R v Thomas Alan Speed & Ors

On 14 June 2023 in the Crown Court at Liverpool before Her Honour Judge Brandon, James Salkeld pleaded guilty on a basis to conspiracy to possess, purchase or acquire prohibited weapons without authority, conspiracy to possess ammunition without a firearm certificate, two counts of conspiracy to supply a controlled drug of Class A and one count of conspiracy to supply a controlled drug of Class B (counts 2, 3, 5, 6 and 7). On 24 April 2024, at the same court, before the same judge, Thomas Speed was convicted unanimously of conspiracy to possess prohibited weapons for sale or transfer without authority, conspiracy to possess ammunition without a firearms certificate and two counts of conspiracy to supply a controlled drug of Class A (counts 1, 4, 6 and 7). On the same date, Scott Roseau was convicted by a majority of 10 to 1 of two counts of conspiracy to possess, purchase or acquire prohibited weapons without authority, two counts of conspiracy to possess ammunition without a firearms certificate and two counts of conspiracy to supply a controlled drug of Class A (counts 2, 3, 4, 5, 8 and 9).

On 17 June 2024 all three were sentenced as follows. In Mr Speed's case: count 1, conspiracy to possess prohibited weapons for sale or transfer - 12 years; count 4, conspiracy to possess ammunition - 3 years; counts 6 and 7, conspiracy to supply Class A drugs - 16 years, to run concurrently but consecutively to count 1. The total sentence in his case was 28 years.

In Mr Roseau's case: counts 2 and 3, conspiracy to possess, purchase or acquire prohibited weapons - 7 years; counts 4 and 5, conspiracy to possess ammunition - 3 years concurrent; counts 8 and 9, conspiracy to supply Class A drugs - 15 years concurrent with each other but consecutive to count 2, making a total of 22 years.

For Mr Salkeld on count 2, conspiracy to possess, purchase or acquire prohibited weapons - 4 years and 8 months; count 3, conspiracy to possess ammunition - 2 years; count 5 and 6, conspiracy to supply controlled Class A drugs - 10 years 8 months concurrent but consecutive to count 2; and count 7, conspiracy to supply a Class B drug - 2 years 9 months concurrent, making a total in his case of 15 years 4 months.

Mr Roseau seeks to renew his application for leave to appeal against conviction following refusal by the Single Judge. He also seeks an extension of time of 23 days. All three appeal against sentence with limited leave of the Single Judge. They do not seek to renew the grounds for which leave to appeal against sentence was refused.

The facts may be summarised briefly as follows. Thomas Speed and Scott Roseau. said the prosecution. were involved in the supply of Class A drugs, predominantly cocaine and heroin, on a commercial scale. They dealt in kilogram quantities. They were also involved in possession and/or trading of firearms and the associated ammunition. In order to facilitate these crimes they used EncroChat devices. It was the prosecution case that Mr Speed, who was Liverpool-based, used the handle "Simplecreek" whilst Mr Roseau, who was London-based, used the handle "Mystickanganroo". Mr Salkeld used the handle "Bestgolfer". The messages contained within the devices, said to have been received between March and May 2022, included photographs of kilogram quantities and more of Class A drugs and messages sent alongside them and discussions about prices; messages about cash, accompanied by photographs of large bundles of cash that had been counted and sorted; messages about firearms, with references to "guns", "shooters", "38s", "9mm", brand names such as Luger, Glock and Walther and to the ammunition referred to as "sweets" and "bullets". Photographs of a particular firearm identified during the course of their discussions were also seen. For their part Mr Speed and Mr Roseau denied being the users of the respective handles alleged.

The prosecution relied upon a number of matters to establish the connection between Mr Roseau and Mr Speed and the handles Simplecreek and Mystickangaroo. They relied upon EncroChat messages which they say were self-explanatory in terms of their content. They relied upon the guilty pleas entered by others, namely Mr Paul Woodford and Mr Salkeld, to offences of conspiracy, which they say proved the existence of the conspiracy charged against Mr Speed and Mr Roseau. They relied on attribution evidence connecting the defendants to the EncroChat handles. This included the use of real names, locations of phones, cell sites and cars, automatic number plate recognition evidence, locations proximate to the homes of the defendants, photographs of the living room and garden which the prosecution said belonged to Speed, the reference to his job in the messages and the findings in respect of a property at Lawson Close, an address connected to Mr Roseau.

