R v Mark Nathan Dermott

This is the hearing of a renewed application for leave to appeal against sentence, and for an extension of time of three years eight months and eight days in which to renew the application for leave to appeal against sentence, following refusal by the single judge. The main basis for the extension of time is that the Legal Ombudsman had found that the applicant had been the subject of inadequate representation in respect of the advice given to him on his guilty plea, and that while that was being explored, the other grounds in relation to sentence which had originally been proposed were not renewed. It is contended so far as the inadequate legal advice was concerned, that the applicant lost the ability to obtain credit of 33 per cent for his guilty plea, and had received only credit of 25 per cent for his plea. The difference of eight per cent on the sentence before discount for the guilty plea amounts to some two years and two months, because the sentence before discount for plea was 26 years, and a discount of 25 per cent gives a sentence of 19 years and six months. A discount for plea of 33 per cent would have given a sentence of 17 years and four months.

The applicant is now aged 37 years – nearly 38. He was born on 31 August 1987. He had, before these convictions, four convictions for seven offences He had received a community order for cultivating a Class B drug. He had not served a custodial sentence before.

On 24 July 2019, in the Crown Court at Liverpool, when he was then aged 31 years, he was represented by DPP Law and two individuals whom the applicant understood to be a solicitor and a barrister, but who were in fact a very experienced solicitor's clerk and a solicitor advocate. He pleaded guilty to one count of conspiracy to supply a Class A drug, two counts of possession of a prohibited firearm, and one count of possessing ammunition without a firearm certificate.

On 26 February 2020, when he was aged 32 years, he was sentenced to 13 years and six months' imprisonment for the conspiracy to supply controlled drugs (count 1); to a consecutive term of six years' imprisonment for the first count of possession of a firearm (count 2); to a concurrent term of six years' imprisonment for the second count of possession of a firearm (count 3); and to a concurrent term of three years' imprisonment for the possession of ammunition (count 4). The total sentence was one of 19 years and six months' imprisonment. Consequential orders were made. Proceeds of Crime Act proceedings led to an order for confiscation of some £109,535.

There were five co-defendants in addition to the applicant: James Kelly, Stephen Kelly, Paul Speedy, Dean Woods and Liam Hart.

The case involved a conspiracy to supply cocaine which took place between November 2018 and June 2019. The applicant had previously worked in a car factory, but he had lost his employment, suffered mental health difficulties, which are set out in a psychological report, and became involved in the supply of cocaine.

The defendants were involved over a seven month period in the nationwide wholesale supply of cocaine. James Kelly, Stephen Kelly, Dean Woods, Paul Speedy and Liam Hart worked together. The applicant operated independently of this group and supplied them and others with wholesale quantities of cocaine. The applicant was found on arrest to be in possession of two firearms and ammunition which he kept at the home which he shared with his partner, his mother and his sister.

The judge found that James Kelly had a leading role in organising the nationwide wholesale distribution of multi kilo quantities of cocaine on a daily basis. He arranged for the co-defendants Speedy, Woods and then Hart to deliver cocaine to the areas of Bradford, Bolton, Newcastle, London, Surrey, Nottingham, Scunthorpe, Grimsby, Sheffield and Wrexham. In total the police found that there were over 100 trips, and perhaps as many as 114.

Four drug seizures and one seizure of cash took place. The four drug seizures totalled 13 kilograms of import quality cocaine, although these were believed to be simply snapshots of the actual quantities of cocaine that had successfully been supplied. Each supply was between two and five kilograms of cocaine based on the evidence from the seizures. If each trip was a delivery of drugs and an exchange of cash, it was possible that between 200 and 500 kilograms of cocaine had been supplied. Even if half the trips were drug deliveries and the other half were separate deliveries of cash, that would still equate to between 100 and 250 kilograms of cocaine supplied over a seven and a half month period.

James Kelly's home was the hub of the organisation. Video and surveillance evidence, combined with ANPR and cell-site evidence, showed who was coming and going from that address. James Kelly organised the business from his family home and from his partner's home. He was in frequent daily contact with everyone in the organisation. When he was arrested he was in possession of two EncroChat phones.

Stephen Kelly was involved on a level below that of his brother James, according to the judge's findings and on the prosecution case. He was responsible for the laundering of the proceeds of the drugs conspiracy. Video surveillance showed that he and James Kelly were often together. They were very careful with the use of mobile phone communication devices. There was no phone contact between Stephen and James Kelly's phones during the conspiracy period. It is worth noting that reliance was placed by Mr Forte KC, who appears on behalf of the applicant, on the fact that the applicant had a role just below that of Stephen Kelly, and that in Stephen Kelly's appeal to the Court of Appeal Criminal Division it was estimated that the starting point taken in his case was around 21 or 22 years' imprisonment for the supply of drugs, before it was increased to take account of his relevant previous convictions.

