Sweet Music Productions

Introduction.

1. On the 3.4.07 the Appellant was convicted at the Luton Crown Court of 20 counts of making Indecent Photographs contrary to Section 1 (1) (a) of the Protection of Children Act 1978. The Appellant was acquitted of a global count of possession of images on the direction of the trial Judge HHJ Breen.

2. The Appellant received a custodial sentence of 2 years on each count concurrent, making a total sentence of 2 years. An order was made for destruction of the hard drives of the computers. The Appellant was ordered to comply with notification requirements for 10 years and an order was made disqualifying him from working with children. No orders were made with respect to a sexual offences prevention order or an extended sentence.

3. This appeal is drafted subsequent to an earlier advice on appeal against conviction dated 24.04.07 which was lodged earlier given the time limits applicable.

Out of Time Grounds

4. After conviction Mr. Breeze fought to have additional grounds against conviction added – specifically the Judge’s interventions and misdirection of fact regarding the date the defence obtained full disclosure of chronological dates and times of downloaded material. This was rebuffed by Mr. Breeze’s solicitors (letter 9th May 2007 “I have contacted Nick Corsellis [Mr. Breeze’s Barrister) with regard to the appeal and he has advised me that the issue with the Judge allowing a description of the images to go to the jury is the only matter which is capable of amounting to a ground of appeal”.

5. On 18 July Mr Breeze’s appeal against sentence was accepted after which he was able to obtain a copy of the summing up transcript and this, coupled with his own research in Archbold [the codes and legal rules to be adhered to during all criminal proceedings] which highlighted further grounds, namely failure to disclose evidence and procedural irregularities during trial by the Police and Prosecution. We respectfully submit that the grounds now raised could not have been raised earlier.

Grounds of Appeal Against Conviction

6. New Evidence providing alibi which was not adduced in the original proceedings and which could not have been obtained with reasonable diligence for use at the original trial.

7. Procedural Irregularities during Trial concerning interventions by the Trial Judge and misdirection of fact made by the Trial Judge which destroyed the credibility of all defence documentation. Such interventions based on incorrect evidential analysis.

8. Procedural Irregularities by Police. The Officer in the case made a false statement of fact to the Trial Judge pertaining to the date upon which evidence had been provided to the Defence by the Prosecution. This same Officer confirmed with a witness the location of Mr. Breeze during a relevant time period and failed to disclose this to the Court or Defence.

9. Procedural Irregularities by Prosecution. The Prosecution were aware of an error in the defence expert report but failed to make the defence aware of this error. The result being that alibi evidence could not be produced during the trial. The Prosecution failed to observe their positive duty to disclose anything which may benefit the Defence.

Facts of the case

10. This case concerned the use of 4 computers over a period from 2001 to late 2004. Out of this three year period, the computers were accessed on 32 separate occasions, downloading approximately 7 and a half hours worth of indecent material.

11. On the 20.10.04 the Police arrested the Appellant and simultaneously seized office computers from 2 addresses, his parents address in Weston super Mare and his address in Beeston, Bedfordshire. During the course of their enquiry into the computers, images depicting child abuse were discovered on all 4 of the computers in question (NN/1, PEC/1, PEC/9 and CM/2).

12. In order to present the case the prosecution experts spent considerable time re-constructing the history of the access to the internet by the computers NN/1, PEC/1 and PEC/9. The prosecution were able to time and date when certain of the images had been downloaded and began to piece together what other websites had been visited just before and after illicit material had been accessed. These were termed the web rebuild sessions.

13. The prosecution presented the rebuild sessions in the form of a flow chart with specific examples of the pages that had been visited. These can be seen in the jury bundle served at court. The 8 dates that the prosecution selected as samples were: 23.6.01, 29.7.01, 28.03.03, 13.10.03, 1.6.04, 12.9.04, 19.9.04.

14. A curiosity in the case was that there had been no downloading of indecent material at all over an 18 month period over late 2001 to early 2003.

15. The essential points made by the prosecution, and not disputed by the defence, were that someone had accessed email addresses linked to the Appellant immediately before illegal material was viewed usually using either (provided to CCRC)@hotmail.com or accessing a photo gallery site via Yahoo Photo or by a website called PhotoIsland.com.

16. These addresses included duncanbreeze@hotmail.com and sweetmusicproductions@hotmail.com. These email addresses were used in order to administer the business that the Appellant was engaged in and were accessible by all of the staff who worked with and for him. They were also accessible to all staff who worked with and for his parents, John and Kate Breeze, who ran another company from the same office.

17. On the 23.6.01 session using NN/1, a static computer based at Weston super Mare, the prosecution highlighted access to the above email addresses and also (provided to CCRC)@hotmail.com and b12ese@hotmail.com. R.B (full name provided to CCRC) was an ex-girlfriend of the Appellant and B12ESE was a number plate that had been used by several members of the Breeze family including the Appellant.

18. Other addresses visited just prior to illegal use of the internet included (provided to CCRC)@hotmail.com. This was particularly significant in the Crown’s view as the Appellant had been the person who had set up this account. He knew the username and password and had “run” this account for G.S (full name provided to the CCRC), his then girlfriend.

