Austin, R. v

For conspiracy under section 1(1) of the Criminal Law Act 1977, the prosecution must prove that the defendant joined an agreement to commit the offence and intended that it be carried out. The agreement need not be formal, express or contractual. It may be inferred from conduct, but awareness of criminal activity without participation does not establish conspiracy.

Directions to a jury must be read as a whole. An isolated passage does not render them defective where the essential elements of agreement and intention were repeatedly and clearly stated.

Fresh evidence on appeal should not be received where it is insubstantial, may be hearsay, could reasonably have been obtained for trial, and could not materially affect the verdict.

The applicant was convicted at Kingston-Upon-Thames Crown Court, by an 11–1 majority, of conspiracy fraudulently to evade the prohibition on importing cocaine. He was sentenced to 28 years’ imprisonment.

His renewed application challenged the judge’s directions on conspiracy. He contended that they permitted conviction if he merely assisted after becoming aware of the drug importation, without first joining an agreement. He also sought to adduce fresh evidence said to support his account that his dealings with a co-conspirator concerned earth-moving equipment for Sierra Leone.

The renewed application against sentence challenged the assessment that he occupied a managerial role above that of the vessel’s skipper and other convicted participants. The central issues were whether the jury directions correctly defined conspiracy, whether the proposed evidence should be admitted under section 23 of the Criminal Appeal Act 1968, and whether the sentence was manifestly excessive.

1. The renewed applications against conviction and sentence were dismissed. The jury directions correctly required proof that the applicant, while the agreement existed, agreed with at least one co-conspirator that cocaine should be imported and intended that the agreement be carried out.

2. An agreement is central to conspiracy under section 1(1) of the Criminal Law Act 1977. It need not be formal, contractual or explicit. It may be implicit and inferred from the parties’ conduct. The trial judge’s street-fight illustration was less apt to a planned drug-importation conspiracy, but it was used only to explain the absence of any formality requirement. The judge repeatedly and accurately directed that awareness of the scheme without joining it required acquittal.

3. The directions had to be assessed as a whole. They did not permit conviction merely because the applicant knowingly drove a co-conspirator or otherwise assisted him. The judge’s answer to the jury’s question again made agreement, intention and participation essential elements.

4. The court declined to receive the proposed fresh evidence under section 23 of the Criminal Appeal Act 1968. At most, it gave slender and potentially multiple-hearsay support to a matter not disputed at trial. It could not materially have affected the verdict, and there was no reasonable explanation for failing to pursue the evidence before trial. The Crown also had no post-conviction duty to investigate this new hearsay assertion, although it would have to disclose genuinely new material in its possession capable of supporting an argument that the conviction was unsafe.

5. The sentencing judge was entitled to find that the applicant had an integral role above that of the skipper and other participants. A judge need not give advance, provisional reasons for placing a defendant within the conspiracy’s hierarchy. The judge was not bound to adopt the interpretation of the verdict most favourable to the offender, provided the sentencing basis was consistent with the verdict and sustainable on the evidence. The 28-year term was severe but justified and not manifestly excessive.

• Court of Appeal (Criminal Division): The renewed applications for leave to appeal against conviction and sentence were dismissed: [2015] EWCA Crim 349.

• Kingston-Upon-Thames Crown Court: The applicant was convicted of conspiracy fraudulently to evade the prohibition on importing a Class A controlled drug and was sentenced to 28 years’ imprisonment.