R v Jonathan Cassidy & Anor [2025] EWCA Crim 700

[2025] EWCA Crim 700
IN THE COURT OF APPEAL
Venue Royal Courts of JusticeDate 9 June 2025
Strand
London
WC2A 2LL
Before
LORD JUSTICE FRASERMR JUSTICE HILLIARDMR JUSTICE CONSTABLE
Between
REXCrownV
Between
JONATHAN CASSIDYNASAR AHMED__________JUDGMENT_________Hearing Hearing date: Tuesday 20 May 2025MR BROMLEY-MARTIN KC appeared for Appellant, CassidyMR CSOKA KC appeared for Applicant/Appellant, Ahmed
[1]This is an appeal against sentence by the Appellant Jonathan Cassidy, leave having been granted by the Single Judge, and a renewed application for leave to appeal against sentence by the Applicant Nasar Ahmed following refusal of leave by the Single Judge. For convenience, we shall refer to each of them as Cassidy and Ahmed respectively, without meaning any disrespect by our use of their surnames only.[2]In addition to Ahmed seeking to renew his application for leave on his original grounds, he also seeks leave to argue that his sentence is manifestly excessive relying upon a new ground, which is essentially the same ground as one of the grounds in respect of which Cassidy had been granted leave by a different Single Judge. This is that the amount of credit granted by the sentencing judge of 15% for each of the pleas of guilty was insufficient, and should instead have been 25%. We shall refer to that further below. At the beginning of the hearing, we indicated to Mr Csoka KC acting for Ahmed that we would grant Ahmed leave for that new ground, and therefore we heard his appeal on that ground at the same time as hearing Cassidy’s appeal.

The sentences

[3]On 12 February 2024 in the Crown Court at Manchester, Cassidy pleaded guilty to the following three counts: 1. Count 1, conspiracy to fraudulently evade the prohibition on the importation of controlled drugs of Class A, contrary to section 1(1) Criminal Law Act 1977; 2. Count 2, conspiracy to supply controlled drugs of Class A, contrary to section 1(1) Criminal Law Act 1977; 3. Count 3, conspiracy to conceal, disguise, convert or transfer criminal property, also contrary to section 1(1) Criminal Law Act 1977.[4]The following day on 13 February 2024, also in the Crown Court at Manchester, Ahmed pleaded guilty to three counts regarding the same offences. Both Cassidy and Ahmed were being tried on the same indictment that also included counts against other co-defendants.[5]On 21 March 2024 before HHJ Dean KC, the Honorary Recorder of Manchester, in the Crown Court at Manchester, both Cassidy and Ahmed were sentenced in respect of these offences. They each received terms of imprisonment of 21 years 9 months on count 1; 17 years on count 2 and 10 years on count 3, all three of these terms to run concurrently with one another. The overall period of imprisonment to which each of Cassidy and Ahmed were therefore sentenced was governed by the longest term of imprisonment passed upon them, namely that on count 1 of 21 years and 9 months.

