LADY JUSTICE SHARP
MR JUSTICE SWEENEY 
and SIR RICHARD HENRIQUES 

ROYAL COURTS OF JUSTICE, THE STRAND, LONDON, WC2 2LL 

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James Scobie QC and Robert Tolhurst (instructed by Shearman Bowen & Co) 
for the Applicant 

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Simon Dennison QC and Jacob Hallam QC (instructed by Crown Prosecution Service) 
for the Respondent 

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Case No. 201601371 C5

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Hearing dates: March 21-22, 2017

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FIVE months or so after the hearing, on September 1, 2017, Lady Justice Sharp decreed that Jason Moore’s application had been refused. But in the Approved Closed Judgment, she made a number of significant errors that suggest he was not given a fair hearing.

Witnesses who put themselves and their families at risk of reprisals by coming forward to give vital new evidence, including admissions they had heard from the lips of both Martin Power and Paul Hunt that Power was the stabber, were dismissed by the judges with barely concealed contempt.

The judges’ verdict ran to 26 A4 pages and covered the following 114 points. 

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Now we will go through mistakes in the Court’s key findings that left Jason – who followed the hearing from prison via video link – and his family and friends devastated. In fairness to the judges, not all evidence uncovered since 2017 was available at the time of the Appeal. Even so, their gut-wrenching verdict was another smash in the face of justice.

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Lady Justice Sharp: 

1. This is the judgment of the Court, to which all members of the court have contributed. 

Introduction 

2. On 18 December 2013, at the conclusion of a trial before the then Common Serjeant, HHJ Hilliard QC in the Central Criminal Court, the Applicant, Jason Moore, who is now aged 47, was convicted of the murder of Robert Darby on 25 August 2005. Jason Moore’s co-accused Martin Power, who is now aged 51, was acquitted of the murder. On 23 December 2013 the Applicant was sentenced to life imprisonment with a minimum term of 18 years. He now applies, some three years and three months out of time, for an extension of time, for permission to appeal against conviction, and to rely upon fresh evidence pursuant to section 23 of the Criminal Appeal Act 1968. His applications were referred to this Court by the single Judge. 

3. The Applicant seeks permission to appeal on two Grounds. These are that: 

(1) The conviction is unsafe in the light of the unreliability of the principal prosecution witness, Abdul Ahmed, as demonstrated by fresh expert evidence; 

(2) Other fresh evidence from a number of witnesses shows that Power alone committed the crime. 

The respective cases at trial 

4. Mr Darby, then aged 42, was stabbed at around 11.55am on 24 August 2005 and died of his injuries in hospital the following day. The delay between then and the trial in 2013 was wholly attributable to the flight abroad of both the Applicant and Power very shortly after the stabbing. 

5. The Prosecution case was that the Applicant stabbed the deceased with a knife brought to the scene outside the Valentine Public House (“the Valentine”) in Perth Road in Gants Hill, and that the co-accused Power had lent support by driving the Applicant to and from the scene in his silver BMW and by providing backup, and was thus guilty of murder by way of joint enterprise. The motive asserted for the attack was that the deceased had taken exception to the Applicant having formed a relationship with a former partner of his, Adele Rayner. It was said he had become enraged by that relationship and had threatened both the Applicant and Miss Rayner. It was that which had brought the deceased, driving his black BMW, to the scene. 

Here we go with the ‘love triangle’ motive again. No! Tim Darby is now convinced that Power stabbed his brother over a £3,000 drugs debt.

6. The Applicant’s case however was that he had merely been present at the incident. He had taken no part in any violence. Power had stabbed Robert Darby. Immediately before the stabbing, and at the moment of stabbing, the confrontation had been between the deceased and Power. The Applicant had observed this whilst sitting in the front passenger seat of Power’s silver BMW car. He had only left the car after Power and Darby had clashed and Power had screamed for help.

 
7. Power’s defence was that he approached Darby on his own, and that Darby then struck him on the top of his head (with what turned out to be the butt end of a Stanley knife) knocking him unconscious. Power said he had not had a knife. When he had regained consciousness, the Applicant had told him to drive off and he had done so. 

8. The respective cases of the co-accused were carefully confined to this extent. Neither Power nor the Applicant asserted the other was to his knowledge in possession of a knife or that he saw the other stab the deceased: it was, as we have said, Power’s case that he was on the ground and unconscious when the deceased sustained his fatal wound, whilst the Applicant asserted that he was in the front passenger seat of Power’s silver BMW car and that both of the others were on the ground. 

Relevant aspects of the investigation and of the evidence at trial 

9. Adele Rayner said in evidence that she had been in a long and volatile relationship with the deceased until 2004. In the spring of 2005, after Darby returned from a long visit to Australia, he learned that she had been out with the Applicant for dinner on a couple of occasions, and he started to issue threats to her and her family. On Sunday 21 August 2005, she visited the deceased at his flat, and he accused her of being in a relationship with the Applicant. He grabbed her by the throat and she called the police. The deceased had threatened to go to the Applicant’s address and to hurt him. On Monday 22 August 2005, the deceased went to her place of work, and said that he had spoken to the Applicant (who had told her that, in the days leading up to 24 August, the deceased had threatened him). Also on 22 August, the deceased met Martin Power, who had been asked by the Applicant to act as a mediator. She understood that the meeting had gone smoothly, albeit that the deceased and Power did not care for each other. On Tuesday 23 August 2005, the deceased had gone to her place of work again, and had been erratic and ill-behaved. On Wednesday 24 August 2005, she had woken to find milk and tomato sauce all over her car. The deceased had followed her when she drove to work; he had deliberately driven his vehicle into hers, and tried to smash her windows. She said that he was ranting and raving, and was very erratic, irrational, manic and dangerous. 

