Gates, R. v

In an alleged open conspiracy, an accused may be convicted of conspiring with persons unknown even where every named alleged co-conspirator is acquitted. The conviction is not logically inconsistent if the prosecution case and the jury directions permit a finding that the accused agreed with at least one unidentified person.

The jury must be sure that the accused was party to an agreement to commit the substantive offence, knew the nature of the unlawful agreement, and intended that it be carried out. The acquittal of named defendants does not itself negate an agreement with another, unknown conspirator.

The appellant was convicted at Teesside Crown Court of conspiracy to supply cocaine and sentenced to six years and six months’ imprisonment. The indictment alleged a conspiracy with named defendants and others unknown.

Several co-defendants were acquitted, while others pleaded guilty to substantive offences or received no verdict. The appellant contended that his conviction was illogical because the only named person said to have direct links with him had been acquitted.

The Crown maintained that this was an open conspiracy and that the jury could properly find an agreement between the appellant and persons unknown. The central issue was whether the acquittals rendered the appellant’s conviction inconsistent.

1. Appeal dismissed. The appellant’s conviction was not inconsistent with the acquittals of the named co-defendants. This was an alleged open conspiracy: the indictment, the prosecution case and the directions all allowed for an agreement between a defendant and persons unknown.

2. Where the prosecution case includes the possibility that an accused conspired with unidentified persons, the absence of a conviction of a named alleged co-conspirator does not itself invalidate the accused’s conviction. It remains open to the jury to be sure that the accused agreed with one or more unknown persons, provided that possibility has been put to it.

3. The judge’s directions correctly required the jury to be sure of an agreement to supply cocaine, the appellant’s participation in it, the requisite knowledge concerning the drug, and an intention that the agreement be carried out. The route to verdict expressly asked whether the appellant had agreed with at least one person named in the indictment or unknown.

4. The court did not need to determine precisely why the jury acquitted the other defendants. The differing evidential cases against the defendants, and the express allegation of unknown conspirators, meant that the jury could consistently convict the appellant.

5. As a postscript, the court observed that the evidence of substantial cash bearing abnormal cocaine contamination, cocaine, latex gloves, an encrypted telephone, and the appellant’s unexplained meeting with another vehicle was capable of supporting a finding that he had conspired with someone.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2021] EWCA Crim 66.
• Crown Court at Teesside: On 4 February 2020, convicted the appellant of conspiracy to supply cocaine and sentenced him to six years and six months’ imprisonment.