SUNK WITHOUT TRACE

Five lobstermen given years in jail for supposedly fishing £53m of cocaine from pitch black storm tossed seas... without any forensic or hard evidence. Yesterday, as they lost their appeal, they lashed out at justice they insist has...

MAIL JOURNALIST WHO FIRST HIGHLIGHTED THE CASE OF THE ‘FRESHWATER FIVE’

IMAGINE the tension at Ford prison yesterday. Fisherman Jamie Green had only been joined at the open jail by his co-defendant Jonathan Beere on Monday, for what they hoped was their last lap to freedom. Nervously they waited for the most important call of their lives.

They are two of the Freshwater Five, men named for ever after an Isle of Wight cove where 250kg of cocaine was found anchored, tied to a 4ft red buoy back in May 2010 – and found guilty of a massive, daring drugs smuggling plot the following year. They were waiting to hear the Court of Appeal verdict on their latest bid for freedom.

Fresh evidence denied to the defence back at the trial at Kingston Crown Court in 2011, they believed, proved Green’s boat, the Galwad-YMor, could not have picked up the 11 rucksacks of drugs worth £53million from a passing Brazilian container ship on a dark and stormy night. The bombshell evidence – more of which later – had been the mainstay of the three-day appeal in February.

The application was brought by Beere, 51 and one of the other members of the Freshwater Five, Daniel Payne. But victory would have meant immediate bail for Green, 52, too.

The men’s supporters were optimistic. Outside the Sussex jail, a car was waiting to take them home for the first time in a decade.

But when the call came at 9.30am, the Court of Appeal had turned down the application. The convictions stood.

For Beere, it was particularly tough. His

‘I thought I was getting murdered’

father, John, in his eighties, who had desperately wanted to live to see his son cleared, had just succumbed to cancer on Sunday. Beere, in Covid isolation, has been unable to sit down with his co-defendant. He got the news on the payphone in his ‘billet’ – as prison wings are known at Ford – from his lawyer, Emily Bolton.

Green heard from his sister, Nicky. ‘ He was not surprised, but shocked,’ she said.

Zoran Dresic, 45, is serving his 24-year sentence back in Montenegro, while Scott Birtwistle, 30, and Payne, 46, have been released on licence. They were sentenced to 18 years and 14 years.

Payne recalls the moment everything changed. It came after an ordinary overnight trip in the middle of the English Channel, fishing for crab and lobster – and led to, say the men’s supporters, one of Britain’s most notorious miscarriages of justice.

‘I’d arranged to meet my girlfriend and a few mates at Salty’s,’ said Payne, who fished with Green since he was 17 and drank in his father’s quayside pub. ‘Then Jamie came in and asked me to give him a hand carrying some of our catch from the boat back to the restaurant.

‘We were walking back along the jetty when they pounced. It happened so quick – how come there were suddenly people jumping on top of me? I thought I was getting murdered.’

It was officers from the Serious and Organised Crime Agency who swooped on them. Payne and Green were arrested on suspicion of conspiring to import a quarter of a tonne of cocaine.

Last month, the Court of Appeal considered critical fresh evidence which, unaccountably, had not been made available at the trial.

While noting there was ‘no basis’ for suggesting this failure was deliberate, the judges said in yesterday’s ruling, that it ‘should not have happened’, and the failure to disclose this evidence – which according to defence counsel Joel Bennathan QC fatally undermined the prosecution case – was a ‘serious and surprising mistake’ by the various officials responsible. The prosecution’s case had always been, the judges conceded, circumstantial’. Nevertheless, they were still convinced that the appeal did ‘not begin individually or collectively to cast doubt on the safety of these convictions’. Making the appeal’s rejection so hard to take is the fact that this case has always depended on establishing exactly where the Galwad was, and when, and what else was happening nearby. These were the very issues covered by the newly- disclosed evidence. At the trial, the prosecution said the Galwad sailed to intercept the course of the Oriane, a container ship from Brazil headed for Antwerp. The drugs were, it said, inside 11 rucksacks.

Having retrieved them from the water, the crew carried on looking for lobsters. Before returning to Yarmouth the following evening, they jettisoned the drugs, leaving them anchored to the seabed below the cliffs of Freshwater Bay. There, they were found the following morning by a local fisherman.

