R v Jonathan Nuttall [2026] EWCA Crim 1013

[2026] EWCA Crim 1013

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 17 July 2026

Between

R E XCrown

The Strand

London

WC2A 2LL

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

(HIS HONOUR JUDGE MAYO KC) [T20217337]

Case No 2023/03216/B1

2023/03529/B1 & 2023/03632/B1

B e f o r e:

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

(Lord Justice Edis)

MR JUSTICE BRYAN

THE RECORDER OF REDBRIDGE

(Her Honour Judge Rosa Dean)

(Sitting as a Judge of the Court of Appeal Criminal Division)

____________________

- v -

Between

JONATHAN NUTTALL

MICHAEL SODE

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

Mr G Carter-Stephenson KC and Mr M Ganesan appeared for Applicant Jonathan Nuttall

Mr M Field appeared for Applicant Michael Sode

Miss C Farrelly KC and Miss L Organ appeared for Crown

____________________

J U D G M E N T

[1]On 18 August 2023, following a lengthy trial in the Central Criminal Court before His Honour Judge Simon Mayo KC and a jury, the applicant Jonathan Nuttall was convicted by a majority of 10:2 of two counts of conspiracy to place an explosive article with intent, contrary to sections 1(1) and 51(1) of the Criminal Law Act 1977 (counts 1 and 3). The offences referred to bomb hoaxes, the maximum sentence for which, as a substantive offence, is seven years' imprisonment; and therefore the maximum sentence for conspiracy to commit the substantive offence is, likewise, seven years' imprisonment. He was also convicted of conspiracy to transfer criminal property, contrary to section 1(1) of the Criminal Law Act 1977 (count 4), and two offences of failure to provide PINs or passcodes in order to access electronic devices, contrary to section 53 of the Regulation of Investigatory Powers Act 2000 (counts 5 and 6).

[2]The applicant Mr Nuttall had stood trial alongside the second applicant Michael Sode. Michael Sode was convicted unanimously of the same two bomb hoax conspiracy counts (counts 1 and 3), the same conspiracy to transfer criminal property (count 4), and in his case one count of failure to comply with a notice, contrary to section 53(1) of the Regulation of Investigatory Powers Act 2000 (count 11) in respect of a PIN or passcode for his mobile phone.

[3]The trial had involved three defendants – the two with whom we are concerned, and a third, Michael Broddle, who was also convicted. Michael Broddle had pleaded guilty before the start of the trial to the two conspiracy counts of which the two applicants were later convicted by the jury. He also pleaded guilty to two counts of possession of an explosive substance, contrary to section 4(1) of the Explosive Substances Act 1883. He was part of the trial because he had pleaded not guilty to count 4 (conspiracy to transfer criminal property). He was convicted of that count and fell to be sentenced for it. That is the explanation for his presence in the trial which was, as we shall see, of some significance.

[4]Other counts against each of the co-defendants resulted in acquittals, of which it is unnecessary to set out any details. There were also other co-defendants – the sons of Michael Broddle – who were indicted of complicity with him in the offences alleged against him. They were all acquitted.

[5]Sentencing took place before the trial judge on 22 September 2023, when all three defendants who fell to be sentenced were dealt with. The first applicant, Mr Nuttall, was sentenced to concurrent terms of six years and eight months' imprisonment on each of the bomb hoax conspiracies (counts 1 and 3); to a consecutive term of 12 months' imprisonment for the conspiracy to transfer criminal property (count 4); and to concurrent terms of six months' imprisonment on each of count 5 and 6 (which related to different mobile phones). Those latter sentences were ordered to run consecutively to the sentences already imposed. His total sentence was therefore one of eight years and two months' imprisonment. Various other orders were made which are of no relevance to these present proceedings.

[6]Michael Sode was sentenced to concurrent terms of five years and six months' imprisonment on each of counts 1 and 2 (the bomb hoax conspiracies); to a consecutive term of nine months' imprisonment on count 4 (conspiracy to transfer criminal property); and to a further consecutive term of three months' imprisonment on count 11 (failure to comply with a notice to produce log-in or access details for his mobile phone). His total sentence therefore was one of six years and six months' imprisonment.

[7]Broddle was sentenced to concurrent terms of six years' imprisonment on each of the two bomb hoax counts; and to a consecutive term of 12 months' imprisonment on count 4 (conspiracy to transfer criminal property), no separate penalty was imposed on the other matters before the court in respect of him. His total sentence was therefore one of seven years' imprisonment.

[8]The applications of the applicant Mr Nuttall for leave to appeal against both conviction and sentence, and the application of the applicant Michael Sode for leave to appeal against sentence only, have been referred to the full court by the Registrar. Mr Sode does not seek to challenge the safety of his convictions.

[9]Michael Broddle has not appealed. There is no complaint advanced on his behalf in relation to the safety of his conviction. The safety of the convictions of Mr Broddle and Mr Sode is relevant to the safety of the conviction of Mr Nuttall for reasons which will become obvious shortly.

[10]We begin this judgment by observing that we are dealing with applications for leave to appeal. We shall deal with them at greater length than would normally be the case were they to be determined by a single judge dealing with the matter on the papers under section 31, but it is unnecessary for the purposes of dealing with applications for leave to appeal to deliver the kind of detailed and fully reasoned judgment which would be necessary had leave ever been granted. This judgment will therefore be somewhat shorter than might otherwise be the case. It will not involve any detailed analysis of any principles of law. Indeed, none of the grounds advanced in respect of either conviction or sentence involves any complicated legal submissions. The trial judge was required to make a number of legal rulings. The case was not entirely straightforward from a legal point of view, specifically in relation to count 4. However, the judge made a ruling, the correctness of which is now accepted by all parties, that the count alleging conspiracy to transfer criminal property was properly drawn in law, having regard to the facts as alleged by the prosecution. The issue in respect of the safety of the conviction on that count is in fact the same as it is on all the other counts, namely, whether it resulted from a fair trial and accurately reflected the evidence which was available for consideration by the jury.

