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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Synnott & Ors, R v [2011] EWCA Crim 578 (16 March 2011) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/578.html Cite as: [2011] EWCA Crim 578

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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
MR JUSTICE POOLE
T20027630, T20027632 and T20027633

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/03/2011

Lord Justice Aikens :

1. In these cases we are concerned with an appeal against conviction by Andrew Synott, pursuant to leave granted by the full court, an application for an extension of time of 7 years 5 months and 25 days for leave to appeal against conviction by Michael Synott and for leave to appeal and an appeal against conviction by Paul Arden pursuant to a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. By section 9(1) of that Act the reference is to be treated as an appeal under section 1 of the Criminal Appeal Act 1968. We grant the necessary extension of time and leave to appeal in the case of Michael Synott. Accordingly, in each case section 2(1) of the 1968 Act applies and the court "shall allow an appeal against conviction if they think that the conviction is unsafe". We will refer to the three appellants collectively as the appellants but, for convenience, when we refer to them individually we will refer to them as follows: Andrew Synott as AS, Michael Synott as MS and Paul Arden as PA.
2. All three cases arise out of a trial in 2003 at the Crown Court at Manchester – Minshull Street before the late Poole J and a jury, which lasted some 10 weeks. On 15 April 2003 PA was convicted of conspiracy to murder, which was count 1 on the Indictment. The following day the appellants AS and MS were convicted of conspiracy to murder, the latter by a majority of 11 to 1.
3. On 16 April 2003 Poole J sentenced each to life imprisonment with minimum terms before consideration for parole of 12 years each for PA and AS and 9 years for MS. In the case of MS that minimum term was reduced on appeal to 7 years.
4. On 20 December 2004 the full court refused a renewed application by PA for leave to appeal against conviction. MS has never applied for leave to appeal until the present application. In the case of AS, leave to appeal against conviction (together with the necessary extension of time) was granted by the full court on 2 July 2010.
5. At the trial before Poole J in 2003 there were 5 co-accuseds. Kassam Essa (whom we will refer to as KE) and Colin Raymond Blackburn were convicted of conspiracy to murder. Darren Statham, Mark Anthony Palma and Hanief Umar Essa, brother of KE, were acquitted of that charge. AS and MS, together with Mark Anthony Palma were also charged with two other offences. First, a conspiracy to possess a firearm with intent to cause fear of violence (count 2). The particulars of offence stated that the three conspired between 15 and 23 December 2000 to possess a firearm with intent to cause persons to believe that unlawful violence would be used against them. Secondly, conspiracy to sell or transfer a firearm to a person who did not hold a firearm certificate. The particulars of offence gave the same dates for the conspiracy and the transferees were identified as MS and AS.
6. Mark Palma was acquitted on both those counts. The jury was discharged from returning verdicts on count 2 in relation to both MS and AS in the light of the guilty verdicts on count 1. Both MS and AS were acquitted on count 3.
7. There were two further trials that arose out of the same facts giving rise to the conspiracy to murder charge as we will explain shortly.

The Facts

8. At about 7.20pm on 18 January 2001 three masked men forced their way into the home of Mr Paul Reilly, who lived in Cheadle Hulme with his girlfriend and two young children. One of the masked men produced a gun and fired three shots at Mr Reilly, who was hit by two bullets of 9 mm calibre. The intruders made off. Mr Reilly died shortly afterwards in hospital.
9. At the time of the actual murder, PA, AS and MS had alibis in public places in a Manchester bar and hotel which were not disputed by the Crown at their trial. However, a Vauxhall Cavalier car used by the intruders when they fled from Mr Reilly's home had been seen outside KE's house in the days before the shooting. It was found on fire near to KE's address and that of Blackburn on the 19 January 2001.
10. Mr Reilly was well-known to the police as a controller of drug dealers who operated in the Lancashire Hill area of Stockport, Lancashire. At the trial of PA, AS and MS and their co-accuseds it was said by the Crown that Mr Reilly's murder was the culmination of a turf-war between two drugs gangs in Stockport, one of which was controlled by Reilly and his associate Barrett and the other by AS and PA. It was accepted that MS was not personally involved with that drugs trade. The Crown alleged that Reilly had become a danger to the Synott drugs trade in his area of Stockport and that Reilly was endangering their lives and that of their families. So, ultimately, the decision was taken that he must be eliminated by murdering him.