Rob Darby was harassing Adele Rayner because he wanted her to give him Power’s phone number.

10. Telephone evidence for the period from 22 to 24 August 2005 was consistent with the deceased harassing the Applicant, and with Power acting as an intermediary on the Applicant’s behalf. 

 

11. The evidence of Derek Coveley, a friend of the deceased, was read as contested hearsay. He said that on the morning of 24 August 2005, the deceased had called him and had told him that he was being “messed about” by someone who owed him money, and that he was going to “a meet” that day. 

12. Telephone evidence showed that Power received a telephone call from his girlfriend Terrie Beales at 11.47 that morning, and that three minutes later Power had called the deceased from a call box in Cranbrook Road, not far from the scene of the murder in Perth Road. CCTV footage from Bramley Crescent (which runs into Perth Road) showed the arrival in the vicinity of first, the deceased’s black BMW, and then Power’s silver BMW. 

13. The Prosecution called two independent eye-witnesses to the murder. These were Abdul Ahmed, who had been on foot, and Sally Palmer, who was driving past the incident when it happened. Their evidence was substantially at odds with the Applicant’s case and was, the Prosecution asserted, mutually supportive.

14. From early in the investigation Mr Ahmed was classified as a significant witness, and the principal interviews with him were tape-recorded. The Applicant invited us to consider those interviews. Mr Ahmed was first interviewed in detail within a few hours of the stabbing on 24 August 2005, and he was interviewed again on 19 September 2005. Mr Ahmed also took part in an identification procedure in September 2005, when both the Applicant and Power were overseas, which involved viewing two videos. The first video included a photograph of the Applicant, which the police had found amongst his possessions, and which had been digitally altered for use in the procedure. As to that video, Mr Ahmed picked out a volunteer – saying that he was confident that that person was the stabber. Mr Ahmed did not identify anyone in the second video, which included a photograph of Power. In October 2012, after the Applicant had returned to this country and had been photographed, Mr Ahmed identified him as the stabber. Mr Ahmed made witness statements, in particular, on 24 August 2005, 19 September 2005 and 20 October 2005. 

First Ahmed picked out a volunteer a few weeks after the incident and then, in another very dubious, possibly corrupt, ID parade held seven years later, he picked out Jason. Police charged Moore with murder at this point, purely on the basis of Ahmed’s 2012 ID. See ID Parades

15. There were some inconsistencies in Mr Ahmed’s account which were explored at trial, but the central thrust of what he told the police during his interviews was as follows: On 24 August 2005 he had gone by tube to Gants Hill for a meeting at premises in Perth Road. It was raining heavily. He had walked down the pavement in Perth Road, with the roadway to his left, and had passed The Valentine pub, which was to his right, but had not been able to find the premises that he was looking for. Not long after passing The Valentine, he had therefore turned around and started to walk back along the pavement. 

16. Before he got (back) to The Valentine, he was aware of a black BMW which stopped, slightly ahead of him and to his right, in the middle of the road, and then of a silver car which stopped very close behind the black BMW. Two men got out of the silver car. As the passenger of the silver car (who was closest to him, was wearing a dark blue jacket, and was taller than the driver from the silver car) got out, Mr Ahmed saw that he was carrying a knife. There was then a confrontation between the two men from the silver car and the driver of the black BMW, who had got out from his car. All three men were white. All three were shouting – including use of the “F word”. The only thing that obstructed his view was the black BMW, but he could see the whole of the top half of the driver of that car. The passenger from the silver car then stabbed the driver of the black BMW in the left chest. It had happened very quickly after the two men had got out of the silver car. He then saw the man who had been stabbed walk across into the entrance of The Valentine car park, and collapse. He saw blood on the man’s shirt, where he had been stabbed. He did not know where the two men from the silver car had gone to. He saw a lady in a car in Perth Road who, as far as he could tell, had also witnessed the incident. 

Lady Justice Sharp neglects to mention that Sally Palmer stated that the more aggressive of the two men in the street facing Darby was wearing a “blue zip-up top”. CCTV footage clearly proved that Jason was NOT wearing a zip-up top. Even DC Kimberley Jones confirmed that Moore was wearing a grey top – as captured in his apartment's lift lobby and later that day in the Fairlop Oak pub.

17. During his interviews on 24 August 2005 Mr Ahmed drew a rudimentary sketch of the scene (ASA/1) which nevertheless clearly indicated, consistent with the core thrust of his account to the police, that at the time of the stabbing, he had been on the pavement “near opposite to them, very close”. 

‘Clearly indicated’ is hardly the phrase that comes to mind when viewing either of the two sketches Ahmed drew with the help of police.

18. During his interview on 19 September 2005 the police provided Mr Ahmed with a more formal plan of the scene (ASA/5) on which they asked him to mark the position of the black BMW, the silver car, the movements of the men from the silver car, the place where the confrontation between the three men had taken place, the location of the lady’s car, and his own location.

19. We observe that there were obvious deficiencies in the creation of ASA/5. The base plan itself was confusing – in particular, as to what was intended to represent the main pavement adjacent to Perth Road, what was intended to represent the driveway of The Valentine (which separated The Valentine from the main pavement), and what was intended to represent the parallel pavement immediately outside The Valentine itself (on the far side of the driveway from the main pavement). There were no scale markings on the plan. In addition, the black BMW and the silver car were drawn as being on the right-hand side of Perth Road, whereas Mr Ahmed had clearly stated that they were in the centre of the road. Mr Ahmed was marked as being on the parallel pavement, although he had clearly described having been on the main pavement. It was also not clear as to the moment in the sequence of events when he was saying he was in the marked position. If the police had wished to add to the evidence in ASA/1, Mr Ahmed should have been taken to the scene and given the opportunity to point out the various locations of what he had seen as the events unfolded, and from where, which should then have been accurately recorded on a clear and accurate plan. 