The facts

[6]All of the offending arises out of significant criminal conspiracy and highly organised drug dealing. There were a number of co-defendants, some of whom pleaded guilty and some of whom were convicted after trial. The details of those other individuals – save for one, called Atkinson – are not directly relevant to the two appeals, or to Ahmed’s renewed application for leave, and we mention this purely for completeness. We return to the situation regarding the co-defendant who is said to be relevant, namely the co-defendant Atkinson, when we deal with the renewed application by Ahmed.[7]The case concerned the importation into the United Kingdom and the subsequent onward supply of substantial quantities of cocaine within a criminal network. The defendants were each users of encrypted communication devices, commonly known as “Encros,” which they used to arrange the purchase, importation, sale and distribution of multi-kilogram quantities of Class A drugs across the north of England. The linked conspiracy to transfer criminal property related to the movement of approximately £10 million in cash in the space of about three months. This is therefore what is often referred to as an “EncroChat” case. Police in France broke the encryption used in Encro devices and as a result of this law enforcement agencies across Europe, and also in the United Kingdom, obtained access to a great deal of information that the criminals involved in using the Encro devices had been involved in exchanging, in the belief that their communications would remain secret. Once the code had been cracked and the communications were available to the police, a great many criminals involved in the organised importation and distribution of drugs were arrested, charged and convicted.[8]So far as these appellants were concerned, the first importation had occurred in early March 2020 when 194 kilograms of cocaine, which was in blocks embossed with snowmen, was imported into the country by Cassidy. The payments for that consignment were largely arranged by Ahmed. A review of Cassidy’s notes revealed that the drugs were being purchased at a cost of between £22,500 and £28,000 per kilogram, and then sold on at a price of between £30,000 and £32,500 per kilogram. This therefore provided a profit of between £2,000 and £10,000 per kilogram. Whilst many of those kilograms were sold for profit, Ahmed was allowed to take his share of the importation, 10 kilograms, at cost. A spreadsheet sent by another Encro user (who used the name or “handle” CornToxic) to Ahmed showed that in February 2020 he arranged for the collection of at least £803,870 in funds and the onward transfer of £650,000. Notes from the following month showed that during March Ahmed arranged for the collection of £1,852,365 and the onward transfer of £2,342,756. On 30 March 2020 Ahmed was sent a balance sheet by another Encro user (the handle being VioletBorn) which showed that he had had on that account credits totalling just over €3 million and debits of just over €2 million. He was also sent what appeared to be a personal statement showing payments made on his behalf in Dubai of about £500,000.[9]Comparison of the notes and spreadsheets from Ahmed’s Encro device with those from Cassidy’s Encro device revealed that Ahmed was responsible for transferring at least £1.2 million of the £3.5 million paid for the snowman-embossed kilograms of cocaine which formed part of the large importation. There were no notes directly covering those payments, although it was likely to have been £650,000 transferred in February 2020 and the balance in March was also used to pay for some of that consignment. The consignment was distributed by others acting under the direction of Cassidy’s brother Jamie Cassidy, who in turn oversaw the collection of the cash owed by those taking possession of the drugs. Jamie Cassidy’s role appears to have been primarily to pass on his brother’s instructions to others and ensure things ran smoothly. Cassidy the appellant did not delegate the calculation of the bills to his brother but dealt directly with customers when it came to the amounts they owed, chasing those who he considered had not paid promptly enough and balancing the books. On 1 April 2020 Cassidy exchanged messages with another associate that showed the two of them joking about, if not revelling in, the fact that they were both cocaine importers on an industrial scale.[10]On 2 April 2020 Cassidy exchanged messages with a contact in Holland. He was using a different EncroChat handle ‘Pachacuti’ and arranged to purchase 90 kilograms of cocaine. The purchase price of £27,250 a kilogram meant an attempted profit per kilogram of between £10,750 and £12,750, or between £1.74 million and £2.065 million for the consignment. After the deal was struck Ahmed was contacted. On this occasion he used a Hawala banker based in Amsterdam to release a £1 million part or down payment to be released to a contact there.