Court of Appeal hearing into £53m cocaine smuggling ‘Freshwater Five’ case concludes, with judgment reserved
26th Feb 2021 – For Immediate Release – APPEAL
Almost a decade after being convicted for smuggling £53m of cocaine, the hearing on an application for leave to appeal for two members of the ‘Freshwater Five’ has concluded at the Court of Appeal.
The ‘Freshwater Five’ were sentenced to a total of 104 years’ imprisonment at Kingston Crown Court in June 2011 after being convicted by an 11-1 majority jury verdict.
Lawyers acting for Jonathan Beere and Daniel Payne presented fresh expert evidence undermining the prosecution’s case that the men conspired to use a fishing boat to collect drugs from a containership in the English Channel and later deposited them in Freshwater Bay off the Isle of Wight.
Scaffolding business owner Jonathan Beere, fishing boat skipper Jamie Green and crewmember Zoran Dresic were each handed down 24 years’ imprisonment, while fishermen Daniel Payne and Scott Birtwistle received 18-and 14-year sentences respectively.
Over the course of the hearing this week, the court heard new evidence that:
Radar evidence suggested that the men’s fishing boat, the Galwad-Y-Mor did not get sufficiently close to the path travelled by the MSC Oriane to permit the transfer of any drugs.
A high-speed craft was caught on radar speeding towards the location in Freshwater Bay where the drugs were subsequently recovered. This alternative suspect vessel was not made known to the defence at trial.
The HMCC Vigilant, a UK Border Agency vessel, was monitoring the MSC Oriane and appeared to have discounted the Galwad-Y-Mor as the drugs-receiving vessel around the time when the transfer was supposed to have been taking place.
A surveillance plane flew over Freshwater Bay after the Galwad-Y-Mor passed through yet failed to report the presence of any bags tied together on a rope in the water below.
This evidence came to light through the tireless enquiries conducted by the men’s solicitor Emily Bolton, and investigator James Burley of the miscarriage of justice charity APPEAL.
The data from the Vigilant was unearthed in 2018, when the Crown Prosecution Service disclosed radar data extracted from the Vigilant’s Electronic Chart Display and Information System, or ECDIS. The data had been downloaded by a prosecution expert in June 2010 and stored on floppy disks which then sat in a safe for the intervening years.
The failure to disclose the ECDIS data was described as a “major failing” by Joel Bennathan QC and Annabel Timan in court submissions made as part of the appeal application on behalf of Jonathan Beere and Daniel Payne.
Prior to the hearing, Daniel Payne and Scott Birtwistle had been released from prison on license, having served the custodial portion of their sentences. Jonathan Beere, Jamie Green and Zoran Dresic remain in prison.
Judgment is expected to be handed down in the next few weeks.
Emily Bolton, Director of APPEAL and solicitor for the five men, said:
“This week the Court of Appeal heard new and compelling evidence which the Freshwater Five were deprived of the opportunity to present at trial.
“Had the jury heard the evidence in this case as it now stands, we believe they would have reached a different verdict.
“We hope the Court of Appeal will decide that in these circumstances the convictions simply cannot stand.
“Throughout the 46 years they have collectively served in prison, the Freshwater Five have always maintained their innocence. We hope the nightmare experienced by them and their families for what is now over a decade will very soon come to an end.”
The families of the ‘Freshwater Five’ have prepared a joint statement:
“This is an anxious time for us all as we await the judgment. The men and their families have been the victims of a heinous miscarriage of justice. To be wrongly imprisoned for 10 years for a crime you didn't commit should be something that never happens in a modern society and exposes a deep and serious flaw in the legal system.
“We hope the Court of Appeal now has everything it needs to finally see the truth – that the men are innocent and should never have been convicted of this crime. We hope that they will act swiftly to set right the wrong that has been done to us and overturn these convictions.
“Absolutely everyone would like to place on record their sincerest thanks to the legal charity APPEAL. We would not be where we are today but for their relentless investigation of the case. We also want express our sincere thanks to Joel Bennathan QC and Annabel Timan for their painstaking preparation and advocacy, and to the experts instructed by our legal team who have put in hundreds of hours, working largely for free, uncovering the truth.”
Notes to editors:
1. A copy of the Applicants’ Skeleton Argument is available upon request.
2. APPEAL is a law practice and charity which challenges miscarriages of justice in England and Wales. www.appeal.org.uk
3. The appeal applications were heard by the Court of Appeal between 23 February 2021 and 26 February 2021.
4. Only two members of the ‘Freshwater Five’ are Applicants in this appeal because the other three have already unsuccessfully sought to appeal. In England and Wales, the only way an individual can have their case considered by the Court of Appeal a second time is via a reference from the Criminal Cases Review Commission. The Commission previously declined to refer the case to the Court of Appeal, without having accessed the new radar evidence.
5. For any follow up, interviews with the men, their families or the legal team, please contact Sophie Radice on sophie@appeal.org.uk or call 07491602813
6. The photos above are used by kind permission of Peter Flude. For permission to reproduce them, please contact him directly via www.peterflude.co.uk, +44 (0) 7879 678073