Stokes & Ors v The King

Factual and Procedural Background

On 2 May 2023, after a lengthy trial at the Crown Court in The City before Judge Pepperall and a jury, three applicants were convicted of conspiracy to murder (count 1). One applicant, referred to as Applicant A, was also convicted of a separate conspiracy to murder (count 2). Sentencing occurred on 6 June 2023, resulting in lengthy custodial sentences, including life imprisonment with specified minimum terms, adjusted for time spent on remand.

The applicants initially sought leave to appeal against conviction, and one applicant also sought leave to appeal against sentence; these applications were refused by a single judge and subsequently renewed before the full court. Additional applications included reliance on fresh evidence and variation of grounds of appeal.

The prosecution case involved a conspiracy to murder a victim who survived a shooting at his home on 29 May 2020. The prosecution alleged the conspiracy was related to drug dealing and involved multiple co-conspirators, with encrypted communications on EncroChat devices providing key evidence. The applicants were arrested in mid-2020 and tried in late 2021 and 2022.

The prosecution's evidence relied heavily on intercepted EncroChat communications attributed to specific users via circumstantial evidence including cell-siting, call data, and vehicle surveillance. Defence cases included denials of involvement and challenges to the attribution and reliability of the evidence.

The trial included complex legal issues regarding the admissibility of intercepted communications obtained through a Joint Investigation Team (JIT) operating primarily in France and the Netherlands, with UK participation limited to an operational task force. The court considered the legality and admissibility of evidence obtained through this operation under the Investigatory Powers Act 2016 and related legislation.

During the trial, jury irregularities arose involving contact between a discharged juror on holiday and remaining jurors, leading to detailed judicial directions and the eventual discharge of one juror. Despite these irregularities, the jury returned unanimous guilty verdicts.

Sentencing remarks reflected the seriousness of the offences, the applicants' roles, and prior convictions. One applicant challenged the minimum term imposed, arguing it was excessive.

Legal Issues Presented

1. Whether the monitoring of the French Threat to Life (TTL) system by UK officers constituted unlawful interception under the Investigatory Powers Act 2016.
2. The admissibility and reliability of evidence derived from Dubai-based EncroChat devices, particularly the Excel spreadsheet data.
3. Whether jury irregularities, including contact between a discharged juror and remaining jurors, rendered the verdicts unsafe.
4. Whether the trial judge failed adequately to summarize the defence case of one applicant who did not give evidence.
5. Whether the minimum term of imprisonment imposed on one applicant was manifestly excessive.

Arguments of the Parties

Applicants' Arguments

• The monitoring of the French TTL system amounted to interception in the course of transmission, rendering the evidence inadmissible under the Investigatory Powers Act 2016.
• The European Investigation Orders (EIOs) authorising data collection were defective or inapplicable, and the evidence should be excluded as an abuse of process, including on grounds of sovereignty violations.
• The Dubai data was inadmissible hearsay and lacked reliability and integrity.
• The jury irregularities, including undisclosed communications between jurors and a discharged juror, compromised the fairness of the trial and the safety of the verdicts.
• The judge failed adequately to summarize the defence case of the applicant who did not give evidence, disadvantaging that applicant.
• The minimum term imposed on one applicant was excessive, particularly due to undue weight given to the second count.
• One applicant sought to introduce fresh evidence claiming miscommunication prevented an application to discharge the entire jury during the irregularity.

Respondent's Arguments

• The monitoring of the French TTL system was not interception in the course of transmission but access to stored data, thus lawful and admissible.
• The EIOs were valid and properly issued; no breach of the Investigatory Powers Act 2016 occurred.
• The Dubai data was admissible hearsay, reliable, and properly admitted under the Criminal Justice Act 2003.
• The trial judge followed established procedures for dealing with jury irregularities as set out in Criminal Practice Directions, and the trial remained fair.
• The judge's summing up of the defence case was appropriate given the applicant's choice not to give evidence.
• The minimum term imposed was within the proper sentencing range, reflecting the applicant's senior role and seriousness of offending.
• The fresh evidence application was unreliable and would not justify departure from the judge’s decision on jury discharge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed legal analysis of the admissibility of EncroChat evidence, concluding that the monitoring of the French TTL system did not constitute interception in the course of transmission under the Investigatory Powers Act 2016. The officers accessed stored data after interception by the JIT, rendering the evidence lawful and admissible.

The court rejected arguments that the European Investigation Orders were defective or that the evidence was inadmissible due to breaches of mutual assistance provisions or sovereignty concerns. It found that the defence had adequate opportunity to challenge the evidence, negating unfairness claims.

Regarding the Dubai data, the court upheld the trial judge’s assessment that the evidence was admissible hearsay, reliable, and not subject to exclusion under statutory provisions. The court found no merit in arguments based on foreign case law concerning evidence reliability.

The court carefully reviewed the jury irregularities, noting that the trial judge followed the Criminal Practice Directions in managing the situation. It accepted the judge’s conclusion that a fair trial remained achievable despite some juror misconduct. The discharge of one juror was justified by irreconcilable breakdowns in relationships and inability to continue service.

The court found that the trial judge’s summing up of the defence case of the non-evidencing applicant was appropriate and fair, consistent with established legal principles.

On sentencing, the court concluded that the trial judge was best placed to assess the overall criminality and that the minimum term imposed was within the proper range, reflecting the applicant’s role and the seriousness of the offences.

The application to admit fresh evidence was rejected as unreliable and insufficient to alter the outcome.

Holding and Implications

The court REFUSED the applications for leave to appeal against conviction on grounds relating to the admissibility of evidence and the summing up of the defence case. It granted leave to appeal on the ground of jury irregularity but dismissed the appeals on that basis. The application for leave to appeal against sentence was refused.

As a result, the applicants remain convicted and sentenced as before, with corrections made to the expression of minimum terms in accordance with recent guidance. No new precedent was established, and the decision primarily affirms the trial court’s findings and procedures.