Acknowledgement from Lady Justice Sharp that the evidence of Ahmed – the prosecution’s significant eye-witness – was confusing and obviously anything but clear.

20. In the event, when Mr Ahmed came to give evidence at trial, he adhered in substance to what he had said in his original witness statements, as further illustrated by ASA/1. He said in that on 24 August 2005 he had gone to the Gants Hill area by tube to attend a business meeting in Perth Road. It was raining heavily. He said that after leaving the tube station, he was walking along the pavement on The Valentine side of the road. He had walked past The Valentine, which was then on his right, looking for the location of his business meeting, and had then turned around and walked back again, now with The Valentine ahead of him to his left, and walking in the same direction as traffic in Perth Road (which was a one-way street at that point). As he was walking back, he had seen a black BMW and a silver car (which he described throughout as being like a Ford Fiesta) behind it. They had both stopped, very close together, in the middle of the road. Mr Ahmed was on the pavement and the two cars were in front of him to his right, each with the passenger side of the car closest to him. He could see them clearly. He saw a white man alight from the driver’s side of the black BMW – plainly the deceased Robert Darby. Darby was on the far side of the car from Mr Ahmed. 

Power’s silver BMW (see Timeline) was significantly larger than a Ford Fiesta. And neither Ahmed nor Palmer said they saw a silver BMW at the scene.

 

21. Mr Ahmed then saw two men come out of the silver car. The driver got out first and went towards the driver of the black BMW. The passenger was about 10 seconds after the driver. The passenger quickly went around the back of the silver car also to confront the driver of the black BMW. The passenger had a knife. Mr Ahmed saw that when the passenger got out of the car the knife was wrapped in a white cloth. The passenger held the knife in his right hand. Mr Ahmed could see the blade. It was about six inches long. It appeared to be a kitchen knife. 

OK, so this is the main issue that was never debated at trial or in the Appeal court. 

We now firmly believe that after Darby got out of his car, Power and Hunt were the next two out and standing on the street – they were the pair Sally Palmer saw facing Darby. We are also sure that Ahmed thought Power was the passenger from the silver car and Hunt the driver – it all makes sense when you consider the respective heights of the four men involved.

Power is some four inches taller than Hunt, who couldn’t have been asleep and probably got out of his friend Darby’s car to try and act as peacemaker in a furious dispute that was about to turn fatally violent. Moore didn’t get out of Power’s car until after Darby had been stabbed by Power.
Sally Palmer, driving her small silver Renault Modus, came up behind Darby’s stationary BMW and momentarily slowed down before manoeuvring around the offside of the BMW. She then parked just past the pub. 

When Ahmed heard shouting and turned to see what was going on, we reckon he saw Power and Hunt in the road . . . and PRESUMED they had BOTH just got out of Palmer’s little car. With his eyes fixed firmly on Darby and Power as they clashed, he failed to notice Palmer’s Modus move slowly forward again. 

As previously stated, none of the witnesses described seeing a silver BMW or anyone who stood 6’5 tall.

Tragically for Jason, this theory was not explored at trial.

22. Mr Ahmed said that there was then a confrontation on the driver’s side of the black BMW. The three men were shouting at each other using the “F word”. The two drivers possibly touched, but the driver of the silver car did not hit the driver of the black car in any way. The passenger from the silver car, who had the knife, was big. He took the knife from the white cloth and stabbed the man from the black BMW in the left side of the chest. Mr Ahmed then demonstrated in the witness box a motion upward and across him and said: “This is what I saw. He stabbed him into the left side of the chest. All three men had come together at the same time. After the stabbing, the man who had been stabbed walked through to the pub and collapsed in the car park.” 

Note: Ahmed uses the word “big” – not “tall” – to describe the stabber. Jason Moore is 6’5 in trainers (see Height Issues), some SEVEN INCHES TALLER than the more muscular Power.

23. Mr Ahmed reiterated that he did not see the shorter man, the driver of the silver car, hit or touch the man who was stabbed. He said the passenger from the silver car was wearing a dark blue jacket. Mr Ahmed described the passenger as bulky, fit and tall. He said the person with the knife was the bigger of the two men from the silver car. He described the stabber, the passenger, as having black hair and that it was the driver who had thick brown hair, not long, a couple of inches in thickness from his head. The driver of the silver car was a short man.

Lady Justice Sharp has been a little disingenuous here. At no time during his police interviews or witness statements did Ahmed describe the stabber as “tall”. He used “Big”, “fit” and “bulky”. It wasn’t until he took the witness stand in court, the day after he’d been visited at home by two detectives to amend his earlier statement and refresh his memory, that he first mentioned the passenger as being tall.

And by tall, Ahmed added that the passenger was “taller than me” and “about 6ft” (he is around 5’6).

However, if you subscribe to our theory, Ahmed has very accurately described the respective heights of Power and Hunt.

24. Albeit that there was an issue about his having transposed his description of the hair of the two men from the silver car, Mr Ahmed was clearly correct in describing the passenger from the silver car as the taller and bulkier of the two, and wearing a blue jacket. Indeed, it was not disputed during the trial that the Applicant was the passenger in the silver car, nor that Power was the driver, nor that the Applicant was six inches taller than Power and stockier, nor that the Applicant was wearing dark blue upper clothing, nor that Mr Ahmed had seen the Applicant (although it was of course suggested on the Applicant’s behalf that he was wrong about the Applicant’s role in the incident).

