News15th April 2024
John’s client was charged with being concerned in the commercial supply of cocaine in Southampton and converting nearly £137,000 in criminal property, the alleged proceeds of the drug dealing, into bank and charge card accounts. His case was that he had nothing to do with drugs, either as a consumer or a dealer, and the money was genuinely earned, albeit through cash-in-hand work. The trial in Southampton Crown Court lasted five weeks. There were five defendants; John’s client was number 3 on the indictment.
The indictment ran from 2019 to 2021, through lockdown. The case was tried five years after the start of the alleged offending. A major feature was EncroChat, an end-to-end encrypted messaging application, like a WhatsApp for wholesale-level drug trading, although John’s client was not alleged to have used the app himself. EncroChat was bought within a specially adapted phone, costing £1,500 for six months, with the app ready installed. The Dutch SIM card would be unregistered and the apparent Android operating system had no functionality. App users would go under ‘handles’, nicknames created to avoid identification. The handle would be provided with the phone or, for supplement, a user could choose his own handle. In this case, various participants rejoiced in the handles (always lower case) mambono, dynamicfinesse, starrygun, lovesabargain, doublebusy, flapjacks, top-kartel and cyprinuscarpio, the last being the Latin name for the common carp.
The prosecution’s case was based, for John’s client, entirely on circ*mstantial evidence. It was alleged that he, along with his best friend, defendant 4 on the indictment, had taken over a cocaine business after two acquaintances had been arrested. Those two acquaintances had appeared before the Crown Court at the first hearing in early 2022. One had entered a guilty plea. The second entered a guilty plea just before trial after losing an admissibility argument, leaving four Southampton defendants. The fifth defendant, from Andover, tangentially involved, was then joined; another dealer with whom he was alleged to have been operating had also entered a guilty plea just before trial. Although the case was not held out to be a conspiracy, there were sufficient connections between combinations of the five men for there to be no objection to a trial for all.
The only real evidence, i.e., physical evidence, in the case was that defendant number 4 was found to have a rucsac in his house containing a third of a kg of cocaine. This was discovered in a search by police after he had been stopped in his car with £13,000 in cash. He said the money came from the sale of a watch in Andover. As for the cocaine, he was ignorant. The rucsac, he said, had been left in the house by his acquaintance, the original first defendant, who had entered a guilty plea. He was a plumber by trade. He had left it there temporarily after coming over to mend the boiler. The plumber had said that he would return for it, but did not come back (having been arrested in the interim). Defendant number 4 had never looked in the rucsac.
The prosecution claimed that John’s client was directing or controlling defendant 4 throughout, and thus must have been involved in the storage of cocaine and the collection of the £13,000. The prosecutor used the expression that John’s client and defendant 4 had ‘stepped up’ into the business once the original first and second defendants had been arrested. It would appear that the jury were not satisfied that there was sufficient evidence for this claim. John argued on his client’s behalf that the case against him was merely an allegation of guilt by association. It was also claimed by the prosecution that John’s client had been buying cocaine from the original first two defendants and dealing in a small way, but there was no evidence of those matters other than a supposition based on the funds in John’s client’s accounts. In fact, his cash business ceased trading around the time he was alleged to have ‘stepped up’, and his charge card account had been closed six months earlier.
An issue for other defendants was the argument as to admissibility of EncroChat. Had the police, in the form of the National Crime Agency in the umbrella case of Op Venetic, liaising with the French authorities’ Op Emma, intercepted communications unlawfully or had they instead accessed material “stored in or by the system”? The French had cracked and thus closed down EncroChat in the summer of 2020, also around the time when John’s client was alleged to have ‘stepped up’.
In R v A and Others [2021] EWCA Crim 128, 5th February 2021, the Court of Appeal were required to determine whether evidence obtained from EncroChat could be admitted in evidence or whether it was excluded by the Investigatory Powers Act 2016. The Court held that the EncroChat material was admissible because it was being stored in or by the system at the relevant time (IPA 2016, s.4(4)(b)). They further held that the interception was carried out in accordance with a targeted equipment interference warrant under Part 5 and thus concluded that there was lawful authority for the interception. As the EncroChat material fell under an exception to IPA 2016, s.56(1)(a), the content of the communications was not prohibited from being disclosed.
In the Southampton case the prosecution bundle consisted of hundreds of pages, bound in an A4 folder of EncroChat conversations and other material and an A3 folder containing co-location of the EncroChat phones with conventional phones, automatic numberplate recognition, surveillance and messages. Despite the density of the prosecution evidence, all five defendants, facing a total of nine counts, were acquitted unanimously. The jury were in retirement for 2½ days and asked no questions during that time.
The ‘EncroNotes’ on mambono’s phone were assessed by a drugs expert who concluded that they revealed at least 15kg of cocaine trafficked. On dynamicfinesse’s phone the figure was 80kg. Although these related to trial defendants 1 and 2, the prosecution claim was that John’s client must have been concerned in the supply of at least 5kg of cocaine. The Sentencing Council’s starting point in the guideline for an offender in a significant role involving 5kg of a class A drug – category 1 – is ten years’ custody. If in a leading role it is 14 years’ custody. The guideline adds, “Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category one, sentences of 20 years and above may be appropriate depending on the offender’s role.” Thus if convicted John’s client would have been facing a starting point of at least ten years’ custody, with the possibility of elevation much further.
