R v Lee Howard

This judgment was originally made subject to reporting restrictions under section 4(2) of the Contempt of Court Act 1981. The retrial of the co-defendant has now taken place and we confirm that there are no longer any restrictions on publication.

On 13 May 2024, in the Crown Court at Snaresbrook, the appellant was convicted of one count of conspiracy to supply a Class A drug (cocaine). He appeals against his conviction by leave of the single judge.

In the early hours of the morning of 6 October 2023, a lorry driven by a Bulgarian named Aleksander Stoilov, who pleaded guilty to the conspiracy charge, arrived at a site in a rural area of Essex which is known as Broxted Barns. The lorry had travelled to the UK from Germany via Ireland. The trailer was then detached from the cab of the lorry, and the cab was backed into a grain barn with a sliding door which was located on the site. There is another larger barn on the site which has open sides. The barns and surrounding land were rented by the appellant, who lives nearby.

The police, who had been carrying out a surveillance operation in the vicinity from around 3pm the previous afternoon, saw the appellant guiding the lorry into the premises and closing the gate. He then directed the driver to position the tractor unit of the lorry in the barn after decoupling the trailer. Because the barn had grain in it, there was insufficient room for both the lorry and the trailer to fit inside.

The appellant's co-defendant, a man named Joe Alexanda, was present at the scene with the appellant when the police made their presence known. Alexanda had arrived at the scene around a minute before the police did, but he had been there sometime earlier that evening before driving off. The appellant, Alexanda and the driver Stoilov were all apprehended after a chase, in the course of which Alexanda was seen to discard a mobile phone.

Alexanda's explanation for his presence at the scene, some 50 miles away from his home in Gravesend, was that he had been sent there to pick someone up at the behest of a creditor who had threatened him. When the officers arrived, they were in plain clothes, and he panicked and ran away because he did not know who they were.

The discarded mobile phone was retrieved by the police. It had a SIM card in it with a number ending 2632. Alexanda did not supply the PIN to the phone. However, there was no evidence that this number had been in contact with the appellant or with anyone else who was alleged to have been involved in the drugs conspiracy.

A man named Micky Webster, who is named on the indictment as one of the conspirators, but who was not a co-defendant, had dropped off a quantity of tools and equipment at the barns in his tipper truck earlier that day at around 3 pm when the appellant was not present. He had no problems in accessing the site. Webster came back to the site in his truck in the early part of the evening and was seen conversing with the appellant, but they both then drove off. Webster was in regular contact with the appellant by mobile phone during the course of that evening.

The surveillance evidence showed that Alexanda first arrived at the barn area in a white Vauxhall van at 20:50 and remained there until the appellant arrived in a Land Rover at around 21:12. Alexanda stayed at the scene in his van, while the appellant went away, came back, dropped off a hose and something heavy from the boot in the larger open barn, and went away again.

When the appellant returned, in a different vehicle (a BMW car) at around 21:48, a man wearing a red T-shirt also arrived at the scene, and all three men then entered the grain barn. The appellant came out, retrieved the hose from the larger barn and went into the grain barn, accompanied by Alexanda carrying something heavy. The three men were then seen to be moving pallets between the two barns. All three were using their mobile phones and showing them to each other. The man in the T-shirt appeared to have a foreign accent. The appellant said that he was Bulgarian, and that he had to communicate with him via Google Translate.

At 22:16 Webster sent a WhatsApp message to the appellant, "How's it going mate all good." Shortly before that, Alexanda was overheard telling the man in the red T-shirt that he would drop him somewhere. At 22:19 the pair shook hands. The applicant left in his car, and Alexanda and the third man left together in Alexanda's van.

At 12:11 am the appellant drove his BMW back to the site, closely followed by an articulated lorry. He got out of the car, spoke to the driver of the lorry and directed him to park it outside the larger barn.

At 12:25 am Stoilov (the driver) was detaching the trailer from the cab of the lorry whilst the appellant slid open the door to the grain barn. Stoilov drove the cab into the barn and manoeuvred it so that it was parked inside facing the courtyard. The appellant then closed the barn door and the lights inside were switched off. He and Stoilov then waited outside for Alexanda to arrive. Around ten minutes later Alexanda arrived in his white Vauxhall van. The police made their presence known very shortly afterwards.

When the police entered the barn at around 12.43 am they saw that task lamps were focused on the fuel tank of the cab, with rubber hosing and the pump (which would presumably have been used to syphon off the fuel) laid out nearby. The lorry cab was taken away for forensic examination. X-rays revealed that there were packages concealed in the fuel tank, and when it was dismantled, it was found to contain 51 kgs of cocaine. It was of high purity and had a street value of between £4 million and £6 million.

