Ross Elliott [2019] EWCA Crim 1250

R v Ross Elliott [2019] EWCA Crim 1250 concerned an appeal against conviction by the Court of Appeal (Lord Justice Davis, Mr Justice Lewis and Mr Justice Julian Knowles) in which the appellant challenged the trial judge’s refusal to admit certain evidence at his trial for conspiracy to transfer or sell prohibited weapons. The appeal was dismissed.

The appellant had been convicted after trial at Kingston upon Thames Crown Court before His Honour Judge John and a jury on 3 April 2018 of conspiracy to transfer or sell prohibited weapons, for which he was sentenced to 18 years’ imprisonment. Two co-accused, Dacres and Sholanke, were also convicted of the same count and received sentences of 14 years and 10 years’ imprisonment respectively. Two other co-accused, Kirilov and Tsekov, were acquitted of conspiracy to import prohibited weapons. Men called Tanev and Ognjanov had previously pleaded guilty to conspiracy to import firearms and were sentenced to 22 years and 4 months’ imprisonment and 21 years and 7 months’ imprisonment respectively.

The prosecution case was that Ognjanov and Tanev, Bulgarian nationals living in Germany, had been engaged in unlawfully importing firearms and ammunition into the United Kingdom. Initially they supplied firearms to individuals in Sheffield, but subsequently expanded their enterprise to supply firearms to individuals in the southeast of England. The Crown alleged that this latter part of the enterprise was to a group closely connected with the appellant. Between March 2016 and May 2016 Ognjanov made five trips to the United Kingdom, during which mobile telephone data and cell site evidence demonstrated a link between Ognjanov and the appellant. Three particular journeys were linked to the appellant when consignments were transferred from Ognjanov to the appellant. On 22 May 2016 a Nissan Patrol car driven by a man called Koteterov was stopped and searched at Dover as it entered the United Kingdom and was found to contain a considerable quantity of firearms and ammunition, including six Tokarev pistols, two Scorpion sub-machine guns and 1000 rounds of ammunition.

The prosecution case was that the appellant was the main contact in the southeast of England for Tanev and Ognjanov, that they had supplied him with firearms smuggled into the United Kingdom, and that he had entered into an agreement to transfer or sell the firearms on to others, with Dacres as his right-hand man who was later replaced by Sholanke after Dacres’ arrest. The Crown’s case was based upon the cumulation of circumstantial evidence comprising the use of mobile telephones, call data and cell site evidence, text messages, intercepted phone calls, automated number plate recognition hits on vehicles, details of travel from SatNav devices, CCTV, surveillance, travel details, seizure of items and financial evidence.

The appellant was barely in a position to deny that he had been involved in some kind of criminality. His defence case was that he had indeed been conspiring with Ognjanov, but that it was nothing to do with the importation and subsequent transfer and selling of guns but instead involved illegally imported tobacco and cannabis. It was also part of the defence case that the weapons and ammunition found in the car driven by Koteterov on 22 May were nothing to do with him and were not destined for him.

The evidence showed detailed connections between the appellant and Ognjanov. In April 2016 the appellant and Dacres had flown to Hamburg, returning three days later, that trip being preceded by contact between the appellant and Ognjanov. On 22 April 2016 both Tanev and Ognjanov were in the United Kingdom and cell site evidence placed them in the Greenwich area with the appellant and Dacres. That same evening Tsekov entered the United Kingdom in the Nissan Patrol car and the following day he drove to Lovelinch Close, an address in London connected to the appellant, and then to an address in Kennington where cell site evidence placed the appellant, Dacres, Sholanke and Tanev. On 29 April 2016 Kirilov drove the Nissan Patrol into the United Kingdom and it was driven directly to Lovelinch Close. That same morning Ognjanov arrived in the United Kingdom and the appellant’s car was later seen in convoy with the Nissan. Cell site evidence placed the appellant along with Dacres, Ognjanov and another person in the Watford area. On 14 May 2016 Kirilov arrived in Dover driving the Nissan Patrol car and Ognjanov flew into Heathrow where he was collected by the appellant. The mobile phones of the appellant, Kirilov, Ognjanov and Dacres were cell sited to Watford. On 9 May Dacres had made a cash withdrawal of £8,000 and Dacres’ cousin (Alex Dacres) lived in Watford and was subsequently convicted of possession of a Makarov pistol found at his home address.

Although only one consignment of firearms had been intercepted on entry into the United Kingdom, there was other evidence of seizure and recovery of firearms in various places including Sheffield, Leicester, St Albans, Watford and Vauxhall, involving firearms which the prosecution said had been organised to be imported by Tanev and Ognjanov. A number of firearms had been involved including a significant number of Makarov pistols with silencers. There was unchallenged evidence that Makarov pistols were not infrequently found in the United Kingdom.

The sole ground of appeal was that the trial judge wrongly refused to permit the appellant to put in certain evidence on the ground that such proposed evidence was speculative and of no sufficient relevance to the count of conspiracy with which he was charged. During the presentation of the defence cases, counsel for the appellant, Mr Rush, conducted an internet search into gun seizures in Luton. These revealed that there had been a seizure of a Makarov pistol and silencer at an address at 161 Dewsbury Road, Luton. That particular address had no connection with the matters alleged by the prosecution. However, Dewsbury Road, Luton, had featured in the prosecution case and evidence in that on one occasion Kirilov and on four occasions Tsekov had stopped at an address at 45 Dewsbury Road, Luton, an address where Tsekov’s mother lived. She was apparently a nanny to a Bulgarian family who lived there and her evidence had been read out to the jury during the trial, stating that the one visit of Kirilov and the other visits of Tsekov, her son, had simply been social visits. That evidence had not been challenged in any way. It was in evidence before the jury that a text message received by Koteterov’s phone from Tsekov recorded the address and postcode of 45 Dewsbury Road, stating that it was Tsekov’s mother’s address. It appeared that Koteterov had then put that address into his SatNav.

