks to adduce evidence, which we shall deal with in detail in a moment.
In support of count 6 the prosecution relied at trial upon two letters that were said to come from Conor McGrath’s company Balrath Capital Ltd. The first was described during the trial as "the shorter" or "the short letter". It was dated 15 February 2012 and carried a fax header saying that it was faxed on 16 February 2012. It purported to be signed by Conor McGrath's assistant. By its terms it offered Mrs McGrath the post of medical officer to the company, working three days per week at £500 per day, to start as soon as possible, for a year, extendable if desired. The second letter was also dated February 2012 and also purported to offer the position of medical officer to the company at a rate of £500 for a minimum of 3 days per working week. It was signed by Mr Sean McGrath, Mr Conor McGrath's assistant and Mrs McGrath. In evidence the assistant said she could not say whether the signature was hers or not. It was said that the shorter letter was a fake and misleading and that it had been fraudulently relied upon by the applicant to support inflated projected earnings for Mrs McGrath of £78,000 (3 x 52 x 500). Conor McGrath's evidence was that he had not seen either letter at the time, having first seen them in 2018 shortly before trial. As already mentioned, his evidence was that Balrath could never have sustained such rates of remuneration and certainly could not afford to make substantial advance payments for work not yet carried out. It was this suggestion that he described as "fantastical and financially bizarre". If his assistant had signed the letter she should not have done so. He confirmed there had been discussions between Balrath and Mrs McGrath and there had been an offer made to Mrs McGrath although he continued to maintain that he had not seen either of the Balrath letters that were the subject of count 6. Mrs McGrath's evidence was that the rate of pay was in keeping with what locums earn and there was nothing about the letter that caused her concern.
The applicant now says that it was Conor's evidence that there had never been a contract between Mrs McGrath and Balrath and he wishes to undermine Conor McGrath's evidence by reference to documents which, it is common ground, were not disclosed or deployed at the trial. We have summarised Conor's evidence as it was summed-up to the jury. Turning to the documents on which the applicant wishes to rely, the first (H1) is an unsigned letter dated 3 October 2012. It is in the name of Conor McGrath as CEO of Balrath and is addressed to Mrs McGrath. It states:
"Balrath Capital appoints the above named individual in the capacity of consultant to its business. Duties as consultant will include carrying out feasibility studies and industry evaluations. Balrath Capital will pay an amount not exceeding £25,000 (plus travel expenses) and will pay an additional discretionary bonus on the establishment of any business stemming from the research. This engagement can be reviewed by the company director at any time. Any amendments will be notified in writing."
The second (H2 to H4) is also dated 3 October 2012 and describes itself as a "consulting agreement" between Balrath and Mrs McGrath. The proposed consulting services are said to be industry evaluations and feasibility studies and the agreement is said to be for 3 months or until determination in accordance with the terms of the agreement. The fee is said to be "a discretionary fee depending upon the establishment of business stemming from the research". It purports to be signed by Conor McGrath and Mrs McGrath but there is a handwritten annotation which the applicant says, and we accept, is in Mrs McGrath’s writing which states that the signature in her name is "obviously not hers". The third document (H5) is a screenshot dated 7 February 2020, of what appears to be part of a social media exchange between Conor McGrath and Mrs McGrath. Under a screenshot of the last page of H2 to 4 is text which says: "This is the one I found in Anthony's folders dated October 2012, it's a detailed contract". According to the applicant that is from Conor to Mrs McGrath. The fourth (H6) is another screenshot, this time dated 4 July 2018, ie before trial, of social media communications between Conor McGrath and Mrs McGrath. It has a picture of an invoice purporting to be from Mrs McGrath to Balrath for "research and consultancy 20 July 2020" in the sum of £50,000 with text beneath from Conor that says "Al, [ie Mrs McGrath] do you recognise this?" to which Mrs McGrath replies: "Conor, you know it's not from me/did you pay it/wouldn't you have questioned what [research] and consultancy I'd done?"