[11]With that introduction, we now embark upon an explanation of the factual basis on which the trial proceeded and which resulted in the convictions.

[12]On the afternoon of 14 September 2021 two packages, designed to resemble explosive devices, were left in Gray's Inn. Gray's Inn is one of four Inns of Court where barristers and others have their professional premises. One of the devices was left at a very specific location, namely outside one of those sets of barristers' chambers, 3 Verulam Buildings. Two barristers are members of that set of chambers who were to feature in this case. Mr Andrew Sutcliffe KC and Miss Anne Jeavons, who is a junior barrister, are both members of those chambers.

[13]The two devices had been skilfully created by Michael Broddle the previous night, using materials which he had assembled, in order that they should give the appearance to whoever found them that they were in fact bombs which might explode at any minute. There was also a smoke cannister which was ignited so as to draw attention to them, so that they would make an impact on the occupants of 3 Verulam Buildings, but also on anybody else who happened to be around in Gray's Inn or trying to use the streets which surround Gray's Inn to go to and fro. Unsurprisingly, when such devices are identified, there is a major lockdown of the surrounding area while expert members of the police and other security forces attend in order to ensure that the public are safe. All of that took place. There was a substantial incident which caused the public alarm and substantial inconvenience to members of the public.

[14]That gave rise to an investigation, as might be expected, to identify who had left the devices. It revealed, as the pleas and unchallenged convictions illustrate, that they had been constructed and placed there by Michael Broddle. Michael Broddle was a close associate of Michael Sode. Michael Sode is the chauffeur of the applicant Mr Nuttall. There are therefore clearly established and undisputed links between Mr Broddle, through Mr Sode to Mr Nuttall. There was no link between Mr Nuttall and Mr Broddle. The allegation, therefore, was that Mr Sode was the middle man who communicated instructions from Mr Nuttall, who was alleged to be the architect and originator of the conspiracy and who also passed on payment. The payment was the subject of count 4.

[15]The investigation rapidly identified Michael Broddle. The operation was subsequently described by its victims in emails which they exchanged with each other and with an officer of the National Crime Agency as "inept" and "comical". There were certain features of it which amply justified those pejorative adjectives. There is CCTV in Gray's Inn. There is Automatic Number Plate Recognition all around London. There is also CCTV all around London. There are records which can be accessed to identify contact between cell phones. All of that work was quickly done by the Metropolitan Police Unit SO15. It led them quickly to Michael Broddle, as it inevitably would. Having identified him, it was quickly possible to identify the links between him and Michael Sode. There was contact by mobile phone at material times and material places between them.

[16]All of that resulted in the seizure and examination of materials, including electronic devices from Mr Broddle. This revealed that as from the previous February, he, with others, had been engaged in an exercise of close surveillance of the two victims (the barristers). He had discovered the names of other members of their families. He had discovered some detailed history of those families, including the fact that Mr Sutcliffe's brother had been died and had been buried. The location of his grave was known. The location of addresses associated with the families were also known. All of this was discovered when some notes prepared by Mr Broddle were found. They were designed to cause fear to the recipients for those families.

[17]Each family was to be subjected to threats of serious sexual violence. Allegations of sexual misconduct were made in these notes which were entirely false. They were made up by a criminal to intimidate and distress. Only one of these notes was ever actually delivered. It was left alongside the explosive devices in September. It was an entirely invented allegation of historic sexual misconduct by Mr Sutcliffe.

[18]That discovery had an important consequence. It made it clear that the victims of the conspiracy, which was established and accepted on behalf of Mr Broddle and which involved Mr Sode and Mr Broddle, were not only Mr Sutcliffe but also Miss Jeavons. That was an important fact in identifying who it may be who was the architect and originator of this set of events.

[19]The investigation quickly established that Mr Sutcliffe and Miss Jeavons had been instructed jointly as leading and junior counsel by the National Crime Agency in a lengthy and ongoing investigation which resulted in civil recovery proceedings against Mr Nuttall's wife. She was alleged to be in possession of a large number if assets which were in fact his. Those civil recovery proceedings were designed to recover those assets. These were acrimonious and difficult proceedings which were strongly contested and which, after the events to which we have referred, resulted in a compromise in 2024. At the material time, however, they were live and were being contested. Mr Sutcliffe and Miss Jeavons were acting in them on behalf of the National Crime Agency as counsel.

[20]Enquiries revealed that there were no other cases where both barristers had been instructed by the National Crime Agency which were current at the material time and which might credibly inspire any other person, other than Mr Nuttall, to attempt to carry out a campaign of intimidation and threat, and defamation against them. That resulted in the arrest and indictment of Mr Nuttall.

[21]It will be apparent from what we have said that many of the facts of this conspiracy were in truth common ground. Mr Nuttall's position at trial was that he had had nothing to do with it at all; that if Mr Sode (his chauffeur) was in fact the middle man, that was a coincidence; and that there must be some other person who had commissioned Mr Sode to commission Mr Broddle to cause all this to happen. His primary case had been that he did not accept that Mr Sode was involved either. But, as we shall see, that primary case was glossed or nuanced as the trial went on.