Paul Speedy was one of the most prolific couriers in the conspiracy. He went on 66 trips. He was a taxi driver and would drive James and Stephen Kelly around. He drove James Kelly to all of the meetings with customers. He would sometimes meet with Dean Woods before Woods went on a trip.

Dean Woods was involved in about 30 trips. He was arrested in possession of an EncroChat phone.

Liam Hart was involved in nine trips. When Hart was arrested on 29 May, four kilograms of cocaine were found hidden in the roof lining of his vehicle. He had been to Newcastle on five occasions, Grimsby on two occasions, and also to Bradford.

Seizures connected with the conspiracy were made on 18 April, when a man called James Boon was arrested in Newcastle with two kilograms of cocaine with a wholesale value of between £60,000 and £70,000. On 13 May, a man called Tobias Allman was arrested in Liverpool with just over five kilograms of cocaine of 82 per cent purity with a wholesale value of between £150,000 and £175,000. On 20 May, a man called James Connor was arrested with just under £24,000 in cash. The purity of the cocaine varied between 61 per cent to 78 per cent.

The applicant supplied the group and others with cocaine. He was seen to supply Speedy and Hart with drugs which were then transported to other parts of the country. There was no visible phone communication between the applicant and any of the other conspirators, which suggested that he might have had some unidentified communications device to make arrangements, although no EncroChat phone was located. His involvement in the supply of Class A drugs and cocaine was far wider than that demonstrated by those six occasions when he was seen by surveillance officers to supply people in the organised crime group. That was clear from an analysis of a notebook, or tick list, recovered from his home address. Also recovered from his address was a drugs press.

The notebook recovered had a number of pages containing handwritten lists. The vast majority had two columns headed "in" and "out". It was estimated that in the 59 transactions shown in the notebook the amount of trade represented cocaine worth between £1.7 million and £2 million. There was some duplication in loose sheets found in the notebook.

On the last occasion, on 29 May 2019, the applicant was observed to transfer a bag to another conspirator, who was subsequently stopped and found to be in possession of just under four kilograms of cocaine.

The applicant was arrested on 24 June. He was the first of the main conspirators to be arrested. He lived with his partner in a flat in Everton. His property was searched, and the notebook was recovered. His family home in Liverpool was searched and the police recovered numerous mobile phones, rolls of duct tape, a box of vinyl gloves, metal plates and two cash counters.

In the attic of the family home, which was also occupied by his mother and sister, two firearms were found. One was a Russian made Makarov self-loading pistol with its serial numbers erased. This was in good working condition and functioned correctly. There was a box magazine packaged with the pistol which appeared to be of the correct type. Another identical firearm was also recovered in the same condition. There were also six boxes of 16 rounds of 9mm Makarov ammunition in good condition and viable. They were the correct calibre for use in both of the Makarov self-loading pistols. A further box of 40 rounds of ammunition of a different branding was found; they were not suitable for use with the two firearms.

When interviewed the applicant made no comment.

At the Magistrates' Court the applicant did not offer a plea. The Better Case Management Form, which we have seen on the Digital Case System, was partly completed. There was no tick on the box about whether the applicant had been advised on pleas. Under "Pleas" the accurate, but unhelpful, comment "indictable only" appears.

The case was committed to the Crown Court. The applicant pleaded guilty at the plea and trial preparation hearing. That followed, as we know, a conference in His Majesty's Prison Liverpool, where the applicant had been remanded in custody some seven or so days after the hearing in the Magistrates' Court. At that conference a record was made by his legal representative that the applicant was saying that he was guilty.

The sentencing exercise took place in February 2024. Before sentencing there was an email exchange between the solicitor advocate acting for the applicant, and Mr Travers, prosecuting counsel, who appears before us today as he did below, very properly brought to the attention of Mr Forte KC, who appears for the applicant on the renewed application before us. In an email, dated 21 February 2020, reference was made to the fact that the solicitors' clerk had just mentioned to the solicitor advocate the Better Case Management Form and the issue of credit. The solicitor advocate suggested that he should have said something like "Likely GP", or "Likely guilty plea" on the form.

During the course of the defence submissions, there was an exchange between the solicitor advocate and the judge about credit for the guilty plea. The solicitor advocate pressed for a 33 per cent discount, and suggested that the form had not been completed properly, which it had not been, and that issues of involvement, which had been noted, had been generated only by the solicitor advocate's analysis of the fact that this was a conspiracy case. The exchange does not indicate that the solicitor advocate had given clear advice to the applicant about a guilty plea and its effect.

When sentencing. the judge found that the applicant was highly trusted to organise and manage all aspects of the wholesale cocaine business, including the storage of firearms and ammunition and that he was most likely to be involved with somebody even higher than him. His role straddled that of both "leading" and "significant".

