Malik & Ors [2025] EWCA Crim 1482: Bad Character, Dangerousness and Firearms Sentencing in Large‑Scale EncroChat Conspiracies

1. Introduction

The decision in R v Malik & Ors [2025] EWCA Crim 1482 arises from one of the most serious firearms and Class A drugs conspiracies yet prosecuted in England and Wales. It also comes against the background of the EncroChat litigation and provides important clarification on several fronts:

• How historic firearms convictions can properly be used as bad character evidence – not just for propensity but also for attribution of EncroChat handles.
• How trial judges should respond to jury requests about expert evidence in complex EncroChat cases.
• When (and when not) a “McGarry direction” about silence in interview should be given.
• The high threshold for setting aside convictions on the basis of alleged deficiencies in defence representation.
• How the Sentencing Council firearms and drugs guidelines are to be applied – and exceeded – in a conspiracy of unprecedented scale.
• Important correction of sentencing practice for possession of tasers under s.5(1)(b) Firearms Act 1968 (Table 2, not the mandatory minimum Table 1).
• The relationship between “dangerousness”, extended determinate sentences and personal mitigation such as serious medical conditions.

The Court (Criminal Division) dealt with renewed applications for leave to appeal against conviction and sentence by several defendants in a Manchester-based organised crime group (“OCG”), and one appeal against sentence for which leave had already been granted. The case offers a detailed worked example of how appellate courts may approach challenges to both conviction and sentence in large, technology-rich OCG prosecutions.

2. Factual and Procedural Background

2.1 The Organised Crime Group and the Indictment

The prosecution concerned a Manchester OCG involved in the large-scale wholesale supply of “import quality” cocaine and other drugs, and in the trafficking of firearms – notably automatic pistols with compatible ammunition – across England and Wales. Expert evidence at trial placed the firearms trafficking at “amongst the very highest level” ever encountered by UK law enforcement. The investigation yielded:

• Multiple firearms, including automatic and semi-automatic weapons.
• Large quantities of ammunition.
• Significant quantities of Class A and Class B drugs.
• Over £600,000 in cash.
• Ledgers indicating cocaine alone worth around £70 million.

The indictment comprised nine counts, including:

• Count 1: Conspiracy to possess firearms/ammunition with intent to endanger life (s.1(1) Criminal Law Act 1977).
• Count 2: Conspiracy to supply Class A drugs (cocaine).
• Count 3: Conspiracy to supply Class A drugs (MDMA).
• Count 4: Conspiracy to supply Class B drugs (amphetamine).
• Other counts relating to possession with intent to supply, possession of prohibited weapons (including tasers) and related matters.

The conspiracies spanned January–June 2020, with particular emphasis on the period mid‑March to 16 June 2020. The prosecution case was constructed largely around:

• EncroChat communications and attribution of particular handles.
• Surveillance and cell-site analysis.
• CCTV.
• Non‑encrypted messaging.
• Items recovered on arrest (phones, drugs, weapons, cash).

Core to the case were two EncroChat handles:

• “payyabills” – alleged to be used by Omar Malik, accepted as one of the two leaders of the OCG.
• “fernpirate” – alleged to be used by Andrew Cooney, a close friend of Malik, who was not himself part of the OCG but who bought large quantities of cocaine and brokered firearms deals.

The proceedings were delayed to await the Court of Appeal’s seminal decisions on the admissibility and use of EncroChat material:

• R v A, B, C and D [2021] EWCA Crim 128
• R v Atkinson & Ors [2021] EWCA Crim 1447

2.2 Defendants and Sentences

The judgment focuses on the following individuals:

• Omar Malik – alleged leader of the OCG (with “mr miaghi”). Convicted of Counts 1–4.
• Andrew Cooney – close associate of Malik, attributed “fernpirate”. Convicted after trial on Counts 1 and 2 (firearms conspiracy and cocaine conspiracy) and had pleaded guilty to a separate Class A possession with intent (Count 5). Acquitted on Counts 3 and 4.
• Sean Hogan – convicted of the firearms conspiracy and drug supply offences. Also pleaded guilty to possession of two tasers (Count 8).
• Daniel Waters – convicted of the firearms conspiracy and various drugs offences. Described as a trusted, high‑level courier and operational manager within the OCG.
• Adrian Gonzalez – a leading role within the OCG. Pleaded guilty to Counts 1–4 before a different judge (HHJ Potter), after being severed from the main trial due to serious medical issues.

Notably, Gonzalez had received a Goodyear indication (a judicial indication of the maximum sentence on a guilty plea) from HHJ Potter, who later sentenced him with the benefit of HHJ Baxter’s sentencing remarks for the trial defendants.

2.3 Appeals Before the Court

The Court heard:

• Malik – renewed application for leave to appeal conviction (Counts 1–4) and for an extension of time.
• Cooney – renewed application for leave to appeal conviction and appeal against sentence (leave already granted on sentence).
• Hogan – renewed, out‑of‑time application for leave to appeal sentence only in respect of Count 8 (two tasers), with permission to amend grounds.
• Waters – renewed application for leave to appeal sentence and extension of time.
• Gonzalez – renewed application for leave to appeal sentence (disparity/approach to mitigation and dangerousness).

