R v Matthew Harrod [2024] EWCA Crim 819

[2024] EWCA Crim 819Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 June 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE CHOUDHURYMR JUSTICE BOURNE
Between
REXCrownMATTHEW HARRODDefendantREXMATTHEW HARROD
Mr J Martin appeared for Applicant.Mr J Thacker KC appeared for Crown.
Approved Judgment
[1]On 11 November 2020 in the Crown Court at Woolwich, before HHJ Nicholas Heathcote, the applicant, who was then aged 47, was convicted of counts 1, 3 and 4 which were offences of conspiracy to supply controlled drugs of Class A and B to another, contrary to section 1(1) of the Criminal Law Act 1977. He pleaded guilty to breaching a serious crime prevention order on 12 October 2020 prior to trial. On 10 December 2020, before the same court and constitution, he was sentenced as follows. On count 1, which was a conspiracy to supply a controlled drug of Class A (cocaine) to another, upon his conviction he was sentenced to 22 years’ imprisonment; on count 3, which was of a conspiracy to supply a controlled drug of Class B to another (amphetamine), on his conviction he was sentenced to 14 years’ imprisonment; on count 4, which was a conspiracy to supply a controlled drug of Class B (cannabis) to another, on his conviction he was sentenced to 14 years’ imprisonment and on count 5, the breach of serious crime prevention order, upon his plea of guilty he was sentenced to 2 years and 6 months’ imprisonment. All of those sentences were ordered to run concurrently.[2]He now applies for an extension of time of 1395 days for leave to appeal against his conviction following referral to the Full Court by McGowan J who granted a representation order for counsel only. He seeks leave, pursuant to section 23 of the Criminal Appeal Act 1968, to introduce fresh evidence from his solicitor, Mr Brian Swan, relating to the evidence of the attribution of the nickname or handle “Foxy” and other materials.[3]In relation to the application for the extension of time, there are two primary reasons which are put forward. Firstly, the discovery of what is said to be fresh evidence which was discovered after the relevant period had elapsed and an application based on that material could not have been made within the prescribed period of 28 days. Secondly, once the material had been considered there was a request by Mr Patrick Ince, who was at that time being tried before the Kingston Crown Court, to delay the application for fear it might compromise ongoing proceedings against him under the Proceeds of Crime Act 2002. Those proceedings finally concluded on 12 September 2024. In all the circumstances it is submitted that time should be extended in the interests of justice. The Facts[4]The case involved the supply of substantial quantities of cocaine, amphetamine and cannabis. The conspiracies to supply those drugs ran between July 2018 and January 2020. The organised criminal group involved at least 20 people and it was alleged that at the top was the applicant, Mr Harrod. Just below him were alleged to be his trusted lieutenants, Mr Clarke and Mr O’Brien. Mr O’Brien had started as a trusted courier and had worked his way up the hierarchy. Throughout the time that the conspiracies ran, the police intervened on a number of occasions and made arrests and seized drugs and money. However, the group’s operations continued virtually uninterrupted as new personnel were recruited to replace those arrested. In total, the police seized 31 kilograms of cocaine, 308 kilograms of amphetamine, 590 kilograms of cannabis resin and 3 kilograms of herbal cannabis, 30 cannabis plants and almost £900,000 in cash. The purity of the drugs seized was found to be at or near importation level. It was the Crown’s case that those figures accounted for only a fraction of the drugs and money involved.[5]A number of those involved in the conspiracies used EncroChat encrypted phones to communicate in an effort to thwart the police. It was therefore mainly the use of surveillance which enabled the police eventually to bring the conspiracies to an end. Police surveillance revealed that conspirators met at locations chosen specifically to make surveillance difficult. Those meetings were typically of short duration, with just enough time to give instructions and directions. The conspiracies came to an end with the arrest of the applicant and Messrs Clarke and O’Brien on 20 January 2020. They were all in possession of encrypted EncroChat phones. Two other accused, Mr Butler and Mr Hughes, were arrested in possession of a van which had a hide inside. The van had previously been in Mr O’Brien’s possession. The hide was identical to one in another van which had been seized from another co-accused earlier in the conspiracy.[6]Mr Clarke ran a business called Britannia Drainage Company. It was accepted that the business was set up initially as a legitimate company. However, accounts from the company showed “wages” were being paid to the applicant even when he was in custody. Effectively the company had been taken over as a front for the conspiracies. The prosecution case was that the applicant was the head of the organised criminal group, ably assisted by Messrs Clarke and O’Brien. The group traded in the supply of cocaine, amphetamine and cannabis. The amounts of drugs and cash we have indicated above.