19. The crown pointed to the coincidence that on the 29.7.01 the user of NN/1 had accessed (provided to CCRC)@hotmail.com before accessing images of child abuse and had then visited a Boots photosharing site. The photographs viewed had been of G.S and her then boyfriend, M.H. This was significant as at this time in 2001 the Appellant and G.S had split up and the Appellant had acted spitefully towards her suggesting he had been jealous of her new relationship.

20. The Crown also pointed to the fact that the person using the computer had accessed a chat site called “The Blood Brothers” and at 1.34 am and 1.35 am had signed in as the Appellant.

21. On the 28.3.03 the Prosecution pointed to the similarity in the way the computer was viewing the internet but also to emails sent to estate agents regarding properties for sale in Wimbledon, London. At this time the Appellant and G.S were involved in a relationship and according to her evidence were corresponding about potentially moving into a flat in that area.

22. The rest of the re-build sessions followed a similar theme of their access to legitimate business emails relating to the Appellant and then descending into illicit material. The Crown also pointed to the links to the Appellant in that the email addresses used to access the material included (provided to CCRC) @hotmail.com. The number 24601 was the prison number of the lead character in Les Miserables, an act that the Appellant would frequently sing during his performances.

Defence Issues at trial

23. The defence asserted in the Defence Case Statement and at trial that the Appellant was not the person using any of the computers at the time that illicit material was viewed. Accordingly it was asserted that it must have been another person, or persons, who had had access to all of the computers, both static and laptop, from 2001 to 2004.

24. The home address of the Breeze family in Weston super Mare was not only that, but also a business address for Sweet Music Productions and A1 Gardening Contracts, a substantial gardening business on the defence account. Both businesses employed a variety of people to assist with administration and all of these people would have access to email accounts and passwords.

25. No specific name was advanced at trial but the Appellant gave evidence that there had been between 4 and 8 employees who had been consistently employed by the family businesses over the period of 2001 to 2004.

26. It should be noted that the Appellant’s career as a professional singer is one that has promoted him in a limelight of the stage and he had achieved a certain degree of fame. As such it was asserted that whoever had committed these crimes also had an unhealthy interest in the Appellant too, as demonstrated by the access to his emails.

27. In terms of access to other emails linked to the Appellant, this was explainable by virtue of the fact that the defence asserted that the passwords for all email accounts and the like had been included in a folder which was in the office at Weston super Mare. This had not been seized by the police.

Defence Documents

28. Although the history of the case was a long one, as referred to above, the defence only received the full breakdown of the dates and times of images being created in total in late October 2006. The Appellant’s solicitors spent considerable time reviewing the internet rebuild sessions and were able to inform the Appellant of the dates in question in November 2006.

29. By November 2006 the Appellant had been living under the shadow of the allegation for over 2 years. The case had been reported in the press and he had received threats to his life of such force that he had to sell his home and move. As a consequence in late 2006 the Appellant’s mental and physical state was such that he was unable to concentrate and prepare his case at that point.

30. The first draft of the Investigation of Computers compiled by Kathryn Owen of Kroll On Track was received by the defence between 27 February and 5 March 2007 with a final copy being delivered on 14 March 2007. The Appellant went through the past business documentation that he possessed in order to meet the allegations.

31. On Friday 16 March the Appellant was able to serve on the defence solicitors a detailed list of dates and explanations that on those particular dates he was not likely to have been the person using the offending computer due to work and travel commitments with the cast. The trial commenced on Monday 19th March 2007.

32. The dates that were asserted as dates as being ones that the Appellant would not have been the user of the computer were: 31.3.01, 26.7.01, 29.7.01, 27-28.10.01, 21.11.03, 20.8.04, 26.8.04, 11.9.04, 27.9.04

33. As can be seen the 29.7.01 was the only date that coincided with the prosecutions internet re-builds. The defence case statement was amended with the dates in dispute being referred to. No express alibi was pleaded nor was one relied on.

34. The defence account regarding the above dates was that the Appellant had been able to track his movements over the years due to the past performances held at the numerous theatres within the UK. The defence relied on the timings of when a show would start and finish and the likely movements of the Appellant and the cast from one show to another or back to the drop off point in London. As the prosecution case continued the Appellant was able to produce further documentation which had been stored during his parent’s house/office move in late December 2006 and in due course a defence jury bundle was compiled and submitted to the court when the Appellant gave evidence.

35. A credit card receipt in Mr Breeze’s name was produced by the Appellant which showed him to be at a Leicester Fuel Station at 15.16 on 28 October 2001. This being the date of an internet session commencing at 13.57 at the Sweet Music Productions offices in Sand Bay Weston-super-Mare, which had only been confirmed to the Appellant by his defence team after the receipt of the defence expert report of 14th March 2007.

36. This date and time was shown to be incorrect during the course of the trial (with the credit card receipt therefore proving no assistance in aiding the defence as focusing on the wrong time). The prosecution stated in cross examination of the defence expert that she had transposed two dates and times. This error was accepted by the defence expert.

37. The correct dates and times were the 27th October 2001 at 13.57 and 28th October 2001 at 01.09. No application was made by defence counsel for an adjournment to allow the Appellant an opportunity to examine these correct times and dates.

