R v Nzekwu: The Boundaries of Relevance & Disclosure in the Age of EncroChat

Introduction

In Nzekwu & Anor, R. v ([2025] EWCA Crim 734) the Court of Appeal (Criminal Division) wrestled with two inter-related modern problems: (1) how far historical contact between an accused and law-enforcement agencies is relevant to a present indictment, and (2) how encrypted EncroChat messaging should be assessed when it forms the core of a conspiracy allegation.

The appellants, Victor Nzekwu (convicted after trial) and Kasim Mohammed (late guilty plea), challenged both conviction and sentence arising out of a conspiracy to import five kilograms of cocaine from the Netherlands during the volatile period immediately preceding the Europol infiltration of the EncroChat network in June 2020. Central issues included:

Whether the trial judge erred by treating prior National Crime Agency (“NCA”) approaches to Mr Nzekwu as irrelevant and by refusing related disclosure.
The admissibility of statistical material in a defence expert report designed to show that Mr Nzekwu’s EncroChat usage profile differed from typical drug traffickers.
Whether the celebrated “line 109 message” and surrounding evidence sufficed to leave the case to the jury.
Whether the resultant custodial terms—13½ years for Mohammed and 7½ years for Nzekwu— were manifestly excessive.

Summary of the Judgment

The Court (Sir Keith Lindblom P, McGowan J, and Andrews J) dismissed all appeals. Key holdings are:

Disclosure & Relevance: Historical NCA contact (2016–2017 & isolated meetings in June 2020) was of negligible probative value to the mens rea for a June 2020 cocaine conspiracy; refusing broader disclosure caused no unfairness.
Expert Evidence: Aggregate comparisons between the defendant’s EncroChat data and data from 150–200 other handles were irrelevant. The trial judge properly limited Dr Campbell’s evidence to empirically verifiable facts drawn from the devices actually in issue.
No-Case Submission: The “line 109 message” did not stand in isolation; surrounding communications concerning hawala-style money transfer, transport, price coincidence (28,500 €/kg) and knowledge of “tops” justified leaving the case to the jury.
Sentencing: The custodial terms fell squarely within guideline ranges. Use of EncroChat, sophisticated money-laundering arrangements, and Mohammed’s serious antecedents warranted upward movement; good character and delay were already factored into mitigation for Nzekwu.

Analysis

Precedents Cited

R v Taylor [2001] EWCA Crim 1044 and R v Smart & Beard [2002] EWCA Crim 772 – reiterated the principle that acts or declarations of a conspirator cannot prove an essential element of the conspiracy against another unless there is independent evidence connecting that person to the conspiracy. The Court distinguished those cases, finding multiple strands of independent evidence tying Mr Nzekwu to the agreement.
R v Kerrigan [2014] EWCA Crim 2348 – confirmed sentencing courts’ discretion (not obligation) to credit time spent in custody owing to licence recall when imposing a new determinate term. Relied upon to reject Mohammed’s totality argument.
Sentencing Council Definitive Guidelines (Importation of Controlled Drugs & Totality) – provided the structural framework for the custodial terms.

Legal Reasoning

1. Relevance & Disclosure

The Court affirmed a stringent test: evidence is admissible only if it bears logically on a live issue. Prior NCA engagement with an authorised EncroChat reseller did not illuminate whether the same individual knowingly conspired to import cocaine four years later. Disclosure obligations did not extend to speculative or tangential material simply because it might prompt “further enquiries”. The ruling underscores the primacy of the Criminal Procedure and Investigations Act 1996 (“CPIA”) test of materiality over defence fishing expeditions.

2. Expert Evidence Gatekeeping

The court endorsed the trial judge’s excision of Dr Campbell’s “comparative” paragraphs. Statistical generalisations, unsupported by formal methodology or relevance to the specific issues, were rightly excluded under the “necessity” limb of R v Turner (1975) and the overarching duty to prevent satellite disputes. The decision also signals caution against using “profile evidence” to imply non-criminality.

