Dingemans: Very unusual situation
The Court of Appeal has reduced a drug dealer’s sentence after the Legal Ombudsman (LeO) found that his solicitors had provided inadequate advice on his guilty plea.
In what he called a “very unusual situation”, Lord Justice Dingemans said [1] that, although the LeO report was “inadmissible opinion evidence”, its findings opened the door to uncovering issues that raised questions about the advice.
In July 2019, at Liverpool Crown Court, the then 31-year-old Mark Nathan Dermott did not offer a plea at the magistrates’ court, but then pleaded guilty at the plea and trial preparation hearing (PTPH) to one count of conspiracy to supply a class A drug, two counts of possession of a prohibited firearm, and one count of possessing ammunition without a firearm certificate.
He was sentenced to a total of 19 years and six months’ imprisonment, with the judge giving a 25% discount in the sentence for pleading guilty at the PTPH, but also finding that he had a leading or significant role in the crime. There were five co-defendants.
After being refused leave to appeal the sentence on the papers, Mr Dermott complained to LeO about his representation by DPP Law.
In July 2023, LeO found that DPP had failed to advise him properly as to the importance of a guilty plea at the first opportunity – which would have given him greater credit than he received – and that the solicitors had failed properly to advise as to the importance of ‘role’ within the sentencing exercise.
This meant he had not been in a position to challenge the assertions that led to the judge placing him in a leading or significant role.
DPP Law said it had sent a client-care letter which advised Mr Dermott that, if he were guilty, he should plead so as soon as possible, but LeO found no evidence that it had been received.
LeO concluded there had been inadequate legal representation and awarded Mr Dermott £3,000 for DPP’s failure to give proper advice.
Mr Dermott renewed his application to appeal well out of time but the appeal court said it was in the interests of justice to grant leave.
“In our judgment, the findings of the Legal Ombudsman, inadmissible though they are, are relevant in starting the inquiry which has led to the uncovering of a number of what were otherwise matters which were subject to legal professional privilege, and which do raise issues about whether the applicant was properly advised in the magistrates’ court,” it said.
The court admitted Mr Dermott’s evidence on the issues discovered as a result of the LeO report, as well as the notes and records of the advice given by DPP and other evidence.
Dingemans LJ held that Mr Dermott was not advised at the magistrates’ court that, if he pleaded guilty, he would receive a discount of 33%, rather than just 25% from pleading guilty at the PTPH.
“The difficult issue is to know what the applicant would have done if he had been given proper advice…
“However, doing the best we can, and taking account of the fact that within seven days of the magistrates’ court hearing, the applicant was making a full declaration of guilt to his solicitors, we consider that it is more likely than not that had the applicant been given proper advice at the magistrates’ court about the importance of an early guilty plea, he would have accepted it.”
As a result, the Court of Appeal adjusted the sentence to give a 33% discount, reducing it by two years and two months to 17 years and four months’ imprisonment.