Members of the Freshwater Five lose appeal against cocaine plot convictions

Sam Tobin, PA
·5-min read

Two members of the Freshwater Five, who were jailed for trying to smuggle 250kg of cocaine into the UK, have lost a bid to overturn their convictions at the Court of Appeal.

Jonathan Beere, 51, and Daniel Payne, 46, were jailed in 2011 for 24 and 18 years respectively for conspiracy to import £53 million of cocaine into the UK via Freshwater Bay, off the coast of the Isle of Wight.

Payne and three co-defendants – Jamie Green, Scott Birtwistle and Zoran Dresic – were said to have collected the drugs from the English Channel in a fishing boat, the Galwad-Y-Mor, in May 2010.

Beere was alleged to have acted as a liaison between Green, the skipper of the Galwad who was also jailed for 24 years, and those organising the smuggling.

Freshwater Five
Jamie Green, Zoran Dresic, Jonathan Beere, Scott Birtwhistle and Daniel Payne (SOCA/PA)

At their trial in 2011, Kingston Crown Court heard the Galwad crossed the path of the Oriane, a container ship sailing from Brazil, and then slowed down to collect the cocaine.

The Court of Appeal heard in February that new radar evidence showed “the Galwad never crossed behind the Oriane”, meaning it was “simply impossible” for them to have collected the drugs.

Beere and Payne’s barrister Joel Bennathan QC said the new data “transforms the picture that was presented to the jury”.

But on Thursday, the Court of Appeal dismissed Beere and Payne’s appeals against their convictions.

In the court’s ruling, Sir Julian Flaux – sitting with Mr Justice Andrew Baker and Mr Justice Calver – said: “Standing back and looking at all the evidence available at trial as well as the evidence now available, whilst the evidence is circumstantial, this was, as the (Criminal Cases Review Commission) concluded, a ‘compelling prosecution case of conspiracy to import cocaine’.

“The grounds of appeal do not begin individually or collectively to cast doubt on the safety of these applicants’ convictions.

“The applications for leave to appeal conviction are accordingly refused, as are the applications for an extension of time and to adduce fresh evidence.”

Freshwater Five court case
Freshwater Five members Scott Birtwistle (second right) and Daniel Payne (centre) outside the Royal Courts of Justice in February (Stefan Rousseau/PA)

A statement issued on behalf of the families of the Freshwater Five said: “This is a bitter and dark day for the men and their families. Yet again our faith in the criminal justice system has been shattered.

“These men are innocent and have collectively spent decades in prison for a crime they did not commit.

“They have missed births, the deaths of close family members, and countless other irreplaceable family moments while our so-called ‘justice’ system has kept them kidnapped behind bars.

“Today, in ruling against Jon Beere and Danny Payne, the court has once again whitewashed over what has happened in this case, just four days after Jon’s father died, having lost his battle to hold out long enough to see his son vindicated.

“At this next funeral we will be mourning the death of Jon’s father, but also the death of British justice.

“This pitiful judgment is just yet another example of the system protecting itself from embarrassment and criticism.

“If the Court of Appeal and the Criminal Cases Review Commission won’t correct this mistake, where else do we turn?

“British justice is broken, and we will never trust it again.”

Freshwater Five court case
Scott Birtwistle (right) and Daniel Payne outside the Royal Courts of Justice in London in February (Stefan Rousseau/PA)

The statement added: “The war is not over, and you haven’t heard the last of us.

“Once the dust has settled, we will be back fighting for this horrific miscarriage of justice to be overturned and making sure the public knows the full story of not just what happened here, but of the efforts that have been made to cover it up.”

Emily Bolton, director of the charity Appeal who represents the Freshwater Five, said in a statement: “Miscarriages of justice don’t just happen in the trial courts – today one happened in the Court of Appeal.

“The court handed down a judgment which simply underscores just how profoundly broken the criminal appeals system is in this country.

“There is no dispute that this is a case in which law enforcement and the prosecution failed to hand over crucial evidence to the defence at trial.

“As we showed in the court hearing, that new evidence undermines the prosecution’s case on several fronts and gives a totally different picture to that which was presented to the jury.

“Yet, in yet another failure to correct a miscarriage of justice, the Court of Appeal has said today that none of this matters.”

Ms Bolton added: “We have no doubt that law enforcement holds further evidence which supports the Freshwater Five’s innocence.

“Yet our opaque, unaccountable justice system continues to prevent the truth from coming to light.

“To those with short memories, it is worth bearing in mind that it took three appeals before the Birmingham Six finally had their names cleared.

“The Freshwater Five, their families and the appeal team will keep battling for justice and reform.”

Nikki Holland, director of investigations at the National Crime Agency, said: “This investigation has been a long-running matter for all involved.

“Cocaine to the value of £53 million was seized, which no doubt was headed for UK streets.

“Taking this amount of cocaine out of the chain would have made a significant dent in the profits of the organised criminal network behind the venture, and damaged their international reputation with other crime groups.

“The officers involved in this investigation, with the support of the Crown Prosecution Service, have continually demonstrated the veracity of the evidence over the last 10 years.

“Like all UK law enforcement agencies, the NCA is bound by the Criminal Procedures and Investigations Act 1996 with regards to the disclosure of evidence and in particular, how material is recorded, retained and revealed to the prosecutor.”

Ms Holland said the Court of Appeal found that “there was no deliberate attempt to suppress” data in relation to the ships’ movements, and that “the data itself supports – rather than undermines – the prosecution case”.

She added: “All appeal processes have been explored and we hope a line can now be drawn under this case.”