In truth, Jason couldn’t remember what he was wearing that day and, during cross-examination by prosecution QC Simon Dennison, was effectively coerced into agreeing that he may well have been wearing a blue top. He didn’t deny it because he simply couldn’t remember. Rather than use CCTV footage, which clearly showed coloured (green or maybe blue?) piping down both sleeves, to debate the point about Jason’s clothing, Dennison chose instead to show the court poorer still images taken from the CCTV.

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Unfortunately, the issue of whether it was a zip-up top – as described by Sally Palmer – was not mentioned by Dennison, nor brought up by Jason’s defence team. The CCTV and stills show that Jason was in fact wearing a pullover, hoodie-style top . . . NOT a zip-up jacket.

25. Mr Ahmed went on to say that the man who had been stabbed then walked across to the car park of The Valentine, where he collapsed. It was after that that Mr Ahmed had seen blood on his shirt where he had been stabbed. He did not see where the men from the silver car went. He had seen a lady, sitting in her car, who had seen what had happened. We interpolate that there can be no doubt that this was the witness, Sally Palmer.

26. When asked about the plan, ASA/1, Mr Ahmed agreed that he had illustrated himself as being on the main pavement “just next to the pub”. As to the other plan, ASA/5, he agreed with the Prosecution suggestion that he had been asked to mark the position of himself and the vehicles “when this happened” – but precisely what “this” was, was not clarified.

More flawed evidence from the chief prosecution witness. And another reminder of police failings in not taking him back to the crime scene to establish, beyond reasonable doubt, where he was actually standing/walking at any time during the unfolding incident.

27. In cross-examination by the late Mr David Howker QC, then appearing on behalf of the Applicant, Mr Ahmed said that the lady he had referred to was present when the black BMW had arrived – although he had first noticed her after the incident. He could not remember the colour of her car, and had never spoken to her. He said that there probably were cars parked in the road. He gave varying descriptions of his position relative to the black BMW. He said that he had passed The Valentine and had turned back at the start of the houses that were adjacent to it. He had just turned around, and it was before he reached The Valentine, when the black car had driven past him and stopped about 20-30 feet ahead in the middle of the road. There had been one person in the black car. He gave different accounts as to whether he could actually see that the passenger side was empty. There were no other pedestrians about.

When asked in court if he was able to see if the passenger seat of Darby’s car was empty, he confirmed that it was. This supports our belief that Hunt had got out of the vehicle and was on the street with his friend and Power at the time of the stabbing, and that he witnessed it.

By agreeing that Ahmed gave “varying descriptions” of where he was positioned on the pavement at any given time, Lady Justice Sharp is again effectively admitting that the evidence of the chief prosecution witness is unreliable.

28. The fact that the two cars arrived together and had stopped (with the silver car immediately behind the black BMW) had caused him to stop and to stand still on the pavement. When it was put to him that he had told the police in one of his witness interviews that he had not stopped out of fear for his own safety, and had walked past the cars before turning back to look, he agreed and adopted this as his evidence – saying that he had kept on walking but had not passed The Valentine. When he had first seen the silver car, it was probably behind him, and he had had to turn to see it. The driver of the black car had got out. He had what Mr Ahmed thought was a yellow scraper (rather than a Stanley knife) in his hand. 

Yet more undermining of Ahmed’s account.

29. As to his view of the stabbing, Mr Ahmed said that it had happened on the driver’s side of the black BMW. The roof of the black BMW obscured his view of the deceased, who was on the opposite side of the car, such that he could only see the top of his body from the trunk upwards. He said, however, that neither driver disappeared from his view at any point. He said that the driver of the silver car had got out as he, Mr Ahmed, was walking past. The driver had left the car door open which had blocked his view of the driver’s hands. He could, however, see the passenger clearly, as he exited on the nearside (which was closest to him). His view had not been encumbered by the passenger door. He rejected the suggestion that the passenger had been carrying a rolled-up newspaper.

If Ahmed had a clear view of both drivers, Darby and Power, then this contradicts Power’s claim that he was struck on the top of his head by the blunt end of Darby’s Stanley knife. Ahmed said he never saw that happen.

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30. Certain passages from his police interviews were put to Mr Ahmed. He had been asked “You have got two guys coming out, getting out of that silver car, what has happened then?” He had replied: “I do not know who stabbed him but something I saw. It was quick. They stabbed him quickly.” He had also said: “I did have a doubt about who did the stabbing and how it was done. It all happened in a flurry.” He maintained, however, that he had seen the passenger of the silver car leave the car, knife in hand, and that the passenger had stabbed the driver of the black BMW in the left chest. He was on the pavement of Perth Road at the time of the observation and had a clear line of vision allowing him to observe the stabbing. His evidence throughout, like his account to the police, was that he was on the pavement adjacent to the road and not the parallel pavement immediately outside the Valentine. He had carried on walking as he saw the black BMW driver go to the car park. He had been standing by the Valentine when (at the end) he had seen the lady in her car.

Hang on! In one breath Ahmed told the court that had doubts about who did the stabbing and how it was done, and in the next he said the passenger was the stabber. The word 'DOUBT' is massive.

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31. Cross-examined on behalf of Power, he said that his first language was Somali, not English, and that when interviewed by the police he not had an interpreter to assist him, but had not found the questions difficult. He repeated that, as he had told the police, it was the passenger who had had the knife, that the passenger had made the upward stabbing motion and that he had told the police that. The black BMW had stopped opposite him, straight to his right. He had had to turn his head to see the silver car. The first person out of any car was the driver of the black BMW. He was shouting and Mr Ahmed heard the “F word”. He had something yellow in his right hand. The next out was the driver of the silver car. He was not carrying a knife. He went towards the black BMW driver. Mr Ahmed then agreed that: “Ten seconds later the passenger gets out of the silver car and my eyes go to him. He had a knife wrapped up in a white cloth . . . The silver car passenger made a stabbing motion to the black BMW driver’s left chest. He came from behind the silver car driver. All my concentration was on the man with the knife.” 

