R v Omar Malik & Ors

This case concerns the criminal activities of a Manchester based Organised Crime Group (“OCG”) who were involved in large scale supply of prohibited drugs (particularly import quality cocaine) and firearms across the country. The expert evidence in the case was that the quantities of firearms (in particular fully automatic pistols) sold with compatible ammunition put the OCG’s operation amongst the very highest level of firearm trafficking ever encountered by law enforcement in the UK. The investigation into the OCG led to the recovery of firearms, ammunition, drugs and over £600,000 in cash. Evidence from ledgers kept by the conspirators during the period of the conspiracy indicated that the value of the cocaine alone was in the region of £70 million.

Over a period of six weeks in September and October 2023 six defendants stood trial in the Crown Court at Manchester Minshull Street before Her Honour Judge Baxter and a jury on a 9-count indictment arising from those activities. Of these, the most significant counts were of conspiracy to possess firearms or ammunition with intent to endanger life, contrary to section 1(1) of the Criminal Law Act 1977 (Count 1), Conspiracy to supply Class A drugs, counts 2 (cocaine) and 3 (MDMA), and conspiracy to supply class B drugs, count 4 (amphetamine).

The conspiracy charges on the indictment covered the period from January to June 2020, with a particular focus on the supply of Class A drugs and firearms from mid-March to 16 June 2020. The prosecution case relied, among other matters, upon the use of encrypted “EncroChat” mobile phone devices and associated “Encro” handles by members of the OCG, surveillance evidence, cell-site analysis, CCTV footage, evidence of non-encrypted messages exchanged between the defendants, and evidence about what happened and what was found at the time when various defendants were arrested. Some of the defendants took issue with the attribution to them of a particular “Encro” handle. The reliability of the data recovered from the EncroChat devices was also in issue at the trial and the prosecution called expert evidence on that topic.

The prosecution alleged that Omar Malik used the Encro handle “payyabills” and that he and an unidentified individual based abroad who used the Encro handle “mr miaghi” were the leaders of the OCG responsible for directing the operations of the group. One of those with whom Mr Malik brokered deals was his close friend Andrew Cooney, to whom the Encro handle “fernpirate” was attributed.

There are before the Court renewed applications for leave to appeal against conviction or sentence by four of the defendants who stood trial, as well as an appeal against sentence by one of them, Mr Cooney, for which leave has been granted.

There is also a renewed application for leave to appeal against sentence by a co-accused Adrian Gonzalez, who pleaded guilty to all four conspiracy counts before a different judge, His Honour Judge John Potter, prior to trial. Due to a serious medical condition, Mr Gonzalez was severed from the main trial. Mr Cook KC, who represented Mr Gonzalez pro bono, told the court that HHJ Potter was originally going to be the trial judge, and that he had dealt with a number of the pre-trial hearings, but that because the case was delayed pending the outcome of the seminal decisions of this Court in the test cases on EncroChat, R v A, B, C and D [2021] EWCA Crim 128, and R v. Atkinson and others [2021] EWCA Crim 1447, HHJ Potter was no longer able to hear the trial on the date for which it was listed. HHJ Baxter therefore presided over the trial.

That provided an explanation for why HHJ Potter was asked to and gave a “Goodyear” indication as to the maximum sentence Mr Gonzalez would receive were he to enter guilty pleas, and those pleas were duly entered before him. As he was the judge who gave that indication, HHJ Potter also sentenced Mr Gonzalez. That occurred on 25 April 2024, after the other defendants had been sentenced. As he made clear in his own sentencing remarks, HHJ Potter had a transcript of the sentencing remarks of the trial judge.

Omar Malik renews his application for an extension of time of 253 days in which to apply for leave to appeal against his conviction at trial on counts 1 to 4. He was represented on this application by fresh counsel (Mr Dein KC) and solicitors.

Andrew Cooney was convicted of Counts 1 and 2 after trial. He had previously pleaded guilty to Count 5, a count of possession of a Class A drug with intent to supply. At the end of the prosecution case, the prosecution conceded that Mr Cooney had no case to answer on the charge of conspiracy to supply MDMA and he was acquitted of count 3 on the judge’s direction. He was the only defendant who went on to give evidence in his own defence. The jury acquitted him of Count 4, the conspiracy to supply amphetamine. Acting in person, he seeks an extension of time to renew his application for leave to appeal against his convictions following refusal by the single judge.

In his letters to the Court, Mr Cooney said he not only wished to rely upon the grounds of appeal settled by his trial counsel, but to add further grounds of his own, which include criticisms of his former legal representatives. He has indicated the reasons for his extreme dissatisfaction with the way in which they conducted his defence at trial. He has waived privilege, and the Court has read the joint response from leading counsel and the solicitor advocate who was his junior (Mark Gatley KC and Naila Akhter). We have read with care all of Mr Cooney’s written submissions both before and after that response was received, including his substantive reply to his lawyers’ response, which was sent to the court in September 2025. He has articulated his points very clearly and puts them across in a measured and polite manner, which we acknowledge with gratitude.

Mr Cooney also appeals by leave of the single judge against the sentence imposed on him for the offences of which he was convicted, namely a determinate sentence of 12 years’ imprisonment in respect of Count 2, and a consecutive extended determinate sentence on count 1, comprising a custodial term of 13 years and an extended licence period of 2 years (27 years in total). He received a concurrent determinate sentence of 6 years on count 5 with appropriate credit for the timing of his guilty plea. He was represented on the sentence appeal by fresh counsel, Mr Robinson KC, and fresh solicitors.

Sean Hogan, who was convicted following trial of the firearms conspiracy and of two offences of being concerned in the supply of Class A and Class B drugs, sought and was refused leave to appeal against the sentence imposed on him for those counts. He does not seek to renew the application in respect of those matters. However, Mr Hogan pleaded guilty at the PTPH to Count 8, possession of a prohibited weapon (two tasers) contrary to section 5(1)(b) of the Firearms Act 1968, and received a concurrent sentence of 4 years with 25% credit afforded for his plea. He did not initially seek leave to appeal against that sentence but he now seeks the necessary extension of time in which to do so, and to amend his grounds of appeal to focus solely on that offence. He was represented by his trial counsel Ms Cafferkey, acting pro bono.

Daniel Waters was convicted at trial of the firearms conspiracy and pleaded guilty at the PTPH and during the course of the trial to other drugs offences and to possession of firearms and ammunition found at the address where he was arrested. He seeks an extension of time of 25 days in which to renew his application for leave to appeal against sentence following refusal by the single judge. He was represented pro bono by his trial counsel Mr Buckland, who very fairly accepted responsibility for the delay in lodging the renewed application.

