[2025] EWCA Crim 1103

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:

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:

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:

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.