[11]Hawala, which is also known as hundi, is an informal trust-based value transfer system. It is a legal money transfer method but is unregulated in many jurisdictions. The system operates via a network of hawala brokers, known as ‘hawaladars’, who transfer money for clients without using traditional financial institutions, such as banks. It is believed to have originated in India but has been used in many regions across the world, and is a system based on trust. It is a popular way to transfer money internationally. It is used heavily in countries that have restrictions on the movement of money or where formal banking systems are not fully developed. Regrettably, it is also used sometimes by international criminals.[12]On the same day Ahmed asked the banker how much he would charge to change or transfer £100,000 into the Dubai currency Arab Emirates dirhams, and later asked for the money to be transferred to Dubai. On 4 April 2020 a further 50 kilograms of cocaine were purchased by the pair. Ahmed was able to release a further £650,000, again through the use of the Hawala banker, to pay for the cocaine. A comparison of the notes from Cassidy’s telephone and that used by Ahmed suggested that Cassidy was being charged between 0.8% and 1% for each transaction, effectively a commission fee, with Ahmed often receiving a euro exchange rate of £1 for €1.14 but passing the rate on to Cassidy at £1 for €1.05. On 5 April 2020 Ahmed exchanged a series of messages with another associate, complaining he had over £1 million owed to him, and over the course of the following eight days that associate collected in £1.6 million in cash under the direction of Ahmed.[13]This type of transaction continued through April and May 2020. On 6 April 2020 another associate organised 23 kilograms to be supplied to a third party, and the associate arranged with Cassidy to pay him a fee for using Cassidy’s transport in order to transport the drugs to England. On 7 April 2020 a further £780,000 was released to the third party and Ahmed was responsible for organising £1.25 million to be paid out of a total of £1.53 million that was transferred to pay for the April importation. The balance was paid by someone else, and this was an example of the basis of plea that was submitted on Ahmed’s behalf, namely that not all of the funds came from Ahmed but there were others financing parts of the transactions. Meanwhile a courier known as ‘Cappie,’ who was used to move some of the cash, travelled to meet with the group’s suppliers. This meeting was observed by police and the courier was subsequently stopped and arrested. When the vehicles were searched approximately €800,000 was found inside a secret compartment in the transporter being driven by the suppliers’ courier. The police also recovered 9½ kilograms of cocaine from another hide in the transporter, making it plain that the drugs were what those collecting the cash were dealing in, and supplying to Cassidy’s contact.[14]Notwithstanding this intervention by the police and the loss of a significant amount of cash, the following day Cassidy exchanged messages again with an associate in Holland about a contact who had been able to source 1,200 kilograms of cocaine. There was some discussion about whether to purchase 10 kilograms as a test run. The April consignment arrived a few days later between 14 and 15 April 2020, with Cassidy the appellant directing his brother Jamie Cassidy, as he in turn oversaw the distribution of 162 kilograms of cocaine which had been imported. Once the drugs had all been distributed, Jamie Cassidy sent his brother a list of who had been given what from that consignment; this split down into eight different actions with volumes and which person had received deliveries of what size. That list showed Ahmed’s share of this importation to have been 19 kilograms, which was in turn split with other contacts.[15]An analysis of the images and messages from EncroChat data showed that, throughout the period covered by the indictment, someone called Atkinson was supplying multi-kilogram amounts of cocaine, sourced from and supplied by Ahmed, to another defendant called Moores, who had pleaded guilty to conspiracy to supply cocaine. Moores paid for that cocaine by transferring Bitcoin to a wallet, the details of which were provided to him by Ahmed via Atkinson. An analysis of the payments for Moores’ Bitcoin wallet showed that in the period covered by the indictment he made 27 payments totalling £466,000 in Bitcoin to the wallet being controlled by Ahmed’s contact. It was clear therefore that not only did Ahmed have substantial funds held by Hawalada bankers on his behalf, but he also had access to and utilised the service of exchanges in respect of substantial amounts of Cryptocurrency that had yet to be located or seized.[16]This type of behaviour continued throughout April. Although the details varied, both Cassidy, Ahmed and others were instrumental in organising significant quantities of drugs; arranging payment; instructing couriers and so on. Accounts were drawn up to list who was owed how much by whom within the conspiracy. Business continued as usual through April 2020 and in total over the course of the month Ahmed arranged for the collection of £3.6 million and the release of a further €1,000,130 to Cassidy’s supplier in Holland for the planned May importation. That did not include a down payment of €1 million which was paid to the contact on 20 April 2020.