Trought & Ors v R.

An absent co-accused’s out-of-court comments may be admitted under section 114(1)(d) of the Criminal Justice Act 2003 only after the court has considered the statutory factors and decided that admission serves the interests of justice. Their probative value must be assessed in their full evidential context, including material which can support or undermine the inference advanced.

Evidence on separate conspiracy counts may be cross-admissible where it demonstrates an ongoing common criminal enterprise and is relevant to the issue on the other count. In sentencing a complex drugs conspiracy, the judge may make supported findings as to overall quantity and individual role, apply totality, and take account of high purity and sophisticated planning as aggravating features.

The appellants were convicted, or had pleaded guilty, at Kingston-upon-Thames Crown Court before Her Honour Judge Coello to conspiracies to supply cocaine and, in some cases, cannabis or possession of criminal property. Trought & Ors v R. concerned Trought’s appeal against conviction and the sentence appeals of all six appellants.

Trought challenged the admission of an absent co-accused’s arrest comments, the admission of handwritten debt notes, and the refusal to admit that co-accused’s police interview. He also challenged the refusal of a submission of no case to answer on a cocaine conspiracy count, the cross-admissibility of evidence between two counts, and the related jury directions. The common sentencing issues concerned drug quantity, role, guideline starting points, parity and totality.

1. All conviction and sentence appeals were dismissed. The renewed application and the new application for leave to appeal against conviction were also dismissed.

2. The trial judge was entitled to admit Walshe’s unsolicited arrest comments under section 114(1)(d) of the Criminal Justice Act 2003. She had considered the factors in section 114(2), including probative value, importance, the circumstances in which the comments were made, reliability, and the difficulty of challenge. The comments were capable of supporting the prosecution case when read with the debt notes and the surrounding telephone and other evidence. The absence of Walshe’s oral evidence did not make admission unfair, particularly as there was no realistic prospect that he would give evidence and the statements did not name Trought.

3. The handwritten notes were not hearsay. The judge could leave their meaning and the police officer’s expert evidence about it to the jury, rather than exclude them under section 78 of PACE. Conversely, Walshe’s interview did not assist the decisive issue of whether Trought was involved. Its failure to name Trought did not justify admitting the whole interview, which would have opened speculative matters. Any error would in any event not have rendered the conviction unsafe, given the strong independent evidence.

4. There was a case to answer on count 2. The apparently limited evidence of calls on the day of the delivery could properly be assessed against extensive evidence that Perestrero worked for Trought in a continuing cocaine enterprise. Evidence on counts 1 and 2 was cross-admissible because the prosecution case was that the same supplier, organiser and operational arrangements continued, although Trought had a more background role on count 2. The directions correctly required the jury to be sure of the count 1 evidence and of its relevance before using it on count 2.

5. On sentence, the judge was entitled to make findings from the trial evidence about the quantities involved and each offender’s role. The use of totality and concurrent terms reflected the overall criminality. High cocaine purity, substantial quantities, sophisticated planning and the relevant offender’s role justified the sentences imposed. None was wrong in principle or manifestly excessive.

• Court of Appeal (Criminal Division): The court dismissed Trought’s appeal against conviction, his renewed and new applications for leave to appeal, and all six appellants’ sentence appeals: [2017] EWCA Crim 1701.
• Crown Court at Kingston-upon-Thames: Before Her Honour Judge Coello, Trought, Jameel and Assaf were convicted after jury trials or retrial, while Lawal, Kana and Lightfoot pleaded guilty. Sentences were imposed in April and September 2016.