We are very grateful for the written and oral submissions of all counsel for the applicants and appellant, and counsel for the Respondent, Mr Elvidge KC (who prosecuted the case at trial). After we had heard the oral submissions and deliberated, we announced our decision on each of the applications and on the appeal, indicating that our reasons would follow in a reserved judgment which would be handed down as soon as practicable. In summary:

It is convenient to deal first with the renewed applications for leave to appeal against conviction, as we did at the hearing.

Mr Malik gave a “no comment” interview to the police following his arrest. His defence case at trial was one of denial. It was submitted on his behalf that there was insufficient evidence that the Encro handle “payyabills” was attributed to him, and that the EncroChat data was unreliable because the data is incomplete and does not have a verifiable audit trail. He did not give evidence.

Mr Malik was sentenced on 15 December 2023. He did not seek leave to appeal his conviction until after freshly instructed counsel made an application to the European Court of Human Rights on his behalf and he was informed on 18 April 2024 that that court could not entertain the application until all domestic avenues of appeal had been exhausted. He therefore instructed a third counsel, Mr Dein, who initially raised six grounds of appeal.

Five of those grounds are pursued on this renewed application, namely:

The prosecution served a Respondent’s Notice in which they take issue with each of the grounds. In addition, Mr Elvidge submitted that no proper explanation has been given for the failure to make an application within the relevant time limit. Mr Malik requires an extension of time of approximately six months. The explanation for the delay was the need for his new legal team to read into the case and familiarise themselves with the materials.

We listened very carefully to Mr Dein’s articulate and focussed submissions to us at the hearing, but we are not persuaded that any of the renewed grounds has any merit. We are also unpersuaded that there is any real justification for the delay, and have concluded that it would not be in the interests of justice to grant the lengthy extension of time required.

We will address the bad character evidence first. Mr Malik’s previous conviction, which was in 2007, was for possession of firearms and ammunition which were recovered from a car to which Mr Malik had the keys. The weapons included a Russian Tokarev self-loading pistol which was fitted with a magazine containing live rounds of ammunition, a self-loading shotgun, a pump-action rifle and a sub-machine pistol which was also armed and fully functioning, as well as numerous rounds of ammunition suitable for firing from those weapons. These were prohibited weapons which had to be acquired covertly from criminal sources.

The prosecution said that a high number of EncroChat messages which were sent or received by “payyabills” related to the supply of firearms and ammunition, including CSA Scorpion machine pistols and Grand Power G9A machine pistols, which are automatic weapons. Weapons of that nature were recovered from a house at the time of the arrest of two of the co-accused who had been communicating with “payyabills” by EncroChat. Another two of the co-accused (who had already pleaded guilty to the firearms conspiracy prior to trial) were alleged to have used EncroChat to communicate with “payyabills”. Other messages revealed that “payyabills” and other members of the OCG possessed firearms for their own use.

The prosecution acknowledged that Mr Malik’s previous firearms offences were committed some years previously, but pointed out that they were unusual in nature and must be seen in the context of organised crime where those at the top of an OCG are protected from detection by the structure of the organisation, the use of intermediaries and covert methods of communication such as the use of encrypted telephones.

In his succinct and attractively presented oral submissions, Mr Dein addressed grounds 1 and 2 together. He submitted that the conviction, which was for simple possession (not possession with intent to endanger life) was simply too old to be capable of going to propensity, or (insofar as it could ever be used as evidence of attribution, which he disputed) towards attribution. It was certainly incapable of establishing propensity to commit drugs offences. If, contrary to his primary submission that the judge should not have allowed the evidence to be adduced, it was admissible as bad character evidence under one or both of the limbs of gateway “d”, her directions to the jury about how it could be used were inadequate. Given that the judge’s direction to the jury went to propensity, there was a danger that they might have thought that the bad character evidence was relevant in that sense to the drugs conspiracies, unless the judge clarified that it was not.

In our judgment the evidence of Mr Malik’s convictions on 20 April 2007 was plainly both relevant and admissible. The judge correctly directed herself on the law, referring to the principles set out in R v Hanson [2005] EWCA Crim 824 when determining whether, on the particular facts and circumstances of this case, a single previous conviction could demonstrate this defendant’s propensity to commit offences of the type charged. She was entitled in her discretion to refuse to exclude the evidence under section 78 of PACE. She took into account all relevant matters, including the age of the conviction and Mr Malik’s age at that time (21). She addressed and rejected the defence submission that the prosecution were seeking to rely on the conviction to bolster a weak case, pointing out that there was other objective real time evidence which supported the accuracy of the EncroChat data and the contention that Mr Malik was “payyabills”. We agree; as summarised in the Respondent’s Notice, there was a formidable amount of evidence against Mr Malik.

As the trial judge observed in her written ruling on the bad character application, firearms convictions by their very nature are relatively rare in the UK, the more so if they involve an arsenal of weapons including semi-automatic and automatic weapons which are the type of weapons used in organised crime. We agree that there was a striking similarity in type between the weapons that were the subject of the previous conviction, and those possessed and controlled by the person calling himself “payyabills”, even though the makes of the firearms were different.

Although the original written application by the prosecution was to adduce the 2007 conviction as evidence of propensity, that was not the way in which the application was put by the time it was made. It appears clearly from paragraph 10 of the prosecution skeleton argument that the prosecution also sought to adduce the conviction as being relevant to an important matter in issue, namely, the attribution of the Encro handle “payyabills” to Mr Malik. That attribution, if established on the evidence taken in the round, of which the bad character evidence would form a part, would implicate him in both the firearms and the drugs conspiracies. The person using that handle was directing the drugs operations as well as the firearms operations and was in regular communication with the other individual at the top of the OCG to discuss how the business of the OCG should be developed. The trial judge accepted that analysis, ruling that the conviction was relevant to and admissible under “both gateways d” as she termed it, propensity and attribution. She was plainly right.

Ground 2 complains about the judge’s direction to the jury (a direction to which no objection was taken by Mr Malik’s defence counsel at trial, of whom no criticism has been made). The argument, as articulated in the written grounds, was that the judge omitted to tell the jury that the previous convictions were irrelevant to the drugs counts and that the judge should also have directed the jury that the previous conviction could not assist them as to the relationship between the messaging and the “payyabills” handle. However the convictions were not irrelevant to the drugs counts. As we have said, they were part of the evidence which could be used to support the attribution of the “payyabills” handle to Mr Malik.

In his oral submissions Mr Dein refined the argument, as we have indicated above, into a contention that the judge should have made it clear to the jury that the conviction was not evidence of propensity to commit drugs offences, and that without an express direction to that effect there was a danger that they might think it was. However, Mr Elvidge confirmed that at no point during the trial was there any suggestion that the conviction could be evidence of propensity to commit the drugs offences. He submitted that it was self-evident that it could not be. There was no danger of the jury ever being confused about that. It was simply a non-issue.

