Allsopp & Ors, R v

A recording made by a covert listening device of a face-to-face conversation is not an interception under the Regulation of Investigatory Powers Act 2000. The speech is not being transmitted through a telecommunications system merely because the device transmits its recording to the police.

Admission of evidence obtained under properly authorised intrusive surveillance is not unfair where the trial judge has reviewed the PII material, found nothing requiring disclosure, and the defence can test the evidence. A co-conspirator’s statement is admissible where, viewed in context, it concerns the operation and future progress of the charged conspiracy. Expert statistical analysis may assist a jury where it requires specialised analytical skill; criticisms of its method ordinarily go to weight.

Following a retrial at Newcastle-upon-Tyne Crown Court, four defendants were convicted of conspiracy to supply cocaine. They appealed against conviction on grounds concerning covert surveillance, non-disclosure, telecommunications and statistical expert evidence, co-conspirator statements, and a direction on alleged lies. Three also appealed against sentence, and the fourth sought and received leave to do so out of time.

The central issue was whether a covert device which recorded a conversation inside a car had produced inadmissible material through unlawful interception, or evidence whose admission was unfair. The court also considered whether the convictions were unsafe because of the treatment of late expert evidence and other alleged trial errors.

1. The appeals against conviction were dismissed. The court upheld the trial judge’s PII and disclosure rulings. The intrusive-surveillance authorisations identified suspected serious drug offending, were properly granted under the statutory scheme, and were supported by a judicial review of the undisclosed material. The defence could challenge the evidence through cross-examination. The procedure therefore did not make admission unfair under section 78 of the Police and Criminal Evidence Act 1984 or infringe Articles 6 or 8.

2. The recording was not the product of unlawful interception. The conversation was face-to-face and was not in the course of transmission through a telecommunications system. The device recorded sound waves in the car; it did not interfere with, abstract, or record the signal being transmitted. The court applied the reasoning in R v E [2004] EWCA Crim 1243. The RIPA Code of Practice provision concerning speech transmitted through a telecommunications system did not apply.

3. The late disclosure and admission of the cell-site expert evidence did not render any conviction unsafe. The defence had access to an instructed expert and did not seek an adjournment or discharge of the jury. In any event, the cell-site-radius evidence was a minor part of the prosecution case when compared with observation and telephone-contact evidence.

4. An expert may not withhold relevant material forming the basis of an opinion merely because it is confidential to the expert or the expert’s business. Here, however, the material was said to be publicly available and any error concerning its non-disclosure could not affect safety. The statistical commonality evidence was admissible expert evidence; its methodology and the choice of data went to weight, not admissibility.

5. The statements referring to Wolf in the recorded conversation were capable of being statements in furtherance of the charged conspiracy. In their full context they concerned its progress and future plans, rather than a narrative of past events or a separate future conspiracy. The judge’s direction concerning West’s alleged lies was protective and caused no prejudice.

6. The sentence appeals of Allsopp, Kelly and Wolf were dismissed. A six-month multi-person conspiracy to supply cocaine was more serious than a single supply measured only by the quantity seized. West’s lesser and shorter role had not been adequately reflected. His sentence was quashed and substituted with seven years’ imprisonment.

• Court of Appeal (Criminal Division): Conviction appeals dismissed and the sentence appeals dismissed, save that West’s sentence appeal was allowed in part: [2005] EWCA Crim 703.

• Newcastle-upon-Tyne Crown Court: Following a retrial, the appellants were convicted on 8 April 2003 of conspiracy to supply cocaine and sentenced to terms between eight and 12 years’ imprisonment.