[2025] EWCA Crim 1172

We have today heard submissions from both Mr Forte KC, on behalf of the applicant, and from Mr Travers, on behalf of the Crown. We are very grateful for the assistance that they have given to the court.

We heard evidence from the applicant, on a de bene esse basis, and he was cross-examined. It is now apparent that the following matters are in issue: first, whether there should be an extension of time; secondly, whether the renewed application for leave to appeal against sentence should be granted; thirdly, whether fresh evidence should be admitted; and fourthly, whether the sentence should be reduced on any of the following grounds: first, the starting point for the drugs offence; second, the disparity of applicant's sentence when compared with that imposed on Stephen Kelly; third, the starting point for the firearms offences; and fourth, the lack of 33 per cent reduction for the guilty plea.

The applicant gave evidence before us. He affirmed, gave his name and confirmed his statement. He said that he had been represented at the Magistrates' Court by Mr Nolan, whom he had not seen prior to the hearing. However, he had seen Mr Phillips, the solicitors' clerk, at the police station. The applicant said that he had been told to give no comment in the interview, although he said that he had told Mr Phillips in the police station that he was guilty, certainly in relation to the firearms offences, and he was told that that would be discussed further down the line. The applicant said that he was more concerned about the guns, because he was worried about his mother and sister being arrested as the guns were in the attic of the family home.

The applicant said that he had never been in a situation like this before. He was not told about credit for a guilty plea, but he was told that he would be held on remand. He discussed the plea with Mr Nolan after the Magistrates' Court hearing at His Majesty's Prison Liverpool, which seems to have been on 3 July. The note shows that Mr Phillips visited him in prison, and it was recorded that he would enter a guilty plea on 24 July 2019 in order to receive at least 25 per cent credit. The applicant said that it was all a long time ago, and that if the note said that that was what had happened, then that was what he was advised, although he had no clear recollection of when he had seen Mr Phillips at the prison.

The applicant confirmed that he was the only defendant who was in court on 26 June. He said that he had seen the Kelly brothers arrive later at HMP Liverpool. All that he had asked about in the Magistrates' Court was bail, but he had been told not to pursue an application for bail.

We turn to the issues before us. The first is the extension of time sought. This is a case in which there has been a very long delay in renewing the application for leave to appeal. Part of the reason for that was the fact that an application was to be made to the Legal Ombudsman; and that once the Legal Ombudsman had prepared his report, it was difficult to make contact with the applicant who was moved to various prisons. In the particular circumstances of this case, we consider that it is in the interests of justice to extend time to consider the issues before us.

We turn next to the renewed application for leave to appeal. In our judgment, the findings of the Legal Ombudsman, inadmissible though they are, are relevant in starting the inquiry which has led to the uncovering of a number of what were otherwise matters which were subject to legal professional privilege, and which do raise issues about whether the applicant was properly advised in the Magistrates' Court. In the circumstances, we will grant leave to appeal against sentence. We consider that it is in the interests of justice so to do.

We turn to the fresh evidence. We decline to admit the Legal Ombudsman's report. It is common ground that it is inadmissible opinion evidence. On the other hand, it is in the interests of justice, first of all, to admit the evidence given by the applicant who commented on the matters which were discovered as a result of the Legal Ombudsman's report. We will also admit the contemporaneous notes and records of the advice that was given to the applicant by his former legal representatives. In addition, we will admit the other contents of the bundle which has helpfully been prepared. It includes a later report from Mr Nolan following his receipt of the waiver of legal professional privilege. Neither side has called Mr Nolan to give evidence. Although it is not possible to give it much weight, we will admit the report for the purposes of the appeal. We will also admit the evidence of the applicant. That is because all of the evidence appears to be capable of belief, and it may afford a ground for allowing the appeal because it may be relevant to reducing the sentence. In addition, the evidence would have been admissible in the proceedings below because it was evidence which the judge might have taken into account in assessing whether full discount for a guilty plea could have been given. There was a reasonable explanation for the failure to adduce the evidence in those proceedings. That was because at that stage the applicant was represented by the solicitors about whom the current complaints are made.

We turn to consider the issues on the proposed grounds of appeal that are renewed and those that have made for the first time today. So far as the starting point for the drugs conspiracy is concerned – and indeed the issue of disparity in sentence with Kelly – in our judgment there is nothing in these points. This was a very serious drugs conspiracy, as already outlined. The judge was entitled, in our judgment, to take the figure of 21 years for the applicant's position in relation to that. It is apparent that there were aspects of "leading role", because he was in the business of supplying cocaine. Whether or not that was at the direction of some other person is impossible to say from the papers, although there is some suggestion of that. The applicant also had a very important role in the business which was run by the Kelly brothers. A sentence of 21 years' imprisonment, before the firearms offences were taken into account, cannot, in our judgment, be described as manifestly excessive.

