The Prosecution case
5.The Prosecution case was that the Applicant was part of a criminal enterprise that was involved in smuggling the contraband items found in “B9RDY” into the UK. The prosecution alleged that the criminal enterprise was based in Ireland and that someone variously identified as “R-man” or “R-fella” was integral to the enterprise. 6.To prove the case against the Applicant, the Prosecution relied on various strands of evidence:i)During the search of the two vehicles and before the discovery of the drugs, the Applicant was using his mobile telephone to send and receive texts. The prosecution suggested that an exchange between the Applicant and his partner was significant as it showed he was aware that the problem was with the “3MX” lorry before any drugs had been found. The first discovery of drugs was made by Officer Bodger at 20:51; but between 20.14 and 20.30 he sent a series of texts to his girlfriend stating “… we have a bit of a problem not good in customs in Dover” and that the problem was in “the other lorry.”;ii)The cannabis had been found in three large cardboard boxes placed inside a cabinet of the office space. One of the boxes was found to have the Applicant’s palm print on it. The position of the palm print was consistent with the Applicant having carried or at least picked up that box;iii)When the drugs were discovered all of the people travelling in the two vehicles were arrested and the Applicant had his mobile phone seized. The Applicant was interviewed the following day, at which time there had been no forensic analysis of telephones or the drugs. The Applicant denied any knowledge of the drugs, firearm or ammunition. He said that all he had loaded onto "B9RDY" were three bikes and a wheel tyre. He said he had not been in the office of "B9RDY" because there was no reason for him to go into that area and he said he had never put anything into the cupboards. The only cardboard box he recalled picking up was a large box which was open and contained racing leathers. That box, he said, was put onto his truck, "3MX". He denied that his fingerprints or DNA would be found on any of the drugs packaging;iv)Once the Applicant’s mobile phone was analysed it showed evidence of the Applicant’s contacts and communications. This led to a second interview. The mobile phone showed a number of calls to and from Ireland on 18 April 2011, the day of arrest, including that the Applicant had deleted a phone call made to a public telephone box in Ireland shortly before he was arrested. At trial an events schedule was prepared that contained details of text messages and phone calls that were said to be relevant. The attribution of some of the numbers with whom the Applicant was in contact was not contentious; but, as we shall detail later, there were others where attribution was contentious, not least because the Applicant changed his account between the time of his initial interview, his second interview and his re-trial. The prosecution asserted that a number of the texts and the fact of a number of the phone calls being made as and when they were provided evidence of the Applicant’s guilt. They are at the heart of the present application and it is therefore necessary to refer to them in some detail: see [7] ff below;v)There was evidence that the Applicant was involved in a previous smuggling operation of tobacco. In 2010 the Applicant had been stopped by customs agents while driving a lorry for the Honda Racing team. The lorry was returning to Hull from the Assen racetrack in Holland and was found to have 250kg of tobacco on board. There was no criminal prosecution of the Applicant who denied knowledge of the tobacco and said he was an innocent mule. Evidence was heard from Simon Buckmaster, the principal of the Honda team, who said that the Applicant had made a confession to him that he was involved in smuggling the tobacco. During the re-trial the Applicant accepted that he had previously been happy to engage in smuggling tobacco and sought to deflect suggestions that his conduct and conversations were to do with drugs by asserting that they were in fact to do with smuggling tobacco products;vi)The Applicant had an Irish bank account that had received a 3000 euro payment from a person named as Ashleigh [blank]. In evidence the Applicant said the payment was made by “R-man’s partner”, though he also said that he didn’t know her name. He said it was payment for motorcycle parts that he had sold to “a friend of the R-man” - not to the R-man’s partner. He said that he had got the parts from a Mr Ken Summerton who, he said, had a big suspension company in England called K-Tech.The phone calls and text messages7.The phone records and text messages revealed contact between the Applicant and the “R-man” or “R-fella”. The R-man assumed a central role at the trial and on this application, as we shall explain below.8.The phone records also revealed contact between the Applicant and a man called Guy Mitchell who, like the Applicant and Mr Matthews, was an HGV driver. Mr Mitchell was employed by an Irish firm called McGill’s. At the heart of this present application lies the fact that Mr Mitchell was arrested in Ireland on 10 March 2011 and charged with serious drug offences, namely possession of substantial quantities of drugs for the purpose of selling or otherwise supplying them to another. At the time of the Applicant’s trial, Mr Mitchell had not been tried. When eventually he was tried, he was acquitted by the jury on 9 March 2015. 9.The first relevant sequence of text messages was between 12 and 14 January 2011. The Applicant (who was then in Malaysia) and Mr Mitchell exchanged messages which were at least consistent with planning the illegal transport of contraband and indicated that the R-man was involved in the plan:10.On 17 February 2011 there was an exchange of texts between the Applicant and an Australian (+61) number. During the exchange the Applicant said that he wished he were in Australia too. The exchange included: 11.At the time of the Applicant’s second interview, the +61 number had not been attributed. The Applicant said it was the number of an Australian called Mr Grant Covus (otherwise known as “Moose”). He said that “Assen is pay day” was a reference to a debt he owed Mr Covus for suspension work that Mr Covus had carried out and which had been paid while they were in Assen. By the second trial the +61 number had been attributed to Mr Matthews. The Prosecution unsurprisingly alleged that the reference to “work that pays well” and Assen being “pay day” were references to the Applicant being handsomely paid for smuggling Class A drugs after the forthcoming Assen race; and that his account of owing money to Mr Covus and paying him at Assen had been a lie and an attempt to put the interviewers and the prosecution off the scent. The Applicant’s response to that during his second trial was that “Assen is pay day” referred to being paid for smuggling tobacco products. The Prosecution countered by referring to a further text, sent by the Applicant to Mr Matthews on 2 March 2011 which said: “No probs we have a defo on the fag job from Spain test :-) just waiting on a phone call about the other stuff x”. The prosecution case, which the Applicant denied, was that “the other stuff” was not tobacco products but Class A drugs. At his re-trial, the Applicant said that he could not remember what “the other stuff” was intended to mean. No tobacco products were found on either of the two lorries at Dover. The Applicant’s evidence was that the tobacco smuggling had been called off either when they were on the way to Assen or when they had arrived there. There was nothing on the downloads from the Applicant’s phones or computer to support the suggestion that a tobacco smuggling operation had been called off at that late hour. 12.Mr Mitchell’s partner was called Gillian Whalley. In the immediate aftermath of 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.