Supporting this, said the prosecution, was data from the Galwad’s Olex GPS navigation system which, it was argued, established that the boat had been in the right places at the right times for this version of events to be true.

However, the prosecution also claimed that the Galwad’s crew had found and then retrieved the heavy, sodden bags amid 20ft waves, while being buffeted by a gale on a black and moonless night. And all in the space of just two and a half minutes.

The prosecution stressed that Dresic was an illegal migrant, and made play of him trying to make satellite phone calls to Beere – not on the boat – and another man at what it claimed were ‘ critical’ points in the operation.

According to the defence, these calls did not connect, and so could have no significance. Green often took on casual foreign labour so there was no sig

nificance in Dresic’s illegal migrant status.

Indeed, there has never been any evidence that the drugs had been on the Oriane at all, although there was ‘intelligence’ that cocaine was being carried up the Channel on a South American ship – hence an intense, SOCA-led surveillance operation, of which more later.

High-tech equipment had failed to detect a single cocaine molecule anywhere on the Galwad.

Two police officers had been stationed on the cliffs overlooking Freshwater Bay, and claimed they saw the crew throwing bags off the boat. They said there were only six or seven – and they were not tied together, as the rucksacks were. They changed their account after the drugs were found.

Most puzzling of all, the spot where the drugs were found in the bay was too shallow for the Galwad to have sailed there.

Almost seven years ago, I acquired the data from the Oriane’s own GPS tracking system, which had not been presented at the trial. In the Mail on Sunday, our sister paper, I revealed how this showed that the Galwad never crossed the Oriane’s wake at all, as was alleged, and given the tides and currents, would never have been in the right position to retrieve the drugs, had they indeed come from the Brazilian ship.

An application to the Criminal Cases Review Commission was rejected in 2017. But solicitor Emily Bolton, who runs the legal charity Appeal, made an astonishing discovery which appeared to change everything.

In 2018, she forced the Crown Prosecution Service to disclose data gathered by the Electronic Chart Display and Information System, a surveillance tool on board a UK Border Agency patrol boat, the Vigilant. Acting on the unspecified intelligence, Vigilant had been in the Channel, hunting for a South American vessel dumping bags of drugs.

The surveillance evidence – which should have been disclosed before trial – formed the basis of the appeal and gives the most accurate picture of where both vessels were at any time. Professor David Stupples, a government adviser and expert in electronic intelligence and radar systems, told the Appeal Court that it strengthened the case that the Galwad could not have intercepted the drugs.

This evidence also pointed to another tantalising revelation: that an aircraft, which flew low over Freshwater Bay, was likely a surveillance plane, and if so, that the three people on board saw no sign of the drugs. This would be odd because they were seen from the air next day, still attached to the red, 4ft buoy. And most amazingly of all, the surveillance data revealed there was another boat in the area: about half-anhour after the plane flew off, a high-speed Rigid Hull Inflatable Boat with a draught shallow enough not to have run aground travelled over the area where the drugs were found.

What was it? Who was in it? The authorities later seemed curiously uninterested. Addressing the judges, Mr Bennathan said the ‘major failure of disclosure’ that deprived the defence of the ECDIS records at the trial meant ‘vital issues’ had not been considered by the jury. The convictions should therefore surely be quashed. But Sir Julian Flaux, sitting with Mr Justice Andrew Baker and Mr Justice Calver, disagreed.

An expert for the Crown persuaded them the Galwad could have picked up the bags, while any suggestion the high- speed boat in Freshwater Bay had carried the true conspirators was ‘ speculation’. As for the plane crew’s failure to notice

‘Tantalising revelation’

the bags, they asserted that this was ‘not surprising’.

Even had they won, the toll on the Freshwater Five would have been heavy. ‘My twenties were stolen from me,’ Birtwistle said.

Green’s wife Nikki had breast cancer and she died while he was in jail. As for Payne, he lost his girlfriend – and misses her still. ‘Just last night I was talking to my mum and dad, saying how I thought I was going to get acquitted. I shouldn’t have expected anything different.’ And Birtwistle said: ‘I’m numb. So much has come out, and yet they’ve just disregarded it.’

I began to investigate this case after meeting Jamie’s sister, Nicky, more than seven years ago. She has co- ordinated a tireless campaign, but yesterday, she admitted, she felt ‘crushed. After this, I just don’t where we can take it.’