Factual and Procedural Background
This opinion concerns an application by the convicted defendant (the "Appellant") for an extension of time (1395 days) and for leave to appeal against convictions and to adduce fresh evidence. The Appellant was tried in the Crown Court before Judge Heathcote, convicted on 11 November 2020 of multiple counts of conspiracy to supply controlled drugs (Class A and B) contrary to section 1(1) of the Criminal Law Act 1977, and had pleaded guilty before trial (12 October 2020) to breaching a serious crime prevention order (SCPO). On 10 December 2020 the court imposed concurrent custodial sentences: 22 years for the count concerning Class A (cocaine), 14 years on each of two Class B counts (amphetamine and cannabis), and 2 years 6 months for the SCPO breach.
The Appellant applied, following referral to the Full Court by Judge McGowan (who granted a representation order for counsel only), for an extension of time and for leave under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence from his solicitor, Attorney Swan. The proposed fresh evidence principally concerns the attribution of an EncroChat nickname or handle described in the evidence as "Foxy" and related material drawn from other investigations and trials.
The underlying criminal case involved organised conspiracies to supply substantial quantities of cocaine, amphetamine and cannabis taking place between July 2018 and January 2020. The prosecution alleged an organised group of at least 20 people, with the Appellant at or near the top of the structure and with subordinate lieutenants. Law enforcement used surveillance and evidence seized following arrests; substantial quantities of drugs and nearly £900,000 in cash were seized. Several participants used EncroChat-encrypted devices. The conspiracies were brought to an end by arrests on 20 January 2020; the Appellant and some co-accused were found in possession of encrypted EncroChat phones.
The prosecution's case rested on a substantial body of circumstantial evidence including: a schedule of recorded meetings with co-conspirators; characteristic locations and brief timings of those meetings (selected to defeat surveillance); telephone contacts and activity; the Appellant's possession of encrypted telephones (without disclosed PINs/passwords) at arrest; an alleged transfer of a box from the Appellant's vehicle on 25 September 2018 which the Crown linked to other events; an unexplained lifestyle inconsistent with lawful income; deceit to probation and breach of the SCPO; and relevant earlier convictions dating to 2000 and 2014.
The Appellant did not give evidence at trial. There was no factual challenge to the surveillance evidence in general, though there were disputes about admissibility. The jury convicted after about three hours' deliberation. One particular evidential strand became the focus of the present applications: a series of communications on the afternoon of 14 January 2020 in which a user identified in EncroChat messages as "Foxy" exchanged messages with a co-conspirator. The Crown relied upon a combination of cell-site evidence (placing the Appellant's conventional and encrypted phones near his address), contemporaneous message content (including a short gap in messaging followed by a postcode reference), the activity status of multiple encrypted devices at the relevant times, and a conventional telephone call made shortly before the post-code exchange to invite an inference that "Foxy" was the Appellant.
Pre-trial disclosure disputes arose because the defence team indicated they represented an individual in separate proceedings who had been attributed a different nickname ("Fox" in that other case). The Crown required the defence to particularise its position about attribution in writing; the trial judge agreed that an addendum Defence Statement was necessary to trigger further disclosure. During trial the defence sought to rely on material from other investigations and trials (including attribution statements prepared for those separate proceedings) to challenge the Crown's attribution of "Foxy" to the Appellant.
Legal Issues Presented
- Whether an extension of time (1395 days) should be granted for an application for leave to appeal against the Appellant's convictions.
- Whether the Appellant should be granted leave under section 23 of the Criminal Appeal Act 1968 to adduce fresh evidence (statements and materials originating from other investigations and trials) addressing the attribution of the EncroChat handle "Foxy" and related handles.
- Whether the material relied upon by the Appellant qualifies as "fresh evidence" for the purposes of relief on appeal, in light of access by the Appellant's legal team to some of that material before or during trial.
- Whether, if admitted, the proposed fresh evidence could render the Appellant's convictions unsafe.
- Whether any delay in bringing the application (including any request to delay made by a third party involved in other proceedings) amounts to a reason to extend time in the interests of justice.
Arguments of the Parties
Appellant's Arguments
- The Appellant sought an extension of time because potentially fresh evidence (attested in a recent statement by Attorney Swan) was discovered after the statutory appeal period of 28 days had elapsed, making an earlier application impossible.
- Further, the Appellant relied upon a request made by a third-party defendant in separate proceedings for delay (said to be to avoid compromising those proceedings under the Proceeds of Crime Act 2002). Those proceedings concluded in September 2024, and it was submitted that this justified extending time in the interests of justice.
- The Appellant submitted that the 14 January 2020 communications were of central importance: if the Crown's case on that strand (the attribution of "Foxy" to the Appellant) could be undermined by the proposed material, the safety of the convictions would be put in doubt.