The drug offence was a "Category 1+" case, where there was no written guideline. Regard was therefore had to a number of authorities and the difficulties of "crowding" or "bunching". The judge said that in crimes as serious as this, remorse and personal circumstances could only play a limited role. At the time of the sentencing exercise there were no sentencing guidelines for the firearms offences, but the judge had regard to relevant case law. He concluded that the availability of ammunition for each of the weapons led to the conclusion that they could be used to endanger life, even though that was not the applicant's intention. Regard was had to the relevant statutory provisions.

The judge noted that the aggravating features were the purity of the cocaine and, to a limited extent, the applicant's previous convictions, albeit that they were for relatively minor offences.

The judge found that the mitigating features were: that the applicant had been out of trouble since 2011; that he had held down good work; and that he had never previously served a custodial sentence. In addition, the judge had numerous letters in relation to the applicant's good qualities, and a psychological report.

The judge found that the sentence for the drug offences should be 21 years' imprisonment and for the firearms offences it was nine years' imprisonment. The sentences for the drugs and firearms offences had to be consecutive to one another, with a reduction for totality, which meant that rather than there being an overall figure of 30 years' imprisonment, the sentence was reduced to 26 years' imprisonment before credit. 25 per cent credit was given for the applicant's guilty plea, as already indicated, which led to the sentence of 19 years and six months' imprisonment.

The applicant had previously applied for leave to appeal against sentence. He complained about the credit he had received for his guilty plea, when compared to others; the judge's finding that he had a leading or significant role; the starting points for the drugs and firearms offences; and the principle of totality.

The single judge refused leave to appeal, and there was no prompt renewal of the application for leave to appeal against sentence, although Mr Forte explained that that was because of concerns that if the Legal Ombudsman, to whom the applicant proposed to complain, did find failures in the legal advice given, there would be no route back to the Court of Appeal if the renewed application had been dealt with in the interim.

The applicant complained to the Legal Ombudsman about his legal representation. The solicitors representing the applicant responded with some information. The solicitors had, at the sentencing hearing, accepted that at the Magistrates' Court they "had not forced the issue" about the plea, but that was because there were concerns about the applicant's vulnerability. Reference was also made to family members attending the hearing at the Magistrates' Court. The solicitors accepted that they had not given advice about a Newton hearing, other than to say that the applicant would not succeed in challenging the role ascribed to him. The applicant claimed that he had been told that "no one ever wins".

The Legal Ombudsman looked at various original documents and made findings at the end of July 2023. They were critical of the applicant's former solicitors. It was noted that there was a failure properly to advise the applicant as to the importance of a guilty plea at the first opportunity, which meant that he would not receive credit of 33 per cent; and that the solicitors had failed properly to advise as to the importance of "role" within the sentencing exercise. That meant that, due to the failings of his legal team, the applicant was not in a position properly to challenge the assertions that led to him being placed in a "leading" or "significant" role.

The Legal Ombudsman recorded that, according to the solicitors, they had said that the applicant's mental state meant that he was unable to make a clear decision about whether to plead guilty at the Magistrates' Court; whereas the applicant had contended that the advice he had been given was that, due to the lack of evidence brought by the CPS, he should not plead guilty until further information came to light. It is apparent that the firm of solicitors had intended to send a client care letter to the applicant. Although there were suggestions that such a letter had been sent, the applicant's consistent evidence was that he had never received it. The client care letter, if it was sent, and had it been received, did say: "If you are guilty of charges, you should plead guilty as soon as possible". However, the Legal Ombudsman concluded that there was no evidence that it had been received.

In the final event, the Legal Ombudsman found that there had been inadequate legal representation and made an award of £3,000 for their failure to give proper advice.

Two grounds have been added to the renewed application for leave to appeal against sentence. The first is that, because of inadequate representation by his then legal team, the applicant was unfairly precluded from obtaining maximum credit by pleading guilty at the first opportunity. The second is that the applicant was unfairly prejudiced by inadequate representation in not allowing him the informed choice of having a Newton hearing to challenge culpability.

The renewed application came before the full court on 20 September 2024. It was apparent that at that stage no thought had been given to the status of the Legal Ombudsman's report because, when properly analysed and as is now common ground, it was inadmissible opinion evidence. On the other hand, it did contain materials which were not available to the sentencing judge. It showed, or might show, that there had been inadequate legal representation. Accordingly, at the hearing on 20 September the full court adjourned the hearing and gave directions that: a proper waiver of legal professional privilege be provided to the applicant's former solicitors; a witness statement be provided by the applicant setting out what he would have done had he been given the advice he contended that he should have been given; an appeal bundle be prepared; the Crown attend the hearing of the renewed application; and the Crown would then have the opportunity to cross-examine the applicant, if so advised.

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.