R v Harrod [2024] EWCA Crim 819: Fresh Evidence, Alias Attribution, and Extensions of Time in EncroChat Conspiracy Appeals

Introduction

This judgment from the Court of Appeal (Criminal Division) addresses a late appeal against conviction arising from a large-scale, multi-commodity drugs conspiracy involving EncroChat devices. The applicant, Mr Harrod, was convicted in November 2020 of conspiracies to supply Class A and Class B drugs and of breaching a Serious Crime Prevention Order (SCPO). He sought, almost four years out of time, leave to appeal based on “fresh evidence” purportedly undermining attribution of the EncroChat nickname “Foxy” to him and, relatedly, the nickname “Wicker” to a co-conspirator.

The case raises three interlinked issues of practice and principle:

When evidence from other, contemporaneous prosecutions (e.g., alias usage) is truly “fresh” for the purposes of section 23 of the Criminal Appeal Act 1968.
How courts assess the materiality of alias and handle attribution in EncroChat prosecutions, especially where nicknames are similar but not identical (e.g., “Fox” vs “Foxy”; “Wicker” vs “Alanwicker”).
Whether the interests of justice justify substantial extensions of time for appealing, particularly where delay is said to be to protect other proceedings.

Summary of the Judgment

The Court of Appeal refused:

The application to adduce fresh evidence concerning alleged alternative attributions of “Foxy” and “Wicker”.
The application for leave to appeal against conviction.
The application for an extension of time of 1,395 days.

Central to the Court’s reasoning were:

The overwhelming strength of the circumstantial case against the applicant, independently of the disputed “Foxy” attribution.
The fact that the “new” evidence (e.g., a police attribution statement used in another prosecution) was in the hands of the applicant’s own legal team before and during trial and therefore was not “fresh”.
The lack of probative value in the proposed material: “Fox” is not “Foxy”; “XX/XXXX” is not “XXX”; “Alanwicker” is not “Wicker”; and there was no evidential link between the other defendants in other cases and the present conspiracy.
The Court’s view that, even if the 14 January 2020 calls strand were weakened, the conviction would remain safe given the breadth and depth of other evidence.
The delay grounds (including an asserted need to protect a different client’s POCA proceedings) were unpersuasive.

Background and Key Facts

Between July 2018 and January 2020, an organised criminal group supplied large quantities of cocaine, amphetamine, and cannabis. Police seized, among other items, 31 kg of cocaine, 308 kg of amphetamine, nearly 600 kg of cannabis resin, and approximately £900,000 in cash. The prosecution’s case was that these seizures represented only a fraction of the operation’s true scale. Surveillance, rather than message content, provided much of the evidential foundation: frequent short meetings in surveillance-resistant locations, an apparent hierarchal structure with the applicant as head, and EncroChat devices in the hands of core conspirators when arrested.

The applicant did not give evidence. His defence challenged police integrity and, more specifically, the attribution of the EncroChat nickname “Foxy” to him and the inference that “Wicker”—with whom “Foxy” allegedly coordinated—was his co-conspirator, Paul Clarke.

The “Foxy” and “Wicker” Issues

The prosecution contended that a thread of EncroChat messages on 14 January 2020 between Lee Taylor and “Foxy,” supported by cell-site data which placed the applicant’s devices at Hove, supported the inference that the applicant was “Foxy” and that a short conventional call at 16:36 to Clarke indicated prompting “Wicker” to answer on EncroChat. The defence argued the link was speculative.

At trial, the defence sought to introduce that, in another prosecution, police had attributed “Fox” to Jamie Hanna (handle: “Mute Swamp”), and that in yet another prosecution, “Alanwicker” was attributed to Patrick Ince, with nicknames none of which was “Wicker”. The trial judge excluded the “Fox” point as irrelevant. The jury convicted after brief deliberations.

