Aziz v R.

Factual and Procedural Background

The Appellant was initially tried alongside four other Defendants on an indictment containing nine counts, with one Defendant's case severed during the trial. On 2 June 2003, the Appellant was convicted by a jury on multiple counts including conspiracy to supply class A drugs, conspiracy to supply firearms with intent to endanger life, possession of prohibited firearms, possession of ammunition without a certificate, and concealing criminal property. The convictions were largely based on evidence derived from data obtained from the EncroChat encrypted communication network, with the Appellant identified as the user of the handle "Lushmace".

The Appellant gave no comment at the first interview and denied involvement and possession of an EncroChat phone at a second interview. The defence contested the admissibility of the EncroChat evidence and sought further disclosure of related data packages to enable expert analysis. An expert instructed by the defence raised concerns about the reliability of the data collection method ("implants") used by the authorities, suggesting possible misattribution and missing messages. The prosecution's expert disputed these concerns.

The case management involved multiple hearings regarding disclosure of additional data packages and conditions imposed by the Prosecution to protect ongoing investigations. Disagreements and misunderstandings arose concerning these conditions and the defence expert's access to data, compounded by funding difficulties and a breakdown in the professional relationship between the defence solicitors and their expert. Despite court orders and attempts to resolve these issues, the defence expert was unable to fully analyse all data packages.

During the trial, the Appellant applied for an adjournment or severance on the basis of lacking expert evidence to challenge the prosecution's expert, which was refused. Subsequently, the Appellant dismissed his legal team and represented himself, while other co-Defendants reinstated theirs. The trial proceeded with the prosecution's expert giving evidence without cross-examination from the Appellant. The Appellant complained about the lack of expert evidence and treatment during the trial as a litigant in person.

The Appellant also applied for leave to appeal against conviction and sentence, renewing earlier applications and seeking to add a new ground based on a recent European Court of Justice decision concerning the admissibility of EncroChat evidence obtained via a European Investigation Order.

Legal Issues Presented

1. Whether the Appellant was denied a fair trial due to the inability to obtain full disclosure of EncroChat data and the consequent lack of expert evidence to challenge the prosecution's case.
2. Whether the trial judge's refusal to grant adjournments or allow change of legal representation was unfair and prejudicial to the Appellant's defence.
3. Whether the prosecution's closing speech was improperly made without permission and contained references to evidence not before the jury.
4. Whether the Court and Prosecution failed in their duty to assist the Appellant as a litigant in person in accessing case materials and understanding expert evidence.
5. Whether the sentence imposed was manifestly excessive having regard to the quantity of drugs involved, the firearms offences, and the principle of totality.
6. Whether a new ground of appeal based on the European Court of Justice decision in Criminal proceedings against MN (Case C-670/220) concerning the admissibility of EncroChat evidence should be allowed.

Arguments of the Parties

Appellant's Arguments

• The defence expert's inability to access all EncroChat data packages due to conditions imposed by the Prosecution and funding issues prevented a fair challenge to the prosecution's evidence.
• The refusal by the trial judge to grant adjournments or permit a change of legal representation was unfair and deprived the Appellant of effective representation.
• The prosecution improperly made a closing speech concerning the Appellant without the required permission and referred to evidence not admitted before the jury.
• The Appellant, as a litigant in person, was not provided with adequate case papers, records, or assistance to understand expert evidence, disadvantaging his defence.
• The total sentence was manifestly excessive, particularly considering the principle of totality and the quantity of drugs actually proved.
• The new ground of appeal based on the European Court of Justice decision should lead to exclusion of the EncroChat evidence as the Appellant was unable to effectively challenge it.