[17]The total amount that Ahmed had arranged to transfer for the May importation was approximately €3.23 million or 76% of the agreed purchase price. Different members of the conspiracy were observed throughout this period, including by surveillance officers who saw collections of cash from Liverpool and that being taken and delivered to Ahmed in Rochdale. This continued throughout May.[18]On 13 June 2020 the administrators of EncroChat sent a message to all devices which revealed that “Today we had our domain seized illegally by government entities” and telling users that they could no longer guarantee the security of the device and advising them immediately to power off and physically dispose of the device. That evening at 9.40 pm Ahmed went on the web browser on his iPhone and looked up the telephone number for Emirates Airlines, before going to look for Emirates travel updates. Very early in the morning on 15 June 2020 police officers attended his home in Bury and arrested him. In a search of his home another Sky encrypted device was located from a hiding place and about £6,345 in cash. He made no comment in interview.[19]On 8 July 2020 Cassidy used his iPad to read an article in the Liverpool Echo about a fugitive who had been on the run for 16 years and was arrested from Portugal on his return. He searched the Manchester Evening News crime section to read an article “Locked up in June” and then read an article “Police have too much success: the secret text messages between criminals uncovered by the UK’s biggest ever law enforcement operation,” followed by another article about EncroChat material headlined “The text message that spelled the end for Manchester’s gangsters.” He left the country on a flight to Dubai that evening. On 17 October 2020 he flew back to England, perhaps emboldened by the fact that his brother Jamie Cassidy had been able to leave and return to the country without being stopped. However, upon his return he was arrested.[20]Cassidy, Ahmed and Jamie Cassidy were sentenced at the same time. In sentencing them, the judge drew attention to the scale of the operation, the amount of drugs imported, the size of the transactions and the amount of the drugs, including the highly organised nature of the operation and the size of the money sums involved, including the value of the bitcoin. Each appellant had provided a basis of plea. Cassidy had a conviction for fishing without a licence and some firearms offences of a relatively minor kind which related to lack of a licence, for which he had received fines of £50 in 1998; Ahmed had 14 convictions for 18 offences including firearm offences such as possession of a smooth bore revolver for which he had received two years imprisonment in 2001, and making threats to kill. Neither of them had any relevant previous convictions for offences of drug supply, although Ahmed also had a money laundering conviction and the judge stated that his previous offending demonstrated his involvement with organised crime.[21]The judge found that Cassidy had performed a leading role, decided that counts 2 and 3 aggravated count 1, and that the offending fell outside the Sentencing Guidelines due to its sheer scale. In sentencing Cassidy the judge started at a figure of 27 years, reduced it by one year for Cassidy’s personal mitigation, and another 4 months was discounted as a reduction for the conditions in prison due to Covid-19, and also what the judge called “Manning style” considerations. The judge then applied a discount of 15% credit as we have already observed for Cassidy’s plea of guilty to arrive at a sentence in his case of 21 years and 9 months’ imprisonment. Ahmed was also given credit of 15% for his guilty plea, the judge having performed a similar exercise when sentencing him, although he had started at 25 years and then increased this to 26 years, predominantly due to the aggravating factor of Ahmed’s previous convictions. He then reduced that by four months to reflect what he called the Manning considerations, and then applied 15% credit to arrive at the same figure of imprisonment for Ahmed of 21 years and 9 months. Jamie Cassidy was sentenced to imprisonment for a term of 13 years and 3 months, although he had pleaded guilty to counts 2 and 3 and was not to be sentenced on count 1 at all. Grounds of appeal.[22]We shall deal with Cassidy’s appeal first and then Ahmed’s renewed application.[23]Essentially these for Cassidy are that:(1) The judge failed to give due weight to the exceptional mitigating factors of his remand during the Covid 19 pandemic and prison conditions; and(2) that too low a discount was applied as credit for his guilty plea. Leave for these grounds was granted by the Single Judge.[24]Ahmed’s original grounds were:(1) Ahmed’s sentence was only discounted by 4 months for mitigation and Covid conditions in prison, compared to a different figure which the same judge in a different sentencing exercise on a separate occasion gave to Atkinson, which was a reduction of two years;(2) The increase of one year in the sentencing exercise, to go from 25 years as a starting point to 26 years in part to take account of the aggravating previous convictions, was unjustified and no such increase was applied to the sentence of Atkinson who, it is said, had comparable aggravating features and previous convictions;(3) It is also said that there was no basis for applying a different approach to each defendant as both of them were to be sentenced to long terms of imprisonment;(4) In those circumstances there was said to be an objectionable disparity and an objective sense of unfairness.