R v Victor Nzekwu & Anor

An evidential error will not render a conviction unsafe unless it could have affected the verdict. Expert comparisons with unrelated encrypted-device users are inadmissible where they have no probative value on the defendant’s alleged participation in the particular conspiracy.

A case may properly be left to the jury where a co-conspirator’s message implicating the defendant is supported by circumstantial evidence from which knowledge of the controlled drug can be inferred. In sentencing, a purchaser who knowingly commissions part of a larger importation may merit an upward adjustment. A recalled prisoner has no automatic right to a reduction for time spent in custody on recall, but the sentencer retains a discretion to reduce an otherwise appropriate sentence where justice requires it.

Following a jury trial in the Crown Court at Birmingham, Victor Nzekwu was convicted of conspiracy to evade the prohibition on importing cocaine and sentenced to seven years and six months’ imprisonment. Kasim Mohammed pleaded guilty to the same conspiracy and received 13 years and six months’ imprisonment.

Nzekwu appealed against conviction and sentence. He challenged the exclusion of evidence about contact with National Crime Agency officers, the exclusion of parts of a defence expert’s EncroChat analysis, and the rejection of a submission of no case to answer. Mohammed appealed his sentence as manifestly excessive, relying in particular on time spent in custody after recall from licence. The central issues were whether Nzekwu’s conviction was unsafe and whether either sentence was manifestly excessive.

1. All appeals were dismissed. Although the trial judge erred by preventing Nzekwu from giving limited evidence that National Crime Agency officers had contacted him, the error did not make the conviction unsafe. The disclosed contacts were remote from, or occurred after, the conspiracy. They did not show that the Agency knew of his EncroChat communications. In the light of the strong evidence and the jury’s rejection of his account, the excluded point could not have affected the verdict.

2. The excluded parts of the defence expert evidence were irrelevant and had no probative value. Comparisons between Nzekwu’s device data and data from other EncroChat users could not assist the jury in deciding whether he knowingly participated in this particular cocaine conspiracy.

3. The no-case submission was correctly rejected. The incriminating message did not stand alone. Evidence concerning the payment arrangements, the price, transport costs, cash collection, and later messages about cocaine was capable of supporting an inference that Nzekwu knew that the proposed importation concerned cocaine. The alternative diamond-purchase explanation was inherently implausible in the circumstances.

4. The sentencing judge was entitled to treat Nzekwu as knowingly involved in wider criminality than his one-kilogram share. His use of encrypted communications and his supply of an EncroChat device to a co-conspirator were proper aggravating features. His sentence was not manifestly excessive.

5. Applying R v Kerrigan [2014] EWCA Crim 2348, there was no automatic entitlement to reduce Mohammed’s sentence for time spent in custody on recall. The judge retained a discretion to do justice in the particular case, including for excessive delay, but was entitled to decline a reduction. The delays were not excessive in the prevailing circumstances, and Mohammed’s sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed Nzekwu’s appeal against conviction and sentence, and dismissed Mohammed’s appeal against sentence, in [2025] EWCA Crim 734.
• Crown Court at Birmingham: Nzekwu was convicted after trial of conspiracy to evade the prohibition on importing cocaine and sentenced to seven years and six months’ imprisonment. Mohammed pleaded guilty to the same offence and was sentenced to 13 years and six months’ imprisonment.