The Crown also relied on previous convictions, Mr Speed having previous convictions for possession with intent to supply Class A drugs dating from 2008, while Mr Roseau had previous convictions for possession of a firearm with intent to cause fear of violence dating from 2003 and convictions for possession with intent to supply Class A drugs and possession of property, dating from 2007. These convictions showed, said the prosecution, that each person had a tendency to commit offences of this type. Reliance was also placed on the fact that Mr Speed and Mr Roseau provided "no comment" interviews and that Mr Speed failed to give evidence during the trial.

There was considerable attribution evidence relied upon by the prosecution to prove that Mr Speed was Simplecreek. Mr Speed no longer pursues an appeal against conviction, so for that reason it is not necessary to set out in detail the relevant evidence relied upon to make the connection between him and his handle.

As to Mr Roseau, the evidence relied upon by the prosecution included the following: The messages exchanged showing that Mr Salkeld (Bestgolfer) was telling Mr Woodford (Kingwasp) that his contact Mystickangaroo was a black male from London. Other users on Encrochat saved Mystickangaroo as "Scott", "SO" and "ST". In conversation with other handles reference is made to "Scott" (when they are speaking to Mystickangaroo). Items recovered from the appellant's address and the appellant's uncle's address, to which Mr Roseau had access, also showed a connection. The Crown's expert, Mr Duncan Brown, concluded that there was a correlation between automatic numberplate recognition (ANPR) evidence, mobile phone cell site data relating to Roseau's mobile telephone and EncroChat messages, in that the movements of the mobile telephone and the EncroChat device were consistent with them having the same user. Those patterns of movements occurred over a sufficient number of days and a sufficient variety of locations so as to rule out, as far as Mr Brown is concerned, the possibility of coincidence. In the 45-day period that he analysed during April and May 2020 there was no period when those devices were clearly separated. The ANPR data also indicated that the location and/or movements of one or other or both of the devices was always consistent with the possibility that the user was present with a Mercedes vehicle with the registration KE15JZX. This was a vehicle used by Mr Roseau and insured in his name.

Mr Roseau was arrested on the morning of 19 August 2022. Later that same morning police officers attended and then searched an address at 26 Lawson Close in London. The property was empty at the time and in fact belonged to Mr Roseau's uncle, but Mr Roseau had access to it and had stayed there from time to time. He had also been observed on a number of occasions entering and leaving that property.

A number of items were seized from the property, including a driving licence, passport and correspondence in the name of Mr Roseau. The V5 document relating to the black Mercedes KE15JZX, a large quantity of cash in the sum of £126,860 found in carrier bags next to the fridge in the kitchen, two sets of scales with traces of both cocaine and diamorphine on them, a plastic bag containing 11 mobile phones on the kitchen worktop, a blue carrier bag of white powder (which was later analysed to be cocaine) hidden in the kitchen freezer, almost half a kilo of brown powder (that when analysed turned out to be 59 per cent pure diamorphine) that had been mixed with caffeine powder, smaller quantities of 77 per cent pure cocaine, a cash counting machine, six gas powered pistols (one of which bore Mr Roseau's fingerprint) and eight metal starter pistols described as being "realistic imitation firearms".

In his Defence Case Statement Mr Speed stated inter alia that he did not accept the attribution of the EncroChat handle Simplecreek. In his defence case statement Mr Roseau stated, amongst other things, that he did not accept the attribution of EncroChat handle Mystickangaroo. He denied possession of the drugs and money at Lawson Close, and he denied involvement in the supply of firearms. In evidence he accepted that he had access to the flat at Lawson Close and that the imitation firearm found there were his but said it was a man called "Ray" to whom he had rented out the flat who must have left the drugs and the cash there. He said the imitation firearms were props required for music videos as part of his music business.

At the outset of the trial Mr Speed applied to exclude the EncroChat material relating to him pursuant to section 78 of the Police and Criminal Evidence Act 1984. He did so on the basis that the data was incomplete, unreliable and inaccurate. The judge rejected that application, stating that the use of EncroChat evidence in cases like this is not unusual. She was satisfied that there was nothing inherently unreliable or unfair about reliance being placed on such evidence and insofar as there was a difference of opinion between the experts as to its reliability that was a matter for the jury to determine. As such, the application to exclude that evidence was dismissed.