In our view the legal direction given to the jury on bad character was perfectly clear and fair. The judge’s direction included all the usual caveats, including a reminder that the jury’s verdict must be based on all the evidence in the case, of which this defendant’s propensity to possess illicit firearms was merely one part. They were told at the onset of the direction that they must not convict him wholly or mainly because of his bad character and then reminded at the end that they must not jump to the conclusion that he must be guilty wholly or mainly because of his bad character.

It is not reasonably arguable that the conviction is unsafe because the judge did not direct the jury expressly that the conviction was not evidence of propensity to commit drugs offences. A direction to that effect was wholly unnecessary and would probably have confused them. The jury can have been in no doubt that the argument on propensity was directed only at the firearms charge (since the previous conviction was for firearms offences) but, as the judge explained, the bad character evidence was more widely relevant to the question of attribution of the “payyabills” handle which was a key component in all the conspiracy counts. It was never suggested to the jury that the conviction indicated a propensity to commit drugs offences and there was no reason for them to have thought that it did. There is no merit in this ground either.

The third ground complains that the summing up was unfair, in essence because the judge did not devote a specific section of it to a succinct summary of the defence case, which is especially important in a case in which the defendant elects not to go into the witness box. Reliance was placed on R v Singh-Mann [2014] EWCA Crim 717.

Having read the transcript with care we are satisfied that there is no substance in this criticism. This was a case in which it was appropriate for the judge to decide to remind the jury of the salient features of the defence case (which in substance consisted of putting the prosecution to proof) at convenient junctures in the course of her summing-up, which as Fulford LJ indicated in Singh-Mann is an acceptable approach (see Singh-Mann at [91]). We are satisfied that the jury, having sat through a six-week trial, were well aware that Mr Malik challenged the attribution of the “payyabills” handle to him and that, like almost all the other defendants, he challenged the reliability of the EncroChat data (though he called no expert evidence of his own). They would have heard his counsel’s closing speech before the judge embarked on summing up the evidence. We are also satisfied that the judge did explain the key submissions made on Mr Malik’s behalf by defence counsel during her summing up, as she did for all the co-accused.

In the course of her summing up the judge reminded the jury at some length of points put in cross-examination by trial counsel to the Prosecution EncroChat expert, Mr Shrimpton, which sought to undermine the reliability of the data, and of Mr Shrimpton’s responses, including concessions that he made. Counsel who were present at the trial confirmed to us that it was Mr Malik’s trial counsel who took the lead in that cross-examination. He did not raise any issues with the judge at the time, as one would have expected he might have done had she omitted something significant.

Mr Dein did not seek to identify any significant point made on behalf of Mr Malik which was omitted from the summing-up. However, he did submit that the note from the jury (which forms the foundation of Ground 4) was a clear indication that they had not followed the expert evidence (including the aspects of it upon which the defence relied) when the judge summed it up to them. He contended that it could be inferred that the jury would not have sent the note if she had summarised the main points taken by Mr Malik’s trial counsel in challenging the reliability of the EncroChat data in a clear, compartmentalised section of her summing up. It is therefore convenient to consider Ground 4 in conjunction with Ground 3.

Ground 4 relates to a question from the jury which was sent fairly soon after their retirement to consider their verdicts. It read as follows: “could we also obtain a copy of Her Honour’s summary of evidence or some other document containing expert witness evidence given throughout the case?” The request was expressed in very general terms. It was not a request for assistance specifically with regard to Mr Malik, or to any particular expert. Mr Shrimpton was one of four experts called in the case. When this note was canvassed with counsel, Mr Elvidge suggested that the Judge might wish to enquire from the jury if there was a specific area of the expert evidence that they were concerned to be reminded of. None of the defence counsel made any representations at that stage. When the jury returned to court that afternoon the judge told them that she could remind them of any particular evidence that they required reminding about, and invited them to narrow down the issue the next morning.

Mr Malik’s trial counsel, guessing that perhaps the jury would have wished to be reminded of Mr Shrimpton’s evidence in particular, prepared a document overnight identifying certain elements of that evidence that he would wish the jury to be reminded of if they did ask for a reminder, and sent it to Mr Elvidge and to the judge. However the prosecution did not agree the content of any document to be put before the jury. On the contrary, Mr Elvidige’s response (in the communications between counsel) was that it was important that the cross-examination was placed in full context of other evidence given by Mr Shrimpton and other evidence which can be used in determining reliability. That could be done by reminding the jury of all the evidence of Mr Shrimpton, or by summary, as was done in the summing up.

No doubt that is what Mr Elvidge would have submitted to the judge had the jury decided to ask for a reminder of the evidence. In the event, they did not, and so we do not know what the judge would have done if they had. When the trial commenced the next day, Mr Malik’s counsel enquired whether there had been any clarification from the jury. The judge told him that no communication had been received. When the jury returned to court, before sending them away to continue their deliberations, the judge again explained that they could identify which parts of the expert evidence they wanted to be particularised, but there was no further communication from them on that matter. We would add that if matters had reached a stage when the jury came back and identified which parts of the evidence they wished to be reminded of, the judge would have been under no obligation to provide the jury with any document, irrespective of whether that document had been agreed between counsel. Had the jury wished to be reminded of the expert evidence, or of any particular aspect of it, the judge would have been entitled to do so orally.

Mr Dein submitted that the clear inference could be drawn from this sequence of events that the jury had not been able to get to grips with the expert evidence and were seeking help, which they did not receive. In answer to the point that the jury were invited by the judge (twice) to particularise which aspects of the evidence they wished to be reminded of, and never raised the subject again, Mr Dein said that whilst he accepted that it could be inferred that they had decided they could cope without such a reminder, it was more likely that they were so overwhelmed that they had decided not to pursue their request.

Mr Elvidge submitted that the note was dealt with appropriately; this was a jury which demonstrated a willingness to come back for help if they needed it, and it was obvious that having reflected on the matter overnight they decided they did not need to be reminded of anything (in writing or otherwise). If they did, they would have asked, as it had been made clear to them they could. He also pointed out that the case did not turn just on the expert evidence. The evidence against Mr Malik included, for example, an EncroChat phone which had been recovered which happened to have been left open, and it was possible to find information about his involvement in the OCG from the open data on that device.

It is clear that, contrary to the way in which Ground 4 was articulated in writing (though not by Mr Dein orally) the judge did not fail to respond to the question nor refuse to remind the jury of the expert evidence; she acted perfectly properly in seeking to ascertain how she could address their request in a manner that was most helpful to them. The jury, having thought about the matter overnight, plainly decided not to pursue it further. We reject as fanciful the suggestion that they were so overwhelmed that they decided to struggle on without pursuing a request for assistance which they felt they needed. This was beyond argument a diligent and meticulous jury. They reached a series of nuanced verdicts, including convicting the co-defendant Mr Cooney of one drug conspiracy offence and acquitting him of another.