[7]The prosecution case was founded on a formidable body of circumstantial evidence. In summary, the evidence relied upon by the prosecution included first, meetings with co-conspirators which were recorded in a schedule of meetings prepared for sentence. The prosecution case was that the applicant, having a leading rolewithin this conspiracy, instructed and directed others both directly and indirectly. His managers were Mr Clarke and Mr O’Brien. Second, the location and timing of meetings. These were typically in the middle of large parks, on residential streets unconnected with the applicant, and with persons he met in cafes. The Crown asserted that the applicant was surveillance aware from his previous convictions. The timings of the meetings were typically short in duration. Third, telephone contact with co-conspirators and linked personalities and events. Fourth, the applicant’s possession of two encrypted telephones on arrest, for neither of which he provided the PINs or passwords. Fifth, the transfer of a box from the applicant’s vehicle by a Mr Preston on 25 September 2018 in Greenwich, which the Crown asserted was located at a drugs factory in North Weald on 21 February 2019. Mr Atwood and Mr Dan were observed to be hiding around the corner on 21 February 2019 when Mr Preston was arrested. Sixth, the applicant’s life-style without the means to pay for it. Seventh, the applicant’s deceit to probation and his breach of a serious crime prevention order. The applicant informed probation that he was employed by Britannia Drainage and that his role as a drainage contractor involved working Monday to Friday with Saturdays on a rota basis. However, the applicant was never observed to do a legitimate day’s work. He drove around in a Mercedes meeting co-conspirators in parks, in streets or cafes. Britannia Drainage as set up and incorporated by Mr Clarke was not a viable business. It had £100 on its balance sheet in June 2017 and was struck off in November 2018. The applicant breached his SCPO by being in possession of more than one telephone handset, more than one SIM card and being in possession of encrypted devices. Eighth, the applicant’s previous convictions showed a propensity of involvement in controlled drugs. On 22 March 2000, the applicant was convicted by a jury in the Crown Court at Southend of importing 400 kilos of cannabis resin concealed within machinery, committed between 1 January and 1 September 1998. On 12 February 2014, the applicant had pleaded guilty at the Crown Court in Kingston-upon-Thames to being knowingly concerned in April 2010 in the supply of cocaine. The applicant was involved in organising the arrangements concerning the transportation and eventual exchange of 2.8 kilograms of cocaine.[8]The applicant chose not to give evidence. There was no factual challenge to the surveillance or other circumstantial evidence though, as we shall set out, there were disputes about admissibility of which one is relevant to the proposed appeal. The main challenge to the prosecution case, on the facts, came in relation to the transfer of the box to which we have just referred. Otherwise the main challenge came in an attack on the integrity of the police and a suggestion that they were conscientiously or unconsciously biased. The judge directed the jury appropriately on that topic, as he did on the necessary legal directions that arose during the case. His summing-up of the facts and law were clear, concise and fair. With the one exception to which we refer below, there is no criticism of his handling of the case. The jury convicted the applicant after something over 3 hours’ deliberations. The shortness of the period taken by the jury to convict him may well be a reflection of the strength of the case against him. It is however not something that we should or will take into account.[9]There was one further strand of evidence to which we have not yet referred and which is the subject of these applications. It related to a series of phone calls on the afternoon of 14 January 2020, just 6 days before the applicant was arrested and the conspiracy came to an end. It related to the prosecution case that the word “Foxy” was a nickname for the applicant. To prove that the prosecution relied upon the following aspects. First of all, telephone data. On 14 January 2020 the applicant’s three phones,(i) a conventional mobile telephone,(ii) an iPhone fitted with a KPM Dutch SIM used in EncroChat enabled devices, and(iii) a VE Smart encrypted mobile phone commonly used with the EncroChat platform were all cell siting at a mast at BN3 5LE, a short distance from the applicant’s address in Hove.[10]Second, an analysis of the conversation thread between Mr Lee Taylor and “Foxy” showed that between 16.20 and 16.39 there was no contact between them, with the last contact from Lee Taylor stating:
“Just waiting for Wicker to get back to me to confirm.”
