The evidence was contained in statements made by Gilheaney on 7th September, 21st September and 30th September 2004.  On 7th September Gilheaney, referring to his brother-in-law, Kelly, as 'James', a man called Hemphill as 'Gary' and to Daley as 'Damien', said this:

"On one occasion in about February of 2004, I was watching television with Damien, Gary and James when it came on the television that Michael Stone had got another appeal.  It also showed pictures of Damien Daley leaving the court handcuffed and put into a prison van.  They also said that Damien was a prosecution witness in the case.  James and I said to Damien: What's all that about then?  He replied: Don't believe everything you see on TV.  He then turned round and said he'd only done it to help himself, it was all bullshit and lies to try to get a reduced sentence or get out of prison. We were not happy with what he said and we kept away from him after this."

On 21st September, in addition to seeking to explain why he was not prepared to go to court, he confirmed the truth and accuracy of his 7th September statement.  On 30th September, following a video recorded interview, in the presence of his solicitors and the appellant's solicitors, he made a further amplifying statement, the material parts of which are as follows:

"I am now willing to go to court... I would now like to add the conversation I had with Daley about the TV programme took place in my cell... on house block 2B Spur... I cannot remember the exact date but I believe it was in late February or early March... Damien Daley came into the cell.  He sat on James' bed. James came and sat next to me.  Gary sat nearest the TV... Suddenly I recall hearing something about an appeal on the TV. James also must have noticed it as we looked at each other and I looked at the TV.  I could see a picture of Damien Daley being led by a security officer in handcuffs handcuffed to the officer...  The TV programme also mentioned Damien by name... The TV programme talked about being a witness in the Stone case... Both myself and James said at the same time: What was all that about?  We looked at Damien as we said this.  Damien looked shocked and possibly embarrassed, as I am in no doubt he had seen what was on TV. Damien then replied to us: Don't believe everything you see on TV... Damien then said: It's all lies and bullshit. Damien then said he had only done it to help himself... I did not think too much of what Damien had said.  It was only later that it sunk in and I realised exactly what he meant. Once I am out of prison I do not tell anyone about the conversation I had with Daley in the cell.  The first person I spoke to about this was Bob Henderson. I believe this was the 5th or 6th September 2004... When I came out of prison, I did think about what I had been told but I did not have a lawyer, so I did not know what to do.  I thought I should make a statement about the conversation, but did not know how to do it.  When I spoke to Bob he mentioned that Michael Stone's sister had contacted him.  I then thought I would tell Michael Stone's sister. I got Bob to contact her and got her to ring me... I did not tell her what I knew but told her I would like to make a statement.  She told me would I like to speak to a lawyer hence, my first statement."

17.   Following the adjournment, on 8th September last, of the hearing of this appeal, in the light, among other matters, of Gilheaney's 7th September statement, a detailed investigation was carried out into Gilheaney's claims. Mr Fitzgerald QC for the appellant accepted that we were entitled to take the fruits of that investigation into account, when having a regard to those matters identified in the amendments to section 23 of the Criminal Appeal Act 1968 by section 4 of the Criminal Appeal Act 1995, in deciding whether to receive this evidence.  In particular, we concluded that Gilheaney's evidence was not capable of belief for a number of reasons which we now give.

18.   First, it is by no means uncommon in a case such as this, attracting great media interest, for a witness to come forward at the last moment, claiming, falsely, to have knowledge of relevant matters.

19.   Secondly, the terms of the statement of 7th September 2004 were, on their face, a vague and imprecise basis on which to claim that Daley had retracted his evidence as to the appellant's confession.  As a comparative example, there could be no greater contrast than that between the few words of retraction attributed by Gilheaney to Daley and the dramatic detail of the account attributed by Daley to the appellant.  The amplifying detail in the statement of 30th September served, when enquiries were made about it, not to enhance but to damage further the reliability of the earlier statement.

20.     Thirdly, if Gilheaney, as he claimed, knew that the appellant's appeal was pending when Daley made the alleged retraction, it is astonishing, particularly as he was released from prison only a day or two later, that Gilheaney remained silent about the matter for 6 months.  He did not offer to make a statement until the day before this appeal was listed for hearing in September and he did so only after a casual conversation led him to speak to the appellant's sister and then the appellant's solicitor.

21.   Fourthly, when Kelly (who is, as we have said, Gilheaney's brother-in-law) was interviewed by the police on 15th September and when Hemphill was interviewed, initially on behalf of the appellant's solicitor on 7th September and subsequently by police on 16th September, both denied, or to put it no higher, refused to confirm, Gilheaney's claims that they were present at such a conversation and that it was triggered by a television programme.

22.   Fifthly, on 21st September, within two weeks of making his statement on 7th September, Gilheaney refused to go to court, to support it.  He was adamant that he would not go.

23.   Sixthly, his reasons for so refusing, namely, his fear for his family, because a chair had been thrown at his girlfriend's window and his treatment at Belmarsh Prison, were bogus.  On enquiry, the chair incident was proved to be due to a neighbour, and both that incident and his treatment at Belmarsh were wholly unconnected with this appeal.

24.   Seventhly, prison accommodation records, confirmed by the location where telephone PIN number were used by Gilheaney, Daley, Kelly and Hemphill, demonstrate that there was no occasion in February 2004, or in March, save between 17th and 23rd, when the four could have been, as Gilheaney claimed, together in his cell in block 2 spur B.  Daley was in block 2 spur B from 22nd January to 23rd March, but Gilheaney himself, from 13th February to 16th March was not in block 2 spur B.  Kelly did not reach the prison until 4th March and was not in block 2 spur B until 17th March.  Hemphill was not in block 2 spur B until 2nd March.  Accordingly, it would only have been possible for the four to be together in Gilheaney's cell during the week before he was released on 23rd/24th March.  Yet it is to be noted that his statement of 7th September purported to date the alleged meeting as being in about February, and his statement of 30th September said it was in late February or early March.

25.   Eighthly, painstaking enquiries as to television programmes show that none of the terrestrial TV channels capable of being received in block 2 spur B broadcast any item about the appellant's case or Damien Daley, during the period between 17th and 23rd March.  It follows that Gilheaney's essential claim, that Daley retracted his evidence in the presence of the others, when triggered by a TV broadcast, is demonstrably false and it is not resurrected as capable of belief by his suggestion, in interviews in late October, that the broadcast and retraction may have occurred on different occasions.