None of this sequence of events amounts to an arguable misdirection or procedural unfairness and we cannot see how it could possibly affect the safety of the convictions. The expert evidence had already been fairly summed up to the jury, without complaint by trial counsel. There has been no criticism about its contents on appeal, and although the jury were invited to identify any aspects of it that they wished to be reminded of, they never took up the invitation. It is to be inferred therefore that they were content to leave matters as they were. Neither of these two Grounds gives rise to any properly arguable basis for questioning the safety of the convictions.

Ground 5 is a complaint that the judge failed to direct the jury that they could not hold Mr Malik’s no comment interview against him: a so-called McGarry direction (see R v McGarry [1999] 1 Cr App R 377). Mr Dein did not press this particular Ground in his oral submissions. He very fairly accepted that it was a matter of judicial discretion whether to give such a direction.

A direction under s.34 of the Criminal Justice and Public Order Act 1994 that the jury could draw an adverse inference from his failure to mention in interview any fact he later relied on, could not have been given in respect of Mr Malik (and was not given) because Mr Malik chose not to give evidence. As is pointed out in the Respondent’s Notice, that section does not require a positive direction to be given to the contrary in circumstances where a s.34 direction is not given. Nor was there any suggestion by Mr Malik’s counsel at trial that a McGarry direction should be given. That is unsurprising. As this Court has pointed out on many occasions, there is a real risk that directing the jury not to draw an adverse inference from a no comment interview can cause more prejudice to the defendant concerned than omitting to give such a direction. That risk is particularly present in a case where the defendant chooses not to give evidence: see e.g. R v Thacker [2021] EWCA Crim 97.

As for the s.34 direction given to the jury in respect of Mr Cooney, who did give evidence, we are satisfied that there was no real risk of the jury assuming that this applied also to Mr Malik (a suggestion made in the written grounds, though not expressly pursued orally). The trial judge expressly told the jury that “we come to a no comment interview and this was Mr Cooney only and this is relevant because Cooney decided to give evidence.” [Emphasis added]. She then gave the direction in standard form, identifying with precision the eight facts Mr Cooney now relied on but had not raised in interview. The tying of the potential inference against Mr Cooney only to specific facts that he had not mentioned when testifying left no room for the jury to hold the “no comment” interview against Mr Malik, who relied on no facts at trial. There was no unfairness nor any risk of unfairness to Mr Malik caused by the judge’s approach, and there is no arguable basis for doubting the safety of his conviction on this ground.

Finally, for the sake of completeness, we have had regard to all the matters which are relied on by the prosecution in the final section of the Respondent’s Notice as reasons why the convictions are safe. The evidence against Mr Malik, including the fact that the “payyabills” device was found hidden in a chair at his home address on the day when he was arrested, and the fact that that device could be proved to be in the same place as his personal mobile phone on numerous occasions, was compelling. For all those reasons, Mr Malik’s renewed applications for leave to appeal against conviction and for an extension of time are refused.

Turning next to Mr Cooney’s renewed application for leave to appeal against conviction, we first address the ground settled by trial counsel. This was a complaint of procedural unfairness. When Mr Cooney was being cross-examined, prosecuting counsel put questions to him about the contents of a contact list on a phone download from a Nokia (burner type) phone recovered from his home address. Although the download had been disclosed as part of the prosecution evidence in November 2021, it had not been adduced in evidence during the prosecution case against him. He was asked about the parallels between the names in the contact list on that phone and names in a “debtors list” found in the notes section of the EncroChat phone used by the person with the handle “fernpirate”.

The complaint which is made is that the leave of the judge to adduce the evidence of the contact list had not been sought, as it should have been, and the prosecution’s intention to make reference to the contents of the phone download had only been raised with defence counsel shortly before Mr Cooney was to be called into the witness box. At that point defence counsel did not appreciate the significance of the document and therefore raised no objection. The cross-examination did considerable damage to Mr Cooney’s case. The judge’s failure to recognise this and discharge the jury when an application was made to her to do so, has led to an unsafe conviction.

When the application to discharge was made, Mr Elvidge confirmed that this had not been a deliberate ambush – the defence had had the evidence for over three years. Moreover the same download had been adduced as part of the attribution evidence for the co-accused Sean Hogan, who accepted that his nickname was “Ray” and that his mobile telephone number was stored in Mr Cooney’s Nokia phone under that name. Mr Elvidge pointed out that because he made “no comment” in interview and his defence statement put the prosecution to proof, Mr Cooney’s case in relation to the Nokia telephone recovered from his home had not been revealed until he accepted in cross-examination that he had possession of that phone and had “put Ray’s details into the phone”. It was only at that point that cross-examination about the contact list and its comparison with the “payyabills” list became relevant.

The judge ruled that if an objection had been raised at the time, she would have allowed the questions to be asked, since the material was relevant, admissible, and had been served on the defence well in advance of the trial. Mr Cooney’s explanation, namely, that all the contacts were already in the phone when he acquired it from an unnamed person, save for the name “Ray” which he added, would have been the same whenever the evidence was adduced. He therefore suffered no prejudice.

We agree with the single judge that the trial judge was best placed to determine whether it was permissible to put these questions to Mr Cooney in cross-examination because his case was only articulated in the course of giving his evidence. She gave reasons for her decision and they were valid ones. We also agree with the single judge that this ground is not arguable with a real prospect of success. The trial judge was right not to discharge the jury for the reasons that she gave. The case against Mr Cooney was strong and this was only one element among many which attributed the “fernpirate” handle to him. His conviction is plainly safe.

We are fortified in that conclusion by the response to the waiver of privilege, which was sought and obtained after the application to renew was made. Mr Cooney’s legal representatives at trial have confirmed that he was provided with the download from the Nokia handset after it was uploaded to the digital case system in November 2021, and that he gave instructions about it in his proof of evidence to them. They point out that he has not claimed that he was not responsible for making the calls shown in the call log.

Mr Cooney’s supplementary grounds complain that his legal team at trial did not remind him of the evidence of the usage of the phone before he went into the witness box and gave evidence which was inconsistent with that usage. Whilst they accept that they did not remind him of it, and that he was only shown the document by his leading counsel when he was in the dock moments before being called to the witness stand, they say that the purpose of showing him the document then was to ensure that he recognised it, which he did. They say that he demonstrated a detailed knowledge of the evidence throughout the proceedings despite the fact that most of it had been served three years earlier. He repeatedly told his solicitor during conferences that he did not need her to go through that evidence because he knew it better than anyone. Mr Cooney’s communications with the court establish that he does indeed have a considerable familiarity with the detail of the evidence against him. We do not consider that Mr Cooney can legitimately complain that his trial counsel failed to afford him the opportunity to tailor his evidence before he took the stand, nor that what happened had any impact on the safety of his convictions.

