Factual and Procedural Background
On 1 June 2023 at the Crown Court at The City, the Appellant was convicted on multiple counts: conspiracy to supply class A drugs (heroin and cocaine), multiple firearm offences (including possession with intent to endanger life and possession of prohibited firearms), possession of ammunition without a certificate, and concealing criminal property. On 13 October 2023 the Appellant was sentenced to 33 years' imprisonment.
There were four co-accused (referred to below as Co-accused A, Co-accused B, Co-accused C and Co-accused D) with varying verdicts and pleas. A renewal of leave to appeal by Co-accused A was refused by this court ([2025] EWCA Crim 546). The Appellant's renewed application for leave was considered by this court ([2025] EWCA Crim 605): leave to appeal against sentence was refused and limited leave to appeal against conviction was granted on two specified grounds (see Legal Issues Presented).
The prosecution case was that in early‑2020 the Appellant and others were involved in multi‑kilogram supply of heroin and cocaine and possessed firearms/ammunition to protect that business. A central element of the evidence was material derived from the Encrochat system, supplemented by telephone data, surveillance (including CCTV and ANPR), searches, seized cash/devices and forensic (including DNA) evidence obtained from searches of premises and vehicles.
During the investigation and at trial, disputes arose about the admissibility and reliability of Encrochat material and about disclosure of multiple data packages. The defence instructed an expert (Expert Campbell) to examine Encrochat data; the prosecution relied on Expert Shrimpton. Pre‑trial and pre‑trial‑fixing hearings produced orders for disclosure and directions for joint expert work. Judge Rochford refused an application on 17 April 2023 to adjourn the trial to allow further expert analysis. The trial proceeded in April–May 2023; the Appellant dispensed with legal representation on the eve of part of the trial and did not personally cross‑examine the prosecution expert.
Legal Issues Presented
- Whether Judge Rochford's refusal on 17 April 2023 to adjourn the trial so that the defence expert could undertake further analysis of additional Encrochat data rendered the Appellant's trial unfair and his convictions unsafe.
- Whether it was improper for the prosecution to make parts of its closing address referring to the Appellant after the Appellant had become unrepresented without first obtaining the judge's leave, and if so whether that rendered the convictions unsafe.
Arguments of the Parties
Appellant's Arguments
- Refusal to adjourn deprived the Appellant of expert evidence necessary to assess the reliability and attribution of Encrochat messages, rendering the trial unfair and convictions unsafe.
- The prosecution's closing speech improperly addressed the case against the now‑unrepresented Appellant, was more detailed than permitted, did not obtain judicial leave as required, and thereby rendered the convictions unsafe.
- Logistical issues (conditions for application of the defence analytical programme, funding and breakdown of the relationship between defence solicitors and the defence expert) delayed the expert's further work and were not the Appellant's fault.
Respondent's Arguments
- The defence had instructed Expert Campbell well before trial and had multiple written reports; Expert Campbell was available to give evidence at trial and his written reports were available to the defence.
- The main issue was attribution of messages to handles; the defence expert had only advanced the possibility of misattribution and had found limited examples in other work; the prosecution expert explained likely causes (including human error).
- The Appellant could and did benefit from cross‑examination of the prosecution expert conducted by counsel for a co‑accused; the defence could have relied on the defence expert's existing reports and/or called him to give evidence but chose not to do so.
- The prosecution closing speech was appropriate in a multi‑handed trial in which the Appellant had been represented for most of the trial and played an alleged leading role; references to the Appellant were therefore inevitable and contextual.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| [2025] EWCA Crim 546 |
Referred to in relation to Co-accused A's renewed application for leave to appeal being refused. |
Cited as part of the procedural history; noted that Co-accused A's renewed application was refused by this court. |
| [2025] EWCA Crim 605 |
Recorded this court's handling of the Appellant's renewed application for leave (refused as to sentence; limited leave granted as to conviction on two grounds). |
Used to identify the two limited grounds on which the present appeal was permitted to proceed. |
| R v A [2021] EWCA Crim 128 |
Held that Encrochat material being stored (rather than transmitted) when intercepted was not excluded by the Investigatory Powers Act 2016; admissibility of Encrochat material. |
Applied to confirm that admissibility of Encrochat material was established by prior authority and was a reason the admissibility issue had been litigated pre‑trial. |
| R v A tkinson [2021] EWCA Crim 1447 |
Part of authority in which admissibility of Encrochat evidence has been considered by this court. |
Referenced to show that the admissibility of Encrochat material is now well established in this court's jurisprudence. |
| Tahir & Simpkins [1997] Crim L R 837 |
Principle that where only one of two accused is legally represented a prosecution speech should focus on the case against the legally represented accused. |
Cited by the Appellant to argue limits on prosecution closing speeches where co‑accused are differently represented; Court considered the citation when assessing whether the prosecution's address gave unfair prominence to the Appellant. |
Court's Reasoning and Analysis
The court addressed each ground permitted by the grant of limited leave.
On the adjournment/experts issue the court analysed: (i) the nature of the Appellant's defence (a general denial and a challenge to admissibility/reliability of Encrochat material, but no particulars of which messages were denied); (ii) the disclosure and expert reporting history (defence instructed Expert Campbell, initial reports received, joint expert work and a joint note concluding both analytical tools worked and would assist assessment); (iii) the content and value of Expert Campbell's initial report (which flagged high proportions of unmatched counterpart messages for certain handles but also recorded that absence of a counterpart does not render a message unreliable); and (iv) the delay and reasons for it (objections by Expert Campbell to conditions for application of his programme). The court concluded that the Appellant already had the benefit of Expert Campbell's written reports and a joint experts' report dated 12 February 2023 which supported the reliability/utility of the analytical tools. Given the content of the reports and the strength of independent attribution evidence, the court doubted that further examination of the additional packages would materially improve the defence case; absent fresh expert evidence demonstrating materially different conclusions, asserting such benefit was speculative. The court therefore found Judge Rochford's refusal to adjourn justified and not unfair.
On the prosecution closing speech the court accepted the prosecution should have applied to the judge before addressing the jury about the Appellant once the Appellant became unrepresented. Nevertheless, the court examined the content and context of the speech: this was a multi‑handed trial in which the Appellant had been represented for most of the trial, was alleged to be the central figure, and the prosecution faced practical difficulties in explaining evidence about co‑accused without reference to the Appellant. The court read the transcript, found some passages could have said less about the Appellant, but concluded those references provided necessary context and did not give unfair prominence that would render the convictions unsafe.
Holding and Implications
DISMISSED
Holding: The appeal is dismissed. The court held that (1) Judge Rochford's refusal to adjourn the trial did not render the trial unfair nor undermine the safety of the Appellant's convictions, and (2) the prosecution's closing address, although imperfect in parts, did not render the convictions unsafe.
Implications: The Appellant's convictions and sentence remain upheld. The decision applies the existing authorities on Encrochat evidence and multi‑handed trials but does not purport to establish a new legal principle beyond the application of those authorities to the facts of this case.