The applicant submits that these documents undermine the prosecution’s case against him. We disagree. First, we feel unable to place any weight upon these documents. As we have said, the first document (H1) is unsigned. The second document purports to be signed but it appears that Mrs McGrath disowns what purports to be her signature. Third, there is no information about how or when these documents were created or by whom or for what reason. Mrs McGrath is a doctor and there is no information available to us to indicate that she is or was competent to undertake a consultancy where her duties were industry evaluations and feasibility studies. Fourth, it formed no part of Mrs McGrath's case, or the applicant’s, that she was retained or ever worked pursuant to such a consultancy and it is plain from her social media messages that she denies that the purported invoice for £50,000 was from her. Fifth, these documents formed no part of the prosecution case which in relation to Balrath depended on the submission of the documents J1470 and J2299. It was the submitting of those two documents in support of projected earnings which was said to be fraudulent. Even if the reference to finding H2 to H4 is a reference to Conor finding the documents in folders that he held in relation to the applicant, that does not impinge upon the prosecution’s case that the assertion that Mrs McGrath had real earning potential with Balrath was untrue and fraudulent. As we have already said, Mrs McGrath in fact carried out no work for Balrath in any capacity. Leave is therefore refused on ground 8.
Ground 9 is that:
"The judge failed to give directions regarding cross-admissibility."
This ground 9 was originally put forward by counsel, Mr Richard English, as his ground 2 as we indicated above.
Where the prosecution rely upon cross-admissibility the judge is required to give a direction to assist the jury in their approach. Where the prosecution does not rely upon cross-admissibility there is no automatic requirement that a cross-admissibility direction be given in addition to the standard direction on separate consideration of separate counts (see R v AHC[2022] EWCA Crim 925 at [28]). The prosecution did not rely upon cross-admissibility in this case and no cross-admissibility direction was given. Is it arguable that the failure to give a cross-admissibility direction renders the applicant's convictions unsafe? In our judgment, it is not.
The judge's written direction to the jury, which is to be found at X15 and following, gave the conventional direction on separate consideration of separate counts. She then set out in relation to each count the evidence that was relied upon by the prosecution to prove the case. The direction was clearly formulated and there was no duplication of the evidence between counts. The clear inference was that when giving separate consideration to each count in turn the jury should have regard only to the evidence upon which the prosecution relied to prove that count under consideration. In our judgment, that was amply sufficient on the facts of this case.
Conclusion
The applicant has confirmed that he abandons all previous iterations and relies upon the nine grounds of appeal submitted in January 2025. We have considered in detail and with care the evidence upon which the applicant would now wish to rely. For the reasons we have given, we conclude that the applicant's nine grounds do not give rise to any arguable grounds for an appeal against conviction, whether taken singly or in combination. We would therefore dismiss this renewed application on its merits even taking the proposed new evidence into account.
However, we cannot leave this case without reference to the extreme delays that have occurred. Some, such as his solicitor's concerns about his health, the late arrival of Mr Tyrone Smith's McCook observations and his being delivered to the Old Bailey rather than RCJ on 16 May are not the applicant’s responsibility. That said, he bears responsibility for the extreme delays caused by the successive grounds that have been served on his behalf whether drafted by him or by counsel both before and since the single judge's decision. No good reason or justification for those delays or for the wholesale failure to comply with the directions of the court has been provided. We therefore refuse the necessary extension of time and dismiss this renewed application. That concludes this judgment.
Lord Justice Stuart-Smith: I have not left anything out, have I, Ms Sumnall?
Ms Sumnall: My Lord, no.
Lord Justice Stuart-Smith: Do we need to do anything other than what I have done, which is to say the extension of time is refused and the application is dismissed?
Ms Sumnall: My Lord, no. There is however, upon instruction given the procedural history that my Lords have outlined in this case and as disclosed by the emails that Mr McGrath sent to the Court of Appeal showing that at least three King's Counsel had told him that which the single judge has and which the court has today, these grounds were unarguable, the Crown Prosecution Service do ask me in these circumstances therefore to apply for costs limited to the disbursements in this case, it being just and reasonable given the conduct of the applicant.
Sir Nigel Davis: What disbursements do you have in mind?
Ms Sumnall: The disbursements that the Crown Prosecution Service is limited to counsels’ fees that have been obviously occasioned by having to respond, to cross-reference, go back through various iterations, find out what is new cross-reference against original evidence and so essentially limited to mine and Ms Bracken's fees. They have not included anything else.
(The court adjourned for a short time)
Lord Justice Stuart-Smith: For reasons which you will appreciate we have considerable sympathy with the Crown's position, but the answer is "No".
Ms Sumnall: Thank you, my Lord.