Mr Mitchell’s arrest
on 10 March 2011, Ms Whalley and the Applicant engaged in a three-way conversation by phone and text, the other participant in the conversation being the “R-man” or “R-fella”. It was the Applicant’s evidence that “R-man” was McGill’s yard manager and therefore a work colleague of Mr Mitchell.13.On 11 March, the day after Mr Mitchell’s arrest, the R-man telephoned the Applicant from an Irish number ending 1025, this being the first time that number had appeared. On 12 March there were telephone calls and messages between the Applicant, the R-man and Ms Walley in the course of which the Applicant asked the R-man to ring him “on the other one”. By one of the texts the R-man sent the Applicant his address in Duleek, Co. Meath, which is about 5 miles from Drogheda and which the Applicant promptly sent on to Ms Whalley. The exchanges continued between the Applicant and Ms Whalley on the following day, 13 March, the main topic being whether Mr Mitchell had telephoned Ms Whalley from custody, which he had not; and on 14 March the exchanges included a telephone conversation between the Applicant and the R-man which lasted 1 minute 27 seconds. The same pattern was repeated on 15 March with the Applicant and Ms Whalley discussing her intention to visit Mr Mitchell in custody in Ireland and the Applicant telephoning the R-man for 43 seconds. Within a minute of that telephone conversation, the Applicant texted Ms Whalley “I’ve spoken to R his woman is going to call you very soon.” In his last text to Ms Whalley that day, the Applicant said “Maybe when you go there it will all become a bit clearer, maybe just tell people he has been the mule unknown to him!!!” The presence of the three exclamation marks was suggested by the prosecution to mean that the Applicant knew the suggestion (that Mr Mitchell was an innocent mule) to be untrue. The prosecution also asserted that the Applicant was setting up an untrue explanation such as he had used the previous year: see [6(v)] above.14.On 16 March the R-man and the Applicant texted each other between 14.44 and 14.50:15.Two points may be noted at this stage. The first is the apparently close involvement of the R-man in making provision for Mr Mitchell in the defence of the criminal charges against him: the prosecution suggested that this was closer than to be expected of a mere fellow-employee of McGills. In addition, the prosecution suggested that the reference to being “on for the flat” was a reference to the Applicant being on to do the Assen drug run across the flat terrain of that journey. The Applicant said that it was because he had made some enquiries about a flat in Ireland and the R-man was looking into the possibility of sorting that out for him.16.There were further text exchanges between the Applicant and the R-man on 17 and 18 March 2011. The content of the messages is not available. On 19 March Ms Whalley reported that Mr Mitchell had been remanded in custody. There were then further exchanges of text messages between the Applicant and the R-man on 22, 23, 24, 27 (together with one short attributable phone call from the Applicant to the R-man), 28 and 29 March 2011, the content of which is not available.17.It is apparent that Mr Mitchell’s next hearing was on 1 April 2011, because the first of a series of texts that day between the Applicant and Ms Whalley was one from Ms Whalley saying (in an apparent reference to raising money for Mr Mitchell’s bail) “Court starts at half ten but those fuckas haven’t sorted money. Rang me yesterday and asked me to transfer 10,000 euro. Er hello not very suspicious to just make that money appear!” The texts referred to the next hearing being on 11 April 2011. On that date there was a further exchange of texts between the Applicant and Ms Whalley about money. The Applicant asked “Did they sort his money out yet what they owe him?” to which Ms Whalley replied “Not as far as I know. Think it might be getting sorted but not sure.” The Applicant asked “Ok is the R man trying to sort it?” to which Ms Whalley replied “I think so. Has been to see him a couple of times, … .” The Applicant replied “Ok keep me informed and fingers crossed.” There was no further explanation in the texts of what money was owed by whom to Mr Mitchell or of why the R man should be trying to “sort it”.18.On 31 March 2011 the Applicant had had an exchange of texts with Gerry Lloyd, with whom he was then in a relationship, about the possible purchase of a boat. The Applicant started by saying that “a 50 or 60 ft one is the way to go!”. A little later, in answer to the question “How much?”, he said “They vary anywhere from £15,000 up to £50,000 it all depends on how old and the state they are in!” Gerry Lloyd then asked “have you got that kinda dosh squirreled away in an Irish account?”, to which the Applicant answered: “No I haven’t got that much yet but come about august time I’m hoping to have it; … ask no questions I’ll tell you no lies hee hee!!!” When asked about this last sentence (with its three exclamation marks), the Applicant said in evidence that he was hoping to make some money doing tobacco and cigarette jobs during the European part of the season. He said he was hoping to make enough money to think about buying the boat from the anticipated death of his grandmother, his wages from Paul Bird, money from cigarette and tobacco jobs and that Gerry Lloyd was interested in investing too. He was extensively cross-examined on his potential earnings if he were to smuggle tobacco and cigarettes, the prosecution’s case being that tobacco and cigarettes would not yield enough cash and that what he was really texting about was smuggling drugs.19.For present purposes the next significant occurrence of texts and phone calls occurred on