Summary of Judgment

Factual and Procedural Background

This opinion was delivered by Judge Warby. Following a Crown Court trial at Winchester before Judge Sawyer and a jury, the Appellant was convicted on two counts: (1) encouraging or assisting the commission of one or more offences contrary to section 46 of the Serious Crime Act 2007; and (2) unauthorised possession in prison of a specified item contrary to section 40 of the Prison Act 1952. The convictions related to a robbery at a large country house ("The Property") on 23 March 2020. Two co-accused (referred to below as Co-Accused A and Co-Accused B) carried out the robbery and pleaded guilty in 2021.

The particulars alleged that between 1 and 23 March 2020 the Appellant assisted in planning the robbery by making phone contact with Co-Accused A and Co-Accused B during a planning trip and before or at the time of the offence. Count 2 alleged that between 1 and 30 March 2020 the Appellant was in possession in prison of a mobile phone. At the relevant times the Appellant was serving a sentence in Cell 22 on Wing A of The Prison.

On 11 December 2023 the Appellant was sentenced by Judge Sawyer: on count 1 to an extended sentence totalling 19 years (14 years custodial term and five years extended licence) and on count 2 to a concurrent term of one year. The Appellant applied, out of time, for leave to appeal both conviction and sentence. A single judge refused extensions of time for seeking leave to appeal on 14 November 2024. The Appellant sought further extensions (188 days for conviction; 159 days for sentence) and renewal of his applications before the court hearing this opinion. The Appellant was represented throughout by Attorney Carse.

Legal Issues Presented

1. Whether further extensions of time should be granted to permit renewal of the Appellant's applications for leave to appeal against conviction and sentence.
2. Whether the conviction is arguably unsafe by reason of the admission of bad character evidence and alleged deficiencies in the summary of cell-site expert evidence.
3. Whether the sentence is arguably excessive or based on an impermissible factual basis (specifically that the Appellant's role was akin to a principal conspirator), and whether there is an arguable disparity compared with co-accused sentences.

Arguments of the Parties

Appellant's Arguments

• The Appellant sought extensions of time principally on the basis that the delay in lodging papers was not the Appellant's fault (an administrative error occurred) and the merits should therefore be determinative.
• Grounds advanced (as originally drafted) against conviction included challenging the admission of bad character evidence: that the evidence was not admissible under section 101(1)(c) of the Criminal Justice Act 2003 because the prosecution could not specify the exact nature of the assistance the Appellant was alleged to have given, and that the prior offences were dissimilar so as not to support propensity.
• It was argued that the trial judge erred in admitting the facts of previous convictions (including detailed facts such as a 95-year-old victim's wedding ring being stolen) because such detail was prejudicial and added little probative value.
• The Appellant advanced an alternative explanatory account of the phone communications: that an associate (referred to in the trial as Associate A) was the user of the key prison-associated phone and that prison "throw overs" or innocent family-related contact explained the communications.
• On sentence, it was argued that the Recorder sentenced the Appellant on a factual basis not open on the evidence (treating the Appellant's role as akin to a principal/conspirator) and that the custodial term was manifestly excessive, relying on disparity with the ten-year sentences received by the two co-accused.

Prosecution's Position (as recorded)

• The prosecution's case relied primarily on circumstantial evidence and bad character evidence to identify the Appellant as the user of a prison-associated phone (number ending 972) which communicated with the co-accused in the lead-up to and at the time of the robbery.
• The prosecution relied on communications data, cell-site analysis and other corroborative material to link the 972 number to the Appellant (including storage of the number under the Appellant's initials in a co-accused's phone and use of that number to contact the Appellant's family).
• The prosecution treated the bad character evidence (two prior offences with agreed facts) as relevant both to identity (who was using the phone) and to the purpose of communications (whether they were assistance for the robbery), admitting that evidence under the Criminal Justice Act 2003 provisions relied on at trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Tully and Wood [2006] EWCA Crim 2270	Authority cited by the Appellant in support of the submission that the bad character evidence was not admissible as important explanatory evidence under section 101(1)(c) of the Criminal Justice Act 2003.	The court noted the Appellant's reliance on this authority but did not accept that it undermined the trial judge's admission of the evidence; the court preferred the analysis that the evidence was admissible under section 101(1)(d) as relevant to an important matter in issue.
R v Frain and Unsworth [2007] EWCA Crim 397	Authority relied upon by the Appellant in support of limiting admission of bad character as explanatory evidence.	The court recorded the Appellant's reliance but determined that the trial judge's ruling was correct on the basis that the evidence addressed an important matter in issue (identity/purpose) under section 101(1)(d).
R v Leathem [2017] EWCA Crim 42	Authority observed to provide some support for treating bad character evidence as explanatory under section 101(1)(c).	The court acknowledged some support in Leathem for the explanatory-route approach but ultimately preferred to characterise the admitted bad character evidence as admissible under section 101(1)(d) (relevance to an important matter in issue).
R v Dyer [2013] EWCA Crim 2114; [2014] 2 Cr App R(S) 11	Principle that a guideline-based sentencing approach reduces arguments based on disparity between different outcomes.	The court applied this principle to reject the Appellant's disparity argument: adherence to the guideline approach diminishes the force of comparisons with co-accused sentences.
[2021] EWCA Crim 1233 (Reference as to sentences of the co-accused)	Authority referenced concerning the two co-accused's sentences (the reference was brought by the Solicitor General and the court discussed whether those sentences were unduly lenient or misapplied the guideline).	The court recorded that the Reference did not lead to an increase in the co-accused sentences but concluded that those sentences were capable of being regarded as lenient and that many judges would have arrived at rather longer sentences; this diminished the Appellant's disparity argument.

