R v James Lee

Telephone intercept evidence obtained wholly outside the United Kingdom falls outside section 1 of the Regulation of Investigatory Powers Act 2000. Its admissibility remains subject to the fairness discretion in section 78 of the Police and Criminal Evidence Act 1984, but the availability of a foreign participant to give evidence is a cogent consideration rather than a precondition to admission.

Lawfully obtained foreign recordings, disclosed to the defence and not challenged for accuracy, may properly be admitted where their interpretation is for the jury. A foreign participant’s acquittal does not itself undermine a domestic conspiracy conviction where that conviction did not depend on the foreign participant’s guilt.

The applicant was convicted at Inner London Crown Court in March 2007 of conspiring to supply nearly 50 kilograms of cocaine and was sentenced to 22 years’ imprisonment. The prosecution relied, among other matters, on recordings of calls intercepted by Dutch authorities between the applicant and Dutch nationals.

Nearly six years after conviction, he sought an extension of time and leave to appeal against conviction. He challenged the admissibility of the Dutch intercepts, alleged inadequate disclosure concerning proceedings against the Dutch nationals, and raised complaints about other evidence. The central issues were whether the intercepts were barred by statute or should have been excluded as unfair, and whether subsequent information about the Dutch proceedings rendered the conviction unsafe.

1. The applications for an extension of time and for leave to appeal were refused. None of the proposed grounds was arguable. The unexplained and inordinate delay was also, independently, sufficient to refuse the applications.

2. The intercepts were physically obtained in Holland under Dutch authority during an independent Dutch investigation. Section 1 of the Regulation of Investigatory Powers Act 2000 concerns interception at a place in the United Kingdom and therefore did not apply. Aujla [1998] 2 Cr.App.R.16, confirmed in R v P & Others [2002] 1 AC 146, supported the admissibility of foreign intercept material in such circumstances.

3. There was no basis to exclude the recordings under section 78 of the Police and Criminal Evidence Act 1984. The foreign callers’ availability to testify was a cogent factor, not a condition precedent. The recordings were lawfully obtained, fully available to the defence, and accepted as accurate records of conversations involving the applicant. The live issue was their meaning, which was properly for the jury.

4. The later outcome of proceedings against the Dutch nationals did not undermine the conviction. The defence knew that one was facing proceedings and that the other had not been arrested. Their respective acquittal or absence did not determine whether the applicant conspired with Neil Cribben to supply the cocaine. The court neither received further evidence nor found an arguable disclosure ground.

5. The judge had properly limited the significance of the December 2005 events and of the applicant’s lifestyle evidence. Tax evasion or dealing in suspect goods could not prove drug dealing. Lifestyle evidence could be considered only if the jury concluded that it was sustainable through drug dealing.

• Court of Appeal (Criminal Division): The renewal application for leave to appeal against conviction, made substantially out of time, was refused.
• Inner London Crown Court: In March 2007, the applicant was convicted of conspiracy to supply cocaine and sentenced to 22 years’ imprisonment.
• Single judge: Leave to appeal against sentence was refused in July 2007. The later application for leave to appeal against conviction was also refused by a single judge.