the return journey from Assen on 18 April 2011. The two lorries caught the 17.53 crossing from Dunkirk to Dover. They were intercepted at Dover at approximately 19.25. The drugs were first found at approximately 20.51. While waiting at Dover the Applicant was seen by a number of officers to be on his phone. Subsequent analysis showed that he had deleted portions of his call history and texts, which he said was mere coincidence and should not be regarded as suspicious. Analysis of his phone and other sources revealed the following:i)Between 13.01 and 13.23 there were five texts to the Applicant from an Irish number ending 1286. The content is not available. The number was attributed through the Applicant’s contact list as Billy Clarke. ii)Between 17.23 and 20.40 there were 10 calls from a number registered to Bryan Reynolds Car Sales, a Mazda dealership in Drogheda, to the Applicant and one call from the Applicant to the Bryan Reynolds number, which the Applicant had deleted from his handset:iii)During this period there was a text message to the Applicant’s phone at 18.07 from an English number ending 6533 which simply said “Jake”. The prosecution case was that this was connected to the drug smuggling. The Applicant said that “Jake” was his nickname and that the text would have been from a friend, probably notifying him of the friend’s new number. He identified the sender as Scott Allisoniv)In and shortly after 20.51 the Applicant’s phone received two calls from and made one call to a number which was traced to a public phone box in St Laurence Street, Drogheda:In his second interview the Applicant said that he had no idea he had been in contact with a public phone box in Ireland. At the first trial he said he must have called back the number that was attempting to call him. By the second trial he had (according to his submissions to us) “realized the significance of the fact that he was arrested at around 20.51/20.52. He therefore did not believe that he would have made the call at this time.” The suggested implication of this was that the call to the Irish number may have been made by a customs officer to try to investigate the last received number. Given the timings, it was suggested that the last of the three calls had resulted in a voicemail message. If it was, the content was not available. v)There were then four further calls to the Applicant’s phone from the Bryan Reynolds Car Sales number:vi)There were then three calls from an Irish number ending 4302 (which had not been attributed):There were further calls from this number on 19 and 22 April 2011. It appears that all these calls must have gone to voicemail. If there was any content it has not been identified. The Defence case20.The Defence case was that the Applicant was not part of any criminal organisation and he had no knowledge of the drugs found in the “3MX” lorry.21.We have touched on some of his evidence at the re-trial already. It is not necessary to provide an exhaustive summary, but it included the following additional points. He said that he worked as a mechanic and lorry driver within the world of motorcycle racing. Once a race had finished it was a case of everybody helping out to get the vehicles packed up so that they could leave to travel back from wherever they were. He said he had no involvement in unloading the lorries once they were back in the UK.22.The Applicant gave evidence that he became involved in tobacco smuggling after he had started working for Paul Bird. He said it was Gary Matthews who had suggested that he get involved. He said that he did help load "B9RDY" at Assen. At the end of the racing both trucks were packed up on the Sunday night so on Monday they would get an early start. He said he had no idea that there were drugs in “B9RDY”. He accepted that the drugs must have been placed by someone connected with the team, and he believed that it was Gary Matthews and Paul Bird. When smuggling tobacco for Paul Bird, he said there would be five or six holdalls that would be put in the sleeping area of his truck and driven to Penrith. He said that there was a separate tobacco smuggling operation with Guy Mitchell and the R-man. They would source tobacco and he would simply be the transport. He denied having made a confession of smuggling in 2010 to Mr Buckmaster. The Grounds of Appeal23.In applying for permission to appeal, Mr Summers KC and Ms Darby, neither of whom represented the Applicant below, have left no possible stone unturned and have said all that could possibly be said on the Applicant’s behalf. When reduced to its bare essentials, there are three main points. The first is that the Judge wrongly admitted the evidence that Mr Mitchell had been arrested and charged with drug offences and that this caused the entire trial to go out of control or, in their words, become distorted. The second is that the legal team of solicitors and counsel failed to call evidence that they should have called, which, it is submitted, might have had an important impact on the outcome of the trial. Ancillary to this ground is an application under section 23 of the Criminal Appeal Act 1968 to adduce the evidence of 10 additional witnesses who were not called at trial. Third, it is submitted that an extension of time of something over 8 years and 2 months should be given to the Applicant within which to bring this application and proposed appeal.24.We take as our starting point the criteria that have to be satisfied in order for an extension of time to be granted. We adopt as a convenient summary what was said by a different constitution of this court in R v O [2019] EWCA Crim 1389 at [45]:“This therefore brings us to the question of delay and the lengthy extension of time required. The delay in this case has been considerable.