[22]There was of course a considerable amount of investigation into mobile phones and other electronic devices associated with Mr Nuttall. None of them established, as we have said, any contact between him and Mr Broddle. There was from beginning to end no evidence of direct contact between Mr Nuttall and Mr Broddle. The prosecution case was that that was all unnecessary and deliberately achieved because of the involvement of Michael Sode. That was in fact the point of him being involved at all.

[23]The prosecution case also included two other pieces of evidence to which we should briefly refer. First, four months after this, Mr Nuttall had written a very long and very passionate letter setting out in detail his feeling of having been inappropriately persecuted by the National Crime Agency. Some argument was addressed to us – and argument took place at trial also – about whether or not that feeling was justified. It really does not matter. The point is that that was evidence of strong antipathy by Mr Nuttall against the National Crime Agency and therefore presumably against those who were acting on behalf of the National Crime Agency. The terms of the letter supports that contention in relation to the two barristers in particular.

[24]Secondly, there was evidence of prison telephone conversations which were recorded after Michael Broddle had been arrested and remanded into custody. In those he said that he did not know a person who was referred to as "Andrew Nuttall". The applicant Mr Nuttall is in fact known as Jonathan Nuttall, although his middle name appears to be Andrew. The person described in the telephone conversation was referred to as Andrew Nuttall.

[25]There was, said the prosecution, evidence in those telephone conversations which supported its case as to the involvement of a middle man (Michael Sode) who dealt with Mr Broddle. Mr Broddle's case was that there was a middle man, although at trial he refused to name him.

[26]The trial was long and the evidence was detailed. We have been referred in the course of submissions to two detailed timelines which sought to set out all the observations retrieved by the police in the course of their investigation from the various sources of information upon which we have already touched. We have considered all of that in our assessment of the safety of the convictions of Mr Nuttall which are currently under attack.

[27]We turn to his proposed grounds of appeal against those convictions. He advances six grounds. Grounds 1 and 2 overlap. Ground 1 alleges that there were repeated material failures in the disclosure process carried out in the course of the investigation, prosecution and trial, which meant that the trial was unfair, both contrary to

article 6 of the European Convention on Human Rights

and inevitably, if such a complaint were made out, contrary also to the common law which requires trials to be fair.

[28]The complaints about disclosure are detailed. They involve a close analysis of passages of evidence which were essentially peripheral to the central thrust of the case. That does not mean that they were irrelevant, but they were peripheral. We will describe the disclosure challenges in outline only for the reason given at the start of this judgment. The document prepared on behalf of Mr Nutall by Mr Carter-Stephenson KC and Mr Ganesan setting out the proposed grounds of appeal runs to 37 pages and contains a large number of hyperlinks to other underlying materials. We do not think it is necessary to set that out in detail in order to explain the complaints which the document contains about disclosure. We have considered it and those complaints.

[29]In outline and summary, it appears to us that the main complaints about disclosure relate to the suggestion by the prosecution that there was only one National Crime Agency investigation which could inspire such an attack on the barristers in order to de-rail it. The suggestion is that the investigation was too narrowly focused and was conducted in this respect tardily, so that such information as it elicited was only disclosed late and that that caused forensic disadvantages in the conduct of Mr Nuttall's case. The forensic disadvantages complained of are that important cross-examinations by Mr Carter-Stephenson were conducted and completed in ignorance of some important facts which only emerged later. Although those important facts were placed before the jury so that the jury was aware of them at the time when they considered their verdicts, the form and substance of the cross-examinations, and perhaps their impact and effect, may have been different if counsel had been equipped at the time of cross-examination with all the material that he should have had.

[30]In addition to materials concerning other investigations into other people who may have an animus against the two barristers and the National Crime Agency, our attention was drawn to some emails, which we have touched on already, which passed between Mr Sutcliffe, Miss Jeavons and the National Crime Agency, and to meeting notes and other communications which indicated that the National Crime Agency may have had a more significant role in the investigation than it claimed to have had. The prosecution case was that the investigation so far as this trial was concerned was handled by the Metropolitan Police and not by the National Crime Agency. It is said that there was material, including a note of a meeting which was attended by the National Crime Agency with SO15, which suggested that that claim may not be entirely reliable. Indeed the suggestion made on behalf of Mr Nuttall is that the truth of the position was that the National Crime Agency, the Metropolitan Police and perhaps the Crown Prosecution Service as well were all engaged in a conspiracy of their own to manipulate these proceedings, to target Mr Nuttall, and to present therefore a case which was in material respects entirely false.

[31]The material, such as it was, that was capable of demonstrating all of that was eventually disclosed and deployed before the jury. Again, the same complaint about forensic disadvantage is advanced in that regard because of the timing issue.

[32]Our attention was also drawn to the search warrant application and certain faults in it which are said to have existed, and to other items of disclosure, including a search record relating to the place at which one of Mr Nuttall's mobile phones was found within his premises.

[33]All of these matters were, as we have said, ultimately disclosed and deployed before the jury to the extent that any party wanted to deploy them. The unfairness is said to arise from the timing of disclosure. It is also said that these failures in the disclosure process which were demonstrated by late disclosure of materials that ought to have been disclosed earlier undermines the confidence which the court can have in the fairness of the disclosure process more generally.