In the course of the trial the jury were shown body worn video footage of officers conducting the search of the Lawson Close property. The Agreed Facts (No 49) provided as follows:

No issue was taken with the legal directions or the judge's summing-up. The jury retired to consider its verdict on Friday 19 April 2024. The jury continued its deliberations into Monday the following week, 22 April 2024. On that day the jury sent a note asking to see a better-quality video of the police search of Lawson Close as the video was "glitchy". They also asked if there was any footage of the bedroom. A recorded video was provided but as to the request for further footage the jury were directed that no other evidence could be adduced at that stage. The jury resumed its deliberations and continued into the next day, Tuesday 23 April 2024. A further note was received from the jury at about 12.30 on 23 April, the terms of which were as follows:

The judge discussed the matter with counsel in the absence of the jury. It was noted that the police had in fact switched the power on in the flat in the course of their search, but it was agreed that the jury could not be given any further evidence at this stage. In those circumstances the judge directed the jury as follows:

With that instruction the jury retired once again at 12.41 pm to continue their deliberation. The judge gave a majority direction at 3.13 pm and deliberations resumed thereafter, and they continued after the overnight pause into the next day, Wednesday 24 April 2024. At 11.19 am, after 10 hours and 40 minutes of deliberation, the jury returned with the verdicts set out above.

As stated above, the appellant was sentenced on 17 June 2024. In detailed and considered sentencing remarks the judge began by setting out the background to and the circumstances of the offending, the guidelines and principles to be applied, including those relating to totality, and she reminded herself of the relevant authorities. Before proceeding to deal with each defendant in turn the judge said as follows:

Dealing with the sentence for Mr Speed first, the judge noted his previous 2008 conviction for Class A drug trafficking, the fact that he was a receiver and a distributor of Class A drugs and that he was involved with about 10.5 kilograms of such drugs. The judge considered that Mr Speed's activities meant that his role fell to be categorised as that of a leading role category 1, which has a starting point of 14 years and a category range of 12 to 16 years. As to the firearms offences the judge noted that the appropriate guideline in his case was that relating to the transfer of firearms for sale or otherwise. The judge accepted that there were others above Mr Speed from whom he sourced the weapons, that he was at the very least providing significant assistance and facilitating the transfer of firearms and ammunition, and had the expectation of significant financial advantage. The judge therefore categorised his culpability at the "upper end of category B". Harm was assessed as category 2, as the judge accepted that there was no evidence of the firearms or ammunition being used in criminal offending. A category B2 offence has a starting point of 10 years with a category range of 8 to 14 years. The judge identified aggravating and mitigating features including the prior similar drugs offending albeit that it was of some age, the fact that he was involved in the supply of two different drugs and the fact that he sought to acquire more than one firearm and ammunition for them. Taking those matters into account, the judge passed the sentences set out above including the sentence of 12 years for count 1 (the conspiracy to possess firearms for sale or transfer) and the sentence of 16 years for counts 3 and concurrently count 4, for conspiracy to supply heroin and cocaine respectively. These were consecutive to count 1, giving a total of 28 years.

In Mr Roseau's case the judge noted that he had a previous conviction in 2003 for the possession of a firearm with intent to cause fear of violence and a conviction in 2007 for Class A drug trafficking offence. He too was described as a receiver and distributor of Class A drugs, and he was involved in about 10 kilograms of drugs. Whilst there were some factors that could indicate a significant role the "sheer number of leading role factors" meant that that was the appropriate assessment of culpability. This was therefore also a category 1 leading role case with a starting point of 14 years and a range of 12 to 16 years.

The relevant guideline for the firearm offences in Mr Roseau's case was that relating to the possession of firearms. The judge considered that in view of the fact that Mr Roseau either intended to use a firearm or was reckless as to whether they would be used, this was at least a medium culpability case. Harm was assessed by reference to the risk of harm and disorder occurring and the actual alarm or distress caused. Given that there could be no reason to possess such weapons other than to cause a high risk of serious alarm or distress or death or harm, this was a category 2 case. The starting point for a category B2 case was 6 years with a category range of 5 to 7 years. Having identified the aggravating and mitigating features the judge passed the sentences set out above including the sentence of 7 years for counts 2 and 3, conspiracy to possess firearms, 15 years for count 8, conspiracy to supply heroin to run consecutively to count 2 and 15 years concurrent for count 9, conspiracy to supply cocaine, making a total of 22 years in Mr Roseau's case.

