R v Paske [2025] EWCA Crim 180: Encrypted Communications as an Aggravating Factor and the Limits of Guilty Plea Credit in EncroChat Conspiracies

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

Judges: Lord Justice Dingemans, Mrs Justice Tipples, HHJ Forster KC (sitting as a judge of the CACD)

Date: 13 February 2025

Neutral Citation: [2025] EWCA Crim 180

Introduction

This commentary examines the Court of Appeal’s refusal of a renewed application for leave to appeal against sentence in R v Paske. The applicant, Oliver Paske, pleaded guilty to a conspiracy to supply cocaine (Class A), two conspiracies to supply cannabis and amphetamine (Class B), and a conspiracy to sell or transfer prohibited weapons, arising out of a wholesale EncroChat-enabled drugs and firearms enterprise operating between 25 March and 13 June 2020. He had previously received a 6-year sentence in July 2020 for possession of a prohibited weapon and ammunition discovered on 1 May 2020—the same period during which the conspiracy operated.

On 5 January 2024, Paske was sentenced to 11 years’ imprisonment on the Class A conspiracy, with 11 years concurrent on the weapons conspiracy and no separate penalty on the Class B conspiracies. A 15% reduction for guilty plea was applied. He sought: (i) a substantial extension of time (111 days) to apply for leave, (ii) leave to appeal sentence, and (iii) an extension of time (3 days) to renew the application. The latter (3 days) was granted as an administrative slip not attributable to him; the substantive extension and leave were refused.

The key issues were: (1) the totality of the overall sentence when considered with the earlier 6-year term; (2) whether the use of EncroChat/encrypted communications could properly aggravate sentence here given it had been taken into account in the earlier firearms case; and (3) whether the 15% plea credit was too low because the applicant delayed pleading while preliminary issues (including an abuse argument and autrefois acquit) were litigated.

Summary of the Judgment

Extension of time (3 days): Granted; this minor delay was not the applicant’s fault.
Extension of time (111 days) and leave to appeal: Refused. The merits test was not met; there were no arguable grounds of appeal.
Totality and overall sentence: The aggregated sentence—11 years for the present conspiracies (concurrent on principal counts) alongside a prior 6-year term—was not manifestly excessive when the total criminality is considered, including the significant scale (28 kg of cocaine sourced and sold) and the firearms element.
Encrypted communications as an aggravating factor: The use of EncroChat (sophisticated technology to conceal offending) is properly treated as an aggravating factor. It could be taken into account in the earlier firearms case and again in the present conspiracies because it aggravated distinct episodes of criminality.
Guilty plea credit: 15% was appropriate where the applicant did not plead at the pre-trial preliminary hearing, contested device attribution, and delayed his plea pending outcomes on preliminary issues. He could have pleaded earlier on counts for which he was guilty; there were tactical advantages in waiting while EncroChat admissibility issues worked through the courts.

Factual Background

The conspiracy was coordinated via the EncroChat platform. Sean Ellis (believed later to have left for Spain and Dubai) ran a wholesale cocaine business, obtaining kilogram blocks for onward supply to lower-tier wholesalers, including Harry Swann, and a southwest network through Steven Spooner (deceased). Paske used the handle “BluffRegent” and functioned principally as a trusted courier and financier—Ellis’s “paperboy”—moving cash and drugs, counting money, and providing regular financial updates. He also stored a firearm for onward transfer to an EncroChat customer (“ViralNinja”), which became the subject of his earlier 2020 conviction when the weapon was found in a van he was driving on 1 May 2020.

Between March and May 2020 the group sourced and sold 28 kilograms of cocaine, paying around £662,000. Paske collected money from various customers, sometimes aborting collections due to surveillance concerns. He introduced his brother-in-law, Connor Mee, as a potential buyer, arranged samples, and facilitated supply. On 2 April 2020 he also brokered discussions about firearms availability (e.g., “John Gotti” for shotguns, “straps” for pistols); while there was no evidence the particular transfer occurred, Paske pleaded to conspiracy in relation to weapons.