Events leading up to the First Trial and the evidence at that trial.

11. After the murder information was volunteered to the police by Hanief Essa, who had been serving a 12 year sentence for armed robbery until he was released on licence at the end of January 2001, although he was on home leave in the period over New Year 2000/2001. He told the police that PA and AS had ordered the murder of Reilly and that PA had obtained a gun. On 4 April 2001 the police offered a reward of £10,000 for information concerning the murder of Mr Reilly. This was advertised in local newspapers and on local television. In June 2001 information was volunteered to Greater Manchester Police by a man who knew PA and the Synott brothers and also Reilly, called Graham Fullerty, whom we will refer to as GF. The police interviewed him under caution and obtained a detailed statement from him in September 2009. His evidence was of major importance at the trial of PA, AS and MS and their co-accuseds.
12. In the months after the murder, the police made extensive enquiries. In early 2002 the police interviewed many, including MS, KE, AS, Blackburn and Hanief Essa. They all subsequently became defendants in the trial before Poole J.
13. At the trial before Poole J, the Crown's case was that AS and MS and PA were all part of the conspiracy to murder Mr Reilly, together with the other co-accuseds.
14. At this first trial Graham Fullerty ("GF") described how he was an associate of AS and PA. He admitted his involvement in handling stolen goods, the supply of illegal drugs and the unlawful importation of liquor and tobacco so as to evade VAT and excise duty. He went on to describe how AS controlled drugs in an area of Stockport and that PA, who is a half-brother to the Synott brothers, assisted AS. GF said that he, too, assisted in this drugs trade at a low level. GF described how MS was someone he used to drink with. Darren Statham is MS's son. GF said that there was a rival faction, controlled by Mr Reilly and his associate and brother in law, Alan Barratt, in another area of Stockport. He said he knew Barratt vaguely.
15. GF described how he had been told by both AS and MS that the dispute between the two drugs factions became violent, which led to a disruption of the lifestyle and income of AS, MS, PA. MS told him that he had been attacked outside a bar and received a "good kicking". AS told GF that, in retaliation, "some people" had used a shotgun to blow out the window of Alan Barratt's (or his wife's) car. GF described how, on 18 December 2000, he was in a car with AS, on their way to MS's house, when AS described how MS's house had been attacked by six or seven men in balaclavas. GF said that "the troubles" also caused problems for GF himself.
16. He gave evidence that AS, MS and PA had discussed how the situation should be resolved. GF gave evidence that, also on 18 December 2000, he was in a car with AS when AS telephoned Mr Mark Palma, one of the co-accused, and asked if he could supply a firearm, which GF understood was to be used for personal protection.
17. GF then described a subsequent conversation with MS in a hotel bar in Blackpool on about 3 January 2001 in which MS said to him that he and PA had been to Manchester and obtained a a 9 mm calibre firearm and 50 rounds of ammunition from a man called "Jocko", who was also identified as John Hoyle.
18. GF gave no evidence about events between early January 2001 and after the murder had occurred. His evidence was that, following the murder, on 23 January 2001, he met MS, who told him that he (MS), AS and PA had been in a bar at Deansgate in Manchester when Reilly had been murdered and had ensured that they had been seen on CCTV for an alibi. GF said that MS explained that they had an alibi because they knew something was going to happen and they had received a phone call to say that "it had been done". That evidence was consistent with the fact that there had been a call to PA's mobile phone by KE at 20.03 hours on 18 January 2001, that is about 40 minutes after the shooting had occurred. Poole J records GF's evidence as being that he now thought he was out of his depth because "obviously they were involved in murder".