2.4 Dispositive Outcome

The Court announced its decisions at the conclusion of the hearing, reserving written reasons. In summary:

1. Malik – renewed applications for leave to appeal and extension of time refused.
2. Cooney – renewed application for leave to appeal conviction dismissed; appeal against sentence dismissed.
3. Hogan – leave to amend grounds and appeal sentence for Count 8 granted; appeal allowed; sentence on Count 8 reduced from an effective 6 years (4 after plea) to 12 months’ custody concurrent with other sentences.
4. Waters – renewed application for leave to appeal sentence refused.
5. Gonzalez – leave to appeal sentence granted, but appeal dismissed.

3. Summary of the Judgment

3.1 Convictions

• Malik’s conviction is safe. The Court upheld the admission of his 2007 firearms conviction as bad character on two overlapping bases: (i) propensity to possess illicit firearms, and (ii) attribution of the “payyabills” handle. The jury directions on bad character, the judge’s summing up, the handling of the jury’s request concerning expert evidence, and the absence of a “McGarry direction” were all found to be proper. The strength of the attribution and other evidence was described as “compelling”.
• Cooney’s conviction is safe. The late use in cross‑examination of a Nokia phone contact list (already disclosed years earlier) did not amount to procedural unfairness warranting discharge of the jury. Allegations of inadequate representation were rejected; counsel’s choices were within the range of reasonable tactical decisions and, in some instances, demonstrably sound (e.g. not calling cell‑site evidence that would have strengthened attribution of “fernpirate”).

3.2 Sentences

• Cooney’s 27‑year total sentence upheld. The Court endorsed the approach of imposing concurrent determinate sentence(s) for the drugs conspiracy/conspiracies, and consecutive extended determinate sentences for the firearms conspiracy, with adjustments for totality. Given the unprecedented scale of firearms trafficking and drug dealing, and Cooney’s significant role as a trusted middleman and broker of automatic weapons, moving above the guideline ranges was justified. The dangerousness finding and imposition of an extended sentence were also upheld.
• Hogan’s taser sentence corrected. The Court held that possession of tasers charged under s.5(1)(b) Firearms Act 1968 falls into Table 2 (no mandatory minimum), not Table 1 of the firearms guideline. The trial judge had effectively sentenced as if the statutory minimum applied. The proper sentence, even allowing for aggravating factors, was a 12‑month custodial term concurrent with other sentences, not a notional 6‑year term (4 after plea).
• Waters’ 24‑year sentence upheld. The Court approved the finding that Waters was near the top of the “significant role” bracket and a dangerous offender. His activities as a trusted courier, organiser of others, and participant in concealment and stash‑house management justified the level of sentence.
• Gonzalez’s 25‑year sentence upheld, though a legal error identified. The Court accepted that HHJ Potter erred in principle in treating Gonzalez’s serious medical condition as relevant only to dangerousness (leading to a non‑extended sentence), and not also as personal mitigation when fixing the custodial term. However, the sizable four‑year discount applied was “extremely generous” and sufficient to reflect both his health and other mitigation, as well as his slightly lower status than Malik. The overall sentence was not manifestly excessive.

4. Detailed Analysis

4.1 Malik: Bad Character, Jury Directions and Expert Evidence

4.1.1 Bad Character and the Use of Historic Firearms Convictions

The principal evidential issue in Malik’s appeal was whether the trial judge was right to admit his 2007 conviction for multiple firearms offences as “bad character” under the Criminal Justice Act 2003, and whether the jury were properly directed on how they could use that evidence.

Malik’s 2007 conviction involved an “arsenal” of illicit firearms (Tokarev pistol, shotgun, pump‑action rifle, sub‑machine pistol, and numerous rounds of ammunition) recovered from a car to which he held the keys. These weapons, like those in the present conspiracy, were prohibited and sourced covertly from criminal networks.

The statutory framework (s.101 CJA 2003) allows bad character evidence to be admitted, amongst other “gateways”, if:

• It shows propensity to commit offences of the kind charged; and/or
• It is relevant to some other important matter in issue between prosecution and defence (e.g. identity or attribution).

The leading authority R v Hanson [2005] EWCA Crim 824 sets out the core tests for admitting bad character as showing propensity:

• Whether the previous offence(s) are of the same or similar kind.
• How old they are.
• Whether there is a real possibility of unfair prejudice outweighing probative value.

In Malik’s case:

• The firearms in 2007 and those in 2020 were strikingly similar in type and context – semi‑automatic and automatic weapons used in organised crime.
• Though the conviction was old (2007) and Malik was then 21, firearms convictions of this nature are inherently rare and highly indicative of particular criminal involvement.
• The prosecution case was that the person using “payyabills” not only dealt in drugs but also directed the firearms operations of the OCG. Messages involving Scorpion and Grand Power machine pistols closely echoed the earlier type of offending.

Crucially, the Court emphasised that, by the time of the bad character application, the prosecution sought admission not only for propensity to possess firearms but also as probative of:

“an important matter in issue, namely, the attribution of the Encro handle 'payyabills' to Mr Malik.”

The Court held that this dual use – propensity and attribution – was legitimate and that the trial judge was “plainly right” to treat the 2007 conviction as admissible under both aspects of gateway (d).

Significance: The judgment confirms that in high‑level OCG cases, historic but distinctive firearms convictions can be relied on not only as evidence that a defendant has a propensity to possess illicit firearms, but also as part of the mosaic of evidence authorising attribution of anonymous encrypted handles. The age of the conviction is not determinative where the earlier offending is rare and closely analogous in nature.

