Establishing the Legality of Conspiring to Encourage or Assist Criminal Offences under Section 46 of the Serious Crime Act 2007

Introduction

The judgment in Russo & Ors, R. v ([2025] EWCA Crim 169) delivers a landmark clarification on the criminality of conspiracy to encourage or assist offences under Section 46 of the Serious Crime Act 2007. This appellate decision from the England and Wales Court of Appeal (Criminal Division), dated February 27, 2025, concerns the supply of Encrochat devices—a secure means of communication—and their role in facilitating criminal activity, particularly drug trafficking. The case involves Jason Russo, and his colleagues Jamil Ahmed and Mohammed Miah, who were involved in selling Encrochat-enabled handsets to customers known to engage, or expected to engage, in the supply of Class A drugs. The legal dispute mainly revolved around whether the act of supplying encrypted devices could be construed as “doing an act capable of encouraging or assisting” the commission of offences, thereby fulfilling the requirements of statutory conspiracy under Section 46 of the 2007 Act and Section 1 of the Criminal Law Act 1977.

The appellants contend that the offence charged was not known to law, that the judge’s conduct during Russo’s evidence ruined the fairness of the trial, and that there was insufficient evidence to prove their knowledge of the criminal use of the devices. The judgment systematically rebuts these arguments, offering detailed analysis on both the nature of the offence established by the statute and the evidential sufficiency required to infer the necessary mens rea.

Summary of the Judgment

In summary, the appellate court upheld the conviction of Russo, Ahmed, and Miah after thoroughly considering both statutory interpretation and evidential issues. The Court found:

• The offence under Section 46 of the Serious Crime Act 2007—which involves doing an act capable of encouraging or assisting the commission of one or more offences—is distinct from aiding and abetting or attempting an offence.
• Previous precedents, notably Kenning [2008] EWCA Crim 1534 and the House of Lords decision in Saik [2006], do not preclude the possibility of conspiracy under the 2007 Act. The court clarified that, even if the intended substantive offence (e.g. supply of drugs) was not committed, the act itself met the statutory requirements once it was shown that the appellants had engaged in a continuous course of conduct intending to facilitate criminal activity.
• The evidence—especially the communications via Encrochat and the established practice in supplying the devices—was found sufficient to infer that the appellants knew of or reasonably ought to have known that their actions would encourage or assist in the supply of drugs.
• The judge’s detailed questioning of Russo, though robust, did not amount to an unfair trial; any potential bias was promptly addressed by the judge’s subsequent directions to the jury.

Ultimately, the appeal was dismissed on the grounds that the conviction was safe and legally tenable under the statutory framework.

Analysis

Precedents Cited

The judgment engages with several prominent precedents, notably:

• Kenning [2008] EWCA Crim 1534: The decision in Kenning is carefully considered in relation to the concept that aiding and abetting is fundamentally different from conspiracy. While Kenning established that a conspiracy to aid and abet is not recognized under section 1(1) of the Criminal Law Act 1977, the appellate court distinguished the present case by emphasizing that the act undertaken by the appellants constituted a course of conduct under Section 46 of the 2007 Act. The court argued that the absence of an actual offence committed by the encouraged parties did not preclude criminal liability.
• Saik [2006] UKHL 18: The principles enunciated in Saik, particularly regarding the required mental element (intention or knowledge), are drawn upon to analyze whether the appellants’ mindsets met the statutory threshold for conspiracy. The court relied on the reasoning in Saik to justify that the requisite belief (and where applicable, quasi-knowledge) about the use of the devices could suffice in establishing the offence.

These precedents were critical in framing the discussion on whether the legislative regime under the 2007 Act can accommodate a conspiracy charge when the anticipated result (such as drug supply) might not eventuate, provided that a course of conduct aimed explicitly at facilitating that commission exists.

