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Last Updated: Friday, 7 December 2007, 12:16 GMT
The case of the missing notes
By Chris Summers
BBC News, Old Bailey

Crucial to the collapse of the Kieren Fallon race-fixing trial was a meeting between racing expert and TV pundit Jim McGrath and four police officers, including acting Det Insp Mark Manning, on 28 March 2006.

The meeting was tape recorded and notes were also made by Mr Manning.

Jim McGrath of Channel 4
Jim McGrath contradicted the prosecution's main witness

The notes should have been released to the defence during "primary disclosure" as they prepared for the trial earlier this year.

They were not and disclosure officer Det Con Stephen Gibbs spent three hours being cross-examined about why they had not been disclosed.

The tape of the meeting was reviewed in September, during the "secondary disclosure" process.

Det Con Gibbs delegated the task of listening to the tape to Det Con David Price, who said there was nothing in it that warranted it being disclosed.

Details of the meeting with Mr McGrath were only finally disclosed to the defence on 4 October 2007, the same day the jury was sworn in.

Mr McGrath's expert comments on the 27 races on the indictment clearly contradicted the views of the prosecution's star witness Ray Murrihy, and crucially undermined the Crown's case.

What was already looking a pretty weak and highly circumstantial case soon became untenable.

An innocent mistake?

But why was Mr McGrath's evidence kept secret for so long?

Was it, as the defence claimed, a sinister cover-up by the police? Or was it simply incompetence and an example of a faulty system of disclosure?

Det Con Gibbs said he had very little excuse as to why he had not disclosed the material, other than he had been "very busy" at the time of primary disclosure - June 2007 - and the McGrath notes were among 17,000 items logged on the computer as part of the City of London Police's Operation Krypton.

Initially he downplayed the importance of Mr McGrath's views and said he was a "form analyst" rather than a racing expert.

George Carter-Stephenson QC in a scene from TV drama The Verdict
Have you been caught out in trying to bury a piece of potentially useful evidence for the defence?
George Carter-Stephenson QC

But George Carter-Stephenson QC, counsel for jockey Fergal Lynch, rounded on him: "Is there a wish among the police to denigrate Mr McGrath's expert status?"

Det Con Gibbs replied: "Certainly not."

Mr Carter-Stephenson then obtained the following embarrassing admission from the officer: "I didn't disclose those notes and in hindsight I should have done.

"Like everyone I'm subject to human fragility. Looking at them now, in the cold light of day I should have done."

But Mr Carter-Stephenson would not let it lie.

He read out a series of excerpts from what Mr McGrath had told the police about the 27 races, all of which contradicted Mr Murrihy's opinion and therefore undermined the prosecution case.

Highlighting horses ridden by his client, Mr Carter-Stephenson began with CD Europe, which Mr Lynch rode at Southwell on 18 February 2003. It lost.

'Unlucky'

"A former high-class horse. Inconsistent form. Final appearance for Mick Channon," he quoted.

About South Atlantic, which lost a race at Thirsk on 10 May 2003, he quoted: "Badly drawn", "unlucky", "did not get the breaks".

Then he focused on Kristikhab, which ran at Carlisle on 16 July 2004: "Regressive juvenile. Finished last in previous run. This horse would not have had much of a chance even against weak opposition. Ran poorly, missing the break."

Fergal Lynch
Jockey Fergal Lynch's riding was praised by McGrath

As for Bond Babe, which ran at Ripon on 31 August 2004, Mr McGrath had said: "Drawn on stand side, [Mr Lynch] never stopped riding it, given every chance."

About Familiar Affair, which Mr Lynch rode to victory on the same day, Mr McGrath said: "Fair chance. Made all. Always going to win. Whip used."

Finally they came to Bond City, which lost on the same day, Mr McGrath said: "Ran better than form."

Mr Carter-Stephenson turned to Det Con Gibbs and said: "Have you been caught out in trying to bury a piece of potentially useful evidence for the defence?"

"That is definitely not the case," he replied.

'Not deliberate'

Later Det Con Gibbs stressed again that the failure to disclose had been a mistake on his part but was certainly "not deliberate".

Jim Sturman QC, representing jockey Darren Williams, asked Det Con Gibbs: "Are you taking the rap for an officer who instructed you not to disclose?"

"No. Believe me I would not risk my police service or going to court by perjuring myself," he replied.

Det Con Price then gave evidence about why he had not recommended the McGrath notes be disclosed when he listened to it as part of the review in September.

John Kelsey-Fry QC, for Mr Fallon, said: "You knew that Mr McGrath was expressing opinions which were contrary to Mr Murrihy's views and the prosecution case?"

Det Con Price replied: "Yes."

Cross examination

Mr Kelsey-Fry then said: "But you chose to say it was not disclosable?"

Det Con Price responded: "I didn't say it was not disclosable. I was under the impression that it had been disclosed."

Mr Kelsey-Fry: "I'm sorry?"

Det Con Price: "It had already been through the disclosure process."

Mr Kelsey-Fry: "You knew it had been through the disclosure process?"

Det Con Price: "Yes, and it had been disclosed as unused material."

Mr Kelsey-Fry knew, as did the whole court, that the McGrath notes had not been disclosed at all, even as unused material, and he seized on the opportunity and tore into the hapless witness: "So why was he [Det Con Gibbs] asking you to see if it was disclosable?"

Det Con Price mumbled a reply.

"What on earth were you doing?" shouted Mr Kelsey-Fry.

Is system flawed?

Mr Price sought to restate his position, but the jury must have been baffled by his evidence.

A police officer takes a computer from Kieren Fallon's home
Nothing incriminating was found at Kieren Fallon's home in Cambridgeshire

What this trial has emphasised is that the system of legal disclosure is deeply flawed.

As pointed out in court, the police investigated the case and stored a total of 17,000 items relating to it on their computer system Holmes (Home Office Large Major Enquiry System).

The police draw up the evidence for the prosecution, and then the police and the Crown Prosecution Service decide what evidence needs to be disclosed to the defence.

Naturally, not all of the 17,000 items on the system needed to be disclosed, as many of them were irrelevant to the trial.

But under the current system, all the defence can do is demand that anything relevant is disclosed. They must rely on the police and the CPS.

Det Con Gibbs and Det Con Price, although they were both police officers, were asked to check the material and find any material which might "undermine the prosecution case".

The fact they failed to disclose Mr McGrath's evidence may simply have been incompetence, but it does not bode well for the system.

As Mr Carter-Stephenson pointed out during the trial, it is impossible for the defence to know if there is any information that could be useful to them which the prosecution has not disclosed.





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