4.1.2 Jury Instruction on Bad Character and Propensity

Malik argued that the trial judge should have told the jury explicitly that the bad character evidence could not show a propensity to commit drugs offences, and that failure to do so rendered the conviction unsafe.

The Court rejected this:

• The judge’s direction was in standard and careful terms: the jury must not convict “wholly or mainly” because of bad character; it was only one part of the overall evidential picture.
• There was no suggestion at trial that the 2007 conviction evidenced a propensity for drug dealing; this was “self‑evidently” not its relevance.
• To introduce an express warning that the conviction did not show a propensity to deal drugs might have confused the jury, by highlighting a misuse of the evidence that no one had advocated.

The Court concluded that the directions struck the right balance and that no misdirection arose.

4.1.3 Summing Up of Malik’s Defence: Singh‑Mann

Malik contended that the judge’s summing up was unfair because it did not contain a discrete, self‑contained, succinct section summarising his defence – particularly important, he argued, because he had not given evidence.

Reliance was placed on R v Singh‑Mann [2014] EWCA Crim 717, where Fulford LJ observed that while there is no single “correct” style of summing up, the judge must ensure that the defence case is fairly and adequately put before the jury.

The Court accepted that judges have flexibility in structure. In this trial:

• The judge reminded the jury of the defence case “at convenient junctures”, including key points attacking attribution and the reliability of EncroChat data.
• Defence counsel had delivered a closing speech; the jury were fully aware of Malik’s stance (essentially, putting the Crown to proof and disputing attribution and data reliability).
• No specific defence point of substance could be identified as omitted from the judge’s summing up.

In effect, the Court confirmed that the Singh‑Mann requirement of fairness was met; no particular formalism in the structure of the summing up is required provided the defence case is clearly presented and not diluted or misrepresented.

4.1.4 Jury Note on Expert Evidence: Limits of the Judge’s Obligations

An important procedural point concerns the jury’s early request:

“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 judge quite properly:

• Indicated she could remind the jury of any evidence they wished, especially expert evidence; and
• Invited them twice to particularise which expert(s) or topics they wanted to be reminded about.

After being given this opportunity (including overnight to reflect), the jury did not renew the request or specify any area where assistance was required.

Malik argued on appeal that the jury’s initial note showed they were overwhelmed by the expert evidence, especially the EncroChat reliability evidence, and that the judge should have provided a written summary or more detailed assistance without waiting for further specificity.

The Court emphatically rejected this:

• The trial judge did not refuse assistance; she responded entirely appropriately by asking for clarification.
• The absence of any follow‑up from the jury must be taken at face value: they considered they could continue without further help.
• Speculation that they were “too overwhelmed” to renew their request was “fanciful”, particularly given the jury’s careful and nuanced verdicts (e.g. acquitting Cooney on some counts while convicting on others).

This reinforces a key principle: judges are not obliged to produce written digests or summaries on demand. Their duty is to respond sensibly to requests, offer the opportunity of clarification, and give oral reminders as appropriate. Once the jury, duly invited, declines to pursue the matter, no unfairness arises.

4.1.5 Silence in Interview and the “McGarry Direction”

Malik had remained silent in police interview and did not give evidence at trial. He complained that the judge failed to provide a so‑called “McGarry direction” – i.e. a direction telling the jury that they must not hold against him the fact that he answered “no comment” in interview.

The statutory regime under s.34 Criminal Justice and Public Order Act 1994 permits a jury, in certain circumstances, to draw adverse inferences from silence in interview, but only where:

• The defendant later gives evidence at trial relying on facts not advanced at interview; and
• The jury are properly directed on how and when such an inference may be drawn.

In Malik’s case:

• He did not testify, therefore no s.34 direction allowing adverse inferences could be given in respect of him.
• The judge gave a s.34 direction only in relation to Cooney, who did give evidence and relied on facts he had not previously mentioned.

The Court accepted that there is no general requirement to give a positive direction that no adverse inference should be drawn from a no‑comment interview where no s.34 direction is being given. A McGarry direction is a matter of discretion. Moreover, as cases including R v Thacker [2021] EWCA Crim 97 have stressed, such a direction can be tactically unwise, because it highlights the defendant’s silence and invites the jury to consider a point that might otherwise have passed largely unnoticed.

Further, the Court found no realistic risk that the jury might have misapplied the Cooney s.34 direction to Malik. The judge:

• Expressly stated that the no‑comment interview direction concerned “Mr Cooney only”.
• Precisely identified eight facts Cooney now relied upon but had not mentioned earlier.

Malik had not advanced any such facts, so the direction was ring‑fenced. No unfairness arose and this ground was rightly not pursued vigorously at the hearing.

4.1.6 Strength of the Evidence Against Malik

Finally, the Court underscored the “formidable” case against Malik. Crucial factors included:

• The “payyabills” EncroChat device was found hidden in a chair at Malik’s home on arrest.
• Cell‑site analysis showed the device and Malik’s personal phone repeatedly co‑located.
• EncroChat messages matched objectively verified events and seizures of drugs and firearms by police.

Against that background, the Court held that none of Malik’s grounds came close to undermining the safety of his conviction, and refused both leave to appeal and the substantial extension of time sought.