3. Sufficiency of Evidence

The conspirator’s exception to the hearsay rule (often traced to R v Hardy (1794)) allows acts or statements of one conspirator in furtherance of the agreement to be admissible against another. However, Taylor and Smart & Beard require a separate evidential nexus. In this case, the line 109 message was bolstered by:

Direct EncroChat discussions between Mohammed and Nzekwu about price, transport and hawala-style fees.
Physical hand-over of £83,000 – matching the EncroChat-negotiated cocaine price.
Post-hack WhatsApp updates referring to “tops”.
Concession at trial that “tops” meant cocaine and that “flat” meant the Netherlands.

This multi-threaded matrix satisfied the Galbraith test, leaving the matter for the jury.

4. Sentencing Calibration

Role & Culpability: Mohammed was a category 1 “leader”; Nzekwu a category 2 “significant role” participant because he commissioned a portion of a larger importation and supplied encrypted hardware.
Aggravation: Use of EncroChat, hawala-style transfers, and (for Mohammed) a third trafficking conviction whilst on licence. The Court resisted the argument that encryption is nowadays “ordinary”, emphasising that providing and exploiting sophisticated communications remains a hallmark of high culpability.
Mitigation: Late guilty plea (10 % credit) for Mohammed; previous good character and first custody for Nzekwu.
Totality & Recall: Following the Totality guideline and Kerrigan, the judge was not obliged to discount Mohammed’s sentence for the recall period; delay was not “exceptional”.

Impact of the Decision

EncroChat Litigation: The Court’s endorsement of a narrow approach to “profile” evidence and a robust assessment of message-based conspiracies will influence ongoing post-EncroChat prosecutions. It signals that isolated but contextually significant messages, when coupled with circumstantial evidence, can suffice for conviction.
Disclosure Jurisprudence: Prosecutors may rely on this authority to resist defence applications seeking historical intelligence unless demonstrably probative of a live issue. Defence teams will need to articulate a specific link to mens rea to overcome the relevance threshold.
Sentencing Trend: The judgment confirms that courts will continue to treat encryption and sophisticated money movement as weighty aggravating factors notwithstanding their growing prevalence, thereby preserving deterrence in high-end drug trafficking.

Complex Concepts Simplified

EncroChat: A now-defunct European encrypted phone network marketed as “unbreakable”. Messages were automatically deleted and routed through overseas servers. In 2020 French & Dutch police infiltrated the system, capturing real-time data used extensively in UK prosecutions.
Hawala Banking System: An informal, trust-based, often cross-border money-transfer mechanism. No physical money necessarily moves; debt-settling among agents occurs instead, leaving minimal audit trails.
Submission of No Case to Answer (Galbraith): At the close of the prosecution case the defence can argue that evidence is insufficient for a jury to convict. The judge must withdraw the case if, taken at its highest, a properly directed jury could not convict.
PII Hearing: “Public Interest Immunity” hearing where the court privately examines sensitive material (e.g., intelligence) to balance public interest in secrecy against the defendant’s right to a fair trial.
Totality Principle: Ensures the overall sentence for multiple offences is just and proportionate to the total offending behaviour and personal circumstances of the offender.

Conclusion

R v Nzekwu crystallises two important propositions. First, mere historical or tangential dealings with law-enforcement agencies are not automatically relevant; admissibility turns on a clear, logical connection to the live issues—specifically the defendant’s knowledge and intent. Second, EncroChat evidence, even if fragmented, can form a compelling evidential web when corroborated by financial movements and contextual messages. On sentencing, the Court reaffirmed robust custodial responses to technologically savvy Class A traffickers, underscoring that the ubiquity of encryption will not dilute its aggravating force. Going forward, practitioners can expect tighter scrutiny of defence-led disclosure requests and continued judicial willingness to treat sophisticated digital tool-use as a marker of high-level criminality.