Platten, R. v

In a conspiracy trial, out-of-court acts or declarations of a conspirator may be admitted against an absent alleged conspirator only if the judge is satisfied that the declarant was a conspirator, the statement was reasonably capable of being made in furtherance of the agreement, and there is independent evidence of the absent person’s participation. The admissibility decision belongs to the judge, not the jury.

Statements made while arrangements are being made or implemented may be in furtherance of the conspiracy, even where they update or discuss its progress. A statement made before the accused knew of, or joined, the conspiracy may prove its origin, character and object, but not that accused’s participation. Co-conspirators’ guilty pleas do not alone establish another accused’s participation.

The appellant was convicted at Worcester Crown Court of conspiracy to supply cocaine, a Class A drug. The prosecution alleged that he used his employment at a freight company to track and assist the delivery of a cocaine consignment. His case was that he performed routine tracking work and was not a party to any conspiracy.

His conviction appeal challenged the admission and use of covertly recorded conversations involving alleged co-conspirators, including conversations to which he was not a party. He also challenged the jury’s knowledge of guilty pleas entered by co-accused, relying on s.74 of the Police and Criminal Evidence Act 1984. The court also determined renewed applications by two co-accused for permission to appeal their sentences.

1. The appeal against conviction was dismissed. The court held that the admissibility of co-conspirators’ acts and declarations is for the judge. The jury should assess the weight and reliability of evidence that the judge has admitted; they should not be directed to re-determine the independent-evidence threshold for admissibility.
2. The court followed the three-stage approach approved in R v Smart and Beard [202] EWCA Crim 772. The judge must be satisfied that the declaration was made by a conspirator, was reasonably capable of being made in furtherance of the alleged agreement, and that there was evidence apart from the declaration itself that the accused participated in that agreement.
3. A July conversation referring to use of the appellant’s system pre-dated any knowledge by him of the proposed conspiracy. It was therefore admissible against him only as evidence of the conspiracy’s origin, character and object, and not as evidence of his participation. The trial judge should have made that limit clear, but the omission was insignificant in light of the later admissible evidence.
4. The later recordings were properly admitted. They concerned the formation and implementation of the cocaine conspiracy, the appellant’s proposed role, payment for removing the consignment and arrangements for its delivery. They were not mere narrative; they were evidence of the enterprise in operation. There was also independent evidence of the appellant’s participation, and evidence from which, if he was a participant, knowledge that the conspiracy concerned cocaine could be inferred.
5. The co-accuseds’ guilty pleas did not themselves establish that the appellant was a conspirator. The admissible recordings and other evidence were the relevant evidence against him. The court found no basis for the complaint under s.74 of the Police and Criminal Evidence Act 1984.
6. The renewed sentence applications of Formby and Shannon were dismissed. The trial judge was well placed to assess relative criminality. There was no arguable improper disparity in Shannon’s sentence, and Formby’s sentence was not arguably manifestly excessive after credit for his guilty pleas.

• Court of Appeal (Criminal Division): The appellant’s conviction appeal was dismissed. Renewed applications by Formby and Shannon for permission to appeal against sentence were dismissed or refused.
• Worcester Crown Court: The appellant was convicted by a majority of conspiracy to supply cocaine and sentenced to nine years’ imprisonment. Formby and Shannon received concurrent sentences for the conspiracy offences, with Shannon also sentenced for supplying amphetamine.