At 16.39 “Foxy” asked:
“Where is that PC [postcode]?” and Lee Taylor responded: “Think it’s Sydenham mate” with “Foxy” stating “Yeah, sounds it”
. The Crown invited the jury to infer between 4.20 and 4.39 pm, both Lee Taylor and “Foxy” had received a postcode in the Sydenham area from someone known as “Wicker”. At 4.36 there had been a brief telephone call from the applicant to Paul Clarke, a co-conspirator. The Crown invited the jury to infer that this was the applicant prompting Mr Clarke “AKA Wicker” to answer his EncroChat phone.[11]Third, the encrypted devices for the applicant, Mr Clarke and Mr Taylor were all active of the relevant times of the communication.[12]In support of this strand of evidence the prosecution relied upon evidence from the officer in the case in a witness statement made on 21 May 2020. He set out the messages passing between Lee Taylor and “Foxy”, cell site evidence concerning the applicant’s encrypted handset and other evidence that it is not necessary to detail here.[13]Before trial started, the defence took issue with various paragraphs of the draft opening including the section relating to 14 January calls. At a pre-trial hearing on 12 October 2020, before the trial judge, HHJ Heathcote KC, a week before trial, the applicant’s legal team raised a disclosure issue. It was stated in open court by them that they knew the answer because they represented a defendant in other proceedings, Mr Jamie Hanna, who had been attributed the nickname of “Fox”. The Crown submitted that they were entitled to know in writing what the applicant’s position was on the use of and attribution of the name “Fox” or “Foxy” and an addendum Defence Statement was required to trigger further disclosure. The judge agreed.[14]The case was opened on the basis that Lee Taylor was talking to someone who had the nickname “Foxy”. The jury were taken through the messages. Prosecuting counsel pointed out that before the gap between 16.20 and 16.39, Lee Taylor and “Foxy” were waiting for a postcode and that after the gap they clearly had one, since they discussed it being near Sydenham. The jury were invited to infer that the EncroChat user identified by Lee Taylor as “Foxy” was the applicant.[15]On 9 November 2020, during the trial, the parties were in discussion about possible agreed facts. The applicant sought a further agreed fact as follows:
“In April 2020 the NCA was provided with EncroChat data that had originated in the United Kingdom. As part of that overarching investigation 51,000 handles were noted. None of the EncroChat handles relate to this present case. In those 51,000 handles one had the nickname ‘Fox’. Police officers have attributed that nickname to a male called Jamie Hanna. Jamie Hanna denies that attribution and awaits trial in June 2021.”