Prosecution's Arguments

• The application for adjournment was speculative, relying on hopes that the defence expert would provide a report substantiating the Appellant's claims.
• The conditions imposed on disclosure were necessary to protect ongoing investigations and were reasonable.
• The refusal to adjourn the trial and to allow change of legal representation was within the trial judge's discretion and justified by concerns about manipulation of proceedings.
• The prosecution did not seek permission for the closing speech relating to the Appellant, acknowledging this procedural error, but argued that reference to the Appellant's case was necessary due to the conspiracy charges.
• The sentence was appropriate and reflected the seriousness of the offences, with proper application of sentencing guidelines and the principle of totality.
• The European Court of Justice decision was not applicable post-Brexit and domestic law provided no basis for excluding the evidence on that ground.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Stokes and others [2025] EWCA Crim 51; [2025] 4 WLR 14	Factual summary and admissibility of EncroChat evidence	Used to contextualize the nature and reliability of EncroChat evidence in prosecutions
R v A, B, D and C [2021] EWCA Crim 128	Admissibility of EncroChat evidence	Referenced as precedent in assessing the prosecution's use of EncroChat data
R v Atkinson and others [2021] EWCA Crim 1447	Admissibility and reliability of EncroChat evidence	Considered in relation to technical reliability and disclosure issues
R v Johnson [2022] EWCA Crim 1575; [2023] 1 Cr. App. R. (S.) 49	Sentencing principles for drug offences	Applied in assessing appropriate sentencing levels for the drug offences
R v Mulvey [2019] EWCA (Crim) 1835	Sentencing starting points for leading role in large scale drug conspiracies	Used as a benchmark for sentencing given the quantity of drugs involved
R v Wright [2017] EWCA (Crim) 126	Sentencing for leading role in drug conspiracy with large quantities	Referenced to establish sentencing ceilings and adjustments
R v Sanghera [2016] EWCA Crim 94	Sentencing for drug offences involving large quantities	Considered though noted as difficult to reconcile with other cases
Criminal proceedings against MN (Case C-670/220) (Court of Justice of the EU, 30 April 2024)	Requirement to disregard evidence if the accused cannot effectively comment on it, under Directive 2014/41	Considered but found inapplicable due to UK's withdrawal from the EU and domestic statutory provisions

Court's Reasoning and Analysis

The Court carefully examined the factual and procedural background, particularly the difficulties in obtaining full disclosure of EncroChat data packages and the impact on the defence's ability to challenge the prosecution's expert evidence. The Court acknowledged the defence expert's concerns about the reliability of the data collection method but noted the prosecution expert's disagreement and the lack of full analysis due to funding and access issues.

The Court found that the November 2022 disclosure order was subject to conditions imposed by the prosecution, which were reasonable to protect ongoing investigations. The Court noted multiple missed opportunities to resolve disputes over these conditions and the lack of further section 8 applications by the defence. The breakdown in the relationship between the defence solicitors and their expert further hindered progress.

The Court concluded that while the overarching proposition that the Appellant could not have a fair trial without expert evidence was arguable, the specific grounds challenging the disclosure order and refusal to adjourn were not. The Court considered the trial judge's decisions regarding adjournments and change of legal representation to be within proper discretion, justified by concerns about manipulation of proceedings and practical considerations.

Regarding the prosecution's closing speech, the Court noted the procedural error in not seeking permission but recognized the necessity of referencing the Appellant's case within conspiracy charges. The Court found no basis to conclude that this error alone warranted overturning the conviction.

On the issue of assistance to the Appellant as a litigant in person, the Court found insufficient evidence to support claims of deprivation of case materials or inadequate assistance. The Appellant had been represented for much of the proceedings, reducing the force of these complaints.

In relation to the new ground of appeal based on the European Court of Justice decision in MN, the Court held that domestic law and statutory provisions post-Brexit provided a complete answer, rendering the new ground not arguable.

On sentencing, the Court reviewed the trial judge's application of guidelines, the quantity of drugs involved, and the principle of totality. It found the sentence appropriate and not manifestly excessive, noting substantial adjustments made for totality and no error in assessing drug quantity.

Holding and Implications

The Court granted leave to appeal only on grounds 2 and 5, relating to the denial of expert evidence and the prosecution's closing speech, respectively, and refused leave on all other grounds, including the new ground based on the European Court of Justice decision.

The applications for leave to appeal against conviction and sentence, and for extension of time, were otherwise refused and dismissed.

The direct effect is that the convictions and sentence stand, subject to the granted leave on grounds 2 and 5 which may be argued on appeal. No new precedent was established by this decision.