[25]Leave for these grounds were refused by the Single Judge. In refusing leave, in a careful and helpful explanation, he said the following:(1) It is notoriously difficult to establish an arguable ground of appeal based on alleged disparity between the sentence imposed on one defendant and another. That is because the sentencing exercise is highly fact dependent, and it is therefore unlikely that two cases will ever be precisely the same. It is also the case that the fact that one defendant may have had a more generous reduction in his/her sentence does not mean that another defendant’s sentence is manifestly excessive.(2) On analysis, I am not persuaded that the alleged disparity in sentence gives rise to an arguable ground of appeal. The reduction of 2 years that the Judge gave in Atkinson’s case was to reflect personal mitigation and the Manning factors. The Judge took a different (but perfectly appropriate) approach in the Applicant’s case. He balanced the aggravating and mitigating factors and decided that this required an increase of 1 year. Therefore, the Manning factors were isolated from the mitigation in the Applicant’s case. The two cases are therefore not properly comparable, and certainly not such as to give rise to any objective sense of unfairness. It was for the Judge to decide the extent to which each man’s previous convictions aggravated the overall sentence. There is no real prospect of the Applicant persuading the Court of Appeal that the Judge’s approach was either wrong, or that there was a material disparity in treatment.[26]We cannot improve on those remarks, with which we agree. All we would observe is that this was a conspiracy case. We bear in mind the dicta of Leggatt LJ, as he then was, in R v Williams [2019] EWCA Crim 279 under the specific heading Appeals against sentence in drug conspiracy cases: “[3] Before addressing these individual appeals, it is worth emphasising the general difficulties which face defendants who seek to appeal against their sentence in cases of this kind where a judge has sentenced many defendants for their various parts in a large conspiracy to supply drugs. In such a case the judge will usually have had charge of the case over many months and at a series of hearings, will have read or heard the prosecution evidence as it relates to all the defendants and may have conducted trials or Newton hearings in relation to some of them. It is self-evident that in these circumstances the sentencing judge is uniquely well placed to consider the different roles of the various conspirators and the nature and extent of each person's involvement. The judge is thus also uniquely well placed to calibrate the sentences imposed so as to achieve parity among the defendants and reflect their relative levels of responsibility. [4] The Court of Appeal does not have those advantages. So unless it can be shown that in sentencing a particular defendant the judge did so on a factual basis which is obviously mistaken, or that the judge made an error of principle, or that in assessing the weight which should or should not be given to one or more relevant factors the judge formed a view which no reasonable judge, acting reasonably, could have formed, the Court of Appeal is most unlikely to think it right to interfere with the judge's assessment of the appropriate sentence. Arguments that the judge misappraised the level of a defendant's role in the conspiracy or imposed a sentence which is unfair in comparison with the sentences imposed on other defendants will seldom have any realistic prospect of success”.[27]Here, as will be seen below, there was no jury sworn, but that cannot be equated with the sentencing judge being unaware of the details of the conspiracy. On the contrary, the case had been before the learned sentencing judge, the Honorary Recorder of Manchester, for a great period of time. It was one of the first EncroChat cases, and was delayed whilst important issues relating to the admissibility of the EncroChat evidence were dealt with. It was a factually complicated drug conspiracy case of considerable breadth. The drug importation was of such a scale that the operation(s) undertaken to investigate and prosecute it were called Embossed 1 and Embossed 2. This term was taken from the fact that the blocks of cocaine were embossed with snowmen, which appears to have been the deployment of the drug dealer equivalent of brand awareness. Ahmed had previous convictions that were relevant, namely possession of a smooth bore revolver; making threats to kill; and money laundering. These were, as the sentencing judge noted, indicative of his involvement in organised crime.