Analysis

Precedents Cited

The Court delivered a concise ex tempore judgment and did not cite case authorities expressly. Its reasoning rests on well-settled principles, including:

Sentencing Council Guidelines (Drugs and Firearms): Both guidelines treat “use of sophisticated means to avoid detection” as an aggravating factor. The court’s treatment of EncroChat as aggravating tracks these guidelines.
Totality Principle (Sentencing Council’s Totality guideline): When sentencing multiple offences across the same or different proceedings, the court ensures the overall sentence reflects the entirety of criminality and is just and proportionate. Here, the Court of Appeal accepted that the aggregate of the earlier and present sentences was not manifestly excessive, given the scale and presence of firearms.
Reduction in Sentence for a Guilty Plea (Sentencing Council guideline): Maximum credit is reserved for a plea at the first reasonable opportunity (typically at the PTPH). Where pleas are delayed—e.g., while a defendant tests attribution/admissibility or runs preliminary arguments—reduced credit is common unless the delay is objectively justified by an issue that genuinely prevented an earlier plea.

Although not cited by the Court in this judgment, two bodies of background law inform the context:

EncroChat admissibility litigation: The post-2020 appellate authorities on EncroChat evidence clarified parameters for admissibility. Defendants often maintained tactical positions pending these outcomes. The Court’s comment that there were “advantages” in delaying Pleas while EncroChat issues worked through the courts underlines the relevance of those broader developments to plea credit.
Guilty plea credit jurisprudence: Long-established appellate authority confirms that credit turns on when the defendant indicated an intention to plead guilty and whether there was an objectively good reason for delay. Tactical delay generally reduces credit.

Legal Reasoning

1) Totality and Proportionality

The applicant argued that an 11-year sentence (concurrent on the main counts) superimposed on his earlier 6-year firearms sentence produced an excessive 17-year aggregate. The Court rejected that, emphasizing the gravity and breadth of the criminality:

Large-scale wholesale cocaine supply (28 kg within months),
Substantial cash flows (over £662,000 to acquire drugs alone),
Firearms involvement within the same criminal milieu.

Within the 2024 sentencing exercise, the judge applied concurrency as between the drugs conspiracy and the firearms conspiracy. The Court of Appeal’s focus was whether, taking the earlier 2020 sentence into account at a high level, the overall picture was “manifestly excessive.” It was not. This approach underscores that when offending spans multiple indictments and sentencing dates, the second sentencing court is not bound to depress sentence below the just level merely because an earlier sentence has been served or is being served, provided the totality remains proportionate to the full criminality.

2) Encrypted Communications as an Aggravating Factor

The Court affirmed that use of EncroChat or other encrypted communications to facilitate criminality is a legitimate and significant aggravating factor: it evidences sophistication and the deliberate concealment of offending. Importantly, it held that EncroChat could properly aggravate both the earlier firearms case and the present conspiracies. This does not amount to impermissible “double counting,” because:

Each offence or set of offences can be aggravated where the sophisticated method is deployed;
The earlier and later sentencing episodes addressed distinct criminal conduct, even though they occurred within an overlapping timeframe and within the same criminal enterprise.

For future cases, this confirms prosecutors and sentencing judges can properly treat encryption-based concealment as aggravating across multiple counts and even across separate proceedings, so long as the aggravating feature genuinely pertains to the offending being sentenced.

3) Guilty Plea Credit: Timing and Tactical Delay

The applicant received 15% because he did not plead at the pre-trial preliminary hearing and delayed while:

Contesting attribution of the EncroChat device; and
Pursuing preliminary issues, including an abuse/stay application and an autrefois acquit argument (partly successful) arising from the relationship between the earlier 2020 proceedings and the present indictment.

The Court accepted that, while preliminary issues were in play, the applicant could nevertheless have pleaded earlier to counts he knew he was guilty of. Further, it observed there were “advantages” to the defence in holding off—namely, keeping options open while EncroChat admissibility jurisprudence evolved. That tactical stance curtailed the level of credit. The decision aligns with the guilty plea guideline’s structure: the earliest clear indication attracts the highest credit; delaying to test litigation risk usually does not. The Court therefore found no error in limiting reduction to 15%.

4) Extensions of Time

In line with ordinary practice, the Court granted the short 3-day extension to renew (an error not of the applicant’s making), but refused the substantial 111-day extension because the proposed grounds lacked merit. This underscores that the Court’s gateway for late appeals remains a merits-based filter: extensions are refused where grounds are not arguable.