The judge dealt finally with Mr Salkeld. In relation to the drugs offences the judge was satisfied that his role was also a leading one albeit not the leading one and that he was involved in some 15 kilograms of Class A drugs. In relation to the firearms offence the judge concluded that this was at least a medium culpability case with the harm falling in category 2. Those categorisations gave rise to the same starting points as Mr Speed and Mr Roseau for the drugs offences and as Mr Roseau for the firearms offences.

Taking account of aggravating and mitigating factors the appropriate sentences after trial would have been 7 years on count 2, conspiracy to possess firearms, reduced to 4 years and 8 months on account of the guilty plea and 16 years for count 5, conspiracy to supply heroin, reduced to 10 years 8 months for the plea. That would be consecutive to count 2. A similar concurrent sentence was imposed for count 6, conspiracy to supply cocaine. The other sentences related to cannabis set out above were to run concurrently. The total sentence in his case was therefore one of 15 years and 4 months.

Mr Speed appeals against sentence with the leave of the Single Judge on the sole ground that insufficient regard was given to the principle of totality. Mr Roseau seeks to renew his application for leave to appeal against conviction following refusal by the Single Judge. Mr Roseau's original grounds of appeal settled by his counsel at trial (Mr Harrison) have been superseded by the following sole ground of appeal pursued on his behalf by Ms Power KC who appears before us:

As to sentence, Mr Roseau also appeals with leave of the Single Judge on the sole ground of totality. Mr Salkeld appeals against sentence with leave of the Single Judge also on the sole ground that the judge failed to make sufficient reduction for overall totality.

We begin by dealing with Mr Roseau's conviction appeal. Ms Power KC submits that given Mr Roseau's case that the Lawson Close property was rented to a male named "Ray" who was the holder of the Mystickangaroo handle, it was important for the jury to consider the veracity of his account in this regard. It is submitted that if Mr Roseau's account was or might be true then (as set out in the advice and grounds) the "active electricity connection would have been an essential utility for anyone paying to rent a property". Ms Power further submits that given Roseau's case that he sometimes used the flat in connection with his music production activities, it was essential that the jury is not misled into thinking that the flat was being rented (as she put it in her written advice and grounds) "without the electricity being connected or someone paying to rent a property without essential utilities."

Ms Power submits that the jury notes indicate that this was an issue of some importance to the jury and the fact that the jury returned verdicts "within an hour of the judge's direction to take the evidence from the Agreed Facts is troubling". It is submitted that the judge directed the jury to proceed on a basis that was materially and factually incorrect and in a way that was to Mr Roseau's detriment in that it undermined his evidence, and suggested that he was the only person with access to that flat making hime the person who must have stored the drugs and money found there.

Eloquently though those submissions were made we see no merit in this ground. In fact, the argument as set out in the written advice and grounds appears to be based on an incorrect premise, namely that the jury was told that the power to the flat had been cut off or disconnected, hence the various references in the advice and grounds to the need for "essential utilities" and "an active electricity connection". In fact, Agreed Fact 49B merely stated:

There is no suggestion at any time that the power had been disconnected at source thereby depriving the flat of electricity altogether. Informing the jury that the power had been switched off at the mains does not undermine Mr Roseau’s evidence that the flat was, and was capable of being, rented out. Furthermore, the suggestion that this issue was critical or central to the jury's verdict is, in our view, speculative. One cannot infer from the fact of this jury note and/or the chronology of events that it featured any more centrally in the jury's deliberations than the myriad other strands of evidence relied upon by the prosecution. In fact, the chronology is that the jury note was sent at 12.35 pm on Tuesday 23 April, with the judge giving a direction at 12.39 pm that day. The majority direction was given later that afternoon at 3.13pm. But the jury did not return its verdict until 11.19am the following day, some 4 hours 15 minutes of deliberation after the last jury note.

