R v Dermott [2025] EWCA Crim 1172: Restoring One‑Third Guilty‑Plea Credit Where Misadvice Prevented an Early Plea; Legal Ombudsman Opinions Inadmissible; Practice Duties on Better Case Management Forms

Court: England and Wales Court of Appeal (Criminal Division)

Date: 5 August 2025

Citation: [2025] EWCA Crim 1172

Introduction

This appeal concerns a wholesale cocaine conspiracy spanning multiple regions and months, coupled with possession of two functioning Makarov self-loading pistols and viable ammunition. The applicant, Mr Dermott, pleaded guilty at the Plea and Trial Preparation Hearing (PTPH) in the Crown Court at Liverpool to conspiracy to supply a Class A drug, two counts of possession of a prohibited firearm, and possession of ammunition without a firearm certificate. He was sentenced to a total of 19 years and 6 months’ imprisonment after receiving a 25% reduction for his guilty pleas.

The renewed application raised two interlinked complaints about the fairness of the sentencing process: first, that inadequate legal advice at the Magistrates’ Court deprived the applicant of the opportunity to secure the full one-third discount for an early guilty plea; second, that the deficient advice also prevented an informed decision about seeking a Newton hearing to contest “role” (leading/significant) in the drug conspiracy. A significant procedural feature was the applicant’s complaint to the Legal Ombudsman, which resulted in findings critical of the legal advisers’ performance. Although the Court of Appeal treated the Ombudsman’s opinion as inadmissible, it ordered a waiver of legal professional privilege and admitted contemporaneous notes and the applicant’s evidence.

The Court granted an extension of time and leave to appeal, admitted limited fresh evidence, upheld the sentencing judge’s assessments on role, category, starting points, and totality, but reduced the overall sentence to 17 years and 4 months by restoring the full one-third credit for an early plea that, on the evidence, the applicant would likely have tendered at first appearance if properly advised.

Key points at a glance

Legal Ombudsman opinion reports are inadmissible as opinion evidence in the Court of Appeal; however, they can legitimately trigger steps (e.g., privilege waivers) to obtain admissible fresh evidence.
Fresh evidence of misadvice about the timing and effect of a guilty plea can warrant retrospective application of the full one-third discount if it is more likely than not the defendant would have pleaded at the first stage.
Courts will preserve the original sentencing structure (role assessment, starting points, totality) unless there is an error or the result is manifestly excessive; here, drug and firearms assessments were upheld.
Current sentencing guidelines not in force at the time of the offence/sentence will not be applied retrospectively.
Robust practice reminder: accurate completion of the Better Case Management (BCM) form at first appearance is critical, and magistrates should actively check completion with legal representatives.

Summary of the Judgment

The Court dealt with four gatekeeping questions and the substantive grounds:

Extension of time: Granted. The delay, partly caused by the Legal Ombudsman process and prison movements, was excused in the interests of justice.
Leave to appeal: Granted. The admissible materials raised a realistic issue about misadvice on plea credit at the Magistrates’ Court.
Fresh evidence: The Legal Ombudsman’s report itself was inadmissible; but the Court admitted the applicant’s evidence, contemporaneous attendance notes and records, and a later report from the solicitor (with limited weight)—because the evidence was capable of belief, relevant to reducing sentence, would have been admissible below, and there was a reasonable explanation for not adducing it earlier.
Merits: The Court rejected challenges to the sentencing judge’s starting points for the drug conspiracy (21 years) and firearms (9 years), the totality reduction (to a notional 26 years), and disparity arguments. However, on the plea-credit issue, the Court found it more likely than not that, if properly advised at the Magistrates’ Court, the applicant would have pleaded guilty then and been entitled to a 33% discount.

Outcome: The Court adjusted the discount to 33%, reducing the overall sentence from 19 years 6 months to 17 years 4 months. It did so by reducing count 1 (the drug conspiracy) from 13 years 6 months to 11 years 4 months, leaving the firearms sentences (6 years consecutive on one count; 6 years concurrent on the other; 3 years concurrent for ammunition) undisturbed.