19. GF also recounted how, at a subsequent meeting between GF, MS and PA on about 2 February 2001, MS told GF that he (MS) had been to see the police and that "the alibi seemed to be going well". he had heard MS say that he (MS) and PA had arranged to be elsewhere at the time of the murder of Mr Reilly. GF also said that he had heard MS say that PA had received a call to confirm that the shooting had taken place. GF also stated that at the same meeting, MS had asked PA if he had "got rid of the thing". GF's evidence was that, to him, they were talking about the firearm and that PA had said that he had got rid of it. GF also gave evidence that at this same meeting PA had said, in the course of a general chat in a telephone call by MS and PA to AS, that if other members of Mr Reilly's gang came in their path then they should tell them that "they would get what the other bastards got". GF said that he understood PA to be referring to Mr Reilly's fate.
20. GF did not give evidence that there was a plan to murder Reilly. Moreover, , his evidence was that when he heard talk of a gun he thought it was being obtained to frighten the Reilly faction.
21. The prosecution relied on other evidence in support of its case against the appellants and their co-accused. This included the following: first, evidence of escalating violence between the two factions. Secondly, evidence that a shotgun firing lead pellets had been used to damage a Shogun vehicle belonging to Mr Reilly's sister, which the Reilly faction believed was the work of PA. Thirdly, mobile phone call analysis, in particular for 18 January 2001, which showed (a) the phones of KE and PA were close to Mr Reilly's house during the afternoon before the murder. It was said by the Crown that this indicated KE and PA were involved in a reconnaissance mission; (b) A call at 19.20 from KE to Blackburn, (described as the "ready, steady, go" call) which suggested that they were both near Mr Reilly's house; (c) a call at 20.03 from KE to PA's mobile, which the Crown said was the call to say that the shooting had taken place; (d) a call from Hanief Essa, using a prison landline to PA's mobile at 20.10. Hanief Essa told the police in an interview that PA had indicated in this call that Mr Reilly was dead; (e) a call from MS's mobile to a mobile attributed to AS's wife at 20.19 on 18 January 2001. The inference sought was that a message was being passed to AS about the murder. Fourthly, the Crown relied on the "coincidence" that five of those said to be involved in the alleged conspiracy to murder had established alibis in public places, often with CCTV present. Blackburn and KE could not do so because, on the Crown's case, they were in the murder team. Fifthly, the evidence of PA's criminality. (The trial took place before the CJA 2003 provisions about "bad character" came into force). Lastly, the Crown relied on a number of alleged lies and omissions in interview by PA.
22. Hanief Essa did not give evidence. His police interview was put in evidence, however. In it he had denied being a party to the alleged conspiracy, but he said that he had a detailed knowledge of it. His interview statement implicated AS and PA and alleged that Blackburn had been the gunman. All that, of course, was not evidence that could be used against those three at the trial.
23. At this first trial, AS, MS, PA and Blackburn all gave evidence in their defence, denying any part in the conspiracy. John Hoyle also gave evidence on behalf of the defence. He accepted that he was known as Jocko, but he denied supplying any gun. Mark Palma, Darren Statham, Hanief Essa and KE did not give evidence.
24. We have already recorded the verdicts at that trial.