Even if it could be said that Agreed Fact 49B was erroneous, that error was marginal as the corrected version would merely have stated that "some" of the power had been switched off at the mains. This made no difference to the point of substance which is that household appliances were not in normal use at the time of the search as could be seen from the body worn video.

The issue was in any event a peripheral and trivial one in the overall circumstances of the case. It is of course important to note that the Agreed Fact now complained of was the subject of agreement at the time and, as explained in Mr Harrison's response, privilege having been waived, was introduced for the purpose of demonstrating that the flat was, as of the date of the police search in August 2020, unoccupied and in a poor state of repair and cluttered, such that occasional visitors such as Mr Roseau himself might have missed the presence of drugs and cash in the unlit and unused kitchen. It was therefore Mr Roseau’s own case that the flat was not suitable to be lived in, a proposition with which the Crown agreed. More importantly, whether or not the power was switched on at the flat in August 2020, was not capable of assisting the jury in assessing whether the flat was in use by someone else during the critical period of the EncroChat messages which was between April and May 2020. The evidence as to the location of the Mystickangaroo EncroChat device and the co-location with Mr Roseau's mobile phone, vehicle and frequented premises presented a compelling picture of Mr Roseau's involvement in the matters alleged in that period. Against that background, whether or not some or all of the power was switched off at the flat some months later is of marginal relevance at best, and, in our view, incapable of rendering this conviction unsafe. In these circumstances an extension of time would be futile and is refused.

Turning then to the appeals against sentence and beginning with that of Mr Speed. No issue is taken with the categorisation of the offences or as to the precise starting points adopted in each case. There can be no real argument against an upwards adjustment from those starting points given the aggravating features identified by the judge, which features would have only been marginally offset by the mitigating features in a case involving such serious criminality as this one.

Mr Walmsley, who appears for Mr Speed on this ground, submits that the imposition of consecutive sentences for the firearms and drugs offences, without any reduction on totality grounds has resulted in a sentence that is manifestly excessive, and which is more appropriate for those at the top of large-scale commercial and highly sophisticated enterprises.

In our view, the judge was correct to impose consecutive sentences. The criminality involved in firearms offences is distinct from that involved in drugs offences, albeit that the two activities are in some cases linked. However, in any case where consecutive sentences are imposed, totality principles demand that careful consideration be given to whether the aggregate sentence is just and proportionate and reflects the overall criminality involved. In so doing the sentencer should consider whether some downwards adjustment is warranted.

In the present case the judge clearly had regard to totality principles: she mentioned them expressly several times during her remarks. She expressly stated that had she been sentencing for the drugs offences or the firearm offences alone, the individual sentences would have been higher and she confirmed at the end of her sentencing remarks, after a query from counsel as to whether she wished to "have regard to the principle of totality" that she had "said it several times in the course of my sentencing". That said, the judge did not identify the sentences that she would have imposed but for the need to adjustment for totality, nor did she indicate what reduction (if any) she had made for totality. We consider however that there was little overlap between Mr Speed's firearm offence and his drug offences. Any reduction for totality when imposing consecutive sentences needed only to be modest.

Having placed Mr Speed's culpability for the firearms offence at the "upper end of category B" and finding that this is "properly a category 2 case" for harm, and having considered the various aggravating and mitigating features, the judge fixed on a sentence of 12 years. That is in the upper half of the range for a B2 offence but not at the top of the range. In relation to the drugs offences, Mr Speed was assessed to fall into category 1 leading role and the sentence imposed was one of 16 years, which did fall at the top of the range for that category. The judge then added those two sentences together to reach the sentence of 28 years. The only question is whether that aggregate sentence is manifestly excessive and should be reduced having regard to totality principles.

We were to some extent hampered by the absence of any express reference to any reduction for totality in this case. Whilst the judge did state that the adjustments had been made on the grounds of totality, it is difficult to discern what those adjustments if made actually were. There is certainly no express reference to the level of downwards or any adjustment made on account of totality although that would not of itself necessarily lead to a conclusion that no adjustment was made.

The sentence for the firearms offence was, in accordance with the categorisation of the offence as being at the upper end of category B one of 12 years. If that is the sentence after adjustment, then one can infer the sentence before adjustment would have been somewhat higher. However, a sentence of 13 or 14 years would have been at the very top of the category range and in the lower half of the category range for category B1 offence, even though none of the harm factors for a category 1 offence are present in this case. We bear in mind of course that this was a case where there was no evidence of firearms actually being used.