[34]The result of all of that was an application to stay the proceedings as an abuse of process, following an application under section 8 of the Criminal Procedure Investigations Act 1996 for disclosure, which was in the end substantially dealt with by agreement. The judge made such orders as were appropriate and refused to stay the proceedings as an abuse of process. Essentially, the complaint of unfairness is a complainant that he should have stayed them because it should have been clear to him then, as it should be clear to us now, that these proceedings were irredeemably unfair and should be stayed as a Horseferry Justices limb 1 abuse of process.

[35]Ground 2 is associated with ground 1. It complains that the prosecution failed to conduct reasonable lines of enquiry which, had they been carried out, would have resulted in further material being before the investigative team, which they would have then had an obligation to disclose under the 1996 Act. That is why it is associated with the first ground of complaint.

[36]Once again, the complaint in ground 2 focuses on the form of the investigation into other people who may have been motivated to behave in this way towards the two barristers. It is suggested that effectively this was a closed investigation which focused only on mounting a prosecution against Jonathan Nuttall, rather than investigating more broadly who else may have been responsible for Michael Broddle's activity.

[37]The answer to that on behalf of the prosecution is that, given that the attack, as demonstrated by the Broddle notes, was aimed not only at Mr Sutcliffe but also at Miss Jeavons, it was entirely reasonable to focus on those two targets together, and to focus on other activities in which they may have been professionally engaged together which might have inspired somebody to attack them in this way. That is why the investigation was limited, as it was. The judge considered submissions in relation to that and held that that was, given the circumstances disclosed by the evidence (which was perfectly clear in relation to Michael Broddle's activities) a reasonable limit to the reasonable lines of enquiry.

[38]By the time that the jury came to consider the case, it was clear to all concerned that the investigation had been limited and that no investigation had been carried out beyond those limits. It was therefore open to Mr Carter-Stephenson to address the jury, as he no doubt did, on the basis that, given the limits on their investigation, the prosecution were simply not able to show that Mr Nuttall was the only person in the world who might have a reason to behave in the way that the ultimate originator of this conspiracy undoubtedly did behave. That forensic point was therefore open to the defence.

[39]Ground 3 is also to some extent associated with the same area of the case. An application was made during the course of the proceedings to adduce bad character evidence under section 100 of the Criminal Justice Act 2003 in relation to a man named Benjamin Leigh-Hunt. Benjamin Leigh-Hunt is undoubtedly an associate and friend of Mr Broddle. There was telephone contact between them at significant times and at points when their mobile devices were in places which also may be significant. Mr Broddle, when he came to give evidence on his behalf in relation to count 4, said that although there was a middle man, and although there must have been an ultimate originator of the conspiracy, Mr Leigh-Hunt (his friend and associate) had nothing to do with it. That evidence was given by Mr Broddle but, like much of the rest of what he said, may well have been regarded by the jury as wholly unreliable and worthless.

[40]At all events, Mr Leigh-Hunt (the associate of Michael Broddle) was at the material time subject to a worldwide freezing order which had been granted by the High Court in London in relation to what was said by the applicant Mr Nuttall to be a substantial investment fraud to which he (Mr Leigh-Hunt) had been a party. Whether there is any truth in any of those allegations is not for this court to consider or to decide. We simply record the basis on which a bad character application was advanced before the trial judge.

[41]The bad character application was advanced on the basis that Mr Nuttall ought to have been allowed to adduce evidence about the worldwide freezing order and other matters in relation to Benjamin Leigh-Hunt which may have led the jury to think that he, rather than Mr Nuttall, had inspired the conspiracy. The matter was argued before the judge who gave a decision excluding the evidence to which it related. He said that if required he would give a more formal ruling at a later stage in the proceedings, perhaps after the retirement of the jury, but no one ever asked him to do so, and he never did. Nevertheless, he made his reasons perfectly clear. He held, applying section 100(1), that the evidence was inadmissible. Section 100(1) provides: "Non-defendant’s bad character (1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if — (a) it is important explanatory evidence, (b) it has substantial probative value in relation to a matter which — (i) is a matter in issue in the proceedings, and (ii) is of substantial importance in the context of the case as a whole, or (c) all parties to the proceedings agree to the evidence being admissible." ((c) did not arise.)

[42]The judge held that the evidence to which the application related was not important explanatory evidence. In that context he applied subsection (2) of section 100, which provides:

"(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if — (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial."

[43]The judge also held that, given that there was no evidence whatever that Benjamin Leigh-Hunt has any bone to pick with the two barristers who were the victims of the conspiracy in this case, it did not have substantial probative value in relation to a matter which was a matter in issue in the proceedings. The matter which was in issue in the proceedings was: who had inspired the conspiracy? Was it Mr Nuttall? Or might it have been Benjamin Leigh-Hunt? That was certainly a matter of substantial importance in the context of the case as a whole. But, the judge held, in the absence of any evidence that Mr Leigh-Hunt would wish to attack Mr Sutcliffe, or Miss Jeavons, or the National Crime Agency's investigation in any way, the bad character evidence did not have substantial probative value in relation to that important issue.

[44]The argument in ground 3 is simply that the judge was wrong in his application of section 100.

[45]Ground 4 contends that the summing up was unbalanced in the way that it dealt with the defence case. Again, the lengthy document prepared by Mr Carter-Stephenson and Mr Genesan sets out a large number of parts of the lengthy summing up to which our attention is drawn. We have considered all of them. We shall turn to parts of that later in this judgment when we come to deal with our decision.