The Crown refused to agree this proposed agreed fact due to relevance. The handle used by Jamie Hanna was “Mute Swamp”, his nickname was “Fox” and people referred to him as that on 12 occasions in the 3159 messages. He was not referred to as “Foxy”. The learned judge ruled that the fact sought was irrelevant as it was a different name. It is this ruling that is said by the applicant to have been wrong.[16]In due course both counsel referred to this strand of evidence in their closing speeches. The prosecution, as topic 10 of 12, repeated their case that the jury could infer that “Foxy” was Mr Harrod (the applicant). The defence argued that this was just speculation. The judge summarised both the prosecution and defence cases on this issue fully and fairly and recapped the respective positions again a few pages later. The current applications to adduce fresh evidence[17]The application is supported by a witness statement from Mr Swan who was the applicant’s solicitor at trial. There are two different categories of evidence. The first is a witness statement of DC Buckle dated 15 June 2020, produced for use in the trial of Jamie Hanna and others at Woolwich Crown Court. That statement is an “attribution statement” made on 15 June 2020, in which Mr Buckle attributed an EncroChat phone having a handle “Mute Swamp” and using the nickname “Fox” to someone called “Jamie Hanna”. The witness statement was, as we have said, prepared for the purposes of Mr Hanna’s trial at Woolwich Crown Court on serious drug charges. The conspiracy period in his case started after the conspiracy in the present proceedings had come to an end. The second category was two witness statements produced by Mr James Ellice dated 5 January 2021 and 3 February 2021 respectively, for use in the trial of Patrick Ince at Kingston Crown Court. By those two statements Mr Ellice (an officer of the NCA) attributes an EncroChat device having handle “Alan Wicker” to Patrick Ince, whose trial - also on serious drug charges - was progressing through Kingston Crown Court. Mr Ellice attributed an Encro handle “Wigley Calm” as being listed in other sets with nicknames of “XX” and “XXX” to someone called “Cavan Hanna”. The prosecution respondent’s notice resisted the admission of these two strands of evidence. The Crown submits the evidence from Mr Hanna’s trial is not fresh evidence.[18]While accepting that the statement of Mr Swan dated 26 September 2024 is new, the Crown’s position is that the evidence relied on, namely the statement of DC Paul Buckle in the case of Jamie Hanna is not fresh evidence. Mr Swan was instructed as solicitor in both cases. Mr Martin was also instructed in both cases. They had access to this statement prior to and during the trial of the applicant. According to the Crown Court Digital Case System Mr Swan first accessed the case of Jamie Hanna at 5.25 pm on 22 June 2020; Mr Martin first accessed the case of Jamie Hanna at 3.05 pm on 9 July 2020.[19]This information was in fact the basis upon which the proposed agreed fact had been advanced on 9 November 2020. Furthermore, the Crown relies on the difference between “Foxy” (which was the nickname shown in Lee Taylor’s device) and “Fox” (which is the nickname attributed to Jamie Hanna). The Crown also challenged the relevance of the evidence and disputes that it is capable of rendering the applicant’s conviction unsafe.[20]In relation to the strand of evidence from Mr Ince’s trial, the Crown drew the distinction between the nickname “Wicker” referred to on Lee Taylor’s machine and the EncroChat handle “Alanwicker” attributed to Patrick Ince. “Alanwicker’s” nicknames are said to be “Barney”, “Barney New”, “Rublingtons” and “Rubbleville” and not “Wicker”. Conversely Paul Clarke pleaded guilty to the conspiracies that are the subject of the present proceedings at his PTPH. He did not then or at any time dispute the attribution of the nickname “Wicker” to him that was asserted by the Crown as part of its case against him.[21]The Crown disputes that this evidence either singly or in combination with the evidence of “Fox” could render the applicant’s conviction unsafe. Finally, the Crown points to delay between Mr Swan and Mr Martin, who were engaged as solicitors and counsel in both Mr Hanna’s and Mr Ince’s trials, accessing the DCS system and the bringing of the current applications.[22]In the run-up to this appeal there has been a flurry of correspondence, as the applicant has sought further information that might serve to undermine the safety of his conviction. That correspondence is contained in letters from Messrs Stokoe dated 30 April 2025, the CPS reply on 3 June 2025, Messrs Stokoe’s letter wrongly dated 30 April 2025 but sent on or around 4 June 2025 and the CPS reply dated 25 June 2025. In the last 48 hours or so the Court has also been provided with two statements made by relevant police officers.[23]The net result of this correspondence taken with the proposed fresh evidence can be summarised as follows: i) Mr Taylor was in communication with someone given the nickname “Foxy” and referred to someone with the nickname “Wicker”. ii) Mr Jamie Hanna has been referred by the nickname “Fox” but not “Foxy”. iii) Mr Patrick Ince had an EncroChat phone with a handle “Alanwicker”. He had numerous nicknames but none of them has been identified as “Wicker”. iv) A phone ending 0445 made numerous calls to Lee Taylor between 5 March 2019 and 14 January 2020. This phone number was not attributed to the applicant either at the time of his trial or since. The position at trial was the subject of agreed facts 170 and 171, which made clear that not only was the number not attributable to anyone in the case, it had also not had contact with any other person listed in the contact schedule during the periods of data obtained. v) The subscriber to phone number 0445 has now been identified as having been the subscriber both during and since the conspiracy with which we are concerned but is not a person relevant to the present proceedings. The subscriber does not appear on the Police National Computer save in respect of a reference to the subscriber being either a victim of crime or a party involved in a non-crime domestic report, with the most recent report being in 2022. A check of the subscriber on police indices reveals no reference to “Foxy” or similar in relation to the subscriber. The prosecution maintains that the identity of the subscriber does not fall to be disclosed. vi) There is an apparent nickname listed as XXX on Lee Taylor’s machine. The Crown has identified that someone called “Cavan Hanna” used the nickname of “XX” and “XXXX” but not “XXX”.