Following the appellant's arrest, he provided an incorrect PIN number to his mobile phone. He supplied the correct PIN through his solicitors in January 2024. The police had already sent the handset to a laboratory to see if the phone could be unlocked without the PIN, but even after the correct PIN was supplied, the download of its contents was not provided to them until 11 April 2024. The trial had been fixed for 29 April.

Detective Constable Field reviewed the download on 17 April, and he provided a witness statement setting out the results of his review on the same day which was served and uploaded to the Digital Case System on 24 April 2024. The statement exhibited a number of messages retrieved from the interrogation of the appellant's phone. These included messages passing between the appellant and Webster, and messages between the appellant and two individuals calling themselves ‘Freddie’ and ‘Henry’ who plainly had organisational roles in the conspiracy.

Freddie introduced himself to the appellant on WhatsApp as "Mike's pal" at 19:48 on 5 October. At one point later that evening Freddie offered to pay the appellant an "extra monkey [ie £500] on the next one for all this messing about" and said he really appreciated his help.

The first phone contact between Henry and the appellant was at 20:56, six minutes after Alexanda's first visit to the site that night and around fifteen minutes before the appellant arrived there in his Land Rover. Henry used a phone number whose final digits were 7816. It was a pay-as-you-go mobile with no subscriber attribution.

In the period from 22:28 until the arrival of the lorry at around 12:11 am (which appears to have been much later than expected) there was a great deal of phone contact or attempted phone contact between Henry and the appellant, with Henry passing on information about the reasons for the delay, when the lorry might arrive, and ultimately telling the appellant to turn on his hazard lights to identify himself to the lorry driver when the lorry did arrive. At one point the appellant phoned the Henry number and spoke to Henry for some seven minutes.

Having identified the Henry number as significant, the police promptly applied to the network provider for the call records and subscriber details relating to that number. Following the provision of that material, Detective Sergeant Jopling provided a statement dated 23 April 2024 which was served on the following day. The contents of that statement are pertinent to this appeal and we will consider them later in this judgment.

The appellant made no comment in interview. His defence at trial was that he believed he was involved in the illegal importation of cigarettes and he was unaware that the lorry contained drugs. A person (whom he identified in evidence as Micky Webster) had offered him the opportunity to earn some money if he arranged for the grain barn to be used as a secluded location where a consignment of tobacco could be unloaded. He had agreed to do this and expected to be paid £1,000. His role was just to let the lorry in and shut the main gate. He did not know how many cigarettes there would be or where they were concealed. Webster had dropped off some tools earlier in the day but had forgotten a hose and pump and said he would get someone to drop them off, but that person could not find the barn and so at Webster's instigation the appellant drove to meet him in a local pub and took the hose and pump back to the barn. That account tallied with the surveillance evidence.

The appellant was convicted at trial, but the jury were unable to agree in respect of Alexanda and a retrial is due to take place in his case in June. That is why we made reporting restrictions under the Contempt of Court Act, as it was plainly in the interests of justice that we should avoid any danger that members of the jury might get to read this judgment before the retrial.

The appellant appeals on the ground that the evidence disclosed by the prosecution after his conviction demonstrated what is described in the written grounds and advice as a "gross failure to investigate the case properly before trial". Ms Penny on his behalf contends that had that material been made known to the appellant before trial, he could properly have deployed it in his defence.

The prosecution put the case in their closing speech on the basis that people who get involved in the drugs trade do not put drugs in the hands of people they do not know and trust. They would not have entrusted this high value quantity of cocaine to someone who was not in on the arrangement. The concealment and unloading of the lorry had been planned several days earlier; Webster was able to access the premises without any assistance; and there was no need for the appellant to be on the site simply to shut the gate behind the lorry. He was the only person present who had had telephone contact with Freddie and Henry as well as with Micky Webster. It could be inferred that he was there to assist in getting the drugs out of the fuel tank.

At the time of the trial the jury were told, as was the case, that the police had not been able to establish who Freddie and Henry were. Freddie's handset was in Portugal. Prior to the trial the police knew that Henry's handset became active on 19 July 2023 and connected most frequently to two cell sites which were close to Alexanda's home address in Gravesend. There was also data which showed that Henry's mobile, and Alexanda's mobile recovered at the scene, moved from the area of Brentwood to Gravesend at the same time on 30 September 2023.

There was no call data contact between those two mobile phones. However, there were four numbers which were in contact both with the Henry phone and the mobile phone ending 2632 which Alexanda discarded at the scene, as well as with another mobile attributed to Alexanda. All this information was available to the defence as soon as DS Jopling's witness statement was served. The officer could have been cross-examined on it.