[46]Ground 5 relates to count 4. As we have already recorded, it does not attack the legal basis on which count 4 was drafted and advanced. It relates to the evidence. The position was that payments of money were alleged to have been made to Mr Broddle at two stages of these events. First, payments were made before his arrest. These were alleged to be payment for services rendered in carrying out the conspiracy. Mr Broddle appears to have created these offensive and defamatory notes, which were designed to intimidate his victims, in order perhaps to demonstrate to his employers that he was carrying out the conspiracy, when he was not in fact doing so. That may be the explanation of the creation (but non-use) of some of these notes. As we have said, only the last one was actually deployed.

[47]At all events, it is clear that between February and September 2021 Mr Broddle was in fact active in attempting to further the conspiracy to which he later pleaded guilty. Therefore payment for services rendered might be expected to be made during that period.

[48]After his arrest, Mr Broddle was perhaps less able to pursue the conspiracy; but he was able, so the prosecution said, seriously to damage the interests of other conspirators had he chosen to tell the police what they say was the truth. Therefore, payments made after that point were described as "hush money" – a reward for remaining silent. Obviously, making a payment with such an intention would be an act tending and intended to pervert the course of justice, which would be in itself criminal conduct.

[49]The attack here is on the way in which the indictment was particularised and on the absence of evidence of the points at which, and the reasons for which, these payments were made. It is said that the evidential situation and the way in which the count was drafted left the jury to speculate and to guess as to which transactions had actually taken place, and why they had taken place.

[50]It is perhaps worth mentioning at this point a submission that Mr Carter-Stephenson makes about the fairness of the summing up relating to the second timeline. It is submitted that the second timeline establishes that during a period when payments were allegedly being made, Mr Nuttal could not have made them. Reference is made to various messages in which Mr Sode says that he has no money, when he has just seen Mr Nuttall and might be expected to have some if Mr Nuttall was in fact the source of the money. That is the line of arguments based on timeline 2. We mention it here because it has relevance to the attack on count 4, but also because it is one of the points made by Mr Carter-Stephenson in relation to the fairness of the summing up which, he says, did not adequately deal with timeline 2.

[51]Ground 6 contends that the verdicts are unsafe because they were arrived at after lengthy deliberations which had been interrupted in various ways and for various reasons, so that time had passed during deliberations which resulted effectively in the creation of a deadline so that the jury was under pressure to return verdicts on 18 August; and given that the convictions of Mr Nuttall were by a majority of 10:2, it is submitted that the court should pay particular heed to any risk that anyone may have been prevailed upon to change their mind by any factor other than a proper consideration of the evidence and arguments that they had heard.

[52]To summarise the underlying facts on which that contention rests, we will briefly identify the points at issue. The judge summed up the case on 1, 2 and 3 August 2023. It had been a long trial. The summing up is not too long; nor is it criticised for being too long. Indeed, Mr Carter-Stephenson's attack on it relates to omissions from it.

[53]The jury were in retirement on 3 and 4 August, but did not sit during the following week. The judge had heard argument which turned on various commitments that members of the jury had during that week and he decided that the best thing to do was to resume on 14 August, after a break of one week. 14 August was a Monday, and 18 August was a Friday. The jury spent most of that week – not all of it, but most of it – deliberating prior to delivering verdicts on the Friday.

[54]During the course of their deliberations the jury had sent out a number of notes. A lot of the notes sought assistance with the law or with the facts of the case; some of them, however, sought assistance with practical arrangements which affected their ability to continue to serve. This was a trial which had long overrun. When the jury was empanelled, their availability was evaluated against a time estimate which turned out to be lamentably inaccurate. When that happens (as it frequently does), the situation always arises when the jury is in retirement that they may have other commitments which they would have disclosed had the time estimate been accurate and which may have led them not to serve on the jury at all. Those commitments have, of course, to be respected by the court. That is what happened during the course of the retirement of this jury.

[55]It transpired that four members of the jury were troubled about the attitude of their employers in relation to their continued and prolonged jury service. They sent messages asking for letters to be written by the court to those employers in order to explain why they were not at work. The court complied with those requests and wrote those letters. Thereafter, there was no further indication from any of those jurors that they felt under any particular pressure.

[56]During the week following the returning of the verdicts, there were other commitments, including medical appointments and the like which would have further interrupted the deliberations, had they gone into that week. Mr Carter-Stephenson submits that the combination of those circumstances is such that the court should conclude that there is a real danger that the jury was under pressure on Friday 18 August to reach verdicts.

[57]We should record finally, before leaving the circumstances giving rise to ground 6, the fact that the judge had given a majority direction as a result of a jury note rather earlier than he had originally intended to do, and not all that long before the verdicts were returned.

Discussion and Decision

[58]We turn to our evaluation of the complaints which we have attempted to summarise.

[59]So far as grounds 1 and 2 are concerned, we consider that they are clearly unarguable. There is no proper basis for finding that the verdicts are unsafe by reason of an unfair trial arising either out of the scope of the investigation or the disclosure of the product of that investigation. As we said when dealing with the facts, the scope of the investigation was made clear to all parties, eventually, and was defined by reference to the undoubted facts of the case, which were that the conspiracy was targeted against Mr Sutcliffe and Miss Jeavons acting together as a team. It was therefore entirely reasonable for the investigation to consider other cases where that was also true, to see whether they might have excited any such hostility, and entirely reasonable to exclude any other cases which did not have that feature. That is what took place, and we do not accept that there is any proper criticism that could be made of it.