Legal Reasoning

The court’s reasoning is built on a close reading of statutory language. It noted:

• The Nature of the Offence: Section 46 requires that a person does an act capable of encouraging or assisting the commission of offences. The court interpreted “an act” broadly to include a “course of conduct”, thereby capturing the repeated and organized supply of Encrochat devices.
• Legislative Intent: Emphasis was placed on the prescriptive nature of the 2007 Act, which deliberately eschews the need for the eventual commission of a substantive offence. The legislative framework supports liability even if the assisted offence is not ultimately committed, provided the defendant’s belief or intention regarding the commission of the offence is established.
• Distinction from Aiding & Abetting: The court clarified that whereas an offence of aiding or abetting requires the substantive offence actually to occur, the conspiracy charge under Section 46 does not. This legal distinction was vital in rejecting the appellants' argument that the legal theory behind their charge was unestablished.
• Jury Directions and Evidence: With respect to the judge’s questioning of Russo, the appellate court acknowledged that although the line of questioning might have appeared prejudicial, it was remedied by subsequent precise jury instructions. The court found that the overall evidentiary record, including the clear indicators from Encrochat communications and documented patterns of behavior, sustained the inference of knowledge or belief regarding the intended criminal use of the devices.

Impact

This judgment has significant implications for the interpretation and application of the Serious Crime Act 2007 and related conspiracy charges:

• Clarification of Inchoate Offences: The decision confirms that a conspiracy charge under Section 46 can be applied even where the anticipated criminal offence is not eventually executed. This will likely broaden prosecutorial discretion, particularly in cases involving preliminary steps in criminal collaborations.
• Criminal Liability in the Digital Age: By validating that the supply of encrypted communication devices—an indirect but essential facilitator of criminal activity—can meet the threshold for conspiracy, the Court paves the way for tackling increasingly sophisticated criminal networks that rely on digital tools.
• Guidance for Future Trials: The ruling provides clearer guidance for judges in managing evidence and judicial questioning, ensuring that robust questioning does not automatically translate into an unfair trial when balanced by appropriate jury directions.
• Legislative Interpretation: The judgment reinforces the principle that “the greater includes the lesser” in terms of mens rea. Where a lesser state of mind (belief) covers the legal requirement by encompassing knowledge, future cases will be measured against this interpretation.

Complex Concepts Simplified

Several complex legal concepts underpin the court’s decision:

• Conspiracy versus Aiding and Abetting: Conspiracy involves agreeing to engage in conduct that is capable of facilitating a crime, irrespective of whether the crime is eventually committed. In contrast, aiding and abetting require that the crime actually takes place. This case clarified that under Section 46, the focus is on the act (or course of conduct) itself rather than on its ultimate outcome.
• Course of Conduct: Rather than isolated acts, a course of conduct implies a series of transactions or communications that collectively demonstrate a continuous intent. The judgment interprets the repeated supply of Encrochat devices as such a course, effectively linking them under a single conspiracy charge.
• Knowledge versus Belief: The statutory language ‘know’ and ‘believe’ was analyzed to conclude that if a defendant holds a firm belief regarding the facilitation of criminal activity, that belief suffices to meet the higher threshold of knowledge required for a conspiracy charge.

Conclusion

The Russo & Ors judgment represents a pivotal development in criminal conspiracy litigation. It firmly establishes that under Section 46 of the Serious Crime Act 2007, a person can be convicted of conspiracy to commit an offence solely based on engaging in a course of conduct that is capable of encouraging or assisting a serious crime—even if the offence itself is not ultimately completed. The decision differentiates this form of liability from classical aiding and abetting and reinforces that the state of mind encompassing both knowledge and belief plays a critical role in establishing criminal responsibility.

This judgment not only addresses the evidential and procedural aspects raised by the appellants but also offers clarity on the statutory framework underlying modern conspiracy offences. Its implications will resonate in future prosecutions involving complex, technologically enabled criminal networks, ensuring that preparatory acts assisting in the commission of crimes do not fall outside the ambit of criminal liability.

In summary, the decision confirms that the course of conduct linked to the supply of encrypted devices is sufficient to establish a charge under the newly elucidated legal principle, thereby reinforcing the robustness of statutory conspiracy charges in the modern digital era.