Analysis

Precedents and guidance referenced

The judgment does not cite specific authorities by name. However, several strands of established law and practice are clearly engaged and applied:

Fresh evidence on sentence appeals: The Court applied the familiar criteria for admitting fresh evidence: it must be capable of belief; it may afford a ground for allowing the appeal; it would have been admissible at first instance; and there is a reasonable explanation for the failure to adduce it below. Those elements are explicitly reflected in the Court’s reasoning.
Reduction in sentence for a guilty plea (one‑third at first stage): The Court proceeds on the settled principle that a plea indicated at the first reasonable opportunity (usually the first appearance in the Magistrates’ Court) attracts a one-third reduction. Pleas at the PTPH typically attract 25%, absent good reason.
Guideline application and temporal limits: The Court refused to apply the “current” firearms guideline because it was not in force at the material time, reaffirming the non-retrospective application of later guidelines.
High-end drug conspiracies and “Category 1+”: The Court recognised the approach developed in case law to extremely large-scale conspiracies that exceed the top guideline thresholds, warning against “crowding” or “bunching” at the top of the range. The sentencing judge’s recourse to authorities to structure a 21-year starting point for the drug count was affirmed.

Although no specific case names are given in the judgment, practitioners will recognise these themes from the general framework of the Criminal Appeal Act and Sentencing Council guidance, as well as the appellate jurisprudence on exceptional drug conspiracies and firearms sentencing prior to the relevant guideline’s commencement.

Legal reasoning

The Court’s reasoning proceeds in tightly defined steps:

Admissibility of the Legal Ombudsman report: The report’s conclusions were treated as inadmissible opinion evidence. Crucially, the Court drew a line between the Ombudsman’s evaluative conclusions (inadmissible) and the factual/procedural consequences triggered by the complaint (i.e., privilege waiver and access to admissible, contemporaneous materials).
Privilege waiver and fresh evidence: Having ordered a proper waiver of legal professional privilege, the Court admitted the attendance notes and records showing what advice was (and was not) given; it also heard the applicant de bene esse and accepted that evidence as capable of belief and probative on the plea-credit issue.
Role, starting points, and totality: On the substance of sentence:
- The drug conspiracy was of truly exceptional scale—an estimated 100–250 kg of cocaine trafficked, with significant seizures and surveillance evidence. The applicant’s role, straddling “leading” and “significant,” justified a 21-year starting point.
- For the firearms, two functioning pistols with matching viable ammunition, held while engaged in wholesale drug supply, justified a 9-year consecutive starting point. The Court declined to be guided by later-issued firearms guidelines.
- The judge’s application of totality—reducing a nominal 30 years (21+9) to 26 years—was endorsed as “perfectly proper.”
The decisive issue—plea credit:
- The BCM form at first appearance was not properly completed; it recorded only “indictable only” under “Guilty Pleas” and did not record advice on plea.
- Within a week of the Magistrates’ hearing, a contemporaneous note recorded that the applicant accepted guilt and would plead at the PTPH to secure “at least 25%” credit, indicating he had not been properly advised about the one‑third available at first appearance.
- On the balance of probabilities, the Court found that, had correct advice been given, the applicant would have pleaded guilty at the first stage and thus earned the one-third credit.
Remedial recalibration: The Court corrected only the discount, not the underlying assessments, thereby reducing the total by the differential between 25% and 33% on the 26-year pre-discount total. It pragmatically achieved the new total by reducing the drug count alone from 13 years 6 months to 11 years 4 months, leaving firearms counts intact.

Impact and significance

This decision carries several important implications for criminal practice and appellate litigation:

Misadvice at first appearance can be outcome-determinative: Where admissible, credible evidence shows that inadequate advice at the Magistrates’ Court likely deprived a defendant of a first-stage guilty plea, the Court of Appeal may restore the full one-third credit ex post. The critical factual question is counterfactual: what would the defendant probably have done if correctly advised?
Ombudsman reports: trigger, not evidence: Legal Ombudsman findings cannot be laid before the Court as opinion evidence; yet, they can precipitate privilege waivers and unearth admissible contemporaneous material. Practitioners should be prepared to obtain and deploy underlying records rather than rely on regulatory conclusions.
BCM practice is not a formality: The Court’s closing observations underscore that accurate BCM completion is vital, and magistrates should probe the form’s accuracy with representatives. This is both a fair-trial safeguard and, as this case shows, a potential bulwark against later litigation.
Continuity of guideline principles: The decision reiterates—without needing to name authority—that sentencing must reflect the guidelines in force at the time and that “Category 1+” drug cases may warrant calibrated departures to avoid “crowding.”
Appeals out of time: Where delay is linked to bona fide complaint processes and there is arguable merit, the Court remains willing to extend time in the interests of justice.

