R v Matthew Harrod

On an application under section 23 of the Criminal Appeal Act 1968, the question is whether the proposed additional material, considered with the evidence as a whole, can render the conviction unsafe. Similar but distinct nicknames attributed in other investigations, and later information about an unconnected telephone subscriber, did not do so where there was no evidential link to the conspiracy and the prosecution case was otherwise powerful. Where that conclusion disposes of the application, the court need not decide every issue concerning delay or the freshness of the material.

The applicant was convicted at the Crown Court at Woolwich of conspiracies to supply cocaine, amphetamine and cannabis, contrary to section 1(1) of the Criminal Law Act 1977. He also pleaded guilty to breaching a serious crime prevention order. He received concurrent sentences, the longest being 22 years’ imprisonment.

He sought a 1,395-day extension of time and leave to appeal his convictions. Under section 23 of the Criminal Appeal Act 1968, he also sought to adduce material from other EncroChat investigations. The material concerned the attributions of the nicknames “Fox”, “Wicker” and related handles, and information about an otherwise unattributed telephone number. The central issue was whether that material could render the convictions unsafe.

1. The court dismissed the application for an extension of time, the application to adduce fresh evidence, and the application for leave to appeal.

2. The court considered the proposed material de bene esse under section 23 of the Criminal Appeal Act 1968. The decisive question was whether, if admitted, it could lead to the conclusion that the convictions were unsafe. It could not. The prosecution case was a powerful circumstantial case, founded on extensive surveillance, communications evidence, meetings with conspirators, encrypted telephones, the use of a business as a front, lifestyle evidence and the applicant’s conduct.

3. The later identification of the subscriber to telephone number 0445 made no material difference. The Crown had not alleged at trial that the number was connected to the applicant, and its subscriber was not the applicant or a person relevant to the proceedings.

4. The proposed nickname evidence was speculative. “Fox” was different from “Foxy”; the other proposed identifiers were also different. More importantly, there was no evidence that the Hanna brothers were involved in this conspiracy. It was unrealistic to suggest that they played a leading or significant role without any trace of their involvement appearing in the extensive surveillance and other evidence.

5. The court further concluded that the material concerning the attribution of “Fox” was not new evidence, because the applicant’s trial representatives had access to it before and during the trial. It was unnecessary to decide whether the delay said to arise from another client’s request could justify the late applications.

• Court of Appeal (Criminal Division): By [2024] EWCA Crim 819, the court dismissed the applications for an extension of time, leave to adduce fresh evidence, and leave to appeal.

• Crown Court at Woolwich: On 11 November 2020, a jury convicted the applicant of three drug-supply conspiracies. On 10 December 2020, he received concurrent sentences, including 22 years’ imprisonment for the cocaine conspiracy.