R v Jason Rowan & Ors

In a conspiracy prosecution, the Crown is not required to charge every person alleged to have joined the conspiracy. Whether the Crown’s reliance on an uncharged participant causes unfairness is a fact-specific question.

Under Police and Criminal Evidence Act 1984, the inability to cross-examine an uncharged alleged co-conspirator does not itself make highly probative evidence unfair. The court must identify real prejudice, rather than a speculative lost opportunity to obtain a favourable answer in cross-examination.

The notice requirements for a prosecution appeal under Criminal Justice Act 2003, section 58(4), are strict conditions precedent. Whether two decisions form a single ruling depends on fact and degree.

Seven defendants were on trial for conspiracy to commit fraud, fraudulent trading and money laundering connected with the sale of home-improvement products. The Crown sought to rely on covertly recorded films and on evidence from customers about dealings with sales representatives who had not been charged.

The Crown Court excluded one film and subsequently excluded the customer evidence under section 78 of the Police and Criminal Evidence Act 1984. The prosecution sought leave to appeal under section 58 of the Criminal Justice Act 2003. It had not given immediate notice after the first ruling but had done so after the second.

The central issues were whether the two rulings could be treated as one for appeal purposes, and whether the absence of the uncharged sales representatives made the evidence unfair.

1. Appeal allowed in relation to the ruling of 23 January 2023. Leave was granted only against that ruling, which was reversed. The earlier ruling excluding Film B remained in force because the prosecution had not complied with the strict notice requirements for an appeal against it.
2. There is no legal rule requiring the Crown to charge every person alleged to be party to a conspiracy. The judge’s contrary view was an error of law or principle. An earlier acquittal does not generally prevent the Crown from alleging, in a later trial of others, that the acquitted person was a conspirator: R v Austin [2011] EWCA Crim 345. It would be surprising if a general bar applied merely because an alleged conspirator had not been charged. Fairness nevertheless requires case-specific assessment.
3. The judge’s exclusion of Film B and of the customer evidence was also unreasonable under section 78 of the Police and Criminal Evidence Act 1984. The evidence was highly probative of the alleged system of dishonest sales practices. Each defendant remained able to deny participation, deny involvement in training or instructions, and give evidence if chosen. The asserted prejudice was no more than the speculative loss of an opportunity to question an uncharged salesman who might or might not have given helpful evidence.
4. Section 58(4) of the Criminal Justice Act 2003 imposes strictly observed conditions precedent. The prosecution must immediately give notice of an intended appeal or seek an adjournment. Two decisions may exceptionally amount to stages of one ruling, but that depends on fact and degree. Here the rulings of 20 and 23 January were distinct; the opportunity to appeal the first had therefore been lost.
5. The court confirmed the statutory reporting restrictions under section 71 of the Criminal Justice Act 2003, subject to the limited matters permitted by section 71(8).

• Court of Appeal (Criminal Division): Granted the Crown leave to appeal under section 58 of the Criminal Justice Act 2003 against the Crown Court ruling of 23 January 2023. Allowed the appeal and reversed that ruling.
• Crown Court: On 20 January 2023, excluded Film B under section 78 of the Police and Criminal Evidence Act 1984. On 23 January 2023, excluded customer evidence concerning dealings with uncharged sales representatives. The Court of Appeal held the latter ruling could not be treated as part of the earlier ruling for section 58(4) purposes.