The passenger had the knife in his right hand and had made an upward stabbing motion into the left side of the black BMW driver’s chest, where blood had come out quickly onto his white shirt. The black BMW driver had walked away, staggered, and then collapsed in the public house car park. He, Mr Ahmed, was still opposite the black BMW, and had then moved up to about half way to where the driver of the black BMW had collapsed, and was concentrating on watching him. 

32. He said that he had not seen the driver of the black car hit the driver of the silver car on the top of the head. He agreed, however, that his witness statement was correct when it recorded that he did not see the shorter man (i.e. the driver of the silver car) hit or touch the other driver in any way.

Addressed in our response to Point 29 (see above). Either Ahmed didn’t see what he says he saw, or Power lied about being hit on the head.

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33. In re-examination Mr Ahmed repeated that the black BMW had been more or less opposite him to his right when it had stopped; that the silver car had also stopped; that he had seen cloth around the knife (when the passenger of the silver car had got out) which had been removed by the time of the stabbing; that the stabber was the passenger; that there was no physical contact between the two drivers; that the driver of the black car did not hit the driver of the silver car; but that the driver of the silver car was next to the stabber when he stabbed the driver of the black BMW.

34. Sally Palmer gave evidence that on August 24, 2005 she was driving a car on Perth Road when she saw a black BMW car parked in the middle of the road in front of her facing in her direction of travel. There were three men engaged in a stand-up argument in front of the bonnet. Two of the men were facing away from her, one towards her. The man facing towards her (clearly Darby) was wearing a white shirt, and grey flannel trousers. She referred to him as Man 1. He was white, aged around 30, 5’10 tall and of slim build, with mid-brown hair, and was mouthing at the other two. The male facing away from her on the right (Man 2 – who was said to be the Applicant) was aged 35 to 40, stockier in build, a similar height to Man 1 but a bigger build. Man 2 was wearing a blue sporty jacket and dark leg wear. Man 3 (who was said to be Power) was also facing Man 1, was also white, aged 35 to 40, shorter in height than Man 2, of medium build and with brown hair. He was wearing a lighter jacket.

We’ve already clearly shown from CCTV film and images elsewhere on this site that Moore wasn’t wearing a “blue sporty jacket” and we strongly believe Power was. So Power was her ‘Man 2’. Power (5’10) was also similar in height to Darby (6’) and stockier in build. On the other hand, Moore is 6’5. Paul Hunt (5’6), who was wearing an olive green khaki jacket, was therefore Ms Palmer’s ‘Man 3’. 

Sally’s physical descriptions of the three men on the street are very accurate if you accept out notion that she is referring to Darby, Power and Hunt, because nowhere does she describe (Moore) a man 6’5 in stature wearing a hoodie-type top with coloured piping down his sleeves.

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35. As Sally Palmer prepared to overtake, she formed the impression that the male on the right, Man 2, had pushed the man in the white shirt, Man 1, causing him to turn and run towards the pub. Man 3 had not done any pushing, shoving or striking. As she travelled up the road towards the pub, she saw that Man 1 had fallen to the ground in the car park and was covered in blood. She remained in her car and called the emergency services. Men 2 and 3 ran in the opposite direction. She did not see a knife at any stage.

Power admitted in court that he and Darby did physically clash.

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36. She said she had no recollection of a second car behind the black BMW. She confirmed that she had attended an identification procedure in 2005 and had been unable to identify anybody. She did not see how the incident started, nor where the men came from. She did not see Man 1 holding a knife. She did not see Man 1 hit Man 2 or Man 3. She saw a push by Man 2. She was six-to-12 feet away at the time. She said: “I felt Man 2 push Man 1 and would have changed his angle at that point”. In her interview with the police she had said: “I saw the pushing out of my front windscreen, so I was driving towards them.” She said in evidence: “As I was pulling out to overtake, when I was level, the man turned to run away.” In her interview, she had said: “The push could have been a stab, because I know he was stabbed.” She had also said: “It could only be an impression, but I just felt it was the man in the blue who came across as the more dominant character to me. I cannot say definitely it was him.” She also said in interview Males 2 and 3 “were almost like crowding”. She had made a 999 call, which was timed at 11.55am. 

“No recollection of a second car” parked behind Darby’s black BMW is another huge point and, again, contradicts Ahmed’s account that he saw a small silver car, “like a Ford Fiesta” pull up behind Darby’s car. We now firmly believe that, amid great confusion, Ahmed actually saw Palmer pull up in her small silver Renault Modus (neither of the two main witnesses ever described seeing Power’s silver BMW 6 Series with black roof, which was parked by the kerb), although we must regretfully accept that this likelihood was not explored by Moore’s defence team.

The blue top is mentioned here once again – this time because it was worn by the “more dominant” Male 2.  As we keep repeating, Moore wasn’t wearing a blue top.

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37. Plainly, Sally Palmer’s evidence was capable of confirming Mr Ahmed’s evidence in a number of material particulars. She spoke of two men facing one and of those three men being engaged in a stand-up argument, a kind of road-rage. She spoke of the male facing the same way as Man 2, namely Man 3, being shorter in height than his companion, as indeed he was – the Applicant being 6ft 4ins and Power measuring 5ft 10ins. She spoke of Man 2 wearing a blue jacket, as was the Applicant, and she spoke of Man 2 pushing Man 1 and said that the push could have been a stab. The man on the right (Man 2) was the more active of the two men facing Man 1. There were three people obviously in close proximity. “I saw that he [Man 1] was pushed and it caused him to turn and run… I saw out of the corner of my eye that he had fallen to the ground”. She had then phoned the police. She did not at any stage see a knife. She also did not see Man 1 strike either of the two males facing him, nor did she see Male 3 knocked to the ground unconscious.