4.2 Cooney: Procedural Fairness, Representation and Attribution of “fernpirate”

4.2.1 Late Use of the Nokia Contact List in Cross‑Examination

The central “fair trial” complaint in Cooney’s conviction appeal was that the prosecution should not have been allowed to cross‑examine him about a Nokia phone contact list during his evidence, because:

• The phone download had not been formally adduced in the Crown’s case against him.
• Defence counsel was only alerted shortly before Cooney entered the witness box.
• The linkage between the Nokia contact names and the “fernpirate” debtors list was highly damaging.

The Court’s analysis turned on three key points:

1. Disclosure: The Nokia download had been disclosed in November 2021 and was already part of the case materials. Cooney had seen it and given instructions on it in his proof of evidence.
2. Relevance emerged only during evidence: Cooney’s defence statement had effectively put the Crown to proof and said little of substance. It was only when he accepted in cross‑examination that he possessed the Nokia phone and had entered “Ray” (Sean Hogan’s nickname) into the phone that the link between the contact list and “fernpirate”’s list became live and probative.
3. No prejudice justifying discharge: The trial judge held – and the Court of Appeal agreed – that had defence objected at the time, she would have allowed the questions. The defence explanation (that contacts were on the phone when acquired) would have been the same whether the matter arose earlier in the Crown’s case or at the point of cross‑examination. There was no tactical ambush or unfair surprise.

The Court emphasised that the trial judge was best placed to evaluate any alleged unfairness in the course of the trial, and her reasoning in refusing to discharge the jury was unimpeachable. The evidence was properly admissible; the appeal court declined to re‑characterise a disclosure‑compliant, relevant line of cross‑examination as an ambush.

4.2.2 Allegations of Inadequate Representation

Cooney, acting in person on appeal, made extensive and articulate criticisms of his trial team, including:

• Not reminding him of the Nokia evidence before he gave oral evidence.
• Not making certain applications to exclude evidence.
• Not calling particular evidence (notably defence cell‑site analysis).

He waived privilege, and the Court considered a detailed response from trial leading counsel (Mark Gatley KC) and junior (solicitor‑advocate Naila Akhter).

Two points from the Court’s approach are particularly significant:

1. Knowledge of the evidence: Cooney had long been provided with the Nokia download and had given instructions about it; counsel’s decision not to go back through every detail before he testified did not amount to a failure of representation. He had repeatedly projected strong command of the evidence and told his solicitor he did not need it re‑explained.
2. Tactical decisions versus incompetence: Many of the decisions Cooney later criticised were, on any view, reasonable or wise:
   • Defence cell‑site analysis actually supported the attribution of “fernpirate” to Cooney; deploying it would have strengthened the Crown’s case.
   • Some evidence Cooney wanted called would have been affirmatively damaging.

The Court reiterated that disagreement with counsel’s tactical choices does not equate to “ineffective assistance of counsel” in the sense of undermining the safety of the conviction. There was no evidence that any omission or strategy had a realistic prospect of changing the outcome, especially given the Court’s assessment that the attribution case against Cooney was “formidable”.

4.2.3 Nuanced Verdicts and Jury Understanding

Cooney argued that the jury’s split verdicts – convicting on the firearms and cocaine conspiracies but acquitting on MDMA and amphetamine – evidenced confusion or inconsistency.

The Court reached the opposite conclusion:

• The prosecution itself accepted that attribution of “fernpirate” to Cooney was insufficient on its own to prove involvement in the MDMA conspiracy; hence the directed acquittal on Count 3.
• In relation to amphetamine (Count 4), there were some EncroChat references to prospective amphetamine transactions, but no proven completed deals involving Cooney or “fernpirate”.

The jury were therefore entitled to conclude:

• They were sure Cooney was “fernpirate” and involved in the cocaine conspiracy and firearms brokering.
• But not sure that he joined the amphetamine conspiracy at the level required for a criminal conviction.

Far from suggesting confusion, the verdicts were “nuanced” and “demonstrated careful engagement with the evidence”. That nuance undercuts any suggestion that the jury misunderstood the attribution evidence or the Crown’s case.

4.3 Sentencing in Large‑Scale Firearms and Drugs Conspiracies

4.3.1 Overall Sentencing Structure

The trial judge, HHJ Baxter, adopted a clear structure for defendants convicted after trial:

• Drugs conspiracies: Determinate sentences, normally concurrent with each other where multiple drug counts applied.
• Firearms conspiracy: Consecutive extended determinate sentences (EDS) for all conspirators found to be “dangerous”, with custodial terms at levels well above the Sentencing Council starting points.

This structure was not challenged as a matter of principle. The key appellate issues related to:

• Placement within guideline categories for culpability and harm.
• Whether upward departures beyond guideline ranges were justified.
• Whether the dangerousness finding and EDS were warranted for particular defendants.

4.3.2 Cooney’s Firearms Conspiracy Sentence

On Count 1 (firearms conspiracy), the judge assessed Cooney as:

• Role: Significant (not leading), in group activity.
• Culpability: Medium.
• Harm: Category 2 (high risk of death/serious harm or serious disorder).