Events leading to the second trial.

25. In May 2003 KE contacted the police. He gave a series of interviews to them. KE's accounts to the police changed over time, but an early stage he confessed to his own involvement in the conspiracy to murder Mr Reilly. He gradually also gave further information about the conspiracy, often changing his story when the police pointed out that a particular fact or version was inconsistent with other evidence or known facts. KE said that Blackburn was the gunman. (GF had not named Blackburn as the gunman, but Hanief Essa had done so in his interview statement). KE named four other conspirators. KE said that Mark Simmonds and David Spencer had accompanied Blackburn at the shooting of Mr Reilly. KE also said that James Jones had driven the get-away car. GF had not implicated those people. KE described the murder weapon as a 9 mm automatic Luger pistol. He said that this weapon had been supplied by Ezenawa Ojinaka, who was known as "Ezzie". That statement was, of course, contrary to that of GF who had said that he was told that the gun was supplied by Mr Hoyle, known as Jocko to someone whom he had not originally named but, would, if asked, have identified as PA.
26. Largely on the basis of this information from KE, Spencer, Simmonds, Jones and Ojinaka were charged with conspiracy to murder Mr Reilly. All four stood trial together in May 2006 at Manchester Crown Court, before Grigson J and a jury. We will refer to this as the "second trial".
27. At the outset of the second trial there was an application to stay it on the ground that the trial was an abuse of process because: (a) the proposed evidence of KE was contradictory to part of that of GF at the first trial, and (b) the Crown did not intend to adduce evidence from GF at this second trial. In a ruling dated 31 May 2006, Grigson J rejected the submission of abuse of process, but he did invite the Crown to consider whether it should not at least tender GF as a witness. He added that if the Crown chose not to do so, he would hear submissions on whether he, the judge should call that witness.
28. The second trial then proceeded. In the event, GF was called as a witness by the Crown.
29. As Grigson J pointed out on more than one occasion in his summing up in the second trial, the Crown's case against the four defendants in that trial depended on the jury accepting the evidence of KE. If the jury was not sure about it, then the remainder of the Crown's case got nowhere. See: eg page 14A-D of the summing up. The judge pointed out a number of reasons why the evidence of KE had to be treated with considerable caution. He said, in terms, that it had a number of obvious "dangers".
30. KE's evidence to the jury in the second trial was that there was talk between AS, Hanief Essa and Ojinaka as early as 24 December 2000 about possible action concerning the turf war, including the possibility of "taxing" Reilly and his gang of their drugs and money, ie. stealing it from them. KE then gave evidence of a meeting at his house on 12 January 2001 attended by himself, Hanief Essa, who was on home leave from prison, "Ezzie" Ojinaka, Blackburn and PA. After the meeting PA met AS at Liverpool City airport upon his return from a stay in Tenerife, made to get away from the dangers of the Reilly faction. KE's evidence was that, from that moment on they were going to kill Paul Reilly. The plan was that PA and Daren Statham (who was a window cleaner on the estate where Reilly lived) would find out all about the Reilly faction, precisely where Reilly lived, where he went to the gym and where he drank. They planned the killing for 18 January when Hanief would be back in prison after his home leave and therefore would have a complete alibi.
31. It was suggested to KE in cross-examination that the plan was to kidnap Reilly and it went wrong. He rejected that suggestion and in re-examination he affirmed that it was a conspiracy to murder and nothing less. He said the same thing in the third trial in 2007.
32. KE's evidence about the gun was that Hanief had told him (KE) that it would be would be given to Hanief by Ezzie Ojinaka and that he (KE) was to give it to Blackburn. That is what happened. Another witness gave evidence of the visit of Ezzie Ojinaka to the house where the gun was left for KE. KE said that he then telephoned Blackburn about the gun. In cross-examination KE was emphatic that PA did not supply the gun.
33. KE also gave evidence that he did not carry out any reconnaissance with PA during the afternoon of 18 January 2001. His evidence was that he was with Statham and Blackburn that afternoon. He did say that he was in telephone contact with PA for directions. That is not inconsistent with the cell-site evidence which showed the mobile phones of PA and KE in the same area near to Reilly's house that afternoon.
34. The Crown also alleged that the effect of KE's evidence was that Ezzie Ojinaka was the person who disposed of the gun after the murder by cutting it up with screwdriver, pliers and a pair of bolt croppers and then disposing of the parts. Parts of a 9 mm Luger self-loading pistol were retrieved from a location that had been identified by KE. However, the parts were very corroded and could not be linked to the murder weapon, although they were consistent with a pistol capable of firing the bullets found at the scene of the murder.
35. KE also gave evidence that AS was the paymaster for the killing and that AS was involved in efforts to replace KE's car which had been used in the murder expedition and then burnt out on 19 January 2001.
36. GF's account, as summarised by the judge in his summing up was that Mark Palma was asked if he could supply a gun and he said he would but he would not give it to PA because he was a nutter, but he would get one for AS. GF said that he did not see the gun and believed it was obtained to frighten Reilly and his associate Barrett. GF said that there was no discussion about killing anyone. GF also said that to his knowledge no gun was supplied by Palma. GF gave evidence that he and PA had gone to Manchester and picked up a 9 mm pistol and ammunition from Jocko: page 47F.
37. The jury could not agree in relation to any of the defendants and were discharged.