Impact and Practical Significance

Encryption as standing aggravation: The judgment fortifies the view that deploying encrypted platforms (like EncroChat) to facilitate serious crime will enhance culpability. This is true across distinct sentencing episodes and does not constitute double counting where the feature genuinely characterizes each episode.
Plea strategy in EncroChat cases: Defendants who defer pleas pending attribution challenges or broader admissibility disputes should expect reduced credit, unless the delay was truly unavoidable for specific counts. Practitioners should consider entering pleas to counts unaffected by contested issues to preserve higher credit.
Totality across separate proceedings: Where offending spans multiple indictments and dates, the Court will assess whether the composite term is manifestly excessive taken as a whole. Large-scale drug conspiracies linked with firearms are likely to command substantial sentences; prior sentences for related conduct will not automatically depress subsequent sentences below guideline ranges.
Role and trust within conspiracies: The Court’s acceptance of a robust sentence reflects the applicant’s trusted role—cash courier, bookkeeper, liaison—rather than a mere peripheral runner. Those entrusted with money, stock-keeping, or weapons storage can be treated as playing a significant role even if they do not direct the enterprise.

Complex Concepts Simplified

EncroChat: An encrypted communications platform used extensively by criminal networks. Following law enforcement infiltration, its messages have been used as evidence in numerous prosecutions. Utilizing such platforms evidences sophistication and deliberate concealment—an aggravating factor at sentence.
Aggravating factor: A feature that increases culpability or harm, justifying a higher sentence within the guideline range. Examples include using encryption, weapons involvement, or operating at a wholesale scale.
Totality principle: Sentencers must ensure the overall sentence is just and proportionate for the total offending, avoiding both excessive accumulation and undue leniency. This applies within a single sentencing exercise and, in principle, across separate proceedings when assessing the aggregate reality.
Concurrent sentences: Sentences served at the same time. Here, the judge made the 11-year sentences on the principal counts concurrent; no separate penalty was imposed on the Class B conspiracies.
Guilty plea credit: A reduction in sentence for an early guilty plea, typically up to one-third if indicated at the first reasonable opportunity (often the PTPH). The later the plea—especially if delayed for tactical reasons—the lower the credit (e.g., 20%, 15%, or less).
Autrefois acquit: A plea of “formerly acquitted,” a double-jeopardy safeguard preventing a person from being tried again for an offence of which they have already been acquitted. Here, the applicant raised an argument relating to the relationship between earlier proceedings and the current indictment; it was partly successful, but did not prevent conviction on the present counts.
Abuse of process stay: An application to halt proceedings on the basis that continuing would be unfair or oppressive, often due to misconduct or procedural unfairness. If refused, and the defendant is guilty, the sentencing proceeds; delay in plea pending the outcome can reduce credit unless the delay was essential.
PTPH (Pre-Trial Preliminary Hearing): The standard stage at which an early indication of plea is expected. Pleas entered after this point typically attract reduced credit unless there is a good reason for delay.

Conclusion

R v Paske confirms three practical principles with continuing resonance in EncroChat-related prosecutions and serious drug/firearms conspiracies:

Encryption aggravates: The use of encrypted platforms to mask criminality is a free-standing aggravating feature that can properly be applied in separate sentencing episodes addressing different offences linked to the same criminal enterprise.
Plea credit is earned, not assumed: Defendants who delay pleas while testing attribution or admissibility cannot expect full credit. Tactical advantages in waiting entail corresponding reductions, absent a compelling reason for deferral on specific counts.
Totality is about fairness, not arithmetic: The aggregate of earlier and later sentences must be proportionate to the entirety of the criminality. Serious wholesale drug offending combined with firearms involvement will sustain lengthy overall terms; the Court will not find manifest excess simply because a prior sentence exists for related conduct.

The Court’s refusal of leave underscores the high bar for disturbing sentences in well-evidenced, organized conspiracies where encryption, firearms, and substantial commercial quantities converge. For practitioners, the case provides a clear signal on sentencing approach and plea strategy in the continuing stream of EncroChat prosecutions.