Mr Cooney’s remaining grounds of appeal, in summary, complain that he was not properly represented at trial for various other reasons. It is unnecessary to rehearse each of the criticisms which he has made of his trial counsel and solicitor, which they have answered comprehensively. We have seen nothing in Mr Cooney’s written representations, including the further representations he made in answer to his trial counsel and solicitors’ response on 11 September 2025 (which raise new points) which would cause us to have any doubts about the accuracy or truthfulness of those responses.

We are satisfied that all available points challenging the attribution of the “fernpirate” handle to Mr Cooney were taken, and that there is nothing of substance in the complaints that trial counsel should have applied to exclude evidence or that they should have sought to adduce other evidence. Indeed as they point out, some of the evidence which Mr Cooney now complains they should have called would have damaged his case, and in the case of the detailed cell site expert evidence obtained by the defence which as a matter of tactics they decided not to deploy, would have strengthened the prosecution case on attribution. That expert, if called, would have expressed the opinion that the cell site evidence supported the attribution of “fernpirate” to Mr Cooney.

It is easy to understand why the defence team’s view, as now articulated, is that the “fernpirate” attribution evidence was overwhelming and why they described the prosecution case against Mr Cooney as “formidable”. We are satisfied that no stone was left unturned when it came to trying to undermine it. If tactical decisions were taken with which Mr Cooney now disagrees, or counsel formed a different view from Mr Cooney about whether certain evidence helped his case or undermined it, that does not mean that he was not properly represented. Still less does it mean that his former legal representatives did or omitted to do anything which renders his conviction unsafe.

Mr Cooney suggests that the jury must have been confused because they acquitted him on some counts and convicted him on others. If they were sure that he was “fernpirate”, he says, surely they should have convicted him of all the conspiracies? However, the attribution of “fernpirate” to Mr Cooney was not sufficient to prove his involvement in the MDMA conspiracy, as the prosecution accepted, which is why he was acquitted of count 3 on the direction of the judge. Mr Elvidge confirmed that there were EncroChat messages involving “fernpirate” which discussed potential transactions with amphetamines, which meant there was sufficient evidence to leave to the jury, but unlike the firearms and the cocaine, there were no examples of any actual deals being brokered by him or any deliveries to him.

The jury was entitled to take the view that whilst there was ample evidence that Mr Cooney was “fernpirate” and that “fernpirate” was involved in the conspiracy to supply cocaine, there was insufficient evidence to prove his involvement in the conspiracy to supply amphetamine on count 4. There is no basis for Mr Cooney’s contention that the jury did not understand the evidence with which they were presented or that this somehow indicates inconsistent verdicts. On the contrary, the acquittal on count 4 shows that the jury were alive to the detail and subtleties of the evidence and fairly gave Mr Cooney the benefit of the doubt.

In our judgment there is nothing in any of the supplementary grounds raised by Mr Cooney that gives rise to an arguable ground of challenge to the safety of his conviction. This renewed application is therefore dismissed.

The prosecution case against Mr Cooney was that he bought kilo quantities of cocaine from Mr Malik to sell in his own drugs business, which he had been operating independently of the OCG since 2019, and that he also brokered the sale of guns and ammunition such as the sub-machine gun which he supplied to Sean Hogan. The trial judge sentenced him on the basis that he was not part of the OCG, but acted as a middleman for Mr Malik who was a close personal friend. The judge had the advantages of two notes for sentence from the Prosecution and one from counsel for Mr Cooney, which we have read.

So far as count 1 was concerned the judge placed Mr Cooney in a significant role in the group activity, medium culpability, harm level 2. On count 2 she placed his offending within category 1B. Having presided over the trial she was best placed to evaluate his role and culpability.

The judge adopted a general sentencing structure of passing determinate sentences in respect of the drugs conspiracies (to run concurrently with each other if a defendant was convicted of more than one drug conspiracy) and (having found all the parties to the firearms conspiracy to be dangerous offenders) consecutive extended determinate sentences in respect of the firearms conspiracy. In principle there is nothing wrong with passing consecutive sentences for conspiracies of different types, provided that appropriate adjustments are made for totality, and none of these defendants has suggested that the judge erred in either of those respects.

Mr Cooney was sentenced to a total of 27 years; on count 1, an extended sentence comprising a custodial term of 13 years with a 2 year extended licence period; on count 2, a determinate sentence of 12 years. The extended sentence was ordered to run consecutively to the determinate sentence. A concurrent sentence of 6 years’ imprisonment was passed in respect of count 5. It is contended that an extended sentence was not warranted in Mr Cooney’s case, and that the sentence passed on counts 1 and 2 was manifestly excessive.

On behalf of Mr Cooney, Mr Robinson submitted that, given his role and the nature of his involvement the sentences imposed on him on Counts 1 and 2 both in themselves, and when compared with those of his co-defendants, were too long, essentially because the judge took too high a starting point for each count. There was a conflation in his role with that laid at the door of the other offenders. He was not part of the OCG, though he was party to the sale of a large quantity of highly dangerous weapons and cocaine over a significant period. The judge failed to mark that distinction adequately or at all. Whilst she was right to put Count 1 into category 2B in the guidelines for a single offence of possessing a prohibited firearm with intent to endanger life, and to move upwards from the starting point of 10 years because of the amounts of weapons and the fact this was a conspiracy, she fell into error in going three years beyond the top of the range for Mr Cooney. The same points could be made in respect of the drugs conspiracy. Whilst the use of EncroChat phones was an aggravating feature and they were used in both conspiracies, Mr Robinson submitted that there was an element of double counting if that feature was used to elevate the starting point for sentence in respect of both conspiracies.

In terms of the imposition of an extended sentence, Mr Robinson submitted that the Judge adopted a blanket approach (a 2 year licence period was imposed for all the conspirators who received extended sentences, including Mr Malik who was at the top of the OCG). In so doing, she failed to distinguish between the defendants, instead of tailoring the extension period specifically to the risk to the public that was posed by each of them. He submitted that a lengthy determinate sentence was capable of meeting any concerns about Mr Cooney’s future risk. In support of that submission he referred to matters of personal mitigation which were before the trial judge, and evidence of Mr Cooney’s progress in prison which has continued since his conviction. We were told that he has both undertaken and led a trauma informed practice workshop which is designed to give insight into the risks of becoming involved in this type of criminality and provide meaningful and constructive ways of avoiding those risks. Mr Cooney was not only doing this for himself but ensuring that as a mentor he provided help to others facing those risks.