Mr Rush sought to adduce further evidence relating to the seizure of the Makarov pistol and silencer found at 161 Dewsbury Road, Luton. The Crown were neutral on his application but Tsekov and Kirilov opposed it. The point sought to be based on the finding of that Makarov pistol and silencer at 161 Dewsbury Road was that, it was suggested, such evidence would tend to indicate a potential conspiracy to supply firearms to Luton. There was no suggestion that Elliott himself had any connection for this purpose with Luton or any Luton group. Accordingly what was submitted was that this evidence relating to the finding of the Makarov pistol and revolver at 161 Dewsbury Road would tend to undermine what Mr Rush asserted was a central hook on which the prosecution case was hung.

The expert firearms witness examined the photographs of the Makarov pistol and silencer which had been seized at 161 Dewsbury Road. The analysis indicated that there were in fact pronounced differences between the gun seized at 161 Dewsbury Road and the various other Makarovs which had been seized at the various other places. These differences included the following: the Makarov recovered at 161 Dewsbury Road was a 9 mm short calibre pistol whereas the others were not of that particular kind albeit being Makarov 9 mm pistols; the bore of that pistol was rifled to its muzzle but the others had not been; there was no smooth bore barrel extension to that pistol as there was for the others; the barrel of that pistol was not sleeved unlike almost all of the others; the sound moderator of the pistol at 161 Dewsbury Road differed from the others; and the serial number of that particular pistol had been removed using a technique different from the others. It was right to say that so far as the other Makarov pistols that had been seized were concerned, there were a number of differences between those as well, albeit there were also a significant number of similarities with regard to them. But even with regard to the one or ones which were different between each other, there was other independent evidence linking those pistols to the relevant conspiracy to import or to transfer. Moreover, 161 Dewsbury Road in Luton had been occupied by a man called Cooper who had, as the court understood, in due course pleaded guilty to possession of a prohibited firearm. Cooper had no known connection to any of the alleged conspirators. The gun had in fact been found at 161 Dewsbury Road by a gas fitter on a boiler at the address, the gun and silencer being contained in a bag or holdall.

Mr Rush submitted that even if there were those differences, as compared to most of the other Makarov pistols that had been seized, nevertheless the evidence concerning this seizure should have been put before the jury. When asked, he told the court that he would have made such a submission even if the seizure had not been in Dewsbury Road but in a street some two streets or so away. Indeed he went further and said that such evidence should have been admitted of such a seizure if it had been found anywhere in Luton or perhaps even some other town or city in the vicinity altogether. The point was, he said, that this was indicative of a separate group operating from the Luton or surrounding area and not the Elliott group operating in the London or Watford area.

The judge in his ruling did not accept that this evidence was relevant and therefore did not accept that it was admissible. He set out in considerable detail the differences between the Makarov pistol recovered in March from 161 Dewsbury Road and the various other Makarov pistols that had been seized. He took the view that to include such evidence would simply have been such as to encourage the jury to engage in impermissible speculation and that no reasonable inference adverse to the prosecution case could be drawn from such evidence.

The Court of Appeal held that the judge’s conclusion that the evidence of the seizure of this pistol in March from 161 Dewsbury Road was irrelevant was a matter of evidential evaluation and not discretion. Whilst the court had to consider whether that evidential evaluation of the judge was justified, it also had to bear in mind that he had the conduct of the whole trial and was well positioned to assess the overall picture as it appeared on the evidence thus far. The court rejected Mr Rush’s submission that in drawing the conclusion he did the judge had impermissibly entered into the role of the jury. The court had some reservations as to whether this particular point went to a central hook of the prosecution case, as Mr Rush was asserting. If there was a possible point about there being a possible group based in Luton, that point was already available to the defence because of the SatNav entry found in Koteterov’s car on 22 May 2016. But there simply was no sufficient evidential basis to link the seizure of the Makarov pistol at 161 Dewsbury Road to the conspiracy alleged by the prosecution. The gun was very different and furthermore Cooper had no known connection whatsoever with the conspirators. It was true that Tsekov’s mother lived in the road and there was evidence that Tsekov and Kirilov had visited that particular road, but it had been entire speculation to say that in some way there had been a delivery of that pistol to 161 Dewsbury Road. Indeed, Mr Rush made clear he would have mounted the same argument even had such a pistol been found elsewhere in Luton or indeed in some other town altogether in the vicinity.

The court held that quite simply there was no sufficient evidential nexus between the gun found at 161 Dewsbury Road and the other Makarov guns which had been the subject of seizure by the prosecution. The judge’s overall evaluation of the position was wholly justified. He was quite right in such circumstances to rule the evidence inadmissible. It was not sufficiently relevant to the matters which had arisen at trial and, on the contrary, to have allowed such evidence in would simply have been in effect an invitation to the jury to engage in illegitimate speculation. The court also rejected the submission of Mr Rush that the defence had been deprived of the chance of putting its case in the best possible light. In short, the judge was entitled to exclude evidence of the Luton gun seizure as lacking sufficient evidential nexus to the conspiracy charged and tending only to invite impermissible speculation by the jury.