R v Peter Murray & Ors.

A criminal trial need not be adjourned to await separate proceedings or speculative expert evidence where the application would cause indefinite delay and the proposed material has no demonstrated bearing on the issue. Late expert evidence may be refused where it adopts another expert’s conclusions without independent analysis and fails procedural requirements. Evidence should not be excluded under the Police and Criminal Evidence Act 1984 without established unfairness or prejudice. In serious drug conspiracies, drug weight is only one factor in assessing harm and culpability. Sentences for leading participants may be relatively close because of inevitable crowding within the highest sentencing ranges. A trial judge who heard the evidence is well placed to assess individual roles.

Following a four-month jury trial in the Crown Court at Kingston upon Thames, Peter Murray, Danny Brown, Stefan Baldauf and Philip Lawson were convicted of conspiracy relating to the exportation of Class A drugs. They received lengthy custodial sentences on 6 December 2022. The applications for leave to appeal against conviction challenged the admission and reliability of EncroChat material, the refusal to adjourn for the outcome of Investigatory Powers Tribunal proceedings or further expert evidence, the exclusion of a late report, the admission of hearsay evidence concerning a Diamond Secure phone box, and limited re-examination concerning a surveillance log. The sentence applications challenged role findings, disparity and the weight given to ill-health. The central issues were whether the trial judge had erred in managing the evidence and whether the sentences were arguably excessive or inadequately differentiated.

The court refused leave to appeal against conviction and sentence. It held that none of the grounds was arguable.

1. Adjournments and expert evidence. The previous decisions on EncroChat admissibility, R v. A, B, D and C [2021] EWCA Crim 128 and R v. Atkinson and others [2021] EWCA Crim 1447, had established a prima facie binding position. The Investigatory Powers Tribunal proceedings concerned the legality of the warrant, not the admissibility of the material. Given the previous delays, the speculative benefit of awaiting those proceedings and the public interest in prompt trials, refusal of an adjournment was unassailable. The proposed expert evidence was also unavailable in any realistic sense. Ms Saunders could not act as a mouthpiece for Professor Anderson, and her own factual observations were minor and explicable.
2. Exclusion and other evidential rulings. Once the adjournment application had properly failed, an application under section 78 of the Police and Criminal Evidence Act 1984 could not succeed on the basis of a report that was not evidence. There was no demonstrated unfairness or prejudice. The judge had also fairly admitted the archived Diamond Secure material under section 114(1)(d) of the Criminal Justice Act 2003. Limited re-examination about the surveillance log was permissible because cross-examination had raised matters beyond the witness’s knowledge and risked leaving a misleading impression. The issue was in any event minor and could not render the convictions unsafe.
3. Sentencing. In very large-scale drug cases, harm, culpability and the starting point depend on the particular facts. Weight is only one consideration. The court applied the principles in R v. Sanghera and Ors [2016] EWCA Crim 94, R v. Welsh [2014] EWCA Crim 1027, R v. Cuni and Others [2018] 2 Cr.App.R. (S.) 18 and R v. Wraight [2021] EWCA Crim 1968. Sentences for co-conspirators with leading roles may be relatively close because of inevitable crowding within the 20-to-30-year range. The judge, having presided over the 55-day trial, was uniquely placed to assess the defendants’ respective roles. No arguable error was shown in the sentences imposed.

1. Court of Appeal (Criminal Division) In [2023] EWCA Crim 282, applications for leave to appeal against conviction and sentence were refused.
2. Crown Court at Kingston upon Thames The appellants were convicted on 24 June 2022 and sentenced on 6 December 2022.