Lady Justice Sharp is describing Power and Hunt, not Power and Moore, although, as we admit in response to Point 36, Hunt being on the street was not presented as evidence in court or at Appeal.

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38. Paul Hunt, a friend of the deceased, gave evidence. He was with the deceased on August 24, 2005 having travelled as front seat passenger in the deceased’s black BMW to the locality. According to Hunt, they had been going, as he understood it, to get something to eat when the deceased had told him that he wanted “to see if some car is somewhere” and drove towards Gants Hill. When they reached The Valentine, the deceased had stopped the car, got out and walked off. Hunt said that he had then put the passenger seat back and fallen asleep. When he woke up he could not see the deceased and so he drove the car into The Valentine car park, where he saw the deceased lying on the ground. He walked over to the deceased, saw he was covered in blood and had a Stanley knife in his right hand. Hunt had removed the knife and had put it behind a fence in panic. He did not tell the police about the Stanley knife. He agreed that he had rung his girlfriend Emma Ross at one minute past midday but denied the assertion that he had said: “He’s done him”. He insisted that he had said: “Rob’s been stabbed. Someone has stabbed him”. Hunt said that when the deceased had walked off, having got out of the car, he was calm, and had strolled off. He had thought that he was going to go into The Valentine. He never heard any shouting and never saw anything and was unaware of another car nearby. When the car had stopped, the deceased had opened the car door and had said that he wouldn’t be a minute.

Hunt was called to court as a prosecution witness. It beggars belief that not only did police swallow his BS about “being asleep”, but the Appeal judges don’t appear to have questioned it either. As for Hunt also lying about the words he used when phoning his girlfriend, they are directly contradicted by the pub barman (see next point).

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39. Dean Sloane, a barman at The Valentine, said that he saw the deceased collapsed on the ground in the car park and administered first aid. He heard a male with the deceased on a telephone saying: “He’s done him”.

That male was Paul Hunt, who phoned his girlfriend and left it to strangers to call the emergency services.

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40. There was evidence that the police cordoned off the scene at about 12.15pm. It was an Agreed Fact that the scene, including the vehicles that were then parked in Perth Road in the vicinity of The Valentine, was photographed at around 2.15-2.55pm on August 24 (i.e. starting around two-and-a-quarter hours after the murder). The deceased’s black BMW was recovered at the scene. It was an Agreed Fact that two knives were found in the boot.

Does the presence of two knives in the boot of Darby’s car, in addition to the Stanley knife with which he approached Power, not suggest that the deceased was well prepared for a possible violent confrontation? Does this not indicate a possible case of self-defence, rather than murder?

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41. Dr Poole, a pathologist, gave evidence that the entry point of the fatal wound was on the front of the chest to the left side. It was slightly slanted and measured 2.3cms long. A severe degree of force would have been required to cause the injury. The bone of the left fifth rib was divided and the knife had entered the heart. A blade with a minimum length of 30mm and a width of 23mm would be required to inflict this injury. He was asked whether the Stanley knife could have caused the injury and said that was extremely unlikely, not least because when the knife blade was fully extended it measured 23mm which was significantly less than the estimated minimum distance of 30mm between the skin and the heart. Whilst it was impractical to estimate the length and width of the blade actually used, he thought it highly unlikely that the Stanley knife could have caused the fatal injury. It was an Agreed Fact, consequent upon analysis of the deceased’s blood, that he had probably been under the influence of heroin and diazepam at the time of the fatal events in Perth Road. 

42. A motor trader gave evidence that between 6.00pm and 6.30pm on August 24, 2005 Power had deposited his silver BMW with him, saying that he was going to Spain for a few days. Power had had no visible injuries at the time. It was an Agreed Fact that Power’s car was recovered by the police on August 27, 2005 and that no blood was found inside it.

If Power was not the stabber, why would he be in a hurry to take his car to Paul Butler and ask him to conceal it? Power didn’t leave England and flee to Spain until two days after the incident.

43. In August 2005, the Police received credible intelligence of threats to the Applicant and Power by associates of the deceased. Police evidence was adduced establishing that in October 2011 the Applicant was in Dubai having travelled there on a false Irish passport. At that time, Power (who also had the use of a false passport) was in Spain, and both men were wanted. The Applicant, through his solicitors, requested that the police facilitate his return to the United Kingdom, following his arrest in Dubai for unrelated matters.

If Moore was guilty, why would he (through his solicitor) contact DI Andy Jones, the SIO leading the murder inquiry, to seek assistance in returning to the UK, where he knew he would be questioned about Darby’s death and possibly face trial? If Moore really was “wanted”, as Lady Justice Sharp states, why didn’t the Metropolitan Police simply send officers to Dubai to arrest and extradite Moore (as they did with Power in 2013)? The reason they didn’t is because they knew Moore hadn’t stabbed Darby. DI Jones simply told Moore’s solicitor by email that his client would have to make his own way back to England. So much for being “wanted”. This laissez faire attitude was an insult to the Darby family and Robert's memory.

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44. In April 2012, via his solicitor, the Applicant provided a witness statement to the police. In the statement the Applicant set out the history of threats and intimidation by the deceased because of the Applicant’s friendship with Adele Rayner, and how he had involved Power (who knew the deceased) to try to reason with him. On the morning of the fatal events he had happened to be with Power as they were going to play racquetball. They were in Power’s car, which Power was driving. Power had received a call saying that the deceased had threatened his girlfriend. Power had become agitated, and had stopped and used a phone box, after which he had said that he was going to meet with the deceased. They had parked up next to a public house.

