Hanna & Anor v Rex

Factual and Procedural Background

Between 14 and 30 March 2022, the Appellants, two brothers, were tried at the Crown Court at Woolwich on charges of conspiracy to supply cocaine and conspiracy to facilitate money laundering, among other counts. On 16 March 2022, one Appellant dismissed his legal representatives, while the other’s lawyers withdrew; both then refused to participate further in the trial. The trial judge decided to continue the trial in their absence. On 30 March 2022, the jury convicted both Appellants on all counts, and on 4 April 2022, they received substantial custodial sentences, including 25 years’ imprisonment for conspiracy to supply cocaine.

The Crown’s case was based on evidence derived from EncroChat encrypted telephones, lawfully accessed by French authorities and shared with UK law enforcement. The prosecution attributed specific EncroChat handles to the Appellants and relied on co-conspirators’ guilty pleas and bad character evidence from previous convictions. The principal issue at trial was the correct attribution of the EncroChat handles to the Appellants.

Prior to trial, the Appellants engaged in multiple procedural steps including disclosure requests, expert evidence instructions, and applications to adjourn the trial. Both Appellants dismissed or caused the withdrawal of their legal teams shortly before trial. Despite several applications to break the trial fixture, the trial proceeded as scheduled.

During the trial, both Appellants refused to attend court, claiming they were advised not to attend due to video link arrangements, a claim the court found improbable. The trial judge ruled that the Appellants had voluntarily absented themselves and had dispensed with their legal representation, and permitted the trial to continue in their absence. The jury was properly directed concerning the Appellants’ absence and the fairness of the trial.

Legal Issues Presented

1. Whether the trial judge erred in proceeding with the trial in the absence of the Appellants after their legal representatives withdrew or were dismissed.
2. Whether the Appellants’ applications to adjourn the trial and to introduce expert evidence were properly refused.
3. Whether the Appellants’ convictions were safe given the evidence and the conduct of the trial.
4. Whether the sentences imposed were appropriate and based on correct assessments of the drug quantities involved.
5. Whether new grounds concerning the fairness of the trial could be introduced out of time.

Arguments of the Parties

Appellants' Arguments

• The judge wrongly characterized the withdrawal of legal representation by one Appellant as a dismissal or sacking, when the firm had in fact withdrawn, and proceeded to trial without due caution.
• The Appellants were denied a fair opportunity to instruct new solicitors or to obtain expert evidence on attribution, particularly concerning the EncroChat material.
• The trial should have been adjourned to allow for the introduction of expert evidence, including reports similar to those provided by Professor Anderson.
• The prosecution relied on privileged communications and evidence not properly disclosed or available to the Appellants.
• The judge’s directions to the jury and the conduct of the trial disadvantaged the Appellants, including informing the jury that one Appellant had “sacked” his legal team.
• The sentencing was based on revised drug quantity figures without adequate opportunity to challenge them.
• New grounds concerning the fairness of the trial should be admitted despite being raised late, as they relate to the conduct of the trial following the withdrawal of representation.

Respondent's Arguments

• The trial judge properly exercised his discretion to proceed in the Appellants’ absence, applying established legal principles including those in R v Jones.
• The Appellants deliberately absented themselves and manipulated the trial process by dismissing or causing the withdrawal of their legal teams to force adjournments.
• The only live issue at trial was attribution, a factual question not requiring expert evidence, and the admissibility of EncroChat material had been authoritatively settled by precedent.
• The judge and prosecution ensured fairness throughout the trial despite the Appellants’ absence and lack of representation.
• The sentencing was appropriate and justified by the evidence presented at trial; later figures from other proceedings do not undermine the sentence.
• The new grounds concerning fairness are unconnected to the granted ground of appeal and lack cogency; thus, no extension of time or leave to appeal should be granted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A, B, D & C v R [2021] EWCA Crim 128	Admissibility of EncroChat material under English law	Confirmed EncroChat evidence admissibility; trial judge relied on this authority to reject challenges to admissibility.
Atkinson & Ors v R [2021] EWCA Crim 1447	Admissibility of EncroChat material	Supported the admissibility of EncroChat evidence, reinforcing the Crown's case foundation.
R v Jones [2002] UKHL 5; [2003] 1 AC	Principles governing trial in defendant's absence	Provided the legal framework and factors for deciding to proceed in absence; the court applied these principles in upholding the trial judge's decision.
R v Amrouchi [2007] EWCA Crim 2019	Trial in absence and fairness considerations	Distinguished on facts; court found it did not assist Appellants given the deliberate absence here.
R v Trevor [2008] EWHC 620	Trial in absence and judicial caution	Referenced for the principle that caution must be exercised before proceeding in absence; court found judge had appropriately exercised discretion.
R v Haywood, Jones, Purvis [2001] EWCA Crim 168; [2001] 1 QB 862	Checklist for discretion to proceed in absence	Adopted as a guide for the trial judge’s discretion; court found the judge applied these factors correctly.
R v Murray [2023] EWCA Crim 282	Refusal to adjourn pending IPT proceedings on EncroChat admissibility	Supported the trial judge’s refusal to adjourn awaiting IPT outcomes; confirmed the correctness of proceeding without delay.
R v James [2018] EWCA Crim 285	Strict approach to fresh grounds of appeal and extensions of time	Guided the court’s refusal to admit late fairness grounds absent a cogent explanation and proper application to vary the notice of appeal.
R v Cuni [2018] 2 Cr App R (S) 18	Sentencing principles for drug offences	Supported the sentencing judge’s approach and the appropriateness of the custodial term given the scale of offending.
R v Cavanagh [2021] EWCA Crim 1584	Sentencing guidelines for leading role in drug conspiracy	Reinforced the sentencing approach adopted; court found sentence was not excessive or manifestly unjust.
R v Mondron 52 Cr App R 695	Prosecution closing speech in absence of defendant	Referenced regarding the circumstances in which prosecution may make final representations; court found trial judge correctly permitted closing speech.
R v Brown [2022] EWCA Crim 6; [2022] 1 Cr App R 18	Prosecution closing speech and procedural fairness	Supported the permissive approach to closing speeches; court accepted judge’s direction allowing prosecution closing speech was appropriate.
R v McCook [2014] EWCA Crim 734	Procedural fairness and conduct of legal representatives	Referenced in relation to the conduct of legal representatives and submissions about their performance.

Court's Reasoning and Analysis

The court carefully examined the chronology and context of the Appellants’ conduct and the conduct of their legal representatives. It found that the Appellants deliberately absented themselves from trial and effectively dismissed or caused the withdrawal of their legal teams in a calculated attempt to manipulate the court process and obtain adjournments. The court accepted the trial judge’s assessment that the Appellants had waived their right to appear voluntarily and that proceeding in their absence was within the judge’s discretion, properly applying the factors established in R v Jones.

The court rejected the argument that the withdrawal of representation was not voluntary or that the judge should have delayed the trial to allow the Appellants to obtain new representation or expert evidence. It noted that the only live issue was attribution, a factual question not requiring expert evidence, and that the admissibility of the EncroChat evidence had been authoritatively settled by precedent.

The court also addressed the fairness of the trial in the Appellants’ absence, concluding that the judge took appropriate steps to ensure fairness, including appropriate jury directions and the provision of relevant documents. The court found no arguable basis for complaints about the conduct of the prosecution case, the use of certain evidence, or the judge’s directions to the jury.

Regarding sentencing, the court found that the judge’s approach was justified by the evidence and sentencing guidelines, and that any differences in drug quantity figures would not have materially affected the sentence imposed. The court also refused to admit late grounds of appeal relating to fairness, finding no credible reason for the delay and no arguable merit in those grounds.

Holding and Implications

The court DISMISSED the appeal against conviction. It refused all other applications, including extensions of time and leave to appeal against conviction and sentence.

The direct effect of this decision is that the convictions and sentences of the Appellants stand as imposed. No new precedent was set beyond affirming the established principles governing trial in absence and the admissibility of EncroChat evidence. The court emphasized the importance of judicial discretion in managing trials fairly and efficiently, particularly where defendants elect to proceed without representation and voluntarily absent themselves.