The relevant guideline is that for a single offence of possession of a prohibited firearm with intent to endanger life. The Court stressed that:

• The guideline assumes one weapon, not a conspiracy involving scores of automatic firearms.
• The OCG’s activities were “on an almost unprecedented scale”, with (for example) 52 machine pistols (48 already sold) and 50 Grand Power handguns.
• Cooney knowingly brokered deals for extremely dangerous weapons to criminal clients (e.g. Hogan) for use in drug turf wars and enforcement.

The judge therefore:

• Started from the category 2B guideline (which has a 10‑year starting point).
• Identified multiple aggravating features: EncroChat use; automatic nature of the weapons; variety of weapon types; conspiracy context; scale and foreseeability of lethal use.
• Moved upwards to a pre‑mitigation sentence of 15 years – three years above the guideline range – before then giving credit for mitigation and imposing a custodial term of 13 years within an extended sentence (2‑year extended licence).

The Court endorsed this approach, emphasising that guidelines are just that – guidance – and are drafted with typical, not unprecedented, cases in mind. Where offending is qualitatively and quantitatively far more serious than the guideline’s paradigm, significant upward departure is lawful and may be necessary to reflect gravity and public protection needs.

4.3.3 Cooney’s Cocaine Conspiracy Sentence

On Count 2 (cocaine conspiracy), Cooney’s offending was placed in category 1B of the drugs guideline:

• Harm: Category 1 (very large quantities of Class A drugs: 739kg cocaine; street value ~£70m).
• Culpability: B (significant role – operational middleman buying kilo quantities from Malik for his own network, and facilitating supply to others).

Here too the judge moved outside the category 1B range, explaining:

• Quantities vastly exceeded the 5kg threshold for category 1.
• The operation was “large‑scale dealing in wholesale amounts on a commercial basis using established networks” purely for financial gain.
• Cooney was a regular and trusted customer and associate of Malik.

The Court accepted that a pre‑mitigation starting point outside the guideline range was justified and proportionate. Notably, Cooney’s starting point for the drugs count was lower than that for some co‑defendants, reflecting that he was only involved with cocaine and not the other drugs conspiracies.

4.3.4 No “Double Counting” in Using EncroChat as Aggravation Twice

Cooney argued that using EncroChat use as an aggravating feature both in the firearms and the drugs sentences amounted to “double counting”. The Court rejected this analysis, emphasising a fundamental sentencing principle:

The proper approach to sentencing is to reach the appropriate sentence for each offence separately and then consider the principle of totality.

Each offence’s seriousness is assessed on its own facts; if EncroChat usage significantly aggravates both, it may properly inform both sentences. Overall proportionality is then addressed via totality principles (e.g. concurrency versus consecutivity, global sentence length), which, in Cooney’s case, the judge had handled correctly.

4.4 Dangerousness and Extended Determinate Sentences

4.4.1 Cooney as a Dangerous Offender

The test for imposing an extended determinate sentence (EDS) is whether:

• The offence is a specified violent or sexual offence (here, possessing firearms with intent to endanger life clearly qualifies); and
• The court considers the offender poses a “significant risk of serious harm” to members of the public by the commission of further such offences.

The Court upheld the trial judge’s finding that Cooney met this threshold. Reasons included:

• He was an established Class A dealer operating a serious drugs business since 2019.
• He knowingly brokered the sale of an automatic weapon and ammunition to Hogan and sought another for an unidentified client.
• He was prepared to engage actively with the OCG’s violent expansion plans.

On that basis, an EDS of 13 years’ custody with a 2‑year extended licence, consecutive to a 12‑year determinate drugs sentence (total 27 years), was considered within the proper ambit of sentencing discretion. The Court regarded the 2‑year extension period as suitably tailored and not excessive; the fact that Malik, a more serious offender, received the same extension did not mean Cooney’s was incorrect.

4.4.2 Waters: Couriers Can Be “Dangerous” in Firearms Conspiracies

Waters argued that, as a courier and money collector, he was “very much a functionary” and that the judge erred in categorising him as dangerous. The Court dismissed this, highlighting:

• He was not a mere runner; he was part of the OCG.
• He operated near the top of the “significant role” bracket, managing operations and recruiting other couriers.
• He was involved in setting up a sham legitimate business as a cover.
• He assisted in hiding stash‑house contents after arrests and fully understood the scale of drugs and guns trafficking.

Even in the absence of serious prior convictions, his active involvement in the wholesale distribution of highly dangerous weapons gave ample grounds to conclude that he posed a significant risk of serious harm, justifying the EDS and high starting points applied by the sentencing judge.

4.4.3 Gonzalez: Dangerousness, Health and Mitigation

Gonzalez presents a more nuanced question. He pleaded guilty to Counts 1–4 and was sentenced by HHJ Potter (who had given a Goodyear indication and read Baxter J’s sentencing remarks). Potter J accepted that due to Gonzalez’s serious medical condition, he did not meet the threshold of “dangerousness” justifying an EDS and therefore imposed determinate sentences.

However, in doing so he stated that taking Gonzalez’s health into account again, as mitigation when fixing the custodial term, would be “double‑counting”. The Court of Appeal held this was an error of principle:

• Mitigation based on medical hardship (the actual impact of custody on an ill offender) is conceptually distinct from the question whether an offender is likely to commit further specified offences causing serious harm.
• An offender’s health may:
  • (a) reduce the predictive assessment of risk (thus avoid an EDS); and
  • (b) independently mitigate the harshness or oppressive effect of imprisonment, warranting a shorter custodial term.