45. A few minutes later another car had pulled up in front of them. The deceased got out of that car and Power got out of his car. The Applicant stayed in Power’s car. He saw that the deceased had a knife and had lunged at Power with it – after which they had both fallen out of his sight. Thinking that the deceased had stabbed Power, the Applicant got out of Power’s car. The deceased ran away, and the Applicant chased him but, to the Applicant’s surprise, the deceased had then fallen over and he had seen that the deceased was bleeding. He saw Power talking to the other man in the deceased’s car, and then go back to his own car. The Applicant rejoined Power, who then drove them both away. Power’s ear was half hanging off and he was bleeding. He did not know how Power had come to injure the deceased and at that time, he did not realise that the deceased was badly injured. He left the country later that day because he feared that he would be blamed and that friends of the deceased would find him and harm him. 

46. On October 4, 2012, by arrangement, the Applicant attended Ilford police station, where he was arrested and interviewed – during which he gave more detail as to what he said had happened. 

It should be noted that this was a voluntary interview given by Moore – despite the Met’s indifference and unwillingness to facilitate his return, he had returned from Dubai under his own steam and had not been arrested by The Met at this stage.

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47. Power was extradited from Spain on May 21, 2013. As he had been extradited, he was not interviewed. His ears and face were examined for scarring and none was found. 

Unlike Moore, Power was arrested – he didn’t hand himself in to The Met.

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48. The Applicant gave evidence at trial. By then he was 43-years-old. He said that he was a professional gambler specialising in betting on cricket. He had no convictions for violence but had various convictions for dishonesty. He had had an on-off relationship with Adele Rayner but before 2005 he did not know the deceased. In 2005, however, he had seen the deceased in the local area and had been the recipient of abuse and thereafter of threats of violence. On one occasion the deceased had visited the Applicant’s flat armed with a machete. As a result, the Applicant had asked Power to speak to the deceased to resolve the situation. He had known Power since he was 20. Power had spoken to the deceased a few days before the deceased’s death, and the Applicant had understood that Power had offered the deceased money to go away on holiday, in the hope that that might cool tensions. In the days following, the deceased had made demands by phone for money. 

It was Power’s idea to offer the sum of £2,000 to Darby to “go on holiday”. What Moore didn’t know at the time – it never came out in court or at the Appeal – was that, according to Tim Darby, brother of the deceased, Power owed Robert Darby £3,000. Although it was agreed that Moore would give the £2k to Power, Power said it would be better if Darby believed the money was coming from him rather than Moore. It now looks very likely that Power intended to use his so-called friend Moore to pay off the majority of his debt to Darby.

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49. On the morning of August 24, 2005, the Applicant and Power had been travelling in Power’s car to a sports centre, when Power received a phone call, and told the Applicant that his girlfriend was being terrorised by the deceased. Power had stopped at a payphone and telephoned the deceased, as demonstrated by the telephone evidence. Power had then driven the car to Perth Road and stopped in the middle of the road outside The Valentine. The Applicant had not known what was afoot. The deceased pulled up in his car moments later and got out. Power in turn got out of his car, whilst the Applicant remained in Power’s car reading a newspaper. He could see that the deceased was holding a yellow knife in his right hand. Power was not holding anything. They were shouting at each other and, as Power approached the deceased, the deceased slashed at Power. Both men fell to the ground. Power screamed for help, and the Applicant got out of the car, newspaper in hand, and chased the deceased for 10-to-15 yards until the deceased collapsed, at which point the Applicant saw that he was injured. The Applicant returned to the car to find Power in conversation with Paul Hunt, who was saying “Yes, Mart. Yes, Mart.” 

Here Lady Justice Sharp had adopted Ahmed’s evidence and ignored Sally Palmer’s version of events. Power parked his car normally, against the nearside kerb just before the pub before getting out. Ms Palmer saw no silver car “stopped in the middle of the road”. This is crucial when considering our theory that Ahmed fleetingly saw Palmer’s Renault Modus behind Darby’s car, not Power’s BMW that was parked against the kerb with Moore in it.

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50. The Applicant and Power then returned to Power’s car and drove away. The Applicant saw that Power was holding his ear. The Applicant said that in his statement and in interview, he had exaggerated Power’s injuries in an attempt to help Power. The Applicant said that he had been scared that the deceased would exact revenge, and he and Power therefore resolved to leave the jurisdiction for a few days. A few days later, while in France, the Applicant learned of the death of the deceased. He assumed that Paul Hunt would tell the police what had taken place, and having been informed that his parents had received an ‘Osman warning’, he remained out of the country for several years, in Spain and Dubai. In Spain, not long after August 24, he overheard a conversation between Power and Sandra Dumont (the Applicant’s former girlfriend), in which Power had said: “He is a lunatic, I had no choice, the man came at me.”

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51. The Applicant said that he had not seen Power thereafter but had feared that Power might ‘get rid’ of him, as he was a witness. On several occasions, he said, he had been seriously assaulted. He was concerned that Hunt might give an account supportive of Power. He returned to the United Kingdom voluntarily in 2012, in consultation with the Police, after having been assaulted and accused of offences in Dubai. He thought that if he gave his account to the police, it would reduce the chances of Power wanting to harm him. 

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52. In cross-examination, the Applicant said he had returned to the UK in order to clear his name. He admitted, however, travelling to the UK several times, at least 10 times he conceded, between 2005 and 2012, using a false passport. He denied any plan to meet the deceased on August 24, 2005, and maintained that the phone calls between the parties in the days before the incident related to the meeting between Power and the deceased, and the deceased’s subsequent demands for the money. The Applicant asserted that neither he nor Power had had a knife in the car on the fatal day, and he denied any joint plan to attack the deceased. The Applicant was shown a picture of a dark blue zip-up top, and agreed that this was what he had been wearing at the time. There had been no plan for money to be handed over that day. The Applicant said that the deceased had a reputation as a violent and dangerous individual, and that it was for that reason that he had enlisted Power, rather than the police, to calm the situation. Power, he said, had a massive ego and a very short temper. He had a reputation as a hard man who could handle himself. He maintained that Power had not got out of the car armed with a knife. Power and the deceased had been rolling on the floor for about 15 seconds before the Applicant had got out and chased the deceased away. He had not a clue how the deceased died. The deceased had just tried to kill Power with a Stanley knife. 