The Third Trial

38. This involved the same four defendants as in the second trial. It took place before Grigson J in May to August 2007. The import of the evidence of KE was as in the second trial. GF also gave evidence. The jury deliberated for 56 hours and 11 minutes but were unable to agree verdicts on any of the defendants. Grigson J discharged the jury and the Crown offered no evidence and so Grigson J entered not guilty verdicts in respect of James Jones, Mark Simmons, David Spender and Ezzie Ojinaka. It was accepted by the appellants before us that the evidence of GF was broadly consistent within itself at all three trials.

The arguments of the appellants

39. The central argument of all three appellants, principally advanced by Ms McGowan QC, who appeared for PA and AS, is effectively the same. First, it is submitted that the factual basis of the Crown's case that was advanced in the second and third trials was materially different from and inconsistent with that advanced in the first trial because in the first the Crown relied on the evidence of GF, which was, essentially, that MS had confessed to GF that he had been a party to the conspiracy and that PA had made various statements to GF against PA's interest which demonstrated that he too was a party to the conspiracy. However, in the second and third trials the Crown relied principally on the evidence of KE. That evidence contradicted the evidence of GF on a central part of the evidence which was intended to prove there was a conspiracy to murder, viz. obtaining the murder weapon and disposing of it after the murder. Ms McGowan argued that the evidence of KE therefore fatally undermined the credibility of all GF's evidence about confessions by MS and admissions against interest of PA. Secondly, the conviction of the appellants in the first trial was dependent to a large extent on the jury having accepted the evidence of GF. If the credibility of his evidence were to be undermined then the convictions could not be regarded as safe. Thirdly, this court should, therefore, in the exercise if its powers contained in section 23 of the Criminal Appeal Act 1968, receive the evidence that KE gave in the second and third trials as "fresh evidence". Fourthly, because the Crown put forward KE as a credible witness whose evidence was, in its essentials, true, his evidence must be treated as such for the purposes section 23(2) purposes. Fifthly, the evidence of KE does give the appellants grounds for allowing the appeal, because it fundamentally undermines the credibility of the evidence of GF given in the first trial. Moreover, KE's evidence obviously could not have been given at the first trial. Lastly, in this type of case where the evidence could not have been adduced at the first trial because of the subsequent confession of a defendant at that first trial, the court must make an assessment of the evidence of KE and then, in the light of that assessment, decide what effect it would have on the safety of the convictions of the appellants: see R v Ishtiaq Ahmed [2002] EWCA Crim 2781 at para 37 per Mantell LJ, following the remarks of Judge LJ in R v Hakala [2002] EWCA Crim 730 at para 11, which remarks were adopted by the Court of Appeal in R v Hanratty [2002] 2 Cr App R 30. That assessment must lead to the conclusion that the three appellants' convictions were unsafe so that the appeals must be allowed.
40. Mr George QC, who appeared for MS, further submitted that there was very little evidence, apart from that of GF, on which the Crown could rely to support a conviction of MS. Moreover, KE said little or nothing to inculpate MS in the conspiracy. Moreover, because MS was not a defendant when KE gave evidence at the second and third trial, KE was not cross-examined on whether MS was involved and that factor has to be borne in mind when making an overall assessment of the evidence to see if his conviction is safe or not.
41. Mr Garside QC, appearing for the Crown, submitted that the alleged inconsistencies in the evidence of GF and KE do not go to the heart of the cases against the appellants, who were the progenitors of the plan to murder Reilly, whose faction threatened their drugs fiefdom and lifestyle. They collected together the team, relying particularly on KE and his brother Hanief, who was a powerful man with contacts. With regard to PA, KE gave evidence that he was contacted by him at the time of the troubles with Reilly and Barrett. There were meetings on 23 and 24 December 2000 to discuss these troubles when the question of "taxing" Reilly arose. Then there was the important meeting of 12 January 2001 at which the plan was finalised and the telephone contact with PA on the 18 January 2001.
42. Mr Garside submitted that there was powerful evidence against MS. First, GF gave evidence that MS was involved with the violence by and against the Reilly faction. There was an attack on his house on 18 December 2000 by the Reilly gang. GF gave evidence that MS went to Blackpool in late December, where there were meetings between him and GF and PA. The alibis were discussed. At the time of the murder MS was with PA in a bar in Manchester. Throughout the whole period there were numerous telephone calls between MS and others who were said to be involved in the conspiracy. In particular there was a call from MS to PA after the 12 January meeting and one at 20.19 on 18 January 2001, less than an hour after the murder. The Crown also relied on a number of lies given in interview, as set out in Poole J's summing up at pages 17F-18A.
43. As for the suggestion that this might have been a conspiracy to commit a lesser crime, both the trial judges were both clear that the jury should have little difficulty in concluding that this was a conspiracy to murder and that the question was whether the defendant whose case they were considering was a party to it.