The Court therefore accepted an error of law and granted leave to appeal. Nonetheless, it upheld the sentence because:

• Potter J had already made an “extremely generous” overall 4‑year reduction from the elevated 20‑year starting point on Count 1 to 16 years pre‑plea, which the Court regarded as more than adequate to reflect both Gonzalez’s health and other personal mitigation, as well as his subordinate position to Malik.
• Any further reduction would have risked undermining the proportionality of the sentence for offending of extraordinary gravity.

This aspect of the judgment is important: it clarifies that health‑related mitigation must not be ruled out on the ground that it has already been considered in the dangerousness assessment. But it also shows that an identified error does not necessarily mean the sentence is manifestly excessive, where the actual reduction allowed is already ample.

4.5 Correct Guideline for Tasers under s.5(1)(b) Firearms Act: Hogan’s Appeal

4.5.1 Statutory Context and Sentencing Guidelines

Hogan’s sentence on Count 8 – possession of two tasers, contrary to s.5(1)(b) Firearms Act 1968 – lay at the heart of his appeal. He received 4 years’ imprisonment concurrent with other sentences, after a 25% reduction for a guilty plea (implying a notional 6‑year term).

The problem: the sentencing judge had been directed to (and appears to have used) Table 1 of the Sentencing Council firearms guideline, governing offences which attract the statutory mandatory minimum of five years under s.311 and Schedule 20 of the Sentencing Code. But Hogan’s offence under s.5(1)(b) was not in the category attracting that minimum term. It should therefore have been sentenced under Table 2, which does not include the statutory minimum.

Both prosecution and defence counsel at trial overlooked this distinction. The Court of Appeal accepted that this was an “understandable” oversight given the complexity of s.5 (with different sub‑paragraphs, some but not all linked to the mandatory minimum).

4.5.2 The Nature of Hogan’s Offending

The two weapons were:

• A stun‑gun type device (non‑functional) that Hogan himself pointed out to police during the search.
• A fully functional taser capable of projecting probes or conducting energy by direct contact, concealed in a piece of furniture resembling a suitcase. Hogan did not disclose its existence.

Under Table 2, possession of a single such device can, in the ordinary case, attract a community sentence. However:

• The Court stressed that the guideline starting points are only presumptive.
• The number of weapons, their functionality, and wider context are crucial.
• Hogan had earlier purchased a lethal firearm and ammunition from the OCG for use in his drugs business, demonstrating a propensity to arm himself for serious criminality.

4.5.3 Recalibration of Sentence and Principle

The Court held that, even applying Table 2, a custodial sentence was plainly justified, but 6 years was manifestly excessive. Given:

• One functioning and one non‑functioning taser;
• The concealment of the operational taser; and
• Hogan’s broader firearms criminality;

the proper sentence was a 12‑month custodial term after a 25% credit for plea, concurrent with his other determinate sentences.

Two points of broader importance emerge:

1. Categorical distinction within s.5(1): Not all s.5(1) firearms offences carry the mandatory minimum. Judges must identify the correct statutory route and guideline table with care, especially for tasers and other “borderline” weapons.
2. Concurrent sentences can still require correction: Although correcting Count 8 made no difference to Hogan’s overall tariff, the Court considered it unjust to leave a plainly excessive count untouched. This supports the proposition that even “academic” errors may warrant rectification in principle.

4.6 EncroChat, Attribution and OCG Prosecutions

The case fits squarely within the post‑EncroChat landscape shaped by:

• R v A, B, C and D [2021] EWCA Crim 128
• R v Atkinson & Ors [2021] EWCA Crim 1447

Those test cases affirmed the admissibility of EncroChat material obtained by law enforcement and established principles for its use as evidence. In Malik & Ors, the Court did not revisit the admissibility question, which was already settled, but applied the resulting framework to:

• Challenges to reliability (e.g. omissions, lack of apparent audit trail) – which were comprehensively addressed by prosecution expert evidence and cross‑examination at trial.
• Attribution of handles (“payyabills”, “fernpirate”) through a combination of:
  • EncroChat message content.
  • Open‑source telephony (non‑encrypted phones and call logs).
  • Co‑location of encrypted and personal devices via cell‑site.
  • Physical seizures (devices in defendant’s home).
  • Corroborative documentation (ledgers, debtors lists, associates’ nicknames).
  • Historical bad character (for Malik).

The Court repeatedly describes the attribution evidence as “formidable” (Cooney) and “compelling” (Malik). The case therefore stands as a practical illustration of how EncroChat data is embedded within the wider evidential matrix, rather than standing alone, and how appellate courts scrutinise such attribution challenges.

4.7 Precedents Cited and Their Influence

4.7.1 R v Hanson [2005] EWCA Crim 824 (Bad Character – Propensity)

Hanson continues to govern when previous convictions can show propensity. The Court in Malik applied its principles straightforwardly:

• Relevance and similarity: unusual, serious firearms convictions highly probative.
• Passage of time: less significant owing to the rarity and distinctive nature of the offence type in the OCG context.
• Balancing probative value against prejudice: a robust exercise under s.78 PACE led to admission.

Malik adds an important gloss: the same conviction may also be used, under gateway (d), as going to an “important matter in issue” such as attribution of encrypted identity, not merely general propensity.