This is grossly misleading and simply not true. In court, Moore was NOT shown a photo of a blue zip-up top. CPS barrister Simon Dennison showed him an unclear still image taken from CCTV film, which DCI Kimberley Jones confirmed showed Moore dressed in a “grey top”, a hoodie-style garment, not the zip-up kind. Moore concedes now that he was coerced into agreeing it was a blue top and it was a genuine foolish mistake on his part. It played straight into the prosecution’s hands.

53. He said that immediately after the incident he contacted his sister, Rhonda Moore, who had helped him gather his belongings and passport. The Applicant and Power were in the back of her car on August 24 when Power said to the Applicant: “I had no choice but to defend myself.” He thought that Power had meant that in defending himself, he had killed the deceased. He accepted he did not mention Power’s words in his Defence Statement (in 2013) and claimed this was because he did not wish to bring Rhonda into it. He also accepted he had made no mention to the police or in his Defence Statement of Power telling Sandra Dumont “I had no choice, I had to do it”. According to the Applicant, this was because he felt responsible for having involved Power in the dispute with the deceased. 

If Moore is guilty of anything here, it is a sadly misguided loyalty towards his then friend Power. As for his youngest sister, he simply didn’t want to drag her into it. He knew that Power was the stabber and, naively as it turned out, expected him to admit the offence and (as Power said in front of both Sandra Dumont and Rhonda Moore) claim self-defence. Instead, when it came to the trial, Power fabricated a tale that he had been “knocked out” by Darby and therefore didn’t see anything else that happened, hoping the jury would conclude that Moore was the stabber.

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54. Sandra Dumont gave evidence that she had known the Applicant for some 20 years and had previously been in a relationship with him. In 2005 she was his landlord. She described him as kind and gentle and said that she had never known him to be violent. On the morning of 24 August, she had been shopping with the Applicant’s sister Rhonda and they had met the Applicant for lunch. He had appeared subdued and had said they may have to relocate. That evening Rhonda had told her that there had been an incident with Robert Darby and that they were leaving the country. Whilst the Applicant was in Spain Ms Dumont had spoken to him on the phone from time to time. He had told had her that there had been an altercation resulting in death but had not disclosed details. Sometime afterwards, when she was with the Applicant, he had put Power on the phone to her and Power had said: “Rob came at me like a madman . . . it was himself [sic] or me.” She had never spoken to Power again. She had kept in touch with the Applicant, sending him money and visiting him on occasion. She said that she had helped him because she believed him to be an innocent witness. 

55. When cross-examined she accepted she had made no mention of Power’s confession when she gave her first statement to the police on October 2, 2005. She said that she had mentioned it to the Applicant’s solicitor some time in 2013. Asked whether the confession was within two weeks of the Applicant arriving in Spain, she said that she did not know. She said that she had told no-one at the time because she did not want to get anybody into trouble. She agreed that she had not told the police in 2005 that the Applicant was in Spain, and when asked whether she had helped the Applicant to book travel tickets in a false name, she declined to answer. She accepted that the Applicant had seven mobile phones and that they were registered to her. She also agreed that she had falsely told the police that the Applicant never used mobile phones. She said that she had not mentioned the events of August 24 to the police in her first statement because she was simply answering their questions. It was the Applicant’s evidence that he had travelled several times with Sandra Dumont between his flight abroad and his arrest. 

56. Rhonda Moore, the Applicant’s sister, gave evidence over a video link from America. She confirmed that both she and the Applicant had been threatened by the deceased over the telephone in the summer of 2005. It related to money for a holiday. On August 24, 2005, she had been with Sandra Dumont when she had received a phone call from the Applicant asking her to meet him. She had driven to an unknown street where the Applicant and Power had got into the back of the car. She heard Power say to the Applicant: “He came at me from nowhere, he’s a fucking lunatic. I had no choice but to defend myself.” Power told the Applicant that they should both go away for a few days. The Applicant asked her to go to his flat to pack a bag for him, which she did. Later that day the Applicant told her that she was in danger and that she should leave with him, which she did. They took a ferry to France and then drove to Spain. En route, the Applicant told her that the deceased had attacked Power with a knife and had been stabbed in the ensuing struggle. She returned to the UK after two or three days, and had been warned by the police that she was at risk of retaliation from associates of the deceased. She moved to America the next day and continued to reside there. 

The key point here is that Power urged Moore to leave the country, putting the fear of god into him that Darby, or the Darby family and associates, would come gunning for Moore after receiving hospital treatment (it wasn’t until the day after the incident, by which time Rhonda had driven Jason to Spain, that Rob died). Another reason that Moore factored into his decision to leave the country was that Darby knew where he lived – but the victim didn’t know Power’s home address. Had Darby lived, the fact that Power had stabbed him wouldn’t have stopped him from pursuing Moore and his family, because Jason was also obviously at the scene, albeit as an innocent witness to tragic events.

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57. Cross-examined, she agreed that she had not told the police about what she had heard Power say in 2005 but denied this was a false account given on her brother’s instructions to assist his defence. She was shown her witness statement of May 9, 2013 and was asked why she had not mentioned Power’s confession then. She said she had not appreciated the significance of it at the time. 

As with her brother (see Point 53), Rhonda Moore did not wish to implicate Power.
 

 

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