The Applications on Appeal

On appeal, the applicant sought:

To adduce “fresh evidence” via statements used in other prosecutions:
- An attribution statement (June 2020) linking “Fox” to Jamie Hanna.
- Attribution statements (January/February 2021) linking “Alanwicker” to Patrick Ince and “XX/XXXX” to Cavan Hanna.
Reliance on new correspondence identifying the subscriber to a conventional number ending 0445 that had called Lee Taylor; the subscriber was not the applicant and had no known link to the conspiracy.
An extension of time justified by the supposed later discovery of the above and a request by Mr Ince to delay to avoid compromising his POCA proceedings.

The Court’s Decision and Key Holdings

The evidence was not “fresh” within the meaning of section 23 Criminal Appeal Act 1968 where it had been accessible to the defence team before and during the applicant’s trial (via the Digital Case System for those other proceedings).
The “new” alias material lacked relevance and probative value:
- “Fox” is not the same as “Foxy”.
- “XX/XXXX” is not “XXX”.
- “Alanwicker” and its associated nicknames are not “Wicker”.
- There was no evidential bridge linking the Hannas or Ince to this conspiracy. Suggesting otherwise was speculative and contradicted by the extensive surveillance picture.
The subscriber to 0445 not being the applicant made no material difference; at trial it had already been agreed the number was unattributed and had no contact with known conspirators beyond Lee Taylor. Identifying the subscriber did not advance the defence case.
Even if the “14 January calls” strand were undermined, the conviction remained safe in light of the formidable circumstantial case.
The delay in bringing the application was unjustified; the Court was not persuaded that deference to another client’s ongoing proceedings could excuse the delay.

Analysis

Precedents Cited

The judgment did not cite prior authorities by name. However, the Court applied orthodox principles under:

Criminal Appeal Act 1968, section 23 (fresh evidence): assessing whether the evidence is genuinely new, credible, admissible, and whether there is a reasonable explanation for not adducing it at trial. The ultimate issue is whether, in light of the totality of evidence, the conviction is unsafe.
Criminal Appeal Act 1968, section 2 (safety of conviction): focusing on whether the proposed material might reasonably have affected the jury’s verdict in the context of the whole case.
Extension of time principles: length of delay, reasons for delay, and the merits of the proposed appeal (interests of justice). The Court’s approach—considering the weakness of the merits and the unpersuasive reasons—reflects settled practice.

The Court’s reasoning aligns with established appellate practice: “fresh” means not reasonably available with due diligence at trial; “materiality” requires a real prospect of affecting the verdict; and long delays require cogent justification, often tethered to the strength of the underlying appeal.

Legal Reasoning

Freshness and availability: The defence team had access to the attribution statements from other cases before and during the applicant’s trial. Evidence known to the defence or reasonably obtainable at the time is not “fresh.” Access via the DCS in the Hanna case pre-dated trial, and the “Fox”/“Foxy” point was in fact advanced at trial (and rejected as irrelevant). This alone was fatal to the fresh evidence application.
Relevance and probative value: The Court treated similar-but-not-identical aliases as a material difference. The absence of an evidential link between the other defendants and this conspiracy meant the proffered material could not rationally reduce the weight of the attribution in this case. The Court declined to permit a speculative “alias by association” theory.
Overall strength of the case: Even if the 14 January thread were weakened, the circumstantial case—surveillance, meetings, encrypted devices, lifestyle inconsistent with legitimate income, deceit to probation, breach of SCPO, prior convictions evidencing propensity—was powerful. The Court assessed the 14 January evidence as not pivotal when set against that evidential landscape.
0445 number: The appeal sought to leverage the later identification of the subscriber. But at trial it was agreed the number was unattributed and non-integrated with the wider contact network. Knowing the subscriber’s identity (uninvolved and unconnected) did not move the needle on safety.
Extension of time: While the Court did not need to resolve whether deference to another client’s POCA case could ever justify delay, it was “not convinced” here. The extreme length of delay, coupled with unmeritorious proposed grounds, led to refusal.

