Elijah Clive Stokes & Ors v R

Data accessed after a foreign interception has finished is not interception in the course of transmission merely because access follows quickly. A request for already-intercepted stored communications made under lawful statutory powers does not, in these circumstances, breach the restrictions in the Investigatory Powers Act 2016. Hearsay evidence may be admitted under the Criminal Justice Act 2003 where the statutory conditions are met and its reliability is not doubtful. In jury-irregularity cases, the judge has a broad discretion. The central question is whether a fair trial remains achievable. A defendant who gives no evidence remains entitled to a coherent reminder of the principal defence arguments, but not necessarily an extensive rehearsal. The convictions were safe and the sentence was not manifestly excessive.

Following a lengthy trial at the Crown Court at Birmingham before Pepperall J and a jury, the three applicants were convicted of conspiracy to murder. Miller was also convicted of a second conspiracy to murder. They were sentenced on 6 June 2023.

After the single judge refused leave, the applicants renewed their applications to the Court of Appeal. The issues included the admissibility of EncroChat and Dubai data, alleged jury irregularities, the adequacy of the summing-up of Stokes’s case, Miller’s fresh-evidence application, and the length of Miller’s minimum term. The central questions were whether the evidence had been lawfully obtained and fairly admitted, whether the jury irregularities made a fair trial unattainable, and whether any conviction or sentence was unsafe.

Conviction appeals dismissed and sentence application refused. Leave to appeal against conviction was refused on the evidence and summing-up grounds. Leave was granted on the jury-irregularity ground, but the appeals were dismissed.

1. EncroChat and Threat to Life data. Under section 4 of the Investigatory Powers Act 2016, the NCA officers saw the data only after the relevant communications had been intercepted and added to the French Threat to Life system. The speed of access did not make the messages transmissions. Monitoring the French computer system was not interception-related conduct. Section 9 regulated requests to a foreign state to carry out an interception requiring a domestic warrant. It did not apply to an interception already carried out or to interception undertaken independently by the foreign authority. The relevant EIOs were lawful. Section 10(2A) displaced the mutual-assistance-warrant requirement for a request concerning communications stored in a telecommunications system made in the exercise of statutory power. Even if the monitoring had been unlawful, the trial evidence came through the September 2020 EIO and did not disclose material obtained from the Threat to Life system. Any sovereignty breach would at most support an application under section 78 of the Police and Criminal Evidence Act 1984; it would not itself make the evidence inadmissible or justify a stay for abuse.
2. Dubai data. The judge was entitled to treat the spreadsheets as hearsay under section 117 of the Criminal Justice Act 2003. The statutory criteria were satisfied and the reliability of the statements was not doubtful for the purposes of section 117(7). The fairness principles identified in Yalcinkaya v Turkey 56 BHRC 481 did not assist the applicants because they had been able to challenge the evidence and address its reliability.
3. Jury irregularity. The principles stated in Campbell v R [2024] UKPC 6 reflected the established approach. The judge had to investigate the circumstances sufficiently and decide whether a fair trial remained achievable. He followed Criminal Practice Direction 26M, carefully assessed the communications and jury dynamics, and was entitled to discharge A when A could no longer realistically serve. The remaining jurors confirmed that they could return true verdicts according to the evidence. Further questioning might have been possible, but was not necessary, and the judge was entitled to conclude that the trial remained fair.
4. Summing-up. The principle stated in R v Singh-Mann [2014] EWCA Crim 717 required a coherent reminder of the main defence arguments and supporting evidence, but not an exhaustive account. The summing-up of Stokes’s case was sufficient and fair in the circumstances.
5. Fresh evidence and sentence. The proposed fresh evidence was not received under section 23 of the Criminal Appeal Act 1968, being unreliable and incapable of affecting the result. Miller’s minimum term was within the range properly open to the sentencing judge and was not manifestly excessive. In light of R v Sesay [2024] EWCA Crim 483, the records were amended to state Miller’s minimum terms as 27 years 41 days on count 1 and 12 years 41 days on count 2, and Palmer’s as 20 years 11 days.

1. Court of Appeal (Criminal Division) — Applications for leave to appeal against conviction were renewed. Leave was granted on the jury-irregularity ground, but the conviction appeals were dismissed. Leave to appeal against Miller’s sentence was refused. The judgment is reported at [2025] EWCA Crim 51.
2. Crown Court at Birmingham — Following trial before Pepperall J and a jury, the applicants were convicted on 2 May 2023 and sentenced on 6 June 2023 in case T2020 7725.