- The Appellant relied on statements produced for other trials (police attribution statements and NCA officer statements) and on a solicitor's witness statement as material that could provide new lines of inquiry and undermine the Crown's attribution evidence.
The Prosecution's Arguments
- The Prosecution resisted admission of the proposed evidence and opposed the extension of time. It submitted that certain pieces of material relied upon by the Appellant were not fresh because the Appellant's legal team (including Attorney Swan and Attorney Martin) had access to the relevant files via the court's digital case system well before and during trial (specific access times were recorded).
- The Prosecution emphasised differences in nomenclature: the handle or nickname "Fox" (attributed in other material to a different individual in separate proceedings) is not the same as "Foxy" (the term used in the Appellant's case), and other small variations between handles (for example "XX" versus "XXX") undermine the relevance of the other material.
- The Prosecution submitted the newly-proffered information, singly or in combination, could not render the Appellant's conviction unsafe because the overall circumstantial case against the Appellant was very strong and rested on multiple independent strands.
- The Prosecution pointed to delay by the Appellant's advisers between accessing the other cases on the digital system and bringing the present applications, and maintained that identification of unrelated telephone subscribers (for example a phone ending 0445) did not make the Appellant's conviction unsafe and did not require disclosure.
- The Prosecution also relied on the fact that some co-accused had pleaded guilty and had not disputed certain attributions (for example the attribution of a particular nickname to a particular co-accused), reducing the force of the defence's suggested alternative attributions.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court considered the proposed fresh evidence de bene esse together with a bundle of correspondence produced in the run-up to the application. It proceeded by assessing whether the new material, either alone or in combination with other recently-provided information, could possibly lead to the conclusion that the Appellant's conviction was unsafe.
The court began by emphasising the strength and multiplicity of the Crown's circumstantial case: meeting schedules, characteristic meeting locations and timings, telephone links and activity, possession of encrypted devices on arrest, the alleged transfer of a box linked to other events, unexplained wealth and lifestyle, breaches and deceit in relation to probation and the SCPO, and relevant previous convictions. Against this backdrop the court evaluated the two strands that defence counsel advanced as being of principal importance: (i) the "box issue" (the transfer of the box) and (ii) the 14 January 2020 communications (the "Foxy" strand).
The court accepted that the "box issue" had been a matter of dispute, but concluded that, even if that strand had been weakened at trial, the 14 January communications were not of such pivotal importance that undermining them would necessarily render the convictions unsafe. The court explained that the Appellant's case was not materially improved by the identification of the subscriber to a phone (the number ending 0445) because, at trial, that number had not been attributed to the Appellant and agreed facts had made clear it was not attributable to anyone connected with the case; the subsequent identification of the subscriber therefore did not assist the Appellant.
The court analysed the defence suggestion that nicknames or handles identified in other investigations pointed to different persons (for example persons associated with other trials) and concluded that small differences in labels were significant. The decision noted that "Fox" is materially different from "Foxy" and that other variations (such as "XX" v. "XXX") are not interchangeable. More fundamentally, there was no evidence to suggest that persons identified in other investigations had any connection to the present conspiracies; in the court's view it was unrealistic to posit that those persons were in fact participants in, or leaders of, the present organised enterprise without any trace of them appearing in the extensive surveillance and other investigative material.
Turning to freshness and timing, the court accepted that the solicitor's recent statement (the statement of Attorney Swan) was new, but agreed with the Prosecution that some of the material relied upon had been accessible to the Appellant's legal team prior to and during trial via the court's digital case system. Access logs provided by the Prosecution supported that position. For that reason the evidence described as having been produced in other trials could not be treated as fresh in the sense required to justify adducing it now to challenge safety of conviction.
On the question of delay and whether a request by a third party in separate proceedings might justify the extended interval before bringing this application, the court observed the issue but stated that it was not necessary to reach a final conclusion about whether that request could amount to a valid reason for the delay. The court recorded that it was not persuaded that that request provided a convincing explanation for the length of delay in the present case.
For these reasons the court concluded that the newly-available information would not have opened any materially different or more advantageous line of inquiry or cross-examination, that the material was not fresh in respect of key components, and that, even considered cumulatively, it could not lead to the conclusion that the Appellant's conviction was unsafe.
Holding and Implications
APPLICATIONS DISMISSED.
The court dismissed: (a) the Appellant's application for leave to adduce the evidence identified by Attorney Swan; (b) the Appellant's application for leave to appeal against conviction; and (c) the Appellant's application for an extension of time. The immediate practical consequence is that the convictions and concurrent sentences imposed on 10 December 2020 remain undisturbed.
The opinion contains no analysis that creates or establishes a new legal precedent. The court's decision rests on its evaluation of the facts, the sufficiency and strength of the Crown's circumstantial case, the significance of differences in attribution of nicknames/handles across different investigations, and the assessment that the newly-proffered material either was not fresh or could not render the convictions unsafe.