It is fair to say that Mr Cooney has done virtually everything he could do whilst in prison to demonstrate a genuine intention to rehabilitate himself, and that is very much to his credit. However, as Mr Elvidge reminded the court, he is a resourceful and intelligent man who ran his own legitimate cash businesses alongside his unlawful Class A drugs supply business. The messages passing between Mr Cooney and Mr Malik indicated that Mr Cooney was a willing broker who was fully aware of the nature and scale of the business of the OCG that he was getting involved with, and that he was willing to engage in discussions about playing an active role in its expansion. Whilst his co-defendant Mr Hogan was the one who approached Mr Cooney looking for firearms – initially a sawn-off shotgun and then an automatic weapon of the type that he purchased – Mr Cooney was quite happy to procure those weapons from someone who told him that he had already sold 48 similar weapons. Mr Cooney traded one highly dangerous automatic weapon and asked for another for an unidentified client.

Mr Robinson was right to accept that the firearms conspiracy fell within category 2 for harm. There was plainly a high risk of death or severe physical or psychological harm and/or a high risk of disorder being caused by the use of the dangerous prohibited weapons in which the OCG was trading. The judge was entitled to find, as she did, that Mr Cooney knew that the weapons would be used by drugs gangs if they went to war, or to enforce discipline, to instil fear or to settle disputes. We accept Mr Elvidge’s submission that in the light of the evidence summarised in paragraph 23 of the Respondent’s Notice, the judge was more than justified in assessing his culpability as medium. She then identified as aggravating factors the use of EncroChat phones, the fact that the weapons were automatic, the fact that more than one type of weapon was being dealt with and the fact that this was a conspiracy.

It must be remembered that the sentencing guidelines provide guidance here for possessing a single weapon with intent to endanger life. Conspiracy and the connection to a multiplicity of weapons were aggravating factors. Further, this firearms conspiracy was on an almost unprecedented scale. As we said at the outset of this judgment, the number of weapons and ammunition involved is amongst the very highest level of firearms trafficking ever encountered by law enforcement in the UK. It included 52 machine pistols, of which 48 have been sold on, inevitably to other criminals or crime groups, and 50 grand power hand guns.

In addition, Mr Cooney was directly concerned in the supply of the prohibited items as part of the conspiracy. He was aware of the scale of the business and he personally used EncroChat phones. Bearing in mind the scale and nature of the enterprise in which he had voluntarily become involved as a middleman, even though he was not part of the OCG itself, and the number of aggravating features she identified, the judge was justified in elevating the sentence to one above the top end of the range, before making a downward adjustment for mitigation. We reject the submission that to alight on a sentence on count 1 of 15 years, three years outside the range, before giving credit for mitigation was too high. We consider that the judge allowed sufficient credit for the mitigation in fixing on the custodial element of the extended sentence.

Likewise the conspiracy to supply cocaine involved large scale dealing in wholesale amounts on a commercial basis using established networks of supply for financial gain; the quantities were well above the 5kg starting point and the judge was justified in moving outside the range for category 1 offending. The quantity of cocaine was 739 kg. The estimate of its street value is in the range of £70 million. Mr Cooney was a regular and loyal customer and trusted associate of Mr Malik, buying kilo amounts of cocaine from him for use in his own business and supply to others. His role as a middleman was similar to his role in the firearms conspiracy. The judge gave a clear and cogent explanation for taking a starting point outside the range which, as Mr Elvidge has pointed out, was less than that which she adopted for others involved in the drugs conspiracies because Mr Cooney was only involved with one drug.

We should add that we cannot accept Mr Robinson’s submission that the unarguably aggravating factor of use of EncroChat devices either should only be used to aggravate one conspiracy or should have its effect “downwardly adjusted” on the second. The proper approach to sentencing is to reach the appropriate sentence for each offence separately and then consider the principle of totality. This is precisely what the judge did.

We had understood from the written Advice and Grounds that no issue was taken with the Judge’s assessment that Mr Cooney posed a significant risk of serious harm to members of the public by the commission of further specified offences. However it was not entirely clear from Mr Robinson’s oral submissions whether he was challenging the finding of dangerousness, or whether he accepted it, but nevertheless submitted that a lengthy determinate sentence sufficed to meet the future risks to the public posed by his client.

The judge gave as her reasons for finding Mr Cooney dangerous, the fact that he was a drug dealer who brokered the deal for Mr Hogan to obtain an automatic weapon and ammunition and tried to broker a second for another associate. Those were clear and sufficient reasons for her assessment that he would continue to pose a significant risk of the relevant type on his release. Although not an OCG member, he was deeply implicated in the conspiracy to trade in automatic firearms of the most lethal kind. The only issue is whether the risk posed by Mr Cooney could be sufficiently dealt with by a lengthy determinate sentence. That was a matter which the trial judge, having heard all the evidence at trial, was in the best possible situation to evaluate. The fact that she came up with the same extension period of licence for him as she did for Mr Malik may have been beneficial to Mr Malik, but it does not mean that she was wrong in her evaluation of how much additional time on licence would be needed to address the risk that she considered Mr Cooney posed to the public.

We reject the submission that Mr Cooney “sits in a different category” of risk. His willingness to be party to this massive firearms conspiracy is plainly a sound basis for the judge’s dangerousness finding and the ensuing extended sentence. We recognise the great efforts that Mr Cooney has made while in custody, for which he is to be commended, but they are insufficient in themselves to establish that the risk that the judge found never existed or that it has evaporated. Accordingly, his appeal against sentence is dismissed.

Mr Hogan does not seek to renew the grounds of appeal in respect of counts 1, 6 and 7 for which the single judge refused leave. He seeks to amend his grounds out of time, and the necessary extension of time, in order to argue that the Judge sentenced him by reference to the wrong sentencing guideline for the offence on Count 8, possessing a prohibited weapon (two tasers) contrary to section 5(1)(b) of the Firearms Act 1968 to which he pleaded guilty. He received a concurrent sentence of four years’ imprisonment after credit for his guilty plea of 25%, which means that the notional sentence after trial would have been six years. Any adjustment to his sentence for this count would make no difference to the overall tariff.

It is right that the charge to which Mr Hogan pleaded guilty was specified on the indictment as an offence under section 5(1)(b), and offences falling under that section do not attract the mandatory minimum sentence of 5 years under section 311 and Schedule 20 of the Sentencing Code. Ms Cafferkey submits, and we agree, that the judge should have been taken to table 2 rather than table 1 in the Definitive Sentencing Guidelines. Unfortunately nobody, including Ms Cafferkey herself, spotted this at the time. Both Ms Cafferkey and Mr Elvidge have apologised for the mistake but it is an understandable one to have made, particularly in the light of the complexity of the different sub-paragraphs of section 5, some of which contain offences which attract the mandatory minimum sentence and some of which do not.

In her sentencing remarks, the trial judge did not explain how she reached a sentence of 4 years on this count, other than to say that she had given credit of 25% for the guilty plea and would make the sentence concurrent, presumably to reflect totality. However the prosecution case was that the offending fell within Category B for culpability (medium) and category 3 for harm, and the judge appears to have accepted this. The starting point in the guideline for a category 2B role in an offence which does attract the statutory minimum is six years, and it can be inferred that the judge decided to take that as the notional sentence after trial on the basis that any aggravating factors were counterbalanced by any mitigating factors.