[60]So far as non-disclosure is concerned, as we have recorded in dealing with the grounds, eventually disclosure was given of all the matters of which complaint is made. The forensic disadvantages which are drawn to our attention are no doubt genuinely felt, but they are matters, in our judgment, of very limited weight in a case of this kind. This was a long trial in which the jury was required to consider very detailed evidence. It is very often the case in such trials that things take place which require areas of evidence to be re-visited so that matters of fact can be corrected and the trial can thereafter proceed on a proper basis. No doubt that might be less satisfactory so far as counsel is concerned than having the ammunition at the point when it might most usefully be fired in order to create impact. It is, however, a perfectly fair process and one which does not call into question the safety of any verdicts.

[61]So far as the bad character of Benjamin Leigh-Hunt is concerned, we have been entirely unable to identify any error in the judge's approach to section 100 of the Criminal Justice Act 2003. First of all, this clearly was not important explanatory evidence. There is no other part of the case which the jury would find impossible or difficult properly to understand without it. The prosecution case and the defence cases here were perfectly comprehensible in their entirety, without knowing about Mr Leigh-Hunt's worldwide freezing order and other material allegedly to his discredit.

[62]The question therefore for evaluation was whether this other material had substantial probative value in relation to the important issue of the proceedings that we have identified. The judge decided that it was not for the reason that he gave. He was, in our judgment, plainly right so to decide. This court would in any event hesitate to interfere with such an evaluation by a trial judge who was at the time when he made it steeped in the detail and evidence of the case and fully aware of the dynamics of the trial. We are, anyway, entirely persuaded that the judge was in fact right. The reason is simple. In the absence of any evidence of any hostility on the part of Benjamin Leigh-Hunt towards the two barristers, the evidence about his worldwide freezing order was irrelevant. There is no evidence that Mr Sutcliffe or Miss Jeavons, either together or separately, had anything to do with that worldwide freezing order, or that attacking them would in any way advantage Mr Leigh-Hunt's position in those civil proceedings. Accordingly, the evidence was properly excluded. It would have been a distraction and of no assistance to the jury.

[63]So far as the summing up is concerned, again the criticisms are detailed and are properly set out. The summing up was, as we have said, lengthy, but not overly so. This was a case which required a detailed summing up. It began, as all summings up always do, with the direction to the jury that the factual summary which the judge was about to deliver would be just that, namely a summary. It would therefore not include every piece of evidence that had been given. The jury were told, as they always are, that if they think a piece of evidence that they heard, which the judge did not mention, was important, then they should treat it as important, because it is their evaluation of importance that matters and not that of the judge. That direction was clearly given and no doubt properly understood.

[64]The criticisms of the summing up that are advanced can perhaps be illustrated by reference to two particular matters. It was obvious in this case that Mr Nuttall was in an exquisitely difficult forensic position. Mr Sode gave evidence in his own defence, and Mr Broddle also gave evidence in his defence because, unfortunately for Mr Nuttall, he had not pleaded guilty to count 4 and was therefore a participant in the trial. Their evidence was, in our judgment, incapable of belief. Mr Nuttall therefore had to have a position in relation to what they said. Did he propose to rely on it? Or would he accept, in order to maintain some credibility before the jury, that they were plainly guilty as charged?

[65]One part of the summing up to which our attention was drawn in support of this ground of appeal occurred in the first day's summary, where

the judge said this:

"Now you will remember that rather a lot of time was then taken up asking questions about other cases in which Mr Sutcliffe and Miss Jeavons were involved. The purpose of that, I think, was to investigate whether anybody connected with those other cases might be behind these events, rather than Mr Nuttall. But you may think that as the trial progressed, the focus has sharpened somewhat and although Mr Carter-Stephenson still invites you to consider whether any of those others might be behind this, perhaps the issues have narrowed to some extent at least, and let me illustrate it in this way. You will remember that by the time Mr Sode was being asked questions on behalf of Jonathan Nuttall, there appeared to be an acceptance on behalf of Jonathan Nuttall that Michael Sode was in fact the middleman, passing on the instructions to Michael Broddle to carry out the actions he did between February and September – or at least that the evidence very strongly pointed in that direction – and so you will remember that the thrust of questions by Mr Carter-Stephenson appears to have been a suggestion that Mr Sode was clearly an opportunist who had seized upon a plan to ingratiate himself with Mr Nuttall and perhaps in the process made some money for himself. So it was that Mr Carter-Stephenson asked Mr Michael Sode whether he had, without Mr Nuttall's knowledge, decided to instruct Michael Broddle to intimidate Mr Sutcliffe and Miss Jeavons as a means of bringing the civil proceedings to an end, or at least to cause disruption to the National Crime Agency's efforts by forcing on them a change of their instructed barristers."

[66]Mr Carter-Stephenson criticises the summing up for the frequency with which that part of his cross-examination of Mr Sode is referred to in it by the judge. He told us that it was mentioned on no fewer than five occasions during the summing up. He submits that that gave that passage of the cross-examination and submissions made on behalf of Mr Nuttall undue prominence. The underlying thrust of this criticism is that the impact of those repeated references was to undermine the case which was advanced by Mr Nuttall by focusing on what may perhaps have been regarded at its weakest point.

[67]As the court observed in argument, it is unusual to find counsel on behalf of applicants seeking to complain about the emphasis which a trial judge has placed on points which they themselves have made in cross-examination and in submissions. If they do not want them to be emphasised, perhaps they should not make them in the first place.