[28]Pointing to another conspirator, in this case Atkinson, and maintaining that there had been no increase of one year for his previous convictions in the starting point prior to discount; or that he had received only 15 years’ imprisonment compared to the sentence passed upon Ahmed, is unlikely to be sufficient to demonstrate an arguable ground of appeal in such a case as this. We refuse the renewed application for leave. The Single Judge placed his initials in the box indicating consideration of a loss of time order. We agree with the Single Judge that those grounds are not arguable, and are of such lack of merit that such an order would merit consideration ordinarily. However, that does not arise in this case because Cassidy has an arguable point of principle which was granted leave by the different Single Judge who considered his application; and Ahmed seeks to argue exactly the same ground too on appeal. This ground is whether 15% or 25% ought to have been given as discount for the guilty plea. That ground was not advanced by Ahmed originally before the Single Judge. However, before we deal with that point which arises on both appeals, we shall deal with Cassidy’s first ground of appeal. This is that set out at [23](1) above, namely that the judge failed to give due weight to the exceptional mitigating factors of his remand during the Covid 19 pandemic and prison conditions. Remand during the pandemic.[29]In the case of R v Manning (AG’s reference) [2020] EWCA Crim 592, this court (Lord Burnett LCJ, Cutts and Tipples JJ) heard a reference by the Attorney General in a case where the defendant had been sentenced to 12 months’ imprisonment suspended for 2 years, which the Attorney General maintained was unduly lenient. The defendant’s offending was four counts of sexual activity with a child, and one count of causing or inciting a child to engage in sexual activity. The activity in question took place at a pub, initially during a darts competition. He was 47 years old and the victim was 15. The case was heard in April 2020 when Covid and lockdown conditions were in place, in what was the first so-called lockdown, which had commenced in March 2020.[30]The court concluded that the sentence was unduly lenient and that a sentence of two years ought to have been imposed, rather than the custodial term of only 12 months as the judge had done. However, the court was considering an Attorney General’s reference with the effect potentially of imprisoning someone 9 weeks after a suspended sentence had been imposed. Lord Burnett said this at [41]:
“[41] We would mention one other factor of relevance. We are hearing this Reference at the end of April 2020, when the nation remains in lock-down as a result of the Covid-19 emergency. The impact of that emergency on prisons is well-known. We are being invited in this Reference to order a man to prison nine weeks after he was given a suspended sentence, when he has complied with his curfew and has engaged successfully with the Probation Service. The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.”
[31]On 23 June 2020 Holroyde LJ, then Chairman of the Sentencing Council (now VP CACD) issued a statement called “the application of sentencing principles during the Covid 19 emergency” clarifying the statement in Manning, and a number of other cases since then have also done so. The conditions during 2020 in the days of the Covid-19 lockdowns do not justify an automatic “Covid discount”, nor is this a feature of particular import in prisoners serving lengthy sentences. In R v Whittington [2020] EWCA Crim 1560 (Green LJ, Julian Knowles J and HHJ Blair QC) it was said at [30]:
“…..The more serious the offence, and the longer the sentence, the less the pandemic can weigh in the balance in favour of a reduction unless there is clear, cogent and persuasive evidence of a disproportionately harsh impact on the prisoner. Over the course of a long sentence the period of time during which the prisoner is subject to lock down because of the pandemic might be quite short in relative terms. It is for prison governors to do what they can to alleviate the worst adverse effects. The course of the pandemic is uncertain. The current lock down is due to end in early December. We hope that prison conditions might return to something near normal in the near future…..”
[32]Although that case concerned a long-term prisoner sentenced prior to the lockdown, the same statement of general principle applies in our judgment to Cassidy, who was remanded in October 2020 when he returned from Dubai. Without listing all of the different cases that state this, we repeat that such a feature would rarely figure to any great effect upon longer sentences in any event; added to which, this judge did take this into account when sentencing these individuals who had been on remand during 2020, to a certain degree.[33]As we have explained at [21] above, a reduction of 4 months was given for the conditions and Cassidy, having fled the jurisdiction in July 2020 and then returned to the UK in late October 2020, was only in custody during 2020 for approximately half the period allowed him by the sentencing judge. We are not persuaded that the adjustment that was made by the sentencing judge in this case was insufficient or outside the range that could properly be granted. This ground of appeal therefore fails.