Discussion and Resolution

[24]We have read the proposed fresh evidence de bene esse and have taken into account the additional information provided by the correspondence which we have summarised above. We have come to the clear conclusion that the additional information now available, if adduced, does not and cannot lead to a conclusion that the conviction in this case is unsafe. We start with the other evidence which we have summarised above. On any view it is a very powerful circumstantial case. Mr Martin tenaciously submitted that there had been just two strands of evidence that showed direct involvement on the part of the applicant in the workings of the conspiracy. The first which we shall refer to as the “box issue” was, he submits, undermined during the trial, leaving only 14 January calls as direct evidence of the applicant’s involvement. This, he said, heightened the importance of 14 January issue for the case. Had he managed to demolish the Crown’s case on that issue his client would have been in a better position to resist conviction. Put another way, if he can now demolish or undermine the Crown’s case on 14 January issue he submits that would have the effect of rendering the convictions unsafe.[25]We are unable to accept this submission. Dealing first with the 31-second call from number 0445, the position has not changed materially from the position as set out in agreed facts 170 and 171. It was not suggested by the Crown that 0445 had any connection with the applicant either in relation to the conspiracy or otherwise. That case is no better and no worse now that it is known the subscriber has been identified and that the subscriber is not the applicant.[26]Turning to the use of nicknames. “Fox” is evidently different from “Foxy”, and “XXX” is evidently different from either “XX” or “XXXX”. One can understand why the defence might wish to float the possibility that “Foxy” and “XXX” were in fact the Hanna brothers who were known as “Fox” and “XX”/“XXX”. But the difficulty with that speculation is there is nothing to suggest that the Hanna brothers had anything to do with the present conspiracy. In our judgment, it is completely unreal to suggest they were involved with the present conspiracy, presumably in a leading or at least significant role without any trace of their involvement having been revealed by the very extensive surveillance and other evidence to which we have referred.[27]That is sufficient to determine the outcome of these applications. We therefore only summarise the following points. First, with all respect to Mr Martin and recognising that the view of an appellate court will always be different from the view at trial, the materials we have seen do not bear out his submission that 14 January calls were of pivotal importance. Second, nor are we persuaded, essentially for the reasons set out above, that the information now available would have opened any materially different or more advantageous line of inquiry and cross-examination. Third, the evidence from Mr Swan about Mr Hanna’s attribution is not new evidence for the reasons identified by the Crown. Fourth, it is not in these circumstances necessary for us to address the difficult issue whether the request of Mr Patrick Ince, for whom Mr Swan and Mr Martin were now acting, that these applications should be delayed could be a reason for the delay that occurred. We only say that we are not convinced that it could. For these reasons we dismiss the application for leave to adduce the evidence identified by Mr Swan, we dismiss the application for leave to appeal and we dismiss the application for an extension of time.