[68]Another criticism of what occurred in this case, which extends to the summing up, is the way in which Mr Nuttall's previous conviction was dealt with. He had a previous conviction which was at one stage thought to be for a serious offence of dishonesty involving VAT, but which on examination was found to be offending of a technical nature and which resulted in a conditional discharge. An error was made because the Police National Computer printout was wrong. Mr Nuttall contends that in a certain respect it still is wrong, which adds to his feeling of having been unjustly treated by the system. However, the error which appeared was identified during the course of the trial and was corrected in the course of the trial by agreed facts. The judge reminded the jury about all of that. Accordingly, any difficulty which might have been unfairly caused to Mr Nuttall was resolved.

[69]The next passage of the summing up to which we turn concerns submissions made by Mr Carter-Stephenson about the way in which the judge treated the evidence of Mr Broddle. This passage should perhaps be associated with a reminder of the way in which Mr Carter-Stephenson had cross-examined Mr Sode. Mr Sode, as the judge said on the second day of the summing up, had "agreed with the phrase used by Mr Carter-Stephenson, namely that his defence statement contained a mixture of truths, half-truths and lies". That perhaps gives a flavour of the way in which the defence cases sat aside each other during the course of the trial.

[70]When he came on to deal with the co-defendant, Michael Broddle, the judge was required to sum up his evidence and his case in a way that was fair to him and also in a way that was fair to Mr Nuttall. That inevitably meant that some of the evidence of which the judge reminded the jury was evidence which Mr Nuttall would prefer never to have been given. But it does not lie in his mouth to complain about the judge's accurate summary of it.

[71]It begins for our purposes with some evidence that Mr Broddle gave about a report which he had prepared during the course of his activities in the conspiracy about what he had been up to. The document contained a number of falsehoods. We have already indicated that it is at least possible that for a time he was pretending to perform the conspiracy, when actually shrinking from so doing. Be that as it may, there was some cross-examination about that report, in relation to which

the judge said this:

"He [Mr Broddle] agreed with Mr Carter-Stephenson that he wrote those things in that report because that is what the client wanted him to do. He agreed that it was clear therefore that the client had a grievance or grudge against Mr Sutcliffe. He repeatedly refused to say who had instructed him to do those things."

[72]The judge then summed up what Mr Broddle had said over what was obviously quite a long period in the witness box. The passage of the summing up to which our attention was particularly drawn relates to the way in which the judge dealt with the prison conversations. Mr Broddle was asked about the reference in one of those conversations to a person called Andrew Nuttall. The judge said this:

"Then the reference to Andrew Nuttall. This is what he said at first. He said, 'I don't know why I named Andrew Nuttall. I was under a lot of pressure and I was talking a lot of nonsense. I don't even recall saying this', he said. 'I don't know why I said it. I was just, I was just in a bit of a spin. I told Josh that I'd met Andrew Nuttall. I don't know why I said that. I wanted to give Josh a name – any name – and so I gave him that name that I got from the paperwork. I got that wrong. I did not need to tell Josh that I had met anyone. I was just trying to play the big man. This is not me telling the true story of what happened. A lot of this is just me babbling on. A lot of this does not make any sense to me.' He said that so far as Ben Leigh-Hunt was concerned, he was certainly not behind all of this. Ben Leigh-Hunt was nothing to do with the NCA, Andrew Sutcliffe or Anne Jeavons, he said."

[73]This part of the evidence contains other statements, of which the judge reminded the jury, to a similar effect. There is no criticism of the accuracy of that summary, except the assertion that, taken together, it involved pouring scorn on the evidence of Mr Broddle.

[74]We reject that submission. There is no evidence whatever that the judge poured scorn on Mr Broddle's evidence. Nor is Mr Broddle here to say that his conviction was unsafe because his trial was unfair because the judge poured scorn on his evidence. He makes no complaint at all about the summing up.

[75]Mr Carter-Stephenson then says that after that passage, the effect of which was to remind the jury of some very weak and unpersuasive evidence given by Mr Broddle, the judge then immediately moved to give a Lucas direction in relation to lies which Mr Broddle had told in his prepared statement and in a Basis of Plea which he had filed with the court when he pleaded guilty to those conspiracies to which he did plead guilty. The judge was required to give a Lucas direction in circumstances where there were clear lies told by Mr Broddle in these earlier documents. There is no criticism of the form of the Lucas direction which was given. The criticism is of the point in the summing up at which it was given. It is said that its propinquity with the summary of the evidence that Mr Broddle had given about the prison telephone calls was such that the overall effect is to undermine very substantially the evidence of Mr Broddle.

[76]We have already referred to a passage in the summing up which reminded the jury about the way in which Mr Carter-Stephenson had cross-examined Mr Broddle and the forensically difficult position in which Mr Nuttall found himself in dealing with the two co-defendants. In our judgment, there is simply nothing in these complaints about the way in which Mr Broddle's evidence was dealt with. The summing up was entirely fair. It is impossible to conceal in a fair summing up, if it is the case, that a defendant has given evidence in terms which are wholly unpersuasive and unlikely to be true. As long as the summing up is fair and free of comment, if it is an accurate summary of such unpersuasive and incredible evidence, then it is not objectionable. On the contrary, the judge was doing his job.

[77]Next, we come to the complaint in ground 5 which relates to count 4, the transfer of criminal property. This is, as we have explained, a complaint about sufficiency of evidence and the clarity with which the issue was placed before the jury, rather than any legal attack on the form of the allegation.

