R v Russo and Others 2025
R, AH and M were friends and colleagues. R had a friend, S, who asked if they wanted to go into business supplying encrypted mobile phones. S retained the stock of handsets whilst AH and M delivered the devices, with M also being involved in some of the more technical aspects relating to the devices. It was well known at the time that such devices were used by persons involved in criminal activity.
Between 2019 and 2020, over 50 handsets were supplied by the group with S, R, AH and M each possessing a handset personally which they utilised to facilitate supply of items to customers. Messages between S, R, AH, M and customers indicated customers to whom the phones were supplied were involved in the supply of drugs and that S himself was involved in such activity to some extent. Customers paid for the phones in cash, with cash then being stored at a shop in London or at the home address of S’ mother.
R, AH and M were convicted of statutory conspiracy to encourage or assist in the commission of one or more offences, knowing one or more would be committed contrary to section 46 of the Serious Crime Act 2007. The indictment stated they had conspired together with S and other persons unknown to do an act namely, to supply encrypted telephones to others, thereby encouraging or assisting those others in the commission of offences, namely the supply of Class A or Class B drugs, the supply of firearms and the evasion of the prohibition on importation of Class A or Class B drugs, knowing that the offences would be committed and that the act of supplying the telephones would encourage or assist the commission of the offences.
All three parties appealed against conviction based on the argument that the offence with which they were charged was not known to law. It was argued that the offence charged was equivalent to conspiring to aid and abet, not being an offence in law. R v Kenning and others (2008) had established that an agreement to aid and abet an offence was incapable of constituting a conspiracy contrary to section 1(1) of the Criminal Law Act 1977 and the parties argued the same justification applied here namely, there couldn’t be an offence of conspiring to commit another offence when any anticipated outcome may not come into fruition.
Alternatively, AH and M also stated that irrespective of whether the offence existed, their cases should have been withdrawn at the conclusion of the prosecution case on the basis that there was no or, insufficient evidence, demonstrating they knew how the devices would be used in relation to drugs.
R further argued the verdict in his case was also unsafe as the Judges questioning of him rendered the case as unsafe, arguing the judges questions conveyed scepticism, using terminology akin to that of a prosecutor.
Held
Appeal dismissed. Convictions upheld.
- The offence under section 46 of which R, AH and M had been convicted was distinguishable as it dealt with inchoate liability rather, than accomplice liability to which aiding and abetting concerned itself. The offence in section 46 was committed when an act was done that was capable of encouraging or assisting an offence. What was then done by the person who was encouraged or assisted was irrelevant and Parliament had chosen not to prohibit an offence of conspiracy to commit an offence contrary to section 46 whereas, other sections of the Act, such as section 49(4) specifically excluded conspiracy as an offence that could be assisted or encouraged in that context.
Making reference to criminal liability and section 1 of the Criminal Law Act 1977, the Court could not identify any reason why it was not possible to conspire to do an act capable of encouraging or assisting commission of one or more offences, therefore, it is an offence known in law.
- In relation to the argument advanced by AH and M that the devices could not be used to commit the offence of supplying drugs, the reality was that supplying Encrochat devices could assist persons to agree to supply drugs. R, AH and M were aware of the features of the devices which were attractive to those intending to engage in criminal conduct. The devices were of critical importance and whoever provided such devices therefore assisted in committing the substantive offence.
- It was accepted that additional questions put to R at the conclusion of his evidence sometimes went ‘beyond clarification’ and did not assist the jury on the issues in the case. Whilst that was the case, concerns regarding the judge's questions had been raised at the relevant point of the original trial and any unfairness had been cured by the direction given by the judge to the jury.
View the full case document here, with links to related legislation and similar cases.
