Cook v R.

An acquittal of an alleged co-conspirator does not generally prevent the Crown from alleging, in a later trial of another defendant, that the acquitted person was involved in the conspiracy. The trial judge must nevertheless ensure that the allegation is fair and proper and is supported by sufficient evidence.

Where the defendant can be convicted only by proof of conspiracy with a person who has pleaded guilty, the jury need not determine that any acquitted person was guilty. It may take account of evidence that an acquitted person was probably involved, if relevant to whether the defendant conspired with the pleaded conspirator.

An unequivocally acquitted person is not ordinarily still charged for Article 6(2) purposes and has no right to intervene in that other defendant’s trial or appeal.

The appellant faced a retrial for conspiracy fraudulently to evade the prohibition on importing controlled drugs. The alleged conspiracy concerned cannabis concealed in flat racks imported from Africa.

Glen Matthews had pleaded guilty. Patrick Bryant, Robert Cook and Tony Purcell had been acquitted at an earlier joint trial, while the jury had not reached a verdict on the appellant. The Crown wished nevertheless to allege in the retrial that the acquitted men had participated in the conspiracy.

HHJ Blacksell QC at the Crown Court at Blackfriars held that the Crown could do so. The appellant challenged that ruling. Bryant and Robert Cook also sought to intervene, relying principally on Article 6(2) of the European Convention on Human Rights.

The central issue was whether the prosecution could allege that acquitted men were conspirators in the appellant’s trial notwithstanding their acquittals.

1. The appeal was allowed in part. The Crown could allege that acquitted co-defendants were, or probably were, involved in the conspiracy, subject to sufficient evidence and the trial judge’s duty to prevent unfairness or impropriety. There is no general bar on such an allegation: Austin & Tavakolinia [2011] EWCA Crim 345 provided that the judge must assess fairness and propriety.

2. The appellant could be convicted only if the jury were sure that he had conspired with Glen Matthews, who had pleaded guilty. The indictment should therefore name Matthews alone as the identified conspirator, while making clear that others were involved. The jury should be directed that it need not reach a definitive conclusion about the involvement of any acquitted man.

3. In relation to Tony Purcell, evidence unavailable against him at the earlier trial could support an allegation that he was, or probably was, involved. In relation to Robert Cook and Patrick Bryant, even if there were no additional evidence against them, the Crown could put its case no higher than their probable involvement, provided there was evidence to support that allegation. The court left open the more difficult question whether the Crown could invite a finding that they were involved on precisely the evidence which had led to their acquittals.

4. The proposed intervenors’ application was refused. An unequivocal acquittal ordinarily ends the relevant criminal charge. Article 6(2) of the European Convention on Human Rights therefore did not preserve a presumption of innocence which entitled the acquitted men to intervene in the appellant’s retrial. The Strasbourg authorities concerned ancillary proceedings consequential on the acquittal and did not apply to a criminal case against a different defendant.

5. Nor did the proposed case undermine the acquittals or impair the integrity of the process. Proof of the appellant’s guilt did not require proof that any acquitted man was guilty, and a conviction would not necessarily show that the jury had been sure of their guilt.

• Court of Appeal (Criminal Division): Allowed the appellant’s appeal in part and resolved the issue on the terms stated in the judgment. Refused the proposed intervenors’ application.
• Crown Court at Blackfriars: HHJ Blacksell QC held that the prosecution could allege that the three acquitted men were conspirators in the appellant’s retrial.