R v John Allcock & Anor

Serious procedural shortcomings do not make a conviction unsafe unless they have caused unfairness that the trial process could not remedy. Late disclosure may be accommodated where the defence has sufficient opportunity to investigate the material, instruct an expert, cross-examine witnesses and present its case.

A trial judge may admit probative EncroChat material as bad-character evidence and decline to exclude it under section 78 of the Police and Criminal Evidence Act 1984 where the defence can fairly challenge attribution and use. Verdicts are not inconsistent merely because co-defendants are acquitted; the evidence against each defendant must be assessed separately. Sentences above the ordinary Category 1 range may be justified for leading roles in drug operations conducted on the most serious commercial scale.

Following a lengthy trial at Newcastle Crown Court before His Honour Judge Gittens, John Allcock and Carl McAlindon were convicted of conspiracies to supply cocaine and amphetamine. Allcock was also convicted of dealing with criminal property, and McAlindon of possessing criminal property. Allcock received 21 years’ imprisonment and McAlindon 13 years.

Both appellants appealed their convictions. They relied on jury-management issues, alleged police misconduct, late disclosure, the admission of EncroChat material as Allcock’s bad character, alleged inconsistent verdicts, the refusal of McAlindon’s submission of no case to answer, and asserted misdirections. Allcock also appealed his sentence as excessive and disproportionate to McAlindon’s. The central issue was whether the trial irregularities or the sentencing assessment rendered the convictions or sentence unsafe or wrong.

1. The Court dismissed both appeals against conviction and Allcock’s appeal against sentence. The trial had encountered serious and avoidable difficulties, particularly in disclosure, but none made the convictions unsafe.

2. The discharge of an unwell juror was proper. The judge’s response to the remaining jurors’ concerns was sensitive and appropriate. Each remaining juror confirmed an ability to deliberate collectively and faithfully. No party sought discharge of the jury, and the later complaints did not establish that its integrity had been compromised.

3. The police failings, including Malcolm’s improper reliance on an earlier officer’s work, were exposed before the jury through recall and cross-examination. The judge gave an appropriate direction that the jury could disregard Malcolm’s opinion evidence. The Court would not undertake a general oversight of police conduct where the matters neither established abuse of process nor affected the safety of the convictions.

4. Although disclosure had been seriously late and piecemeal, the defence had adequate time and means to use the disclosed material. The delay did not create an irredeemably unfair position. The trial judge was entitled to admit the EncroChat material as evidence of Allcock’s bad character. Its probative issue was attribution of the handle, which remained for the jury. The material could not be used against McAlindon, and the judge’s directions protected against prejudice. Refusal to exclude it under section 78 of the Police and Criminal Evidence Act 1984 was a proper exercise of discretion.

5. The acquittals of other defendants did not render the appellants’ convictions inconsistent. The evidence against each appellant was materially different. There was sufficient evidence, independently of the disputed spoofer phone, on which a jury could find McAlindon’s knowing participation. Attribution and the inferences to be drawn were jury issues.

6. Allcock’s leading role in long-running conspiracies involving industrial quantities of drugs justified a sentence above the ordinary Category 1 range. The judge was entitled to assess his role from the trial evidence and to treat the operation as one on the most serious commercial scale. The disparity with McAlindon’s sentence was justified by their differing roles, criminal records and financial gain. The 21-year sentence was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division) — dismissed the conviction appeals of Allcock and McAlindon, and dismissed Allcock’s sentence appeal: [2023] EWCA Crim 1010.
• Newcastle Crown Court — on 18 February 2022, convicted both appellants of the drug conspiracies and related criminal-property offences; on 29 April 2022, sentenced Allcock to 21 years’ imprisonment and McAlindon to 13 years’ imprisonment.