[78]In our judgment, that submission is unfounded. There was clear evidence of money being paid to Mr Broddle through Mr Sode. Indeed, those were overt acts by those two in furtherance of the conspiracy to which Mr Broddle had actually pleaded guilty and of which Mr Sode now rightly accepts he was properly convicted. That money was paid for a criminal purpose and at the point when it was received by Mr Broddle, whether it was in payment for services received or "hush money" in anticipation of further services, namely silence, it became criminal property at the moment when it was his benefit from criminal conduct. That is, in our judgment, a perfectly clear and legally sound allegation which resulted in a conviction which is entirely safe.

[79]Finally, we turn to ground 6, the jury deliberations. Nothing at all unusual occurred at any stage during and following the retirement of the jury and during the time when they were deliberating upon their verdicts. The kind of difficulties involving employers, medical appointments and the like, which had to be addressed, are absolutely routine in any long trial which has overrun its original estimated length. There is no reason to suppose that the letters to the four employers did not achieve their aim. This was a jury which was capable of, and in the habit of, sending out notes very frequently about any matter, grave or slight. No juror sent a note saying: "I really can't carry on beyond Friday because otherwise I will lose my job" – or anything of that sort. They all knew that they were perfectly free to communicate with the court about any matters of that kind. It may be that they were aware that the week of 21 August, if it had been necessary, would have been further interrupted, thus extending the time of their jury service still further. Again, that is a perfectly routine event.

[80]There is no reason, other than pure speculation, why the court should consider that there is any arguable danger that these verdicts were returned for any improper purpose as a result of any such pressure. It is unfortunate that juries are sometimes interrupted, sometimes for long periods, during their retirement when considering verdicts in long cases. It is, however, not unusual and there is nothing necessarily unsafe about it. In this case, in our judgment ground 6 wholly lacks substance.

[81]We therefore refuse leave to appeal in relation to all six of Mr Nuttall's proposed grounds of appeal against conviction.

[82]We turn to the applications for leave to appeal against sentence. We are grateful for the way in which the applications in relation to sentence have been argued both by Mr Carter-Stephenson and Mr Ganesan on behalf of Mr Nuttall, and by Mr Field on behalf of Michael Sode. The points have been very properly and succinctly set out.

[83]They begin in both cases with a criticism of the judge's assessment of the seriousness of the offending. The judge was clearly influenced by findings that he made and expressed in his sentencing remarks that the conspiracy in counts 1 and 3 of the trial indictment was a concerted and determined attack on the system and administration of justice. It was designed to inhibit the National Crime Agency from being able to pursue its civil recovery proceedings in the way that it saw fit. The judge made that finding on the basis of the evidence which had been adduced during the trial. It is true that there was no count on the indictment alleging a conspiracy to do acts tending and intended to pervert the course of justice, which might perfectly well have appeared there. Had there been convictions for such an offence, of course the maximum sentence would not have been as low as seven years' imprisonment. Given the choice of the counts which were on the indictment, the judge was constrained in relation to the two conspiracy counts (counts 1 and 3) by that maximum sentence. He concluded that in view of the seriousness of the offending, for all the reasons which we have described, a sentence close to that maximum was required in the cases of Mr Nuttall and Mr Broddle – Mr Nuttall because he was the architect, originator and funder of the entire conspiracy; and Mr Broddle because he was the person who made the hoax bombs and placed them, and the person who prepared the horrible threats and carried out the very intrusive surveillance of the families of two members of the legal profession who were simply attempting to do their job.

[84]The judge took a more lenient view of the involvement of Mr Sode, both because it was more limited in its extent, but also because of matters of personal mitigation which arose out of his state of health and the way in which any sentence of imprisonment would impact upon him.

[85]We consider that there is no merit in the attack on the judge's assessment of the seriousness of this offending. The judge was entitled to reach a finding that he was sure that the purpose of the conspiracy was to undermine the system of justice. It was therefore serious as an attack on the two victims; but it was made even more serious by the fact that it was an attack on the system of justice itself.

[86]There were also aggravating features in relation to the seriousness of that offending in terms of the harm that was caused to the public, the disruption and so on. But, in our judgment, the judge was right to focus on the intended harm which was targeted at the two human victims – the barristers – and at the system of justice which they were attempting to serve.

[87]This was as serious an offence of planting hoax devices as could be imagined because of that motive. The judge was therefore right to say that he should start from a sentencing point of view at the maximum sentence. He did not in fact impose a sentence at that level, but made some modest discounts in relation to the two offenders who he regarded as the principal offenders in this conspiracy for sentencing purposes, namely Mr Nuttall and Mr Broddle. That was an appropriate course of action to take.

[88]Consecutive terms of imprisonment for count 4 were obviously appropriate, and the length of those terms cannot sensibly be attacked.

[89]Consecutive terms of imprisonment for the offences of failure to divulge PINs and passcodes were required in a case of this kind, and the length of those sentences also cannot sensibly be attacked.

[90]So far as totality is concerned, the judge did step back and assess the overall sentences that he had in mind to see whether they were proportionate to the totality of the offending with which he had to deal. That was a step that he was required to take, and he did.

[91]In the end, he imposed on Mr Nuttall a sentence of eight years and two months' imprisonment which, in our judgment, was not one day too long.

[92]The same applies to Mr Sode. He complains that some of his mitigation, in particular in relation to his health, was not given sufficient weight. That is a complaint which is without substance, in our judgment. It was a matter for the judge to decide how to weigh it. He was required to take it into account and he did. He made a reduction in the way that we have already described. In his case also, in our judgment, the sentence was richly merited for his part in this disgraceful criminal conduct.

[93]Accordingly, the applications for leave to appeal against sentence are refused. ______________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________