38. No issue was raised regarding the apparent failure of the prosecution to disclose the error made by the defence expert; a date raised in the defence case statement and relied on by the defence. These correct dates and times are now the basis of an alibi by the Appellant.

Background Information

39. The Breeze family home in Sand Bay, Weston super Mare was the registered office for two large companies employing a considerable number of personnel. Confirmed by A.S.K. Accountants who dealt with both companies. (Original statement provided to the CCRC)

40. A1 Gardening Contracts was established by Mr. Duncan Breeze’s parents, John and Kate Breeze in 1977 and employed up to fourteen personnel, both full time and casual, depending on the workload, preferably employing past employees who were familiar with the numerous work sites and business operation. A1 Gardening Contracts was the largest ground maintenance company in Weston super Mare and surrounding areas with the day to day management the responsibility of the foreman and staff with oversight by Mr. John Breeze. (Original statement provided to the CCRC)

41. Sweet Music Productions was a touring theatrical production company established in 2000. The company staged up to 100 performances a year throughout the UK; employing administrative staff at the home/office address.

42. Access to the property for all employees was by a key lock device attached to the rear door. A four digit code released a panel revealing a door key. The same four digit code gave access to the garage which housed all A1 Gardening equipment.

43. The property housed all works files, computer systems, works orders and telephone/fax.

44. The companies had two main frame computers and up to three laptop computers which were rotated through the Weston super Mare office to be updated against the main frame computer. Confirmed by ex-employee. (Original statement provided to the CCRC)

45. John Breeze (Transport Manager) and Kate Breeze (nee Lever - used for business purposes) (Co- Producer) travelled to each of the theatres on the national theatre tour in a 28’ motor home from the Weston super Mare address. Duncan Breeze also travelled in another 28’ motorhome from London with the full cast. Both vehicles would often be on the road for several consecutive days before returning to Weston super Mare and London respectively.

46. Duncan Breeze had not lived at his parent’s home in Sand Bay, Weston super Mare, since 1997. Duncan Breeze was not involved in A1 Gardening Contracts in any capacity whatsoever and had no knowledge of the fluctuating cycle of staff leaving and returning as work levels altered. Duncan Breeze was responsible for booking all future productions, co-producer/director and main artiste of Sweet Music Productions. He spent very little time in Weston super Mare.

Credibility of the Appellant

47. The Appellant was a man of previous good character. The evidence given was that he was a man of positive good character having raised substantial funds for charity during his show and having demonstrated kindness, sensitivity and maturity to others.

48. His defence of denial and the more positive defence of alibi at trial, depended almost entirely on how the jury assessed him. Criticism was made of him by both Prosecution and the learned Judge for producing the evidence he had produced at trial rather than beforehand with the phrase of “pulling rabbits out of hats” being used.

49. Therefore, factors relevant to how the jury perceived the Appellant from the outset would have had major impact in how they assessed his evidence and explanations.

GROUND 1. NEW EVIDENCE

Alibi for 27 October 2001- Thameside Theatre, Grays, Essex. Mainframe Packard Bell Computer at Sweet Music Productions office in Sand Bay Weston-super-Mare

50. Statement from Kathryn Owen Computer Forensic Consultant regarding error in transposing dates and times in her report: Appendix (i)

51. Duncan Breeze was performing in a 7.45 pm performance at Thameside Theatre, Grays, Essex – confirmation by Theatre Manager that he was contacted by the Police to verify that Duncan Breeze had appeared in the production. [The Officer failed to disclose such information – see Ground 3. Prosecution Irregularities. (Original statement provided to the CCRC)

52. Computer accessed on desk top computer in Sand Bay, Weston super Mare between 12.00 – 14.00 on 27 October 2001. (Original statement provided to the CCRC)

53. Access to DuncanBreeze@Hotmail.com (used as a business email address) at 13.57. (Original statement provided to the CCRC)

54. All computer details confirmed by Kathryn Owen of Kroll On Track computer experts – see page 8 of Defence Expert Report para 6.2.5 (albeit with incorrect dates and times). “It is not possible to ascertain with any degree of certainty who was logged on to the computer at the time that these searches took place. None of the creation dates of recovered images or web pages co-incide with the tour dates supplied by the defendant however, someone using this computer has accessed the hotmail account duncanbreeze@hotmail.com on 27 October 2001 at 01:09 and 28 October 2001 at 13:57”.