Since the judge was wrong to sentence on the basis that this offence attracted the statutory minimum, we must examine what sentence would have resulted had she applied Table 2 in the definitive sentencing guideline. There were two prohibited devices. According to the defence sentencing note, the first was a stun gun marketed outside the UK as a non-lethal hand held high voltage low current device designed to discharge painful electric pulses. The device was not in working order, and Mr Hogan drew police officers’ attention to it when they searched his home. The other taser was in working order and was of the type designed to project probes or conduct energy through direct contact in the form of electricity to affect the sensory and motor functions of the nervous system. Mr Hogan did not draw the attention of the police to it. It was concealed in what appeared to be a suitcase, which was in fact part of the furniture in his home. It was a fully functional and potentially lethal weapon.

The guidelines at table 2 indicate that an offence of possession of one of these items alone would normally result in a community sentence. However, the nature of the weapon and the circumstances in which the offence was committed are highly pertinent to whether a sentence should be passed outside that range. In this case there were not one, but two weapons, one of which was in working order, the other of which was not (though a person threatened with its use was not to know that). It is also of some significance that Mr Hogan had purchased a lethal weapon and ammunition from the OCG for use in his drugs business after initially approaching Mr Cooney to broker the deal. Considering the overall circumstances, the judge would not have erred in principle in passing a custodial sentence. However, there is force in the submission that six years was too long. If the judge been shown the correct table we are persuaded that she would not have passed that sentence.

Although this was not the judge’s fault in any way, and counsel should have picked up the point much sooner, it would not be fair to Mr Hogan to allow this sentence to remain undisturbed. It is manifestly excessive. We therefore grant the necessary extension of time, permit the amendment to the grounds, give leave to appeal and allow the appeal on the amended ground, quash the sentence on count 8 and, having allowed 25% credit for the guilty plea, substitute for it a sentence of 12 months’ custody to run concurrently with the determinate sentences passed on counts 6 and 7.

On behalf of Mr Waters, Mr Buckland contends that on the basis of the fact-findings that she made, HHJ Baxter was wrong to find that his involvement in the cocaine conspiracy (to which he pleaded guilty) was at the very top end of significant role, and in consequence that the starting point taken for his sentence was too high and the resulting sentence manifestly excessive. On the firearms conspiracy, Mr Buckland contends that the judge was wrong to find that Mr Waters was a dangerous offender, and that she should have drawn a distinction between those in control of the firearms conspiracy and those like Mr Waters who were working to deliver and collect the items as required.

Mr Waters was described by Mr Buckland as “very much a functionary” who was not exercising independent thought but merely doing the behest of others, albeit willingly, and being generously rewarded for doing so Mr Buckland accepted that a proper adjustment had been made for totality and that the downwards adjustment for Mr Waters’ personal mitigation was generous. Even so, and even allowing for the scale of the conspiracies, he submitted that the total sentence he received of 24 years was manifestly excessive.

As to the first point, the single judge pointed out that at the sentencing hearing it was argued that Mr Waters’ role was not a leading one (not that it was not a significant one). The judge found that Mr Waters was part of the OCG. She placed him and another defendant, Gibbons, at the top end of significant role for the drugs and medium culpability for the firearms because they were directed by others above them in the chain but had their own operational and management function. They were instrumental in setting up a legitimate business as a cover for the drugs and guns that they planned to import; they not only acted as trusted couriers but recruited and directed other couriers in the group. They hid the contents of the stash house after another defendant, Connor Sandlan, was arrested, they knew the scale of the operation and they did it all for financial gain. That is not just being a functionary blindly following directions.

Having presided over the trial, the judge was best placed to evaluate Mr Waters’ position within the hierarchy of both conspiracies; she gave cogent reasons for where she placed him and we see no basis for disturbing that evaluation. The starting point within the guidelines was not arguably too high, and the judge was entitled to move up outside the range because of the scale of the operation and other aggravating factors, as she did with the other defendants. As the single judge also pointed out, the sentence on count 2 also treated Mr Waters’ involvement in the MDMA conspiracy, count 3 (to which he had pleaded guilty during trial) as an aggravating factor and no separate sentence was passed on that count. Taking all these matters into consideration there is no real prospect of successfully arguing that either of the sentences passed on counts 1 and 2 were manifestly excessive.

As to Mr Buckland’s second ground, the Judge was entitled to find that Mr Waters posed a significant risk of serious harm to the public by the commission of further specified offences. As the single judge said, the finding that he was a courier and money collector was an active role in the supply of highly dangerous weapons and was a clearly sufficient basis for the judge to conclude that he was dangerous, despite the fact that his previous convictions were of a far less serious character.

This renewed application is therefore dismissed.

Mr Gonzalez pleaded guilty to counts 1-4. After being afforded credit for that plea of 25%, he received a determinate sentence of 12 years on count 1, and determinate sentences of 13 years on counts 2 and 3 (to run concurrently with each other and consecutively to the sentence passed on count 1), a total of 25 years. No separate sentence was passed in respect of count 4, the Class B drugs conspiracy. His personal mitigation on the basis of his serious medical condition was taken into account in deciding that he was not a dangerous offender, and therefore he received a determinate sentence rather than an extended sentence for the firearms conspiracy. When fixing the credit for plea at 25% the sentencing judge took into account the impact that Mr Gonzalez’s health had had on his ability to give instructions to his legal representatives and participate in the proceedings at the pre-trial stages. In the light of the timing of the plea he would have received less credit otherwise.

A co-defendant, Connor Sandlan, also pleaded guilty to counts 1-4, but due to its timing he received less credit for plea. He received determinate sentences of 14 years 3 months on counts 2, 3 and 4 (to run concurrently) and an extended sentence of 16 years on count 1, comprising a custodial term of 14 years and an extended licence period of 2 years to run consecutively. The prosecution case was that Gonzalez and Sandlan worked together as a team, and HHJ Baxter so found when she sentenced Sandlan, stating that he worked with Gonzalez and not for him.

HHJ Baxter fixed the starting points for the conspiracies in counts 1 and 2 outside the guidelines at 20 years for those found to have played a leading role within the OCG. That was the figure she adopted in the case of Omar Malik. In Mr Sandlan’s case she adjusted the figure downwards to reach a notional sentence after trial of 16 years before giving credit for his plea. It is unclear from her sentencing remarks how much of that 4-year adjustment was due to his lower status than Mr Malik in the hierarchy (albeit still falling within the category of leading role), how much was due to his personal mitigation, and how much involved a downward adjustment for totality.