Impact

This judgment delivers a clear and practical message for EncroChat and other digital alias-based prosecutions:

Alias “near-misses” are not enough. A similar nickname in a different case does not undermine attribution unless a concrete evidential link to the case on trial is shown. Courts will not indulge speculative cross-pollination of nicknames/handles across unrelated prosecutions.
Cross-case disclosure and “freshness”. Where defence teams act across multiple serious crime cases, the DCS footprint will be scrutinised. If the team had access to the material pre-trial in any case they were handling, it will rarely be “fresh.” This has wide implications for multi-defendant, multi-case EncroChat litigation.
Materiality is judged holistically. Attempts to isolate and attack a single thread (e.g., a message exchange) will fail if the wider circumstantial matrix remains overwhelming. Appellants must show a realistic prospect that the new material would have altered the jury’s view of the case as a whole.
Delay and the interests of justice. The Court is unlikely to grant extensive extensions of time where delay is attributed to protecting other proceedings or strategic considerations, absent exceptional justification and strong underlying merits.

Complex Concepts Simplified

EncroChat: A now-dismantled encrypted communications platform popular among organised criminals. Users often employed “handles” (unique usernames) and “nicknames” for identification. Attribution is the process of linking a handle/nickname to a real person using technical and contextual evidence.
Alias vs handle: A “handle” is the unique EncroChat username (e.g., “Mute Swamp”, “Alanwicker”). A “nickname” is how a user is referred to in messages (e.g., “Foxy”, “Wicker”). Courts treat precise naming as significant; similar names are not interchangeable without evidence.
Cell-site evidence: Data showing which cell mast a device connected to at a given time. It helps place a device in a general location (e.g., near Hove) but is not precise GPS.
Serious Crime Prevention Order (SCPO): A civil order that imposes restrictions (e.g., on phone and SIM possession). Breaching an SCPO is a criminal offence and can be evidentially significant in demonstrating criminal intent or risk management.
Fresh evidence (s.23 CAA 1968): On appeal, new evidence can be admitted if it is genuinely new, credible, would have been admissible at trial, there is a reasonable explanation for its absence, and—most importantly—it could realistically affect the safety of the conviction.
“Unsafe” conviction: The statutory test on appeal. The Court asks if, considering all evidence (including any properly admitted fresh material), the conviction can stand. If there is a real possibility the jury would have reached a different verdict, the conviction may be unsafe.
De bene esse: A Latin phrase meaning “for the present purpose.” The Court read the proposed new evidence provisionally, without deciding on admissibility, to assess whether, even if admitted, it could affect safety.
Agreed facts: Facts formally agreed between prosecution and defence limit the issues at trial. The Court noted agreed facts (170 and 171) confirming the 0445 number had no broader relevance.

Practice Points for Practitioners

Be precise about attribution: If advancing an alternative attribution theory, ensure it is anchored to demonstrable links (persons, dates, devices, contact patterns) within the case on trial. Similar names from other cases are not enough.
Manage cross-case knowledge: Where teams are instructed in multiple serious crime matters, promptly evaluate whether material in one case is relevant to another. If so, deploy it through an Addendum Defence Statement and targeted disclosure requests before trial.
Don’t overstate a single strand: Appellate arguments that hinge on one item (e.g., one call or thread) face headwinds if the circumstantial matrix is strong. Calibrate trial and appeal strategies to the whole evidential picture.
Timeliness matters: Extensions of time require compelling reasons. Strategic delay to protect other proceedings is unlikely to suffice, especially for multi-year delays.
Document “freshness” diligence: If seeking to adduce fresh evidence on appeal, record what was known, when, and why it could not have been obtained earlier. DCS access logs may be decisive.

Conclusion

R v Harrod reinforces a disciplined approach to fresh evidence and alias attribution in EncroChat prosecutions. The Court made three principal contributions:

A firm insistence that evidence accessible to the defence at trial, even if housed in other proceedings handled by the same team, is not “fresh.”
A clear warning against speculative alias transposition: similar nicknames in different prosecutions do not undermine attribution absent hard links to the case on trial.
A reminder that the safety of a conviction is judged in the round; where the circumstantial case is compelling, weakening one thread will rarely suffice.

As EncroChat litigation continues to generate ancillary attribution disputes, this judgment sets a practical boundary: only genuinely new, case-specific, and materially probative evidence will justify reopening settled convictions—particularly where appeals are long out of time. The decision promotes finality while preserving the core standard that true fresh evidence capable of affecting the verdict remains admissible in the interests of justice.