55. In Court, the Crown informed the Expert Witness that she had transposed these dates. See Ground 4 – Irregularities by Prosecution – Failure to Disclose. The report continues “Both these dates appear on the Night at the Musicals tour schedule and are billed for Grays, Essex and Leeds respectively. This may suggest that someone other than the defendant had access to this email account since the computer was by all accounts located in Weston Super Mare at this time. (Original statement provided to the CCRC)

56. See also Trial Summing Up Transcript Page 32.B regarding main point of Prosecution case:
“…..it is common ground that the webmail addresses being accessed on the dates for which the prosecution has prepared time lines were all addresses associated with the Defendant” [this includes duncanbreeze@hotmail.com]

57. The computer in question was the main frame computer based in the offices of A1 Gardening Contracts and Sweet Music Productions Ltd in Sand Bay, Weston super Mare, Somerset. (Original statement provided to the CCRC)

58. Woolworth’s Credit Card Receipt for High Street, Grays, registered to Duncan Breeze used at 16.45 pm on the 27th October 2001. (Original statement provided to the CCRC)

59. Statement by S.S (fullname provided to the CCRC) - Principal of Centre Stage Dance School – that she was introduced to Duncan Breeze at the Thameside Theatre Grays Essex between 16.30 and 16.45 that afternoon on the 27th October 2001. (Original statement provided to the CCRC)

60. Computer accessed on desk top computer in Sand Bay, Weston super Mare between 12.00 – 14.00 on 27 October 2001. (Original statement provided to the CCRC)

61. Access to DuncanBreeze@Hotmail.com (used as a business email address) at 13.57. (Original statement provided to the CCRC)

62. Show ended at approximately 22.20 – confirmed by S.S. (Original statement provided to the CCRC)

63. Duncan Breeze in theatre bar having signed autographs – as confirmed by S.S. (Original statement provided to the CCRC)

64. Duncan Breeze in Thameside Theatre Grays Essex car park loading tour vehicle at 23.40 – as confirmed by S.S. (Original statement provided to the CCRC)

65. Computer accessed in Weston super Mare at 01.07 on 28 October 2001 with access to DuncanBreeze@Hotmail.com at 01.09. (Original statement provided to the CCRC)

66. All computer details confirmed by Kathryn Owen of Kroll On Track computer experts – see page 8 of Defence Expert Report para 6.2.5 (albeit with incorrect dates and times) - (Original statement provided to the CCRC)

67. Mileage between Sand Bay, Weston super Mare and Thameside Theatre Grays, Essex is 186.9 miles – AA , Green Flag and RAC verified. Estimated timings using RAC, Green Flag and AA are approximately 3 hours 10 minutes – (Original statement provided to the CCRC)

68. Route would have gone via roadworks with lane closures on M4 and M5. Details as supplied by Highways Agency. (Original statement provided to the CCRC)

69. Conclusion: Earliest possible arrival time at Thameside Theatre Grays, Essex from Sweet Music Productions office in Sand Bay, Weston super Mare would have been 17.11 on 27th October 2001. Witness states she was introduced to Appellant between 16.30 and 16.45 at Thameside Theatre Grays Essex on 27th October 2001. Furthermore the Appellant’s credit card was used in Woolworths, on Grays High Street at 16.45 on 27th October 2001.

70. Earliest possible arrival time at Sweet Music Productions office in Sand Bay, Weston super Mare from Thameside Theatre Grays, Essex would have been 02.51 on 28th October 2001. Computer was accessed at 01.09 on 28th October 2001.

Alibi for 27th September 2004 – Gordon Craig Theatre, Stevenage. Sony Laptop Computer

71. Police schedule of alleged indecent images supplied to the defence on 20th October 2006, confirmed on: Trial transcript at page 74.D (Defence Barrister speaking). “There was an NAE on 19 October 2006 received by my solicitors on 20 October 2006 which included chronological breakdowns that we have now”.

72. Defence solicitors précis of chronological breakdowns finalised on 6 November 2006.

Appendix (ix)

73. Criminal Appeal Act 1968 S23 (2)(d). Fresh evidence can only be introduced at an Appeal if that evidence was not available at the original trial. N.B Archbold is the set of codes and legal rules to be adhered to during all Criminal Proceedings.

74. Archbold 7.211 “it was held in R v Beresford ….. that there is a reasonable explanation [to not have introduced evidence at trial] ….. if the evidence could not with reasonable diligence have been obtained for use at the trial.

75. In Court the Prosecution Expert Witness stated that there was no means of identifying the location of a computer being used for internet access. Letter from defence expert witness Kathryn Owen dated 6 September 2007 confirms this fact. “I cannot positively identify the means used to access the internet on 27 September 2004”. (Original statement provided to the CCRC)

76. This was the first instance either the prosecution or defence expert witness had stated that analysis of computer in question could not prove “where” connection was made. Prior to this point it had been assumed that a computer would record an Internet Protocol Address (IP Address) supplied by the Internet Service Provider and used for internet connection, and could confirm the telephone line and therefore the address where the connection had been made. The investigation to disprove internet access possibilities at the location of the Gordon Craig Theatre, Stevenage, was expected to have been unnecessary once connection in Weston super Mare had been established on the laptop computer in question. After the trial and confirmation by defence expert’s letter of 6 September 2007 it was then known that disproving all internet possibilities around the theatre was the only means of proving that Mr. Breeze was not responsible for downloads on 27 September 2004.