In those circumstances and on the assumption the judge was not minded to stray into the category 1 range, it would appear in fact that no or no significant adjustment was made to the firearm sentence for totality. As to the drugs offence, once again there was no express downwards adjustment on account of totality, and, given that the sentence of 16 years was at the very top of the range, it is difficult to discern what, if any, adjustment was in fact made.

In these circumstances it seems to us that there appears, on analysis, to have been a failure to make an appropriate adjustment on totality grounds. In our view, having regard to all the circumstances, a modest downwards adjustment of 1 year for each of counts 1, 6 and 7 was appropriate in order to reach a just and proportionate sentence that reflects the overall criminality involved. Accordingly, we quash the sentences of 12 years on count 1 and of 16 years on counts 6 and 7 and substitute them with sentences of 11 years on count 1 and 15 years on each of counts 6 and 7, making a total of 26 years' imprisonment. To that extent Mr Speed's appeal is allowed.

Ms Power also submits that the judge failed to make an adequate downwards adjustment on account of totality. Once again, the question is whether the sentence of 22 years was manifestly excessive and should be reduced on totality principles. The judge's approach to this sentence was similar to that in Mr Speed's case, in that there was no express reference to the level of downwards or any adjustment made on account of totality. The sentence for the firearms offence in his case was, in accordance with the categorisation of offences being "at least" category B for culpability and category 2 for harm, one of 7 years. If that is the adjusted sentence, then it may be inferred that the unadjusted sentence would have been somewhat higher (possibly 8 years). That would take one above or near to the starting point for the next category (A1) which would not be justified in this case, particularly where there is no evidence that the firearm had been acquired.

In those circumstances and on the assumption that the judge was not minded to stray into the category A1 range, it would appear that in fact no or no significant adjustment was made to the firearm sentence on account of totality. As to the drugs offence, once again there was no express downwards adjustment on account of totality and given that the sentence of 15 years was near to the top of the range, it is difficult to discern what, if any, adjustment was in fact made. In our view, having regard to all the circumstances, a downwards adjustment of 1 year for each of counts 2, 3, 8 and 9 was warranted in order to reach a just and proportionate sentence that reflected the overall criminality involved. Accordingly, we quash the sentences of 7 years on counts 2 and 3 and of 15 years on counts 8 and 9 and substitute them with sentences of 6 years on counts 2 and 3 and 14 years on counts 8 and 9, making a total of 20 years' imprisonment. To that extent Mr Roseau's appeal is also allowed.

The judge took a similar approach to the sentence in Mr Salkeld's case, save that substantial reductions were made on account of his early guilty plea and there was an additional sentence for the Class B drugs offence. Once again, the sole question is whether the sentence of 15 years 4 months representing an overall notional sentence of 23 years before discount for plea was manifestly excessive. The judge's approach to this sentence was similar to that in the other cases, again with no express reference to the level of downwards or any adjustment made on account of totality. As in Mr Roseau's case, where the same sentence before reduction for plea was imposed, it would appear that no or no significant adjustment was made to the firearm sentence for totality. As to the drugs offence, once again there was no express downwards adjustment on account of totality; given that the sentence of 16 years was at the top of the range it is difficult to discern what, if any, adjustment was in fact made. In our view, having regard to all the circumstances a downwards adjustment of 1 year for the notional sentence before reduction for plea on each of counts 2, 5 and 6 is appropriate in order to reach a just and proportionate sentence that reflects the overall criminality involved. The notional sentences were 7 years for the firearms offences and 16 years for the drugs offences. An adjustment for totality would result in these notional sentences being reduced to 6 years and 15 years respectively, making 21 years in total, which when reduced for plea reduces the sentences to 4 years and 10 years respectively, making a total of 14 years. Accordingly, we quash the sentences of 4 years 8 months on count 2 and of 10 years 8 months on counts 5 and 6 and substitute them with sentences of 4 years on count 2 and 10 years on each of counts 5 and 6, making a total of 14 years' imprisonment. To that extent Mr Salkeld's appeal is also allowed.