4.7.2 R v Singh‑Mann [2014] EWCA Crim 717 (Summing Up)

Singh‑Mann was cited for the proposition that the defence case must be fairly represented in the judge’s summing up. The Court affirmed that:

• There is no single mandated format;
• What matters is substantive fairness and completeness, not whether the defence case is gathered in a single, hermetically sealed section.

This reinforces judicial flexibility in managing long, complex trials, especially in EncroChat‑heavy conspiracies.

4.7.3 R v McGarry [1999] 1 Cr App R 377 and R v Thacker [2021] EWCA Crim 97 (Silence)

McGarry underlies the discretionary “do not hold silence against him” direction. Thacker warned of the potential prejudice of unnecessarily highlighting a no‑comment interview.

The Court in Malik synthesised these authorities to confirm:

• There is no obligation to give a McGarry direction, particularly where the defendant has not testified and no s.34 adverse inference direction is being given.
• Indeed, such a direction may be counter‑productive by focusing the jury’s attention on silence.

4.7.4 R v Fawcett [1983] 5 Cr App R (S) 158 (Sentencing Disparity)

In analysing Gonzalez’s disparity argument (ultimately not pursued in its purest form), the Court referenced Fawcett, which asks whether a right‑thinking member of the public, fully informed of the relevant circumstances, would feel that “something had gone wrong” in the administration of justice.

Given the different roles of Gonzalez and Sandlan, and the generous mitigation applied to Gonzalez, the Court held that any 16‑month difference in their respective total sentences was readily explicable and did not trigger the Fawcett threshold.

5. Complex Concepts Explained

5.1 Bad Character Evidence and “Gateways”

Bad character means evidence of, or a disposition towards, misconduct on the defendant’s part (usually previous convictions or reprehensible behaviour). Under the Criminal Justice Act 2003, such evidence may be admitted through a number of “gateways”, including:

• Propensity gateway (s.101(1)(d)): showing that the defendant has a tendency to commit offences of the kind charged (e.g. repeated similar robberies, sexual offences, or – here – illicit firearms possession).
• Important matter in issue (also s.101(1)(d)): where the bad character goes to a crucial disputed issue other than mere propensity – such as identity, attribution of an EncroChat handle, or state of mind.

Even if a gateway is satisfied, the court can exclude the evidence under s.78 Police and Criminal Evidence Act 1984 if its admission would adversely affect the fairness of the trial.

5.2 EncroChat and Attribution

EncroChat was a subscription-based encrypted phone platform used almost exclusively by those engaged in serious criminality. When law enforcement gained access to its data, cases like A, B, C and D and Atkinson determined that messages are admissible in evidence.

A central issue in EncroChat cases is attribution: proving beyond reasonable doubt that a particular handle (like “payyabills” or “fernpirate”) was used by the defendant. This is done by:

• Matching EncroChat content to real‑world events and seizures.
• Linking handles to nicknames or contact patterns known from open‑source phones.
• Cell‑site co‑location (same areas at the same times as personal phone movements).
• Physical recovery of the handset from the defendant’s home or car.
• Occasionally, bad character evidence consistent with the kind of criminal network described.

5.3 Extended Determinate Sentences (EDS) and “Dangerousness”

An Extended Determinate Sentence is a custodial sentence followed by an extended period on licence. It can be imposed where:

• The offender has committed a “specified” violent or sexual offence; and
• The court assesses that they pose a significant risk of serious harm to the public through further such offences upon release.

Key points:

• “Serious harm” includes serious physical injury and sometimes severe psychological harm.
• The extended licence period is designed to manage risk after release, not to increase punishment per se.
• Courts must explain why the usual determinate sentence is inadequate to protect the public.

In Malik & Ors, Cooney and Waters – among others – were found dangerous because their active facilitation of large‑scale firearms and drug trafficking made further serious violent offending on release a realistic, significant risk.

5.4 Goodyear Indications

A Goodyear indication (from R v Goodyear [2005] EWCA Crim 888) is an advance indication by the judge of the maximum sentence that would be imposed if the defendant pleads guilty at that stage. If the defendant then pleads guilty in reliance on the indication, the judge is ordinarily bound by it unless subsequent events make it unjust to do so.

In this case, Gonzalez pleaded guilty after receiving such an indication from HHJ Potter, who later sentenced him.

5.5 Statutory Minimums for Firearms

Certain firearms offences – including some under s.5 Firearms Act 1968 – attract a statutory minimum term of 5 years’ imprisonment (for adults) under s.311 and Schedule 20 of the Sentencing Code. But:

• Not all s.5(1) offences fall within the statutory minimum regime.
• Tasers under s.5(1)(b) do not attract the mandatory minimum, hence they belong in Table 2 of the firearms guideline (no minimum) rather than Table 1.

Hogan’s appeal clarifies that sentencing courts must map the indictment wording precisely onto the statutory subsections and then select the correct guideline table. Failure to do so can lead to very substantial, and unlawful, inflation of custodial terms.

5.6 Adverse Inferences from Silence in Interview

Under s.34 CJPOA 1994, a jury may draw an adverse inference if a defendant:

• Remains silent in interview or declines to mention specific facts; and
• Later at trial relies on those facts in his defence.

However:

• The defendant must give evidence at trial before any such direction can lawfully be given.
• A so‑called “McGarry direction” reminding the jury that no adverse inference should be drawn from silence is a matter of discretion. It is not automatic and may be tactically unwise by drawing fresh attention to silence.

