R v Jason Russo & Ors

A statutory conspiracy to commit an offence under section 46 of the Serious Crime Act 2007 is an offence known to law. It is distinct from aiding and abetting and attempting an offence, and is complete when the conspirators do the agreed act capable of encouraging or assisting one or more offences. The conduct of the persons encouraged or assisted is immaterial. Supplying secure encrypted communications may assist drug supply where the devices facilitate the arrangements necessary for it. Repeated supplies may constitute a single act because an act includes a course of conduct. In a conspiracy, a firm belief about future criminal conduct may satisfy the required mental element. Judicial questioning beyond clarification does not necessarily make a trial unfair where an immediate direction neutralises any perceived judicial view.

Three employees of a Kwikfit branch were convicted at Luton Crown Court on 14 December 2023 of conspiring to supply Encrochat telephones, thereby encouraging or assisting customers in the supply of controlled drugs, contrary to section 46 of the Serious Crime Act 2007. They appealed with leave. All three argued that the charged conspiracy was not an offence known to law. Two challenged the sufficiency of the evidence that they knew how the devices would be used. The first appellant argued that the trial judge’s questioning made his trial unfair. The central issues were the legal validity of the charge, the evidential basis for leaving the case to the jury, and whether the judge’s conduct rendered the conviction unsafe.

1. Validity of the charge. The appeals on the legal status of the offence failed. A conspiracy to commit the section 46 offence is distinct from aiding and abetting and from attempting an offence. It is completed by doing the agreed act capable of encouraging or assisting the relevant offence or offences. What the person encouraged or assisted subsequently does is irrelevant. The reasoning in Kenning [2008] EWCA Crim 1534, which concerned accomplice liability, was therefore distinguished as inapposite.
2. Supplying an encrypted means of communication can assist the substantive supply of drugs. The devices could be critical to arranging and completing large-scale drug supply, including for persons who did not take physical possession of the drugs. Section 49(1) of the 2007 Act confirmed that the substantive offence need not actually be committed. Section 49(4), which excludes conspiracy from the offences capable of being assisted or encouraged, did not prevent a conspiracy to commit the section 46 offence.
3. The prosecution could have charged a single substantive count. Under section 67 of the 2007 Act, an act includes a course of conduct. The repeated supply of devices, pursued with a continuing purpose, could therefore be treated as one act. Section 46 did not require the identification of the persons encouraged or assisted. Their identities were relevant to the defendant’s belief, but were not elements requiring particularisation in the indictment.
4. The directions did not render the convictions unsafe. The addition of knowledge to the charge did not disadvantage the appellants. Under section 1(2) of the Criminal Law Act 1977, the relevant mental element concerned the facts or circumstances necessary for the agreed offence. The court applied the reasoning in Saik [2006] UKHL 18; [2006] 2 Cr App R 26: where the relevant conduct is future, a firm belief may be sufficient. On the evidence, the jury could properly conclude that the appellants knew that drugs were being supplied. The nature and clandestine supply of the devices, the communications, and the agreed facts concerning customers’ convictions were capable of supporting that inference.
5. The judge’s questioning of Russo went beyond clarification but was directed mainly to the source of the devices, an issue which did not materially bear on the case. The judge immediately directed the jury that he had not intended to express a view and that any perceived view should be ignored. The circumstances were materially different from Lake [2023] EWCA Crim. Any unfairness was capable of being cured and Russo’s conviction was not unsafe.
6. Appeals dismissed. Each conviction was safe.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed. The court held that each conviction was safe: [2025] EWCA Crim 169.
• Luton Crown Court: Following a trial, the three appellants were convicted on 14 December 2023 of a statutory conspiracy concerning the supply of Encrochat telephones and drug offences.