Another week, another case where a convicted cocaine smuggler is to appeal his conviction following the discovery of new evidence, leaving the Crown in yet another awkward position over disclosure.
The Herald reports :
Exclusive by LUCY ADAMS, Chief Reporter October 22 2007
A man convicted of being one of Scotland's biggest cocaine smugglers is to appeal his case following the discovery of new evidence.
William Gavin Grant was arrested in 2002 and charged with trying to import one of Scotland's largest consignments of cocaine, worth an estimated £50m. He and three other men were caught by Customs and police officers in a complex sting operation.
The drugs, which the gang were transporting direct from South America, had already been seized at an English port and replaced with sand. When some of the group went to pick up what they thought was cocaine, they were arrested.
Grant, 42, from Bothwell in Lanarkshire, was accused of being a ringleader alongside James Mair, and they were jailed for 18 years each at the High Court in Edinburgh.
However, new evidence has come to light which suggests Grant had nothing to do with the smuggling, and Mair has written to him from Barlinnie Prison in Glasgow, apologising for the fact he was accidentally caught up in the operation.
The main evidence against Grant came from the testimony of Hannah Smith, Mair's secretary, and the analysis of a fax machine which officers claimed Grant used to organise the shipment.
The Herald has seen the transcript of a taped police interview with Ms Smith, which has only just been handed to the defence and highlights major discrepancies between her different statements.
In addition, lawyers and investigators have uncovered flaws in the expert claims that the fax organising the shipment came from Grant's machine and suggestions that evidence was improperly handled.
Evidence seals were broken on the evidence with no mention why, yet traditionally if officers need to remove something or open the evidence bag, they have to explain reasons and log the action.
Grant's appeal will be led on a number of grounds, including non-disclosure, insufficiency of evidence, and discrepancies in the statements of the key witness.
The case is likely to reignite the debate about non-disclosure. The Crown is still refusing to hand over the surveillance logs involved or allow access to the original fax machine.
Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in NCIS (National Criminal Intelligence Service), has been working on the case for the past two years.
Grant, speaking to The Herald from Glenochil Prison, said: "The appeal was granted in January 2004 and I have been waiting since then to get a date set and to get the Crown Office to hand over the remaining documents that we need. The transcript of the police interview with Hannah Smith was only made available at the end of August this year and they are still not allowing us access to the original evidence to allow our forensic experts to look at it.
"It is just so incredibly frustrating. The strain it's putting on me and my family is incredible. My mum is really struggling to cover my mortgage payments and keep things going.
"I just want a date set so I can get the appeal heard. All I was doing was looking after someone's business while they were on holiday. This could happen to anyone - that's one of the scariest things about it. Mair wrote to me in Barlinnie saying don't worry about this, it's got nothing to do with you. But I'm still here."
LUCY ADAMS, Chief Reporter October 22 2007
It was an intricate sting, set up to foil one of the biggest cocaine smuggling consignments ever destined for Scotland.
Police and Customs officers waited and watched as the drug trafficking gang spent hours unloading 500 bales of rubber at a warehouse in a business park in Stepps, north-east of Glasgow.
The gang expected the bales to be packed full of Class A drugs worth £50m, in 1kg blocks sealed in wax to fool sniffer dogs. Unknown to them, however, the cargo had already been intercepted by customs officials at Felixstowe in Suffolk and the cocaine replaced by millions of grains of sand.
Afterwards, four Scots were arrested and jailed for almost a combined 70 years in June 2003 at the High Court in Edinburgh. Businessmen James Mair and William Grant were each sentenced to 18 years, while David Frew and Sean McAdam received terms of 12 and 10 years respectively.
However, now it appears the smugglers may not have been the only ones to make a mistake. New documents seen by The Herald indicate that Grant was not aware of what the consignment contained, nor directly involved in the operation.
Grant was convicted for sending the bogus faxes which were used to lend some legitimacy to the cargo. However, since the trial an independent fax expert has verified that these faxes could easily have been rigged so it seemed as if they were sent from a different machine.
In addition, Nicola Smith, Mair's secretary, told the court that Grant had told her about the shipment, but in a police statement that has only just been disclosed to the defence, she explained Mair had phoned from Benidorm to tell her about the delivery.
In this statement, she explained Grant did not even know anything about the delivery. At the trial, the prosecution argued that Mair and Grant ran aspects of the business together. Lord Carloway said that Grant was "entwined" to a "material degree" in Mair's company G&L Distribution.
However, in the previously unseen statement, Ms Smith said Grant was simply one of the drivers.
Peter Ritchie, a retired detective superintendent from Lothian and Borders police who spent five years at Europol and worked as the head of the organised crime squad in the National Crime Intelligence Service, has been working on the case for the past two years.
Mr Ritchie, currently working on the Billy Wright inquiry in Northern Ireland, said he was convinced of Grant's innocence. "The more I looked at the evidence, the more convinced I became that he is innocent," he said. "Technically, once we analysed the evidence, we realised it just did not stack up.
"He seems to have been convicted on the grounds that he sent a fax and that Nicola Smith said he was involved. The expert we asked to look at this indicated the fax could have been sent from anywhere. Based on my experience, the fact that he, unlike the rest of the group, was not handed a new mobile phone is just unthinkable in a drugs trafficking case.
The more I looked at the evidence, I became convinced of his innocence
"In court, they said a notebook found in his car was financial evidence of his involvement. I don't understand how they came to this conclusion when this book is all about his notes on things like buying petrol as he went about his business."
Grant, currently serving his sentence in Glenochil, is about to lodge final appeal papers with the courts. He is appealing on the grounds of insufficiency of evidence and non-disclosure. Apart from the discrepancies in Ms Smith's statements, his lawyers are still trying to get hold of a number of documents relevant to the case, including the surveillance logs on Grant that claim he used classic counter-surveillance measures to shake off detectives.
This lack of disclosure, the latest in a long line, is fuelling an ongoing public and legal debate about the fairness of the prosecution picking and choosing what to share with the defence. Last month, a review on disclosure commissioned by the then Scottish Executive said prosecutors should be legally bound to provide full information to defence lawyers in advance of a trial.
Lord Coulsfield, who chaired the review, was also one of three judges who presided at the Lockerbie trial in the Netherlands. He called for legislation requiring the prosecution to have regard to "the overriding requirement of a fair trial".
In 2005, the Judicial Committee of the Privy Council, the highest criminal appeal court, quashed the convictions of two Scots on the grounds that the Crown had failed to disclose vital documents and said that this breached the European Convention on Human Rights.
Two other appeals have since hinged on non-disclosure in part, as will two other pending high-profile cases: the Lockerbie bomber and Nat Fraser. Regardless of this, the Crown is still refusing to fully disclose information.
Fraser's appeal begins around the same time as a special hearing in Edinburgh on disclosure. Advocates are arguing, in relation to four appeal cases including that of Grant, that every document relevant to a case should be disclosed. The aim is to set a precedent for future cases and other appeals.
"It's a disgrace that the Crown is continuing with its policy of only disclosing those documents it wishes to hand over," said one advocate, who did not wish to be named.
"England and Wales and other countries have systems in place explaining what should be disclosed and requiring the prosecution to detail the documents which have not been shown. The Crown's position is utterly untenable. This hearing should decide that."
Although the Crown has improved and speeded up its procedures on disclosure, gaps in high-profile cases, many of which have already been thrown out for being miscarriages of justice, continue to appear.
For justice to be done, in the case of Grant and anyone else before the bench, it seems logical that both defence and prosecution have access to all relevant evidence.