“Cracknell Clarification”: Reliability of Tele-comms Data and Propensity Evidence in Drug-Conspiracy Trials

1. Introduction

The Court of Appeal’s decision in Cracknell, R. v ([2024] EWCA Crim 1437) delivers a multi-faceted affirmation of trial-management principles in complex conspiracy cases. Miles Cracknell sought leave to appeal both conviction and sentence following his 2023 convictions for conspiracies to supply cocaine and cannabis and for possession of criminal property.

Central to the appeal were:

• Whether extensive mobile-telephone data schedules were too unreliable to support a conviction, thereby justifying a “no case to answer” submission.
• Whether a previous conviction for supplying cannabis should have been admitted as bad-character evidence under Criminal Justice Act 2003 (“CJA 2003”), gateway D (propensity).
• Whether the applicant’s role was correctly categorised as “leading” for guideline purposes and whether consecutive sentences produced an excessive totality.

Lewis LJ, with whom the full court agreed, rejected all grounds. The ruling does not revolutionise doctrine but it clarifies and reinforces key evidential and sentencing principles, now conveniently packaged as the “Cracknell Clarification”.

2. Summary of the Judgment

The Court:

• Refused leave on conviction grounds, holding that (i) the trial judge properly applied the Galbraith test (as refined in R v Wassab Khan) when dismissing the no-case submission, and (ii) the prior cannabis-supply conviction was rightly admitted as propensity evidence, consistent with R v Hanson.
• Refused leave on sentence grounds, affirming the “leading role” finding, the individual custodial terms (15 years for cocaine, 3½ years consecutive for cannabis, 2 years concurrent for money laundering) and the overall total of 18½ years.

3. Analytical Commentary

3.1 Precedents Cited and Their Influence

a) R v Wassab Khan [2013] EWCA Crim 1345

Re-articulates the Galbraith “no case” test: taking the prosecution case at its highest, is there evidence on which a properly directed jury could convict? The Court of Appeal quoted the single judge’s reliance on Khan to emphasise that the trial judge asked the correct question.

b) R v Hanson [2005] EWCA Crim 824

Provides the definitive checklist for admitting previous convictions as evidence of propensity under CJA 2003, s.101(1)(d). Hanson stresses that relevance and fairness require careful balancing, especially where the earlier conviction is old. In Cracknell, the trial judge explicitly stepped through the Hanson questions, and the Court of Appeal endorsed that structured approach.

c) Sentencing Council Guidelines (Drug Offences)

The court applied the guidelines for quantity-based categorisation and role assessment, reinforcing that judges who hear the evidence are “best placed” to classify role.

3.2 The Court’s Legal Reasoning

a) Reliability of Mobile-Phone Data

• Expert cross-checking: The schedules had been independently verified by multiple analysts.
• Cross-examination outcome: Defence questions exposed anomalies but none so fundamental as to undermine the dataset.
• Inference for jury: Lewis LJ reiterated that minor inconsistencies go to weight, not admissibility. Therefore the jury, not the judge, remained the proper tribunal of fact.

b) Admissibility of Previous Conviction

• Gateway D relevance: Wholesale drug supply is an unusual activity; a prior conviction makes present involvement more likely.
• Elapsed time neutralised: The time gap was largely spent in custody, so the gap did not signify a reformed character.
• Prejudice vs probative value: No undue prejudice identified; a proper direction could safeguard fairness.

c) Sentencing Logic

• Role assessment: Evidence showed Cracknell orchestrated purchase and distribution, satisfying the “leading role” criteria (planning, directing others, expectation of profit).
• Totality principle: Consecutive sentences were justified because each conspiracy was distinct (different drug, partly different personnel). A 50% reduction on the cannabis term mitigated “double counting”.

3.3 Impact on Future Litigation

• Tele-comms Evidence: The judgment underlines that modern phone-data analytics, when properly prepared and peer-reviewed, will usually withstand “no-case” arguments grounded solely in minor anomalies. Defence teams must therefore marshal expert evidence of systemic error, not isolated discrepancies.
• Bad-Character Gateway D: The decision fortifies the proposition that prior class-B supply can be probative of class-A supply propensity, even after substantial custodial gaps, provided the activity type is distinctive.
• Sentencing Practice: Cracknell endorses: (i) judicial discretion to label a defendant “leading” where organisational fingerprints are evident, and (ii) use of consecutive sentences for separate drug conspiracies, tempered by transparent totality adjustments.

4. Complex Concepts Simplified

• No Case to Answer (Galbraith test): At the close of the prosecution case, the defence may ask for an acquittal if, even taking the Crown’s evidence at its strongest, a jury could not convict. The judge does not weigh credibility; he asks whether there is any evidence on which guilt could be inferred.
• Bad Character Evidence & “Gateway D” (CJA 2003, s.101(1)(d)): Previous misconduct can be admitted to show a defendant’s propensity to commit the type of offence charged, but only if its probative value outweighs any prejudicial effect.
• Leading vs Significant Role (Sentencing): • Leading = organising/controlling, expecting substantial gain, using others. • Significant = operational but not pivotal, limited influence. The distinction crucially drives starting points and sentence ranges.
• Totality Principle: When multiple sentences are passed, the aggregate must be just and proportionate. Judges may run sentences concurrently (together) or consecutively (one after another), adjusting lengths to avoid an overall term that is excessive for the combined criminality.

5. Conclusion

Cracknell may read as a routine refusal of leave, yet it crystallises practice in three areas:

1. Courts will entrust the fact-finding role to juries where digital-data anomalies are not systemic.
2. Propensity evidence from previous drug supply can pass Gateway D scrutiny even with temporal gaps, especially when the nature of the activity is distinctive and serious.
3. Consecutive sentencing for separate conspiracies is legitimate; totality concerns are met by transparent discounting, not by forcing concurrency.

Practitioners should treat these clarifications as a cautionary compass: weak challenges to phone-data accuracy or reflexive opposition to bad-character evidence may fail without compelling foundations, and sentencing arguments must squarely address role analysis and totality rather than hope for appellate intervention.