CCRC Referral Jeanette Burke – Knocked Back by Court of Appeal

“I was arrested in October 2005 sentenced to 40 years (20 concurrent) in July 2006. I was released in August 2016 having served my sentence plus further 10 months for Proceeds of Crime Act (POCA), for money they knew I did not have. My barrister tells me I cannot appeal to the Supreme Court because of the way my appeal judgement was worded, so I am now applying to the European Court of Human Rights (ECtHR)”.  Jeanette Burke

‘CCRC were correct in referring this matter to the Court of Appeal’ but bollocks to them anyway.

Not quite what the ‘learned’ judges said, they did say the first part (but not the bollocks to them anyway bit) but having read through the judgment they might as well have done so. John O MOJUK

Jeanette Burke appeared at Liverpool Crown Court in 2006 charged with one count of conspiracy to supply cocaine and another of conspiracy to supply heroin. She was one of a number of people prosecuted for these offences following a lengthy Merseyside Police and HM Customs and Excise operation known as Operation Lima. Some of the alleged conspirators pleaded guilty. Ms Burke was among a number of others who pleaded not guilty but she was convicted and sentenced to 20 years’ imprisonment. Ms Burke appealed against her conviction but the appeal was dismissed in 2008. She applied to the Commission for a review of her case in 2012. Having considered the case in detail the Commission decided to refer Ms Burke’s conviction to the Court of Appeal. The referral was made on the ground that the non-disclosure of the bases of plea of co-accused conspirators potentially undermined the safety of Ms Burke’s conviction and therefore raises a real possibility that the Court woud quash her conviction.

The appeal was heard by Justices: Jones, Hickinbottom and Baker on Thursday 20th October 2016.

Extracts from the judgement

The Crown Prosecution Case was Entirely Circumstantial (Not disputed by Court of Appeal)

61. . . . . . He went on to direct the jury that in relation to both charges the prosecution relied upon circumstantial evidence to prove guilt. That meant that the prosecution was relying upon evidence of various circumstances relating to the crime and the appellant which the Crown said when taken together would lead to the sure conclusion that she was guilty. He gave an appropriate direction in relation to circumstantial evidence. He said this:

"The prosecution relies upon evidence of observations, travels abroad, upon the meetings and telephone contacts to prove the existence of these conspiracies and Mrs Burke's role in them. You have been provided with a sequence of events schedule, and this is an important document. The dates, times and details are accepted as an accurate and fair representation of the evidence relied on by the prosecution. You will have to assess this material and consider the events in the context in which they took place."

Was below an invitation by the judge at trial to ‘Fit Jeanette Burke up’

61. . . . . .Later in his summing-up he directed the jury as follows:

"When you consider Mrs Burke's position it is important you do not just break down the evidence into its various pieces. In a case of this size it is natural to focus on individual events. But you should also stand back and consider the case as a whole. Do you see that, ladies and gentlemen, and how important it is to just stand back and look at the overall picture, not just focusing in on individual events.

Non- Disclosure – (None of below was disputed by the court of appeal)

The CCRC's Statement of Reasons has been adopted on behalf of the appellant and further submissions are contained in the perfected grounds prepared by Mr Emanuel. The CCRC's decision to refer was founded on non-disclosure of the bases of plea of Christopher Burke and Keith Burke and inconsistencies between the prosecution case against the appellant and those bases of plea which may have created a false impression to the jury. In addition, passing reference is made to the same issues in relation to the bases of plea of John Mullally and Russell Burke.

The perfected grounds of appeal are founded on a similar basis to the CCRC reference, namely non-disclosure of the bases of plea of Christopher Burke, Keith Burke, John Mullally and Russell Burke and inconsistencies between the prosecution case and those bases of plea such that the jury may have convicted the appellant on the basis of evidence that was not capable of proving her guilt.

On behalf of the appellant it is submitted first that the prosecution relied on evidence of the guilty pleas of Christopher Burke and Keith Burke, but the appellant and the jury were not informed that the guilty pleas were limited by accepted bases of plea. Secondly, it is said that the prosecution relied on evidence of the appellant's contacts with Christopher Burke and Keith Burke at times that were inconsistent with their bases of plea, but the appellant and the jury were not informed that the contact fell outside the accepted limits of their involvement. Thirdly, it is submitted that the prosecution's presentation of their case in a manner that was inconsistent with the accepted bases of plea had a significant impact on the case and caused gross unfairness to the appellant. She did not have a fair trial because the jury were misled about the interpretation of evidence presented against her and they may have convicted her on evidence that was not capable of proving her guilt. Fourthly, it is said that the prosecution's failure to disclose the bases of plea also had a significant impact on the case and caused gross unfairness to the appellant because she was deprived of the opportunity to expose inconsistencies in the prosecution case. She was further deprived of the opportunity to support her defence, which was one of innocent association, by pointing to the numerous occasions where her contact with Christopher Burke and Keith Burke took place at times when the prosecution accepted that they were not involved.

62. The problem with the approach adopted by the prosecution, that is that the pattern of context at key times clearly showed that the appellant was knowingly involved in these conspiracies, was that the admissions placed before the jury simply referred to the pleas of the co-defendants. They did not reflect the bases of plea which had been entered and in the case of Christopher Burke accepted by the Crown. The admissions indicated only that Christopher Burke pleaded guilty to counts 1 and 2 and Keith Burke pleaded guilty to count 1. The jury were not informed of the limited basis on which they pleaded guilty, which gave the impression that they accepted full involvement. The same points apply in relation to John Mullally and Russell Burke. The jury were informed of their guilty pleas to count 1 but not of the limits. This effect may have been increased by the fact that in the case of certain other co-defendants the admissions specified particular incidents in which they accepted they had been involved.

In the result, as the case was presented there were inconsistencies between the Crown's case against the appellant and the bases of plea. Some of the contacts on which the Crown relied fell outside the limits of the involvement accepted by the co-defendants.

The jury should have been informed of the limited nature of the guilty pleas of these four co-defendants and the fact that the prosecution did not proceed against Keith Burke on count 2. We consider that the failure to do so gave a misleading impression by suggesting that inferences could be drawn from the appellant's contacts with these individuals at times when, according to their bases of plea, they were not involved. Further, we consider that the appellant was denied the opportunity of making related points in support of her defence of innocent association.

What impact does this have on the safety of the convictions?

The judges in their Wisdom decided: " Although it is not critical to the outcome in this appeal, we do not in any event agree with Mr Ali's submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty..."

And so, they blathered on till para 75 and the inevitable. “For these reasons, the appeal will be dismissed.