Discussion

44. We make three preliminary points. First, in our view, these appeals must be treated as a "fresh evidence" case if they are to get anywhere. If the evidence of KE is not introduced into the equation there is no other way in which these appeals can succeed. Secondly, there is no suggestion that the conduct of the first trial and summing up were anything other than fair. Nor is it suggested that, on the evidence then available, it was insufficient to convict these appellants. Thirdly, the fact that the Crown chose to rely on the evidence of KE as well as GF in the trials against the defendants in trials two and three, viz. Jones, Simmonds, Spencer and Ojinaka, is not to the point as far as these appellants are concerned. The vital issue is the possible effect that the evidence of KE might have had if it had been available at the first trial.
45. The first question is whether this court should receive KE's evidence on these appeals, pursuant to section 23 of the Criminal Appeal Act 1968. The Crown does not oppose its reception on the appeals. We have considered all the factors in section 23(2)(a) to (d) and have concluded that it is expedient in the interests of justice that we should do so. We have set out the important features of that evidence already.
46. The crucial question is the effect of that evidence. In R v Hakala [2002] EWCA Crim 730 at paras 10 – 11, Judge LJ emphasised that the fact that this court receives fresh evidence under section 23 does not prejudge or foreclose the outcome of the reception of that evidence. This court has to consider the fresh evidence and decide whether and to what extent is should be accepted or rejected, and if it is accepted, to evaluate its importance or otherwise, relative to the other material that was before the trial jury; hence what has been called "the jury impact" test referred to by Lord Bingham in Pendleton [2002] 1 WLR 72. The question for this court is whether, in the light of the fresh evidence, the convictions of the appellants are unsafe.
47. We therefore consider all the material that is now before the court. As a preliminary, we note that there undoubtedly was a conspiracy to murder Mr Reilly which involved several people, not least the three who went to his house when he was murdered. We agree with the trial judges that any jury would have no difficulty in concluding that there was a conspiracy to murder; the only question is whether the verdicts that AS, MS and PA were a party to it are safe.
48. First, we consider how we should generally assess the evidence of KE and GF. Grigson J told the jury in the second and third trials that KE obviously had a self – interest in confessing his part in the conspiracy and in giving evidence that implicated others because he hoped that it would be useful to him when the time came for the Parole Board to consider his release on licence after he had served his minimum term. Therefore, whilst we are prepared to accept that his evidence is "capable of belief", we do not accept that we, in assessing his evidence, must regard it all as if it were gospel truth. By the same token, GF had his own motives, not least that he wanted the £10,000 reward offered by the police, even though he was not, in the event, offered it until after the first trial. Having said that, it is clear that the nature of the evidence of the two witnesses is different. KE gave evidence from the standpoint of someone who was a self-confessed party to a conspiracy to murder. He did so from the "inside", as it were. GF was not an insider; at best he was a confidante and assistant of MS in relation to smuggling, and an assistant to AS in his drugs trade. He was never involved in the conspiracy and was entirely dependent for his knowledge of what went on by what he was told by others. We think that the right approach is one of healthy scepticism as to the truth of the evidence of both KE and GF and we would look at other evidence to corroborate the evidence of the one or the other, including the other's evidence.
49. Secondly, we must assess the effect of the evidence of KE and GF as if they had both been giving evidence for the Crown at the first trial. The plain fact is that the evidence of GF that MS had told him, in early 2001, that a 9 mm gun had been obtained from Manchester just after Christmas from a man called Jocko who had supplied the gun to MS is inconsistent with the evidence of KE that Ojinaka had obtained the gun after the meeting on 12 January 2001. Moreover, GF's evidence of what MS told him as to the disposal of the gun by PA is inconsistent with KE's evidence about disposal of the gun by Ojinaka.