Credit for guilty pleas

[34]We turn therefore to Cassidy’s second ground of appeal, and the new ground of appeal which Ahmed was given leave at the hearing to argue too. Ahmed was not given leave to argue this point in his original application for the simple reason that it was not included as a ground in his initial application. Had he done so, we have no doubt that he would have been given leave as was Cassidy. Ahmed applied for leave for the new ground once it was known that Cassidy had been given leave to argue this ground by the Single Judge. The ground is that the credit for their guilty pleas ought to have been 25%, which was argued on their behalf at their sentencing hearing, and not the lower amount of discount which was granted by the sentencing judge, namely 15%.[35]It is an important principle of sentencing that there should be a reduction for a plea of guilty. The definitive Sentencing Guideline for a guilty plea states that:
“Although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt: a) normally reduces the impact of the crime upon victims; b) saves victims and witnesses from having to testify; and c) is in the public interest in that it saves public time and money on investigations and trials. A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings.”
[36]The Guideline continues in Section D:
“The maximum level of reduction in sentence for a guilty plea is one-third D1. Plea indicated at the first stage of the proceedings Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. D2. Plea indicated after the first stage of proceedings – maximum one quarter – sliding scale of reduction thereafter. After the first stage of the proceedings the maximum level of reduction is one-quarter (subject to the exceptions in section F). The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in section F). The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.”
D1. Plea indicated at the first stage of the proceedings D2. Plea indicated after the first stage of proceedings – maximum one quarter – sliding

After the first stage of the proceedings the maximum level of reduction is one-quarter

[37]Here, the judge said the following in terms of reduction for plea when he sentenced them in 2024, dealing with them first collectively: “Each of you pleaded guilty to the offending for which you now fall to be sentenced and you did so about a month-and-a-half ago. The background to those guilty pleas is itself complex but this case began in the second half of 2020 and you have now all been in custody for 3½ years or so. Each of you have argued, or it has been argued on your behalf that you should be entitled to a reduction of 25 per cent in your sentences to reflect credit for pleading guilty, but whilst I agree that in terms of assessing what the appropriate level of credit is in this case and agree that this is an unusual case, I reject the suggestion that credit should be as high as 25 per cent. Although no jury was sworn in this case, for all practical purposes your trial began in early February this year, and that after many, many appearances. Resolution of a variety of legal issues and discussion of purported defences had taken place prior to your guilty pleas”. (emphasis added)[38]He also stated:
“Throughout these proceedings, or at least until early February this year, you represented that you had a substantive defence to the charges that you faced. I have been referred to authorities dealing with credit for plea, but those cases in my judgment represent distinctly different circumstances. Ultimately it would, in my view, be inappropriate for me to take an overly formulaic or rigid approach to credit for plea. As I have said, there are unusual aspects in this case impacting on the approach to reducing sentence to reflect credit, but it seems to me that I should simply adopt an approach which is fair in all the circumstances. Fairness in this case leads me to conclude that you should each have 15 per cent deducted from the sentences which would otherwise have been appropriate had you been convicted by a jury.”
(emphasis added)[39]We pause to observe that the legal issues and other matters referred to by the sentencing judge included challenges to the admissibility of the EncroChat evidence. This related to the legal regime that governed both the obtaining of the data, and also the lawfulness of warrants that had been issued by the IPT Commissioner, those warrants being Targeted Equipment Interference Warrants which had been approved by Sir Kenneth Parker and Sir Brian Leveson in March 2020. The appellants argued that these warrants were unlawful.[40]The point was made before the sentencing judge during the sentencing hearing – as it was made before us – that the appellants had pleaded guilty as soon as the EncroChat evidence had been ruled admissible. However, as he then observed “when from time to time I asked what the substantive issues may be in the case in the event of me as it were rejecting the submissions as regards admissibility, I was repeatedly told that attribution – in other words, the defendants, all of them, maintained a substantive defence to this case until February this year.” That observation was entirely accurate. Defences were being maintained.[41]Cassidy’s defence statement also contained the following stark statements:
“3. Jonathan Cassidy has not been a party to any agreement to import and/or supply class A drugs as alleged in counts 1 and 2. 4. Jonathan Cassidy has not been a party to any agreement to conceal, disguise and/or convert criminal property as alleged in count 3.”