A consecutive sentence of nine years' imprisonment was imposed for the possession of the firearms. In relation to that, reference was made before us to the current sentencing guideline. It is apparent, in our judgment, that we should have no regard to that because it was not in force at the relevant time. The material points are that there were two functioning pistols together with viable ammunition. At the time, the applicant was involved in the supply of cocaine. The judge was entitled, in our judgment, to set the sentence for their possession at nine years' imprisonment, before relevant discounts.

The judge then reduced the notional 30 year notional sentence to 26 years' imprisonment, to take account of issues of totality. That reduction was perfectly proper.

We turn to the issue of the plea, in relation to which we note the following matters. On the Better Case Management Form there was no record of the fact that the applicant had been given advice about his guilty pleas. The lack of such a record is not unusual in such a situation. This court has often seen a Better Case Management Form without that section being completed. What was unusual was that under "Guilty Pleas" the form shows "Indictable only", which suggests that the very experienced solicitor's clerk had failed to reflect fully on the importance of the one third discount which would have been available at that stage.

Then, within a week of that hearing at the Magistrates' Court, the contemporaneous attendance note shows that the applicant told his solicitors that he was guilty. Although the note is somewhat cryptic, it must have been that the applicant was saying that he was guilty of all of the aspects of the offending because the note indicates that the applicant should enter his pleas, as he did, at the plea and trial preparation hearing and receive at least 25 per cent credit.

In the circumstances, and having reflected on the appellant's evidence, we are also satisfied that there must have been some discussion at the police station about weapons, because it is apparent that the applicant was concerned about the fact that his mother or sister might be arrested because he had left the pistols and the ammunition in the attic of the family home. The fact that he had left firearms and ammunition in the attic of the family home hardly does him credit, but it is a relevant feature for us to consider.

We are not satisfied that there was any further discussion at the police station about what else the applicant was guilty of; nor, indeed at the Magistrates' Court in the light of all that we have seen. We record that we take no particular account of what Mr Nolan has written after the event, because that appears to be inconsistent with what he said in the emails to prosecuting counsel, Mr Travers, at the time, and what he said in discussions with the court, at the time.

On the findings that we have made, in our judgment the applicant was not advised at the Magistrates' Court of the fact that if he pleaded guilty to both the drugs conspiracy and the firearms matters he would receive a discount of 33 per cent, rather than just 25 per cent if he were to plead guilty at the plea and trial preparation hearing.

The difficult issue is to know what the applicant would have done if he had been given proper advice. In his evidence before us, the applicant fairly said that it was all a long time ago. He said that he would have pleaded guilty if he had been given advice. We take account of the fact that the applicant may have convinced himself of that fact during the passage of time and because he would have been the beneficiary of a further discount.

However, doing the best we can, and taking account of the fact that within seven days of the Magistrates’ Court hearing, the applicant was making a full declaration of guilt to his solicitors, we consider that it is more likely than not that had the applicant been given proper advice at the Magistrates' Court about the importance of an early guilty plea, he would have accepted it.

The net effect of all of that is that this sentence, in our judgment, was a perfectly proper sentence passed on the material before the judge. However, the fresh evidence shows that the applicant was not given proper advice about the need for an early guilty plea and that, had he been given that advice, he would probably have accepted it and pleaded guilty at the Magistrates' Court.

In those circumstances, in order to do justice in this case, we will adjust the sentences that were passed, by giving a discount for the guilty plea of 33 per cent, rather than the discount given by the judge of 25 per cent. As already indicated, that gives an overall sentence of 17 years and four months' imprisonment, and not 19 years and six months' imprisonment.

The sentences imposed by the judge were: 13 years and six months' imprisonment on count 1; a consecutive term of six years' imprisonment on count 2; a concurrent term of six years' imprisonment on count 3; and a concurrent term of three years' imprisonment on count 4.

Doing the best we can, we will adjust the sentence on count 1 from one of 13 years and six months' imprisonment to one of 11 years and four months' imprisonment. We leave undisturbed the sentences on counts 2, 3 and 4. The applicant's sentence is therefore reduced by two years and two months.

We should not leave this case without remarking on the fact that this is a very unusual situation. There has been a waiver of legal professional privilege regarding the legal advice given in relation to plea. Findings have been made against the solicitors by the Legal Ombudsman. We also note that it emphasises to all the importance of the accurate completion of the Better Case Management Form in the Magistrates' Court, and the importance of magistrates examining, with legal representatives, whether the form has been properly completed.