50. However, we cannot accept the submission of Ms McGowan and Mr George that, because there are such inconsistencies, that fatally undermines the credibility of all GF's evidence which goes to incriminate the appellants. The evidence of GF and KE are both consistent in the sense that a 9 mm calibre gun was obtained for the purposes of a conspiracy. Admittedly, GF did not know of the conspiracy to murder and he did not know the gun had been obtained for that purpose, but his evidence is not inconsistent with that of KE who said that was precisely the purpose for which the gun was obtained as a result of the meeting of 12 January when it was decided that Mr Reilly must be murdered. That is the combined effect of their evidence.
51. Thirdly, there is the powerful evidence of KE that there was a meeting on 12 January 2001, where he was present with PA, Hanief Essa and Ojinaka, where, KE said, the decision was taken to carry out the murder to which, he said, all three appellants were a party. There is the supporting evidence of involvement in the conspiracy that AS was collected from the airport by PA following the meeting and the following day MS telephoned PA.
52. Fourthly, there is evidence by GF about MS explaining to him, after the murder, that he (MS), PA and AS had arranged their alibis for the night of the murder. MS told him that his alibi "seemed to be working" when he (MS) had seen the police. MS told the police that he had been at the Bar Med in Manchester on 18 January 2001. Therefore, the fact that all the appellants did have alibis in fact and that MS told the police he was in that bar all supports GF's evidence about what MS told him (which could, of course, only be evidence against MS).
53. Fifthly, GF gave evidence that MS had told him that he had been at the bar when a call was received by PA to confirm that the killing had been carried out. KE made a call to PA at 20.03 on 18 January 2001. KE's evidence was that this call was indeed to tell PA that the killing had taken place. GF's evidence about what MS told him is therefore supported by KE's evidence and the cell-site analysis. There is also the cell-site evidence that at 20.19 MS rang AS's wife's phone which is consistent with MS passing on the message that Reilly had been murdered.
54. Sixthly, GF gave evidence that he was in Blackpool with MS and PA after the killing and that PA rang AS. GF said that MS spoke to AS on the phone then and argued with him. GF said that PA, in the presence of MS, said to GF words showing an involvement (by both MS and PA) in the killing of Reilly.
55. Seventhly, we must place the evidence of KE and GF in the context of the other evidence relied on by the Crown at the first trial. There is the evidence of the spiral of violence and the effect it was having on AS, MS and PA, which gave them a motive to resolve the turf-war by killing Reilly. Next, there is the cell-site evidence, particularly that relating to the 18 January 2001. Then there is the coincidence of the "public" alibis of all the appellants.
56. We are prepared to accept that the evidence against MS is more circumstantial. But he had a powerful motive to ensure Reilly was killed, having been beaten up by Barratt before Christmas and had his house attacked by Reilly's gang, so being forced to move around thereafter for fear of further attacks by them. MS was with PA in the period leading up to the killing and on the night of the killing. We take account of the fact that MS was not in the drugs trade and so he was not threatened in the same way as AS or PA.

Conclusion

57. Having attempted to make an assessment of the "fresh evidence" of KE, its impact on the evidence of GF and the place of the fresh evidence in the overall scheme of the evidence that was adduced at the first trial, we must make a judgment on whether these convictions are safe. We are quite satisfied that they are. We agree with the Crown that, far from undermining the safety of the convictions, the evidence of KE would have added damning weight against all the appellants, including MS.
58. Accordingly, we dismiss all three appeals.