Court's Reasoning and Analysis

Extension of time

The single judge initially concluded that the conviction was not arguably unsafe and the sentence not arguably excessive but noted that the delay was not the Appellant's fault and that she would have granted extensions had she considered the merits differently. On rehearing, this court examined evidence showing that the Appellant had passed on his papers within the time limit and that subsequent delay was caused by administrative error not attributable to the Appellant. Accordingly, whether the further extensions should be granted turned on the merits of the proposed grounds of appeal.

Conviction challenge — bad character evidence

The court set out the prosecution's circumstantial case and the bad character evidence (two prior convictions, with agreed facts). It identified the principal factual disputes for the jury: (1) who was using the 972 phone on Wing A at The Prison at the relevant times (the Appellant or Associate A) and (2) if the Appellant was using the phone, whether the contact with the co-accused was for the purpose of assisting the robbery or for innocent matters such as family contact or prison "throw overs".

On admissibility, the court analysed the statutory gateways in the Criminal Justice Act 2003. Although the Recorder had initially admitted the prior-offence facts under section 101(1)(c) (important explanatory evidence), the court found that the better and primary basis for admissibility was section 101(1)(d): the prior offences were relevant to an important matter in issue (identity and purpose). The court held that the prior offences were "plainly relevant" to who was the likely user of the 972 phone and to whether the communications were likely to have been intended to assist the robbery. The court accepted that the prior offending was, if not strikingly similar, at least "generically similar" and therefore probative on those issues.

The court also addressed the Appellant's complaint about the detailed facts of the prior offences being placed before the jury. It noted that the facts had been admitted by way of agreed facts, which is a common and fair procedure, and that the details were not irrelevant in light of the similarities in modus operandi (occupied dwelling, securing occupiers, removal of jewellery, instructions about safes). The court was satisfied that the Recorder's directions to the jury were clear and balanced, that the jury were told not to rely wholly or mainly on bad character evidence, and that directions were sufficient to guard against unfair prejudice.

Sentence challenge

The court summarised the Recorder's sentencing approach: the robbery was placed in guideline category 1A (starting point 13 years; range ten to 16 years). Having regard to the volume of communications between the robbers and the Appellant and the Appellant's extensive antecedent history (36 convictions for 145 offences, including numerous dwelling-house burglaries and a current extended sentence arising from an earlier aggravated burglary), the Recorder found the Appellant's role to be "at the very least close to what could have been charged as a conspiracy". The Recorder determined that the appropriate sentence, if the Appellant had entered the property, would have been above the category range; for the role found, the custodial term was set at 14 years with a five-year extended licence. The Recorder also found the Appellant dangerous.

The Appellant's two submissions on sentence were that (a) the Recorder relied on a factual basis not open on the evidence (treating the Appellant as akin to a principal conspirator), and (b) the sentence was manifestly excessive, particularly when compared to the ten-year terms of the co-accused. The court endorsed the single judge's restatement of five points supporting the Recorder's approach: (i) it was for the Recorder (who had heard all evidence) to determine degree of participation; (ii) the offence was materially aggravated by antecedents; (iii) the use of a mobile phone in prison was a separate element which could have attracted consecutive punishment but was properly reflected as aggravation; (iv) the Recorder could have ordered consecutive service to the earlier sentence but did not, so the sentence overlaps with the earlier custodial term; and (v) these considerations undermine any disparity argument.

The court added that disparity arguments are of limited force where co-accused pleaded guilty (the co-accused had pleaded guilty), and where the sentencing judge in their cases had considered somewhat longer sentences appropriate after trial; it noted the Reference in [2021] EWCA Crim 1233 and the limiting principle from R v Dyer that guideline-based sentencing reduces disparity arguments. On that basis the court concluded the custodial element and total custodial term were not excessive.

Holding and Implications

Holding: The court granted the necessary extensions of time to permit renewal of the Appellant's applications but refused the renewed applications for leave to appeal against both conviction and sentence.

Implications:

• Direct effect: The Appellant's convictions and sentence stand; no leave to appeal was granted. The Appellant will therefore remain subject to the extended sentence imposed (14 years custody + five years extended licence, overlapping with the earlier custodial term).
• Admissibility of bad character evidence: The court affirmed that where prior offending is relevant to an important matter in issue (such as identity of a phone user or the purpose of communications), such evidence may be admissible under section 101(1)(d) of the Criminal Justice Act 2003. The court accepted that agreed factual details are an appropriate way to place such evidence before a jury, provided appropriate directions are given.
• No new binding legal principle or novel precedent was created by this decision; the court applied existing authorities and sentencing guidelines to the facts before it.

Note: All personal names and identifying particulars in this summary have been replaced with consistent, generic placeholders derived from the provided opinion to preserve anonymity as required.