When is a conspiracy not a conspiracy?

June 2, 2020

A discussion of R v Johnson (Ryan) [2020] EWCA Crim 482.

By Stella Hayden

The Court of Appeal considered the scope of criminal conspiracy in the recent case of R v Johnson (Ryan) & Others [2020] EWCA Crim 482.

The five Appellants arrested as part of an investigation into the supply of cocaine. Pre-trial the police were approached by the individual at the centre of the conspiracy, W. In the course of SOCPA interviews, W gave detailed information about those involved in his drug dealing network. At trial he gave evidence for the prosecution. All five Appellants were convicted.

The conspiracy concerned the wholesale supply of cocaine to downstream “customers” who, in turn, supplied end-users. The existence of a conspiracy was established by the guilty pleas of a number of the conspirators. The Appellants submitted that the Judge ought to have acceded to a submission of no case to answer at the conclusion of the Prosecution case.

The Law of Conspiracy

Before addressing the appeals in turn, the Court gave an overview of the applicable principles regarding charging conspiracies. The essence of a conspiracy is that there must be an agreement to which the Defendant was a party and that each Defendant charged with the offence must be proved to have shared a common purpose and design. Similar or parallel purposes and designs, such as a general intention to supply cocaine would not be sufficient (see Shillam [2013] EWCA Crim 160). That said, it would be possible for the evidence to show the existence of a conspiracy narrower in scope and involving fewer people than the prosecution originally alleged. The Court affirmed the principle first established in Shillam, that it was not intrinsically wrong for the jury to return guilty verdicts in such circumstances.

Central to both “chain” and “wheel” conspiracies is the requirement that there be a common design and the Defendant be aware of that design.  There may be an umbrella conspiracy within which the parties enter into further agreements. These further agreements may even be with individuals who are not themselves party to the umbrella agreement. For example, A and B might enter into an umbrella agreement pursuant to which they enter into a further agreement between A, B and C, and a further agreement between A, B and D and so on. In such circumstances C and D would not be conspiring together (Shillam).

The Court approved the Trial Judge’s reference to Griffiths [1965] 3 W.L.R. 405 the case which established the well-known principle that all parties to a conspiracy must join in the same agreement, though conspirators may join and leave said conspiracy at different times. It is possible for a person to be guilty of conspiracy even where he did not know the full extent of the scheme, but he must be cognisant that there was a scheme which went beyond the illegal act to which he had agreed. Conversely, where the facts established that there was one or more persons at the centre of the unlawful activity and such persons dealt with other individuals who did not know each other, and each was ignorant of the fact that the activities went beyond his own dealings, it would not amount to a single conspiracy.

The Court also endorsed the Trial Judge’s reference to the case of Greenfield (1973) 57 Cr.App.R 849, which held that where there was evidence upon which a reasonably-minded jury could convict an accused of the conspiracy charged, despite evidence of the existence of a different conspiracy, then the judge should let the case go to the jury.

The Appellants’ Cases

The Court’s application of these principles to the Appellants’ individual cases provides useful practical guidance. All but one conviction was upheld. In evaluating whether there was evidence capable of satisfying a jury that the Appellant was party to the conspiracy, the Court had regard to factors such as the extent of contact with the members of the conspiracy. In one instance, the Court attached weight to the fact that an Appellant had been in contact with other members of the enterprise when the principal, Winch, was unavailable. In another instance the Court attached weight to the fact that , drugs were supplied to the Appellant by one member of the team and collected by another. Similarly, an awareness of the scale of the operation, the movement of cash within the chain and the existence of various levels within the operation were also deemed to be significant.

The Court allowed the appeal in the case of C. The evidence was that the principal, W, supplied C with quantities between 4 ½ and 9 ounces of cocaine; amounts clearly consistent with C obtaining drugs for onward supply. Though the Court concluded that the evidence was capable of establishing an agreement to supply cocaine between C and W, it took the view that the evidence was not sufficient to establish PC’s involvement in the wider conspiracy. The Court noted the absence of features which had led them to conclude other Defendants were party to the wider conspiracy (e.g. contact with other co-conspirators, an awareness of the scale of the operation).

Commentary

The case highlights the need to evaluate carefully the ambit of the conspiracy the evidence is capable of establishing. By way of example, in the case of drugs conspiracies, particular caution is needed in respect of “standalone” Defendants, who simply receive drugs as customers of the conspiracy without further involvement or awareness of conspiracy activity generally. It is necessary to scrutinise whether a careful assessment of the evidence leads to the conclusion that the offending was, in fact, a series of substantive offences or even a different conspiracy. The requirement of a commonality of purpose, a shared knowledge and intent may be impossible to establish, particularly in cases spanning a lengthy period of time, involving multiple Defendants.

Conversely, this case may be usefully deployed when defending an individual who played a limited role within a wider conspiracy. There may a tactical decision to be made regarding when such an argument would be best advanced.

It is worth observing, however, that this case turns on its own facts: the Court unusually had the benefit of direct evidence from W, the individual at the heart of the conspiracy. By contrast, most cases of this kind are inferential, with the Crown seeking to establish evidence of the conspiracy by virtue of the surrounding circumstances, telephone contact, supply trips and drugs seizures. Determining the boundaries of the conspiracy in such instances may be less clear cut.

Stella Hayden is a highly regarded criminal practitioner who prosecutes and defends in equal measure. She is a member of the CPS Specialist Advocate Panel for Serious Crime.