For the reasons we have already indicated, Mr Gonzalez was sentenced by HHJ Potter, after Mr Sandlan had already been sentenced by HHJ Baxter, whose sentencing remarks were available to HHJ Potter at the time when he passed sentence on Mr Gonzalez. HHJ Potter took a starting point of 14 years on the firearms conspiracy, which he elevated to 20 years for all the aggravating features he identified. He said he would reduce that sentence to 16 years “to reflect mitigation” and then gave 25% credit for the guilty plea. On count 2, (which he treated as the lead offence in the drugs conspiracies, with the other drugs conspiracies treated as aggravating features) HHJ Potter took a starting point of 20 years, which he said remained the same after adjusting for aggravating and mitigating factors. He then gave credit for plea and adjusted the resulting sentence of 15 years downwards by a further 2 years to reflect totality. He passed a commensurate sentence of 13 years on count 3 and no separate sentence on count 4, further reflecting totality by making all the sentences for the drugs conspiracies run concurrently with each other (but consecutive to the determinate sentence on count 1).

We had understood from the written grounds that the point taken in Mr Gonzalez’s renewed application for leave to appeal against sentence was one of disparity with the sentences passed on Mr Sandlan. However, in oral argument, Mr Cook pointed to two “errors of principle” he submitted had been made by the sentencing judge. Mr Cook explained that he was not running a disparity point as such, accepting that in the context of offending of this scale where the trial judge had taken a starting point of 20 years for those in a leading role, a difference of 16 months between two offenders falling into that category was unlikely to be regarded as inexplicable by differences in their respective personal circumstances which were capable of justifying different sentences. That was the view which the single judge had taken when refusing leave.

Mr Cook indicated, rather, that he was using the sentence received by Mr Sandlan as a yardstick by which to evaluate whether something had gone seriously wrong with the approach to sentencing Mr Gonzalez, as he submitted it had, resulting in an overall sentence that was manifestly excessive. First, he submitted that HHJ Potter had erred in principle by mixing up matters relevant to harm and culpability, when considering the sentence to be passed on the index offence, with matters relevant to the assessment of future risk to the public, when considering whether an offender is dangerous and whether to pass a determinate or extended determinate sentence. HHJ Potter had said that it would be “double-counting” if he were to take into consideration as personal mitigation, when fixing the custodial element of the sentence, the serious medical condition of Mr Gonzalez which he had already taken into account in determining that he was not a dangerous offender. That was wrong in principle.

Mr Cook contended that it could readily be inferred from this remark and the way in which HHJ Potter proceeded to sentence that the “personal mitigation” for which he said he was affording Mr Gonzalez a 4 year reduction in the sentence on Count 1 was residual mitigation, i.e. it reflected all matters other than his health. We agree that this is an appropriate inference to draw.

Mr Cook therefore submitted that the sentencing judge should have made a reduction greater than 4 years from the 20 year starting point, to reflect the mitigation which he wrongly excluded from consideration at that stage. His second submission was that the sentencing judge erred in principle in not making any adjustment for the fact that Mr Gonzalez occupied a lower place in the hierarchy than Omar Malik, for whom a starting point of 20 years had been taken. The trial judge had adjusted Mr Sandlan’s starting point downwards to an extent to reflect his lesser role within the leading role bracket, but there is no indication in HHJ Potter’s sentencing remarks that he made an adjustment of that nature.

The sentencing judge was not bound to adopt the same structure to his sentencing as the trial judge did; he sentenced within the Goodyear indication that he gave. However, we agree with Mr Cook that there was an error of principle in not considering Mr Gonzalez’s medical condition as part of his mitigation. That would not have involved any double counting. The question of future risk for extended sentence purposes and personal mitigation because of the debilitating effect of the condition, including the added difficulties of imprisonment, are two separate matters. For that reason we considered there was an arguable ground of appeal and gave leave to appeal.

However, we do not accept that by reason of the sentencing judge failing to give an even greater discount for mitigation than he did, the notional sentence before credit was given for the guilty plea resulted in a sentence that was manifestly excessive. A four year deduction was on any view extremely generous, and in our view more than adequate to embrace both Mr Gonzalez’s health issues and his other personal mitigation. For reasons that we will explain it was also more than sufficient to cater for the fact that Mr Gonzalez ranked just below Mr Malik in the hierarchy of the OCG.

In order to address the complaint that in principle there should have been a downward adjustment to reflect Mr Gonzalez’s lesser role than Mr Malik and, in Mr Cook’s submission, comparable role to Mr Sandlan, it is important to set out in summary what Mr Gonzalez was found to have done. HHJ Potter found that Mr Gonzalez received directions from Mr Malik who “is thus to be ranked slightly above you”, but that he took a role in leading the activities of the OCG on his behalf. He brokered deals with other large-scale drug suppliers for the sale and purchase of Class A drugs; he dealt with criminals in the marketplace for automatic firearms; he controlled the main stash-house used by the OCG where drugs, guns, ammunition and cash were stored in large quantities; he acted as a courier for these unlawful commodities; he instructed others below him in the group in their similar activity; he used an encrypted phone; he owned his own Scorpion machine pistol with numerous rounds of ammunition. This dangerous weapon has never been recovered. He moved at least £230,000 in cash from the stash-house (following Mr Sandlan’s arrest) when he realised the authorities may have compromised the criminal network. He was directly involved in drug deals in relation to 94 kilos of cocaine which had a value of £3.5 million wholesale.

Despite the fact that both men were rightly regarded as playing a leading role in the OCG, there are material distinctions between the role of Mr Gonzalez – who was in effect Mr Malik’s trusted lieutenant - and that of Mr Sandlan, which results in a disparity argument having no real prospect of success. This is no doubt why Mr Cook prudently moved away from the previously pleaded disparity submission. To apply the governing disparity test in R v Fawcett [1983] 5 Cr App R (S) 158, no right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, could think something had gone wrong in the administration of justice.

To assess what remains of the argument, one must stand back and look at the overall sentences passed. The judge was fully justified in concluding that Mr Gonzalez was a “leading member of the OCG” and “played a leading role”; there has been no attempt to go behind these findings. Any downward adjustment to the 20 year elevated starting point to reflect his subordinate role in the hierarchy to Mr Malik would have been relatively small, certainly no more than 12 months at the most. That would still leave an additional downward adjustment of 3 years to reflect all the mitigation, which, if anything, erred on the side of generosity. The structure of the sentencing and adjustments made by the sentencing judge amply cater for totality.

We consider that after all the relevant matters are taken into consideration, there can be no question of describing the total sentence passed on Mr Gonzalez of 25 years for offending of this nature and gravity, after an appropriate credit was given for his guilty pleas, as manifestly excessive. It does not become manifestly excessive because another defendant falling within the same sentencing category in the guidelines received a sentence that was 16 months different, nor for any other reason. The overall sentence was just and proportionate to the offending. For those reasons, we dismiss the appeal.