77. Statement by family friend S.H (full name provided to CCRC) confirmed that it had taken in excess of seven months from date of conviction of Appellant to complete the investigations necessary regarding 27 September 2004 at the Gordon Craig Theatre, Stevenage disproving internet connections at that location. (Original statement provided to the CCRC)

78. Sony laptop computer shows connection between 23.02.55 and 23.54.55 on 27 September 2004. (Original statement provided to the CCRC)

79. Indecent images were downloaded confirmed by Police Schedule of Alleged Viewings of indecent images between 23.06.29 and 23.36.08. (Original statement provided to the CCRC)

80. Show finished at 10.15 pm confirmed by a witness - V.M (Full name provided to CCRC). Court Transcript page 80 - C

81. Same witness confirms she was with Duncan Breeze selling merchandise and signing autographs front of house for at least forty minutes (10.55 pm). Court Transcript page 80 - C

82. Theatre employee, S.A (full name provided to CCRC) (Front of House Manager) confirms she was with Duncan Breeze after she signed out at 11.00 pm. (Original statement provided to the CCRC)

83. Stevenage Leisure Ltd. Time Sheet for S.A for the period 27th September 2004 showing 11pm sign out. (Original statement provided to the CCRC)

84. Statement by P.W (full name provided to CCRC), ICT Customer Services & Support Manager for Stevenage Council confirms no internet access was made from any telephone link within the theatre. (Original statement provided to the CCRC)

85. Itemised bill from NTL confirms above statement. (Original statement provided to the CCRC)

86. Confirmation from personnel at the Gordan Craig Theatre Stevenage that prior to the trial requests had been made by the Appellant to secure itemised landline telephone records for the 27th September 2004 which were unobtainable at the time. (full names provided to CCRC). (Original statement provided to the CCRC)

87. O2 mobile phone records for Duncan Breeze’ registered mobile phone showing no connection to the internet for the period 23.02.55 to 23.54.55. The only connection being a text message shown as a one second connection at 23.08.19. (Original statement provided to the CCRC)

88. Letter requesting police assistance to confirm no secondary mobile phone within the cell areas covering the theatre made a connection at the relevant time. (Original statement provided to the CCRC)

89. Letter from Police refusing above request. (Original statement provided to the CCRC)

90. Archbold Supplement No. 1 November 2006. A252 51. Material held by other agencies. There may be cases where the investigator, disclosure officer or prosecutor believes that a third party…… has material or information which might be relevant to the prosecution case. In such cases if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused, prosecutors should take what steps they regard as appropriate in the particular case. If the investigator, disclosure officer or prosecutor seeks access to the material or information but the third party declines or refuses to allow access to it the matter should not be left. If despite any reasons offered by the third party it is still believed that it is reasonable to seek production of the material or information………. then the prosecutor or investigator should apply for a witness summons causing a representative of the third party to produce the material to the court.

91. Summary of buildings within a 200 metre radius of the Gordon Craig Theatre, Stevenage who have all confirmed that there was no wireless connection to the internet in 2004 or if there was that it was password protected. (Original statement provided to the CCRC)

92. Letter from G.R (full name provided to CCRC) at Sony UK Ltd confirming that the Sony Laptop used on 27th September 2004 had a wireless range of between 10 and 100 meters and that in 2004 there were no wireless internet ‘Hotspots’ in the vicinity of the Gordon Craig Theatre. (Original statement provided to the CCRC)

93. Ordinance Survey map showing all premises within 200 metres contacted and confirmed the existence of no wireless internet. (Original statement provided to the CCRC)

94. Statement by ASK Accountants that Sweet Music Productions Ltd. and A1 Gardening were both registered at (street name and number provided to CCRC) Sand Bay Weston super Mare – the address of Duncan Breeze’s parents. (Original statement provided to the CCRC)

95. Statement by ex employee S.K (full name provided to CCRC) confirming a key lock device existed to provide access to this business address. The code for which was known by all employees. (Original statement provided to the CCRC)

96. Statement by ex employee S.K confirming that all passwords for internet and computer access were kept in a file on the office desk and were easily accessible. (Original statement provided to the CCRC)

GROUND 2. PROCEDURAL IRREGULARITIES DURING TRIAL

97. Archbold 7.55 Misdirection as to the proper approach. In the leading case of R v Turnbull 1977 QB224 63 Cr App R132. Lord Widgery stated “…..On matters of credibility this court will only interfere in three circumstances: first, if the jury has been misdirected as to how to assess the evidence, …….” at p 231. 139-140.

98. Archbold 7.66 Misdirection of fact. To have any effect in itself a misstatement of the evidence or a misdirection as to the effect of the evidence must be such as to make it reasonably probable that the jury would not have returned their verdict of guilty if there had been no misstatements. R v Wann 7 Cr App R 135 CCA

99. Archbold 7.67 post. The proper test is not whether the judge usurped the jury’s function but whether he commented in such a way as to making the summing up fundamentally unbalanced; if he did, repetition of the standard direction that the facts are for the jury and that an expression of opinion by the judge is to be ignored if the jury disagree with it, would not remedy the unfairness. Mears v R 97 Cr App R 239 PC ….their Lordships adopted this formula from the judgement of the Court of Appeal in R v Gilbey unreported January 26 1990.