How the Court addressed each issue raised

Starting point for the drug offence (21 years): Upheld. The scale, trust, and the applicant’s supply role to the broader network justified the assessment, including the judge’s view that the role straddled “leading” and “significant.”
Disparity with Stephen Kelly: Rejected. The relative culpability assessments supported differences; no manifest disparity was shown.
Starting point for firearms (9 years, consecutive): Upheld. Two working pistols with suitable ammunition, possessed during a serious drug conspiracy; later guidelines disregarded as not in force.
Reduction for guilty plea: Allowed. On the evidence, the applicant would have pleaded at first appearance with proper advice; the Court restored the one-third credit.

Complex concepts simplified

Better Case Management (BCM) Form: A standard form used at the first appearance (usually in the Magistrates’ Court) to record key case-management information, including whether the defendant has been advised about plea. Accurate completion can affect later credit for a guilty plea.
Guilty-plea credit (33%/25%): Under the sentencing guideline on reductions for guilty pleas, indicating a guilty plea at the first reasonable opportunity generally earns a one-third reduction. Pleading later (e.g., at the PTPH) usually earns 25%, absent compelling reasons.
Newton hearing: A factual hearing to resolve disputes that affect sentence (e.g., the defendant’s “role” in a conspiracy) where the defendant pleads guilty but contests specific allegations.
Fresh evidence on appeal: The Court can admit new evidence on appeal if it is credible, relevant to the safety or fairness of the sentence, would have been admissible at trial/sentence, and there is a good reason it was not produced earlier.
de bene esse: A Latin term meaning the Court hears evidence “for what it’s worth” pending a decision on its admissibility or weight.
Totality: A sentencing principle requiring the court, when passing sentences for multiple offences, to ensure the overall sentence is just and proportionate to the aggregate criminality.
“Category 1+” and “crowding/bunching” (drugs): In exceptionally serious drug conspiracies that eclipse the upper guideline thresholds, courts may go above the top guideline levels to reflect seriousness, taking care to avoid compressing (“crowding”) very serious cases into an undifferentiated top band.
Leading vs significant role: Guideline descriptors of culpability in drug supply: “leading” typically involves directing or organising on a commercial scale; “significant” involves operational roles with some influence but not leadership. The Court accepted the applicant’s position straddled both.
Legal professional privilege (LPP) waiver: A defendant can waive confidentiality over communications with previous lawyers, enabling the Court to consider contemporaneous advice records in an appeal about misadvice.
ANPR / EncroChat: Investigative tools referenced in the factual background. ANPR tracks vehicles; EncroChat was an encrypted communications platform used by criminals, mentioned in relation to co-defendants.

Practice takeaways

For defence practitioners:
- Advise clearly, at first appearance, on the availability and value of the one-third credit and document that advice contemporaneously.
- Complete the BCM form accurately; consider stating “likely guilty plea” where appropriate and record the client’s decision-making capacity if vulnerability is an issue.
- Where “role” will materially affect sentence, give clear advice on the option of a Newton hearing and record the client’s informed decision.
- Maintain robust attendance notes; these become critical if advice is later challenged.
For magistrates’ courts:
- Actively scrutinise BCM form completion with the parties; ensure advice on plea and timing has been addressed.
For the prosecution:
- Assist the court conscientiously where plea-credit issues arise; here, prosecuting counsel appropriately disclosed contemporaneous emails relevant to advice.
For appellate practitioners:
- Do not rely on Ombudsman opinions as evidence; obtain LPP waivers and assemble the underlying contemporaneous materials and witness statements.
- Prepare to address the counterfactual test: demonstrate with cogent evidence that, but for misadvice, the client would have pleaded at first appearance.

Conclusion

Dermott establishes and clarifies three pivotal points. First, while Legal Ombudsman findings are inadmissible as opinion evidence, they can legitimately set in motion procedural steps (including privilege waivers) that yield admissible, contemporaneous proof of misadvice. Second, where such proof shows it is more likely than not a defendant would have pleaded guilty at the first stage if properly advised, the Court of Appeal may restore the full one-third guilty‑plea credit retrospectively, even years after sentence. Third, the decision reiterates disciplined adherence to guideline temporality (no retrospective use of later guidelines), careful calibration in high‑end drug conspiracies to avoid “crowding,” and the practical centrality of accurate BCM form completion, which magistrates should actively police.

On the facts, the Court upheld the original sentencing judge’s careful approach to role, starting points, and totality in an exceptionally serious cocaine conspiracy involving firearms. The outcome turned not on those assessments but on a focused fairness correction: the applicant had not been properly advised at the first appearance on the value of an early guilty plea. Correcting that advice failure reduced the sentence by two years and two months. The case will likely inform future appeals where plea‑timing advice is contested and underscores that early, accurate, and well‑documented advice at the Magistrates’ Court is not just good practice—it can decisively affect years of a defendant’s liberty.