[42]The resolution of the legal and other issues relating to lawfulness and admissibility, and the impact of section 56 of the Investigatory Powers Act 2016, were of course very important issues. However, when a defendant is also, in their defence statement, maintaining that they were not a party to an agreement, that agreement being a conspiracy to import drugs in respect of which they later pleaded guilty, it is difficult to see how resolution of those legal issues alone can be said to be central to the decision to plead guilty.[43]Further, in a case such as this one, it is trite to observe that the appellants knew themselves, regardless of the amount of evidence against them that emanated from the EncroChat de-encryption, what their conduct had been and the degree to which it was unlawful.[44]Counsel for both appellants drew our attention to other EncroChat cases where the defendants in those cases had, before other judges, been given different and larger discounts for their pleas. We do not consider that such comparisons are helpful. There is no one single “EncroChat discount” to which all and any defendants in any drug conspiracy case where there are significant amounts of EncroChat evidence are entitled. Credit or discount for pleading guilty is a case specific matter.[45]It is submitted before us on behalf of both appellants that once the EncroChat evidence was held to be admissible, Cassidy and Ahmed pleaded guilty very rapidly. However, it cannot be ignored that, as the judge said, they had by then been in custody for over 3 years; the legal process was well underway; and as he said, even though no jury had been sworn, for all practical purposes the trial had begun in February of 2024. He assessed the relevant credit as 15%, declining to accept the suggestion of 25%, which in the guideline is the amount of reduction for a plea of guilty after the first stage. It cannot be said that he erred in principle in this respect. The amount of discount that he gave them was within the amount specified or anticipated by the guideline which says that “the reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in section F).”[46]None of the exceptions in section F apply here. Mr Bromley-Martin KC for Cassidy sought to persuade us that the exception at F1 applies in this case because the EncroChat situation was unprecedented. F1 states the following. “F. EXCEPTIONS F1. Further information, assistance or advice necessary before indicating plea Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made. In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”

F1. Further information, assistance or advice necessary before indicating plea

[47]We do not consider that it was necessary for the EncroChat evidence to be ruled admissible by either the trial judge, or indeed any higher court, in order for the appellants “to understand whether [they] were in fact and law guilty of the offences charged”. Further, it is not unreasonable in all the circumstances of this case to have expected guilty pleas far earlier than occurred in this case.[48]None of the 5 exceptions in section F referred to apply here. We consider that given the stage these proceedings had reached, and the procedural history of this case, a discount of 25% would have been excessive, and would not have taken account of the relevant sliding scale which is expressly required under the guideline. Given the judge’s observation that the trial had started some time earlier, the judge was not only entitled to take that into account when considering the appropriate discount, but required to do so under section 73(2)(a) of the Sentencing Code. It must be remembered, as we have set out at [36] above, that the guideline refers to a “maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date”. As it is, 15% is not only unobjectionable, it is in excess of the “maximum of one-tenth” referred to in the guideline, and is a figure that he was justified in reaching. It is certainly well within the range of discounts properly available to him.[49]The consideration for this court is whether the resulting sentences for each of the appellants was reached by any error of principle, or was in the result manifestly excessive. We are not persuaded that, for either of these appellants, their respective sentences were. This ground for each of the two appellants therefore fails.

Conclusion

[50]We have considered the two different grounds separately on Cassidy’s appeal, and are not persuaded that the resulting sentences are manifestly excessive or reached after an error of principle. Cassidy’s appeal is therefore dismissed.[51]We have also considered the grounds advanced on the renewed application for Ahmed, but are not persuaded that they are reasonably arguable. That renewed application is therefore refused. We have already granted leave to Ahmed on the new ground relating to an insufficient reduction for the guilty plea, and dismiss the appeal. We grant a Representation Order for Mr Csoka KC.[52]We are extremely grateful to counsel for the two appellants. Their detailed written arguments and helpful oral submissions have been of great assistance to the court.