Subsequent to the appellant's conviction, the prosecution uploaded further evidence on the Digital Case System which is capable of establishing, the prosecution says, that Alexanda was indeed Henry and that he had the Henry phone with him on the night of 5 October and in the early hours of 6 October 2023. This evidence comprises a statement from DC Field exhibiting further material dealing with the attribution of the Henry phone. It included cell site evidence, and evidence that the Henry phone was used to make and receive calls from a mobile phone number attributed to Alexanda's girlfriend.

Ms Penny argues that if proper disclosure, or rather, a proper investigation had taken place before trial, resulting in the earlier service of the evidence of DC Field, the jury would have known that Henry was at the location to supervise what was happening. There was a real possibility that if they had known this, they would have reached a different verdict. She complains that there was not a level playing field at the time of the trial because, although the police had been able to deploy the information downloaded from her client's phone, they were unable to do the same in relation to Alexanda. If they needed more time in which to obtain all the further evidence that would have shown that Alexanda and Henry were one and the same, the prosecution should have sought an adjournment of the trial in order to ensure that both the defendants were treated fairly.

There are numerous difficulties with those arguments. The first and major problem is that before the trial began, the prosecution had served the statement from DS Jopling. They decided not to rely on DS Jopling's assertion that he suspected Alexanda to be Henry, given the late stage at which the Henry number was identified. But all parties knew that, to the extent that the police had been able to investigate attribution, their enquiries at that stage pointed to Alexanda. Accordingly, there was nothing to stop defence counsel from deploying DS Jopling's evidence as part of her client's defence at the time of trial and submitting to the jury that Alexanda was Henry, if she thought that identification of Alexanda as Henry would be beneficial to the appellant.

There are, however, very good reasons why that may not have been regarded as an advisable course of action. If someone who was plainly one of the ringleaders in the conspiracy with whom the appellant had been in direct communication about the lorry, including a call which lasted over seven minutes, arrived at the scene after the cab was in the barn, that person had assisted the appellant earlier that evening in setting up the equipment in the barn for the tank to be syphoned, and the appellant and the lorry driver were waiting for that person to arrive for ten minutes before any steps were taken to get the packages out of the fuel tank, there was obviously an even greater likelihood that the jury would conclude that the appellant knew exactly what was going on. In truth, on any sensible view it would have suited the defence to maintain that the appellant had no idea who Henry was. That was the way that the defence was presented at trial.

Secondly, there is no substance in the criticism of the police investigation. In practical terms there was nothing the police could have done until the downloaded material came back from the laboratory. When it did, they acted with alacrity to ascertain what they could find out about attribution of the numbers that they had identified as significant. There was no failure of the duty of disclosure. All that was known about the users of the numbers was disclosed to the defence. The jury were not misled in any way. It was true that, at the time of trial, Henry could not be identified with any certainty, but the defence had just as much information as the prosecution did if they wanted to submit to the jury that Henry and Alexanda were one and the same person.

Next, the appellant's case, at least in the written submissions, appears to be based on a mistaken premise, namely that the prosecution had put their case on the basis that the appellant was left in sole control of what was happening at the barn. We have read the transcript of the closing speech as well as the written opening, and the prosecution case was not put on that basis. It was put on the basis that each of the three people who were with the lorry when the police arrived on the scene were knowingly involved in the arrangement to unload the cocaine.

Finally, and fatally, the identification of Alexanda as Henry does not give rise to any reason to doubt the safety of the appellant's conviction, nor the fairness of the trial. There was a plethora of evidence to support the prosecution's assertion that the appellant was knowingly involved in this conspiracy. The point that was made in the closing speech about drug dealers only involving trusted people was fair comment, irrespective of whether Henry was present at the scene or not. The appellant was in a position of trust because he was actively involved in removing whatever had been concealed from the lorry. There was no reason for the appellant to have been at the site at all if his involvement was as limited as he said it was. The gate was not locked and the barn was unlocked. He could have left them in that state and gone home long before Alexanda arrived. Stoilov (the driver) could have got out of the cab and closed the gate behind him.

Likewise, the appellant was not needed to direct the lorry cab into the barn or slide the door shut; although again, there was nothing to stop him going home after he had performed those functions if that was the limit of his involvement. The jury could properly infer from the fact that he ensured that the cab was concealed in the barn and the nature and positioning of the equipment inside the barn, that the appellant knew that the contraband was in the fuel tank. That is not where one would expect cigarettes to be concealed. In any event, once the hidden commodity was unloaded, it would have been obvious that it was drugs, if that was not already obvious from the location where the packages were concealed. Thus, as the prosecution pointed out, there was no reason for Henry or Freddie to lie to the appellant about what the commodity was when the arrangements were made with him for the use of the barn to offload the lorry.

For those reasons, we agree with the prosecution that there is no basis for doubting the safety of this conviction. The appeal is therefore dismissed.