In Malik, the jury were directed on s.34 only in relation to Cooney; Malik did not give evidence so no adverse inference direction applied to him, and there was no requirement to instruct the jury that they must ignore his silence in interview.

6. Impact and Future Significance

6.1 EncroChat and Attribution

The decision consolidates a template for dealing with EncroChat‑based OCG prosecutions:

• EncroChat evidence is integrated with conventional evidence (phones, ledgers, surveillance).
• Attribution can be buttressed by bad character where earlier offending mirrors the role of the handle user.
• Courts will be slow to find procedural unfairness where the jury has been properly guided and evidence is disclosed long in advance.

Defendants seeking to challenge attribution must realistically confront the multi‑layered nature of the evidence. The Court’s repeated description of the cases against Malik and Cooney as “formidable” sends a signal about the robustness expected of attribution challenges on appeal.

6.2 Bad Character as Attribution Evidence

The express endorsement of using a historic firearms conviction both:

• As propensity evidence for firearms offences; and
• As an “important matter in issue” (attribution of an encrypted identity)

is particularly noteworthy. Prosecutors can now rely with greater confidence on rare, distinctive convictions in OCG cases to link defendants to anonymous digital personas, provided:

• There is close similarity of offending type and context; and
• The overall evidence does not amount to little more than “bolstering a weak case”.

Conversely, defence teams must be prepared to challenge not only the age and relevance of such convictions but the fairness of deploying them for these dual purposes. However, where, as here, other real‑time evidence strongly supports attribution, s.78 PACE exclusion is unlikely.

6.3 Jury Notes and Expert Evidence in Complex Trials

The Court’s treatment of the jury’s request for expert summaries will be cited in future complex trials:

• Judges need not – and in many cases should not – respond to generalised jury requests by providing written “summaries” of evidence, especially where the request is not particularised.
• As long as the judge:
  • Explains that the jury may ask for reminders of specific evidence; and
  • Invites them to identify what, if anything, they need clarified;
  her duty is discharged.
• The absence of further jury communication is strong evidence they felt able to proceed unaided; appellate speculation to the contrary is unlikely to succeed.

6.4 Dangerousness and Personal Mitigation

On dangerousness, the case underlines:

• Couriers and “middlemen” within firearms conspiracies may readily be categorised as dangerous; their operational role, not just hierarchical rank, matters.
• Serious medical conditions may:
  • Reduce the assessed risk of future serious offending (seeing an EDS as unnecessary), and
  • Simultaneously mitigate the immediate custodial term.

Sentencers must therefore keep these analyses conceptually separate and avoid dismissing health‑based mitigation as “already counted” via the dangerousness route, as happened (erroneously) in Gonzalez’s case.

6.5 Sentencing Above Guideline Ranges in OCG Conspiracies

The Court’s firm endorsement of sentences above guideline ranges in both firearms and drugs conspiracies of exceptional scale is also significant:

• Guidelines are constructed with typical single‑offence scenarios in mind.
• Where the conspiracy involves:
  • hundreds of kilograms of Class A drugs;
  • scores of automatic firearms;
  • national trafficking networks; and
  • enormous gains for sophisticated organised groups,
  substantial upward movement is permissible and sometimes required.

Defence submissions that judges have “trespassed outside” the guideline ranges will meet a stiff headwind where the trial judge has carefully articulated the exceptional features, as here.

6.6 Correct Guideline Table for Tasers

For practitioners, Hogan’s appeal is a useful reminder:

• Always map the indictment wording carefully against the Firearms Act subsections.
• Do not assume the statutory minimum applies simply because the charge is under s.5(1).
• Ensure the court is guided to the correct table (Table 2 for non‑minimum cases, including tasers under s.5(1)(b)).

Given the frequency with which tasers and other disguised electrical incapacitation devices are now encountered in “street‑level” criminality, this clarification has real practical importance.

7. Conclusion

R v Malik & Ors is an expansive appellate judgment that does not revolutionise doctrine but consolidates and clarifies several important strands of criminal law and practice in the era of EncroChat and high‑end OCG prosecutions.

On the conviction appeals, the Court:

• Affirmed a robust, but fair, approach to admitting historic, distinctive bad character for both propensity and attribution.
• Reinforced that trial judges enjoy wide, but reviewable, discretion in handling jury requests and structuring summings‑up.
• Set a high bar for impugning convictions based on alleged deficiencies in defence representation.

On the sentencing appeals, the Court:

• Confirmed that guideline ranges may be exceeded for conspiracies of unprecedented seriousness.
• Clarified the correct sentencing framework for taser offences under s.5(1)(b) – a discrete but important point.
• Elaborated the interplay between dangerousness, extended determinate sentences, and health‑based mitigation.

The case will be of particular interest to those prosecuting and defending complex EncroChat‑driven OCG cases, to judges sentencing multi‑defendant firearms and drugs conspiracies, and to appellate lawyers considering challenges based on bad character, jury management, dangerousness findings, and guideline misapplication.

In essence, the Court of Appeal has signalled that where the evidence is strong, the trial fair, and the sentencing judge careful and explicit in reasoning, it will not lightly interfere with decisive and sometimes very severe sentences imposed for participation in some of the gravest forms of organised criminality.