Bor, R v

On a Crown appeal from a terminating ruling, the Court of Appeal may reverse the ruling under section 67 of the Criminal Justice Act 2003 where it was not reasonable to make it. The evidence must be assessed as a whole and in its proper context.

Circumstantial mobile telephone evidence may provide a sufficient basis for a jury to infer participation in a conspiracy. This may include contact with known conspirators, possession and use of a highly restricted operational telephone number, and the timing and pattern of communications. The absence of direct evidence of the defendant’s particular role does not preclude a case to answer where the available evidence could support the necessary inference of agreement.

The respondent was tried at Woolwich Crown Court for conspiracy to escape from custody, contrary to section 1(1) of the Criminal Law Act 1977. At the close of the Crown case, the judge upheld his submission of no case to answer.

The Crown appealed under section 58 of the Criminal Justice Act 2003. It relied principally on the timing and pattern of the respondent’s mobile telephone contact with alleged conspirators, his attempted contact with the escape telephone shortly after the escape, and his later cessation of use of his own telephone. The central issue was whether that circumstantial evidence could entitle a properly directed jury to infer that he had agreed to play a part in the conspiracy.

1. Appeal allowed. The no-case ruling was one which it was not reasonable for the judge to make within section 67 of the Criminal Justice Act 2003.
2. The court accepted that the judge had considered written and oral submissions, but concluded that a misunderstanding had arisen between counsel and the bench about the detail and emphasis of the Crown case. The Crown had not set out before the judge the chronological account of the telephone evidence in the way it did on the appeal.
3. Viewed in its full context, the unchallenged evidence was capable of supporting the Crown’s proposed inferences. It could show that the respondent had contact with alleged conspirators at significant stages before and after the escape; that he was entrusted with the number of a short-lived escape telephone available only to a very small circle; and that he used his own telephone in furtherance of the emerging conspiracy.
4. The fact that the evidence was circumstantial, and did not identify the respondent’s exact role, did not prevent a jury from being sure that he had agreed to play some part in the escape conspiracy. There was therefore a case for him to answer. The trial could resume with the respondent restored to the dock.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeal and reversed the terminating ruling made at Woolwich Crown Court.
• Woolwich Crown Court: At the close of the Crown case, HHJ Kinch QC ruled that the respondent had no case to answer.