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R v Jason Russo & Ors [2025] EWCA Crim 169 [Link]

In this important case, the Court of Appeal (Criminal Division) rejected the submissions made by the appellants that (in effect) an offence of conspiracy to commit an offence contrary to section 46 of the Serious Crime Act 2007 was unknown to the law by a parity of reasoning with the decision in Kenning [2008] EWCA Crim 1534.   In Russo, the CACD held that the s.46 SCA offence is distinct from aiding and abetting an offence and from attempting to commit an offence.  It is completed by the doing of the act capable of encouraging or assisting the relevant offence(s). What is done by the person encouraged or assisted is irrelevant. The reasoning in Kenning was inapposite.  The CACD also rejected the proposition that the supply of an encrypted means of communication (such as Encrochat) could not assist the substantive offence of supplying a controlled drug (s.4, Misuse of Drugs Act 1971): “The welter of criminal prosecutions for supplying drugs since 2020 based on messaging retrieved from the Encrochat server demonstrates how important Encrochat devices were to those engaged in large scale supply of drugs” (per William Davis LJ, at [20]).  In the context of the facts of this case (Russo), the CACD was unconvinced that a charge of conspiracy was necessary.  “[An] act” in section 46(1)(a) SCA 2007 was to be read in the light of section 67 of the 2007 Act, which includes a “course of conduct”.  Although there is no definition of “a course of conduct” in the 2007 Act, the ordinary English meaning of a course of conduct is a series of acts demonstrating a continuity of purpose.  On the facts of this case “as put by the prosecution, the repeated supply of Encrochat devices had the purpose of assisting persons to supply drugs. This purpose continued throughout. In our view the prosecution case properly could have been placed before the jury on the basis of a single substantive count of the offence under section 46 of the 2007 Act. This would have avoided the supposed complications created by a count of conspiracy” (per William Davis LJ, at [22]).  The mens rea of the offence of conspiracy as set out in section 1(2) of the Criminal Law Act 1977 Act, namely, intention or knowledge as to the facts and circumstances which comprise the actus reus of the offence which the conspirators have agreed to commit. Section 1(2) and its effect was considered in detail by the House of Lords in Saik [2006] UKHL 18; [2006] 2 Cr App R 26.  However, the CACD observed that unlike the offence of money laundering [ss.327-329, POCA], section 46 of the 2007 Act does not refer to knowledge.  In any event, the prosecution case was that the only proper inference was that the appellants were fully aware from the outset of the use to which the Encrochat devices were being put. The jury must have concluded that this inference was a proper one.  Their verdicts were safe.

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