100. During Mr. Breeze’s time on the witness stand, whenever he mentioned that he had only had the chronological dates and times of downloads since November 2006, and therefore only had had from this time to start sifting through all Sweet Music Productions accounts, invoices and receipts, the trial judge stated that this was incorrect and that either Mr. Breeze or his lawyers had had the relevant information for fourteen or fifteen months. A full trial transcript was unavailable on legal aid to prove and illustrate the instances the judge told Mr. Breeze and the jury this incorrect information. The summing up transcript alone shows constant references to lateness of defence evidence being produced and confirmation that the defence had had all dates and times for fourteen or fifteen months before trial.

101. Transcript P33 F-H “….in the fourteen to fifteen months during which he [Mr. Breeze] had had the relevant information, he or his lawyers – and the crown can only tell you, as you heard in the evidence when the information was provided, i.e. late 2005, not 2006. In the fourteen to fifteen months that has elapsed since then, the defendant has not been able to suggest who else might have had access to the computers in question at the relevant time”

102. Transcript P45 F-H “….He said that the relevant information was provided to him – that is to say, dates of access and so on and so forth – mid to late November 2006 ….I have already made the point that the information had been supplied to the lawyer – certainly a year earlier …..

103. Transcript P56 G “But, the real point is that the defence have had that notice well in advance of the trial. The defence have chosen to run the defence in a certain way. The jury heard all this evidence”.

104. Transcript P74 D [Defence Counsel addressing Judge]. “there was an NAE [Notice of Additional Evidence] on 19 October 2006 received by my solicitors on 20 October 2006 which included chronological breakdowns that we have now …..”

105. Transcript P74 G [Trial Judge in absence of the Jury]. “……I will say ‘My attention has been drawn to the fact that there is an issue between prosecution and defence as to when precisely the dates and material downloaded was served on the defence. Certainly by October 2006”

106. Transcript P78 G [to the Jury]. “I think I suggested that the defence have had the details of when they were downloaded and what was downloaded by late 2005. In fact, the position is not entirely clear for reasons I need not trouble you with but a notice of additional evidence was served by the Crown in October 2006 which contained a great deal of detail. So it appears that it may well not have been until then that the defence were aware of the dates and the more detailed information that you heard during the course of the evidence”.

107. There was no issue. The date of 19 October 2006 was confirmed to the defence counsel by the officer in the case during a court recess. Defence counsel then confirmed the date of 19 October 2006 at page 74 D of the trial transcript.

108. Then, after this error had been ‘corrected’, and considering the frequency and forcefulness of the Judge’s earlier interventions regarding fourteen or fifteen months notice of downloaded material times and dates in defence possession, the Judge states:

109. Transcript P89 E “…..your decision in this case will depend to a very large extent – if not wholly – on the opinion that you formed of the defendant and the truthfulness ….. of his evidence…. [post P89G] ….If you are sure that he was not a straightforward, honest witness, and that he has …..waited until the last possible moment before pulling his rabbits out of the hat …. in an effort to cause confusion and cast doubt on the Crown’s case without allowing it adequate opportunity to make appropriate checks ….. if that is your conclusion, then it may be that that finding will assist you in deciding where the truth lies in this case”.

110. Archbold 7.81. “Interventions by a Judge during a trial will lead to the quashing of a conviction a) when they have invited the Jury to disbelieve the evidence for the Defence In such strong terms that the mischief cannot be cured by the common formula in the summing up that the facts are for the Jury and that they may disregard anything said on the facts by the Judge with which they do not agree”

111. Archbold post 7.81. In R v Matthews and Matthews ……… The Court of Appeal said in considering the effect of interventions made by the trial judge that the critical aspect of the investigation was the quality of the interventions as they related to the attitude of the judge as might be observed by the jury …….ultimately the question was, might the case for the defendant as presented to the jury over the trial as a whole including the adducing and testing of evidence, the submissions of counsel and the summing up of the judge, be such that the jury’s verdict might be unsafe.”

112. Archbold 7.68. Whilst strong comment in an appropriate case is permissible, the judge should never give an express indication of his own disbelief in relation to the evidence of a witness let alone that of the defendant. R v Iroegba. The Times 2nd August 1988.

113. Archbold 16-65 X v UK – The right to a fair trial will be violated if the Judge’s summing up is not fair, balanced and accurate.

114. Archbold 7-81 R v C 2005 – Judge’s comments in front of the jury suggesting the defence were endeavouring to mislead the jury would have a damaging effect on the jury, such mischief unlikely to be cured by the conventional direction in the summing up that facts are for the jury and to reject any views of the judge with which the jury disagree. The prejudicial effect of the remarks, coupled with the animosity implicit in them, may have been considerable and there was a real risk that the remarks may unfairly have prejudiced the jury against the defendant thereby compromising the fairness of the trial.

115. Archbold 4-374. R v Moon – Regarding corrections in summing up. The judge should acknowledge that what was said was quite wrong, to tell the jury to put out of their minds all they had heard up to that point and in clear terms incapable of being misunderstood tell them very plainly and simply what the law is.

116. The interventions and misstatements of fact by the Trial Judge effectively destroyed the credibility of Mr. Breeze’s documentary evidence, frequently stating that the Defence had knowledge of all dates and times of downloaded material fourteen or fifteen months before the trial. When the error had been corrected by the Defence in closed court, the Judge then made a correction to the Jury that seriously lacked the definitive unquestionable narrative of his earlier comments. The Trial Judge then went on to repeat his “waited for the last moment” comments.

GROUND 3. PROCEDURAL IRREGULARITIES BY POLICE

117. Transcript P 73.D. “in fact, what I was told by the officer was – and I am not sure whether this was in evidence – that he [Mr. Breeze] was aware that material had been downloaded by the December [2005] interview, and that the papers were served shortly thereafter, but that they had all been served by the May [2006] interview.

118. The Officer in the case confirmed during Court recess to Counsel for Defence from the officer’s own notes that the N.A.E. (Notice of Additional Evidence) had been sent to the Defence on 19 October 2006. Counsel for Defence stated this date at Page 74.D. “…..There was an NAE on 19 October 2006 received by my solicitors on 20 October 2006, which included the chronological breakdowns that we have now ….”

119. The Officer gave erroneous information to the Trial Judge that suggested the Defence had had all dates and times of download for ten months.

120. This same Officer also confirmed with the Theatre Manager at the Thameside Theatre, Grays, Essex that Mr. Breeze was at the Thameside Theatre on 27 October 2001 performing on stage. (Original statement provided to the CCRC)

121. Copy letter to Police requesting to know on what date the theatre was contacted to obtain this clarification of Mr. Breeze’s whereabouts. No specific reply to above letter has been received stating when this confirmation was obtained. (Original statement provided to the CCRC)

122. Transcript P 89.H. “……….waited until the last possible moment before pulling his rabbits out of the hat, so to speak, in an effort to cause confusion and cast doubt on the Crown’s case without allowing it an adequate opportunity to make appropriate checks”.

123. The Theatre Manager had already confirmed Mr. Breeze’s location on the 27th October 2001 to the Police, however the Police failed to give this information to the Court or to the Defence.

124. Archbold 28-22. R v Kiffin The concealment or destruction of evidence relevant to an investigation is clearly an act which has a tendency to pervert an investigation by turning it from its right course.

125. Police advised in a letter dated 19/09/2007 that :
“….a full investigation was carried out with all evidential matters forming the prosecution file. A copy of this file was disclosed to Duncan’s defence team”.
They further asserted
“…any relevant material that did not form part of the evidence was disclosed to the defence team appropriately as “Unused Material”. (Original statement provided to the CCRC)

126. Letter from Corker Binning (Defence Solicitors) dated 28 September 2007 states:
“…….David Campbell [Mr. Breeze’s Solicitor] has informed me that he had no knowledge of the error prior to the trial……”
The letter continues
“…….It appears that the prosecution were aware that Kathryn Owen had made an error in her report” [regarding transposed dates and times.] (Original statement provided to the CCRC)

127. This time frame is now the basis of fresh alibi evidence. See Ground One. New Evidence.

128. Archbold 12-80E. Atlan v UK. Prosecution’s false denial of undisclosed material and their failure to bring it to the trial judge’s attention will be a violation of Article 6 of the European Convention of Human Rights.

129. Archbold A 242a. Attorney General Guidelines on Disclosure of Unused Material. The Golden rule is that fairness requires that full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.

130. Archbold N52. R v H and C 2004 HL Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence …. The golden rule is that full disclosure of such material should be made.

131. Archbold 4-52. R v DPP ex p. Lee. The prosecution must give proper disclosure of unused material that is relevant to the issue.

132. If the Police enquiries at the Thameside Theatre, Grays, Essex had confirmed that Duncan Breeze was not at the theatre on 27th October 2001, would this information have been presented to rebut the defence case on this date stating that he was at the venue, thereby providing alibi evidence? It is submitted that the mere act of contacting the theatre, as has been confirmed by the theatre manager, would suggest that the information would have been disclosed to the Court and Defence had the answer from the theatre assisted the Prosecution’s case.

133. It is submitted that the failure by the Prosecution to disclose the information that Duncan Breeze had been confirmed to them to have been at the theatre in Grays Essex on 27th October 2001 was a blatant breach of disclosure rules, violated Article 6 of the European Convention on Human Rights and potentially raises grounds for perverting the course of justice or abuse of process.

134. Archbold A-248. Attorney General Guidelines 23. A failure to take action leading to inadequate disclosure may result in a wrongful conviction. It may alternatively lead to a successful abuse of process argument.

135. Archbold 4-65. R v Boyd. It was held that the judge should have stayed the prosecution as an abuse of process as the defence had been deprived of an opportunity to establish a defence that might have been open to them.

136. Archbold 16-64. Kaufman v Belgium. The right to a fair trial involves observance of the principle of ‘equality of arms’ under which the defendant in criminal proceedings must have ‘a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage [as against] his opponent’.

137. Archbold 16-64. Montonva-nelli v France. It will be a breach of the principle [of equality of arms] where an expert relies upon material that has not been made available to the defence.

138. Archbold 16-64. Foucher v France. It will be a breach of the principle of equality of arms where there is non disclosure to the defence.

139. Archbold 7-90. A failure by the prosecution to comply with their duty of disclosure will constitute a ground of appeal.

GROUND 4. IRREGULARITIES BY PROSECUTION

140. Statement by Defence Expert Witness – Kathryn Owen
“In paragraph 6.2.5 of my report I state that the computer identified as Exhibit 879 CM2 was used to access the Hotmail account DuncanBreeze@hotmail.com on 27 October 2001 at 01.09 and again on 28 October 2001 at 13.57. Unfortunately I had somehow transposed the times of access. This was pointed out to me when I was being cross examined on my evidence and I agreed that I had made an error”. [see 143 post (A242 (a)]

141. Archbold 7.90. “a failure by the prosecution to comply with their duty to disclosure will constitute a ground of appeal”.

142. Archbold 10-68. “It is the duty of an expert instructed by the Prosecution to act in the cause of justice: R v Ward 96 Cr App R 1.CA.

143. Archbold Supplement N. 1 November 2006.
A-242. In April 2005 the Attorney General issued new guidelines on the disclosure of unused material in criminal proceedings …. and the introduction of a single test for disclosure of material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused”.
A-242 3. The scheme set out in the Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) (the Act) is designed to ensure that there is fair disclosure of material which may be relevant to an investigation and which does not form part of the prosecution case.
A242 10. Generally material which can reasonably be considered capable of undermining the prosecution case against the accused or assisting the defence case will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution.
Material can fulfil the disclosure test:
(a) by the use to be made of it in cross examination, or,
(b) by its capacity to support submissions that could lead to:
(i) the exclusion of evidence, or
(ii)a stay of proceedings, or
(iii)a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR [European Convention on Human Rights] or
(c) by its capacity to suggest an explanation or partial explanation of the accused’s actions.

144. Archbold 16-83. Jespers v Belgium. The commission held that the ‘equality of arms’ principle imposes on prosecuting and investigating authorities an obligation to disclose any material in their possession, or to which they could gain access which may assist the accused in exonerating himself.

145. It was a significant element of the Prosecution’s case against Mr. Breeze that the email address DuncanBreeze@hotmail.com was accessed during periods of download. The Defence submission was that this was a business email address, accessible as a norm by staff. The Defence computer expert illustrated two dates and times when the mainframe computer in Weston super Mare was accessed for this email address at times when Mr. Breeze was in Essex performing.

146. The failure by the Prosecution to notify the Defence that an error had occurred negated a credit card receipt registered to Mr. Breeze on 28th October 2001 at 15.16 at M1 Services Leicester North which acted as alibi evidence. The AA route finder shows a distance of 142 miles between the Sand Bay, Weston-super-Mare office address and the Leicester fuel station, taking 2 hours 29 minutes. (Original statement provided to the CCRC)

147. Original defence expert report stated that the Weston super Mare office computer accessed DuncanBreeze@hotmail.com on 28th October at 13:57, logging off at 14.00. (Original statement provided to the CCRC)

148. It is submitted that the failure to act on their positive duty to disclose the error made by the defence expert deprived Mr. Breeze of an opportunity to establish a defence based on the correct connection times which have now been presented to the Court as fresh evidence.

149. Archbold 7-51c. Randall v R. The right to a fair trial is absolute and there would come a point when departure from good practice was so gross OR so persistent OR so prejudicial OR so irremediable that an appellate court would be bound to condemn a trial as unfair and quash the conviction as unsafe, however strong the grounds for believing the defendant to have been guilty.

150. Archbold Supplement No. 1 November 2006. A-246 17. Section 7A of the Act [Criminal Justice Act] imposes a continuing duty upon the Prosecution to keep under review at all times the question of whether there is any unused material which might reasonably be considered capable of undermining the Prosecution case against the accused or assisting the case for the accused and which has not previously been disclosed. This duty arises after the Prosecution has complied with the duty of initial disclosure …. and before the accused is acquitted or convicted or the Prosecutor decides not to proceed with the case. If such material is identified then the Prosecutor must disclose it to the accused as soon as is reasonably practicable.

151. A-248 23. A failure to take action leading to inadequate disclosure may result in a wrongful conviction. It may alternatively lead to a successful abuse of process argument, an acquittal against the weight of the evidence or the appellate courts may find that a conviction is unsafe and quash it.

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Notes on Hearing at Court of Appeal

On December 11th 2007 – at the Court of Appeal – Criminal Division, the Chief Justice stated that the Grays date 27th/28th October 2001 and Stevenage date on 27th September 2004 were not relevant as they were not dates of specific counts by the Prosecution.

In the trial summing up page 87H to page 88A Judge Breen states when addressing the Jury:
“Secondly, and on the other hand, if, in relation to any of the instances when indecent images of children were accessed and viewed on any one of the four computers, whether it was an occasion the subject of a count on the indictment or not, if you are not sure that the person who was operating that particular computer at that particular time was the Defendant, or if you think that the Defendant is, or may be, telling the truth about his movements, or as the case may be on that occasion, then your view of the evidence in relation to that occasion will doubtless cause you to scrutinise the evidence in relation to each count on the indictment with particular caution.”

The dates of 27th/28th October 2001 and 27th September 2004 were therefore expressly accepted as legitimate dates for consideration by the Jury and as such it is submitted that such dates and the unequivocal evidence pertaining to those dates should not have been ignored by the Chief Justice.