Russo & Ors, R. v

Factual and Procedural Background

From about 2015, three individuals, referred to here as Appellant 1 (manager), Appellant 2, and Appellant 3 (employees), worked together at a branch of Company A in The City. They were friends and colleagues. Appellant 1 had a friend, referred to as Staunch, who was involved in a business venture to supply encrypted mobile telephones under the name Securetech, which did not materialize. Later, at Staunch's instigation, Appellant 1 became involved in supplying Encrochat-enabled handsets, highly encrypted devices used primarily for criminal communications.

Staunch introduced customers to Appellant 1, and stock was kept at Staunch’s mother’s residence. Customers paid cash for handsets costing around £1,500, including a subscription to the encryption service. Appellants 2 and 3 delivered handsets and collected payments, also handling technical aspects. Large sums of cash were regularly transported to Staunch’s mother’s home or a shop called Mr Mobile in London.

Over 50 handsets were supplied up to June 2020, when the Encrochat server was compromised. The appellants each had an Encrochat handset and communicated about the supply via these devices. Although no explicit messages detailed the criminal use, one customer exchanged drug-related messages with Appellant 1. Many customers were involved in drug supply, with at least ten convicted of conspiracy to supply Class A drugs.

The appellants were charged and convicted on a single count indictment for statutory conspiracy to encourage or assist offences, specifically the supply of Class A drugs, through supplying Encrochat devices. Another employee was acquitted, and Staunch was not tried due to being untraceable. The appellants appealed their convictions, challenging the legal basis of the offence, evidential sufficiency, and the fairness of the trial, particularly questioning the judge’s conduct in examining Appellant 1.

Legal Issues Presented

1. Whether the offence charged—conspiracy to encourage or assist offences under section 46 of the Serious Crime Act 2007—is an offence known to law.
2. Whether the judge erred in not withdrawing the cases of Appellants 2 and 3 for evidential insufficiency.
3. Whether the judge’s questioning of Appellant 1 at the conclusion of his evidence rendered the trial unfair and the verdict unsafe.

Arguments of the Parties

Appellants' Arguments

• The conspiracy charged was effectively a conspiracy to aid and abet, which is not a recognised offence under law.
• The supply of Encrochat devices could only assist a conspiracy to supply drugs, which is a listed offence to be disregarded under section 49(4) of the 2007 Act.
• There was insufficient evidence to prove Appellants 2 and 3 knew the devices would be used to facilitate drug supply, and the jury should have been directed to disregard convictions of customers.
• Appellant 1 contended the judge’s extensive questioning was improper, undermining the fairness of the trial.

Prosecution's Arguments

• Section 46 of the 2007 Act creates a distinct offence, not dependent on the commission of the substantive offence, and satisfies the requirements of conspiracy under the 1977 Act.
• Supplying encrypted devices assists the substantive offence of drug supply by facilitating secure communication essential to the offence.
• The evidence was sufficient for a reasonable jury to infer knowledge of the criminal use of the devices by the appellants.
• The judge’s questioning was intended to clarify evidence and did not render the trial unfair.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the legal nature of the offence charged under section 46 of the Serious Crime Act 2007, concluding that it is a distinct inchoate offence separate from aiding and abetting or attempt. The court rejected the appellants’ reliance on Kenning, affirming that conspiracy to do an act capable of encouraging or assisting offences is known to law. The court emphasised that the substantive offence under section 46 does not require actual commission of the offence encouraged or assisted.

Regarding the mental element, the court applied principles from Saik and related authority, confirming that the conspiracy charge required proof that the appellants intended or knew the relevant facts and circumstances at the time of the agreement. The judge’s direction to the jury, requiring affirmative answers on intention and knowledge, was appropriate and did not impose an impossible standard.

On evidential sufficiency, the court found that the manner in which the Encrochat devices were supplied—clandestinely, for cash, with knowledge of their features attractive to criminals—and the admitted convictions of customers, provided a sufficient evidential basis for a reasonable jury to infer knowledge of the criminal use by the appellants.

Regarding the judge’s questioning of Appellant 1, the court acknowledged that some questions went beyond clarification and could be seen as undermining credibility. However, the judge promptly directed the jury that he did not intend to express any view on the facts and apologized for interruptions. The court found this sufficient to cure any potential unfairness, distinguishing this from precedent where such directions were absent. The court rejected the contention that the questioning rendered the trial unfair or the verdict unsafe.

Holding and Implications

The appeals are dismissed.

The court held that the offence of conspiracy to encourage or assist offences under section 46 of the Serious Crime Act 2007 is a recognised offence in law. The evidence was sufficient to support the convictions, and the trial was conducted fairly despite the judge’s questioning of Appellant 1. The direct effect is that the appellants’ convictions